CORAM
Onyekachi Aja Otisi,Justice of the Court of Appeal
James Gambo Abundaga,Justice of the Court of Appeal
Muslim Sule Hassan,Justice of the Court of Appeal
PARTIES
MR. SAMUEL NJOKU
APPELLANTS
MISS RITA AJAELU
RESPONDENTS
AREA(S) OF LAW
AREAS OF LAW: APPEAL, PRACTICE AND PROCEDURE, CONSTITUTIONAL LAW, CIVIL PROCEDURE, JUDICIAL DISCRETION, EQUITY
SUMMARY OF FACTS
The Applicant filed a motion on 21/8/2023 seeking three main reliefs: extension of time to seek leave to appeal, leave to appeal, and extension of time to appeal against a judgment delivered by Justice Ibrahim M. Bako of the High Court of Justice of Katsina State, Funtua Judicial Division on November 26, 2010 in Suit No: KTH/FT/18/2005. The Applicant claimed the delay in appealing was due to wrong information from former counsel.
The application was supported by an affidavit of 5 paragraphs and a further affidavit of 9 paragraphs with various exhibits. The Respondent opposed the motion with a counter-affidavit. At the hearing on 19/3/2024, the Applicant’s counsel was absent despite proof of service of hearing notice.
HELD
1.The application was dismissed for lack of merit.
2.The court held that reliefs 1 and 2 seeking leave to appeal were incompetent as the judgment being a final one could be appealed as of right under Section 241(a) of the Constitution.
3.The Applicant failed to advance good and substantial reasons that could move the court to exercise its discretionary power in their favor.
ISSUES
1. Whether the applicant is entitled to be granted an extension of time to appeal against the judgment which was delivered on 26th November, 2010.?
RATIONES DECIDENDI
APPEAL AS OF RIGHT – RIGHT TO APPEAL FINAL JUDGMENTS:
“I shall at onset point out that what the applicant seeks to appeal against is a final judgment of the trial Court. Being a final judgment, the applicant can appeal as of right. She does not need leave of Court to do so.
See Section 241(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).” – Per James Gambo Abundaga, J.C.A.
EXTENSION OF TIME TO APPEAL – NATURE OF COURT’S DISCRETION:
“It is trite that the decision whether or not to grant an applicant who fails to appeal against a decision of Court within the statutory period is an exercise of discretion, which discretion must be exercised judicially and judicially based on the materials placed before the Court”- Per James Gambo Abundaga, J.C.A.
PRINCIPLES FOR GRANTING EXTENSION OF TIME – REQUIREMENTS TO BE MET:
“The guiding principles in considering an application for extension of time to appeal have become legion. The principles, which have been reiterated by the Supreme Court in the cases of Okere v NLEM (1992) 4 NWLR (Pt. 234) 132 and Yesufu v Co-operative Bank (1989) 3 NWLR (Pt. 110) 483, require an applicant for extension of time to appeal to show: (a) That the delay in bringing the application is neither willful nor inordinate, (b) That there are good and substantial reasons for failure to appeal within the prescribed period, (c) That there are grounds, which prima facie, show good cause why the appeal should be heard.”- Per Mohammed, JCA
LENGTH OF DELAY – RELEVANCE IN EXTENSION OF TIME APPLICATIONS:
“I must point out that in considering the reason given for the delay in not appealing within the prescribed time, the length of time that elapsed between the statutory period to appeal and when the application for leave and extension of time to appeal was brought is a factor to be considered or taken into account.”- Per Obiora, JCA
RATIONALE FOR CONSIDERING LENGTH OF DELAY:
“This is because it is a veritable means of checking if the applicant went to slumber and woke up after a long period of time when parties have gotten used to the state of affairs as created by the decision sought to be appealed against, it also shows if the applicant was tardy and indolent thereby giving room to draw the inference that the desire is an afterthought.” – Per Obiora, JCA
EXTENSION OF TIME – REQUIREMENT FOR GOOD AND SUBSTANTIAL REASONS:
“What the Court requires from the applicant is that he/she shows good and substantial reasons for failing to appeal within time. Secondly he has to satisfy the Court that he has good and arguable grounds of appeal. The two must be satisfied, otherwise the application will be refused.”- Per James Gambo Abundaga, J.C.A.
TIME LIMIT FOR DIFFERENT TYPES OF APPEALS:
“In appeal against an interlocutory decision, the period within which to appeal is fourteen (14) days. If the appeal is against final decision, three (3) months and in appeal in a criminal matter, ninety (90) days.”- Per Muslim Sule Hassan, J.C.A.
PERIOD FOR FILING AFTER REFUSAL OF LOWER COURT:
“If the application made to the lower Court is refused, the appellant has fifteen (15) days to make a similar application to the Court of Appeal.”- Per Muslim Sule Hassan, J.C.A.
REQUIREMENT FOR NOTICE AND GROUNDS OF APPEAL:
“Where leave to appeal is required to be obtained, a party must not only file his application for leave to appeal within the period allowed by the law but must also file his notice and grounds of appeal having obtained leave within the time allowed to appeal.” – Per Muslim Sule Hassan, J.C.A.
NATURE OF APPLICATION FOR EXTENSION OF TIME:
“The application for extension of time is not granted as a matter of routine but on very good grounds.”- Per Muslim Sule Hassan, J.C.A.
REQUIREMENTS FOR SUCCESS OF EXTENSION APPLICATION:
“For application for extension of time to succeed, the applicant must file a supporting affidavit showing the following: (a) That the delay in bringing the application is neither willful nor inordinate. (b) That there are good and substantial reasons for failure to appeal within the prescribed period, (c) And that there are good grounds which prima facie show good cause why the appeal should be heard.”- Per Muslim Sule Hassan, J.C.A.
EFFECT OF LONG DELAY ON APPLICATION:
“While the duration for delay to appeal may not be a hindrance where the reasons are cogent, the Court must be circumspect where the duration of delay is unduly long as in this case where the judgment was delivered on 26th November, 2010 while the motion for extension of time to appeal was filed on 21/8/2023, about 13 years after the judgment.”- Per Muslim Sule Hassan, J.C.A.
EQUITY AND DELAY IN APPEALS:
“It is a common saying that equity aids the vigilant and not the indolent. Delay also defects equity” – Per Muslim Sule Hassan, J.C.A.
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
2. Court of Appeal Act
3. Rules of the Court of Appeal
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