CORAM

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Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Peter Chudi Obiorah Justice of the Court of Appeal

Okon Efreti Abang Justice of the Court of Appeal

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PARTIES

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1. MOHAMMED MUSA BELLO

2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY

3. CHINYERE P. OME

4. UMAR SHAIBU

5. ADAMU JIBRIL

6. MUKHTAR GALADIMA

APPELLANTS 

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1. PRACO NIGERIA LIMITED

2. ENGR. SUCCESS OBIOMA (For himself and as Attorney Psalm 127 (Nig.) Ltd and Others)

3. ALKALI BABA USMAN CFR 4. BABAJI SUNDAY

RESPONDENTS 

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AREA(S) OF LAW

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CIVIL PROCEDURE, CONSTITUTIONAL LAW, APPELLATE JURISDICTION, LAND LAW, ADMINISTRATIVE LAW, JUDICIAL DISCRETION, EXTENSION OF TIME, APPEAL, PRACTICE AND PROCEDURE, WAIVER, ESTOPPEL

 

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SUMMARY OF FACTS

This case involves an application for extension of time to appeal against a judgment of the High Court of the Federal Capital Territory, Abuja Division, delivered on March 6, 2023, in Motion No. M/117/2023 and Suit No. FCT/CV/812/2022.

The original case involved the 1st and 2nd Respondents (Praco Nigeria Limited and Engr. Success Obioma) seeking orders of mandamus to compel the Applicants (Mohammed Musa Bello, the then Minister of FCT, and other FCT officials) to release land documents belonging to the 2nd Respondent. The trial Court granted the Respondents’ prayers, ordering the Applicants to return the withheld documents and to update, renew, validate, and undertake all steps necessary to place the Respondents’ documents in a proper status of land title documents.

The Applicants claimed that following the judgment, officers in the FCT department acted without proper authority and issued rights of occupancies over 111 plots of land to the 1st and 2nd Respondents and their agents. Upon the appointment of a new FCT Minister (Nyesom Ezenwo Wike) on August 16, 2023, he allegedly discovered these improprieties through petitions about land racketeering and subsequently canceled the rights of occupancies that had been issued.

The Applicants filed this application seeking an extension of time to appeal the original judgment. They contended that they were unable to appeal within the statutory period due to the 2023 general elections, the transition period, and the vacancy in the office of the FCT Minister between May 29, 2023, and August 16, 2023.

The Respondents opposed the application, arguing that the Applicants had already complied with the judgment through a settlement agreement. They claimed that following the judgment, the parties had reached a Memorandum of Understanding on June 8, 2023, whereby 22 out of 111 plots were restored to the Respondents. The Respondents further argued that they had relied on this agreement and had already commenced development on the lands, spending approximately 10 billion naira in infrastructure and buildings.

The Applicants denied that any authorized settlement had taken place and insisted that they had good grounds for appeal, including that the 1st Respondent (Praco Nigeria Limited) did not exist as a legal entity at the time of the original judgment.

 

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HELD

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1. The Court granted the application for extension of time within which to appeal against the judgment of the trial Court dated March 6, 2023.

2. The Court held that the Applicants had provided sufficient explanation for the delay in filing the appeal, which was occasioned by the vacancy in the office of the 1st Applicant (FCT Minister) between May 29, 2023, and August 16, 2023, and the subsequent administrative review of the alleged execution of the judgment by unauthorized persons.

3. The Court found that the Applicants’ proposed grounds of appeal raised serious and arguable issues of law to be resolved on appeal, including whether the 1st Respondent (Praco Nigeria Limited) existed at the time of the original judgment, and whether an order of mandamus could be brought against the Applicants for exercising their discretionary powers to administer lands within FCT.

4. The Court determined that the Memorandum of Understanding (Exhibit PRACO 5) did not constitute a waiver of the Applicants’ constitutional right to appeal, as it was not signed by the 1st Applicant who was not in office at the time, and there was nothing in the document that explicitly waived the right to appeal.

5. The Court ordered that the notice of appeal shall be filed at the trial Court within 15 days from the date of the ruling.

 

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ISSUES

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Whether the Applicants have shown good grounds as well as cogent reasons for the delay in filing their appeal such as to warrant the exercise of discretion of the Court in their favor in terms of the reliefs sought in the application.

 

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RATIONES DECIDENDI

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DISCRETIONARY NATURE OF EXTENSION OF TIME – PRINCIPLES GUIDING EXERCISE OF COURT’S DISCRETION

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“My Lords, the law is settled and requires no restatement or disputation that the grant or refusal of an application of this nature is at the discretion of the Court. The Court is enjoined by settled authorities to exercise its discretion judiciously considering the peculiar facts of the case and judicially considering the applicable law. The exercise of the Court’s direction in this regard should point at nothing except the justice of the case. To ensure justice is done to parties in the matter, the Court is also enjoined in the exercise of its discretion to consider the competing rights of parties before it to justice.” – Per OKON EFRETI ABANG, J.C.A.

 

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REQUIREMENTS FOR EXTENSION OF TIME – TWO MANDATORY CONDITIONS

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“The Court will then also consider the materials placed before it and satisfy itself that the applicant has met the two mandatory conditions on the subject conjunctively and not disjunctively, meaning that both conditions are expected to co-exist if the application is to be granted namely that the applicant must show good and substantial reasons for his failure to appeal within time and the grounds of appeal prima facie show good cause why the appeal should be heard. Failure to establish either of them is fatal to the application.” – Per OKON EFRETI ABANG, J.C.A.

 

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ASSESSMENT OF GROUNDS OF APPEAL – SCOPE OF COURT’S EXAMINATION AT PRELIMINARY STAGE

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“In determining whether the ground shows good cause why the appeal should be heard, the Court is restricted to the good cause of the grounds of appeal and not whether they have the capacity to propel the appeal to success as to do so will amount to deciding the appeal at the preliminary stage. At this stage, the Court is expected to advise itself not to consider the merits of the ground of appeal because the requirement is not to show why the appeal should be allowed but why it should be heard.” – Per OKON EFRETI ABANG, J.C.A.

 

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DETERMINATION OF SUBSTANTIVE ISSUES – PROHIBITION AGAINST DECIDING MERITS AT PRELIMINARY STAGE

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“Therefore, making findings on these serious and fundamental issues that go to the root of adjudication at this material time will amount to determining the substantive appeal at this preliminary stage. I cannot knowingly go outside what the law says in the case of RE-EDOGIAWERE (2022) 3 NWLR PT. 1818 555 AT 565 where Supreme Court held: ‘A Court should not determine substantive issues when hearing interlocutory applications.'” – Per OKON EFRETI ABANG, J.C.A.

 

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WAIVER OF RIGHT TO APPEAL – STANDARD FOR DETERMINING VALID WAIVER

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“Beyond this, there was nothing in exhibit PRACO 5 that indicated that the applicants waived their rights to appeal the judgment dated 6/3/2023. Exhibit PRACO 4 dated 19/4/2023 cannot bind the applicants because it was an internal memo from General Counsel/Secretary FCT to Minister FCT unlike what transpired in Country & City Brick’s case supra. Exhibits PRACO 4 & 5 cannot take away the applicants’ constitutional right of appeal to this Court.” – Per OKON EFRETI ABANG, J.C.A.

 

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LENGTH OF DELAY – RELEVANCE TO EXTENSION OF TIME APPLICATION

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“Length of time between the period appeal ought to have been filed and the period the application for enlargement of time to appeal was filed may not be a factor in considering whether the application should be granted, so long as the reason for the delay is thoroughly explained.” – Per OKON EFRETI ABANG, J.C.A.

 

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COMPETENCE OF AFFIDAVIT EVIDENCE – DEPOSITION BY LEGAL COUNSEL

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“Finally, it was argued that affidavit in support of the application is incompetent. On this, it is my view that there is no statutory provisions which makes a counsel incompetent to give evidence for his client case merely because he is his counsel, provided that he is not assigned to handle the case. The facts deposed to therein were within deponent’s personal knowledge.” – Per OKON EFRETI ABANG, J.C.A.

 

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MATERIALS REQUIRED FOR EXERCISE OF DISCRETION – BURDEN ON APPLICANT

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“An applicant seeking extension of time to do what the Rules of Court permit is seeking an exercise of the discretion of the Court in his favour. He must therefore place sufficient materials before the Court as would enable the Court exercise its said discretion judicially and judiciously.” – Per JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

 

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CONSTITUTIONAL RIGHT TO APPEAL – PROTECTION AGAINST WAIVER BY UNAUTHORIZED PERSONS

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“In exhibit PRACO 5, 1st applicant was not in office as at 18/6/2023 that parties signed the said memorandum of understanding and it is doubtful whether solicitor General FCTA, Director of Land Administration FCTA had authority to execute the document on behalf of 1st applicant. Again, why were they in a hurry to execute exhibit PRACO 5 when the substantive Minister for FCT was yet to be appointed? My Lords, it is doubtful if the officers of the 1st applicant, in executing exhibit PRACO 5, acted in good faith.” – Per OKON EFRETI ABANG, J.C.A.

 

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TRANSITIONAL PERIOD IN GOVERNMENT – EFFECT ON CONTINUITY OF LEGAL PROCEEDINGS

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“I am satisfied that having regard to the depositions in paragraphs 4(viii) to 4(xv) of the applicants’ affidavit in support of the application that the delay in filing the appeal was not deliberate but occasioned by the vacancy in the office of the 1st Applicant between 29/5/2023 to 16/8/2023 and the subsequent review of the alleged execution of the judgment of the trial Court by what the applicants claimed to be unauthorized persons.” – Per OKON EFRETI ABANG, J.C.A.

 

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ELIGIBILITY OF NON-EXISTENT ENTITY – MATERIAL ISSUE FOR APPELLATE CONSIDERATION

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“For instance, the ground of appeal alleging that the 1st Respondent, PRACO NIGERIA LIMITED, did not exist as at the time of hearing and determination of the suit is a serious point of law to be considered on appeal. The 1st and 2nd Respondents claimed that the use of the word ‘Nigeria’ instead of ‘International’ was an accidental slip which will not vitiate the proceedings. The Respondents further contended that the absence of the 1st Respondent will not vitiate or render the judgment a nullity… However, my Lords, I cannot determine this issue as regard whether the judgment delivered on 6/3/2024 is a nullity, it is an issue to be decided where the appeal is heard.” – Per OKON EFRETI ABANG, J.C.A.

 

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MANDAMUS AGAINST DISCRETIONARY POWERS – SUBSTANTIAL LEGAL ISSUE FOR APPEAL

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“Again, there are other grounds which challenge that an order of mandamus cannot be brought against the applicants for exercising their discretionary powers to administer lands within FCT. That the trial Court failed to consider the applicants’ defence in this regard. My Lords, these are serious points of law. The Court cannot at this stage determine whether these grounds will succeed or not but so long as the grounds raise arguable and substantial points of law, it will be sufficient to extend time to appeal.” – Per OKON EFRETI ABANG, J.C.A.

 

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SEPARATE NATURE OF EXTENSION APPLICATION – DISTINCTION FROM MERITS OF APPEAL

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“I agree that the Applicants have made out a good case to warrant the grant of this application to enable them file an appeal against the decision of the High Court of the Federal Capital Territory, Abuja. The success or otherwise of the appeal is a different matter to be decided when all necessary materials and arguments are made on the merit of the decision of the said lower Court.” – Per PETER CHUDI OBIORAH, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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• Constitution of the Federal Republic of Nigeria, 1999 (as amended), Sections 241 and 242

• Court of Appeal Act, Section 24(2)(a) and (4)

• Court of Appeal Rules, 2021, Order 6 Rules 1(a), 7(a – c) and 9(1) & (2)

 

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