CORAM

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PARTIES

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MRS. JENNIFER AKANNI & ORS

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AADE INDUSTRIAL AND INVESTMENT COMPANY LTD & ORS

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AREA(S) OF LAW

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Not Available

 

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SUMMARY OF FACTS

The Applicants are civil servants occupying the subject property at No. 40 Glover Road, Ikoyi. By the policy of the Federal Government; owners of the property, the said property is to be leased and the Applicants as occupants by the guidelines are to have the first right of refusal. On 21st of November, 2005 the property was offered to them for sale of the lease and also offered to the 1st Respondent, who subsequently, sold same to the 2nd Respondent. Following the petition by the Applicants, the offer made to the 1st Respondent by the 4th Respondent was withdrawn by a letter dated 19th December, 2011 and it was communicated to the Applicants that their interest on the property was reinstated. Following this development, the 1st & 2nd Respondents instituted an action at the Federal High Court, Lagos Division against the 3rd -5th Respondent seeking relief that the revocation order be discharged. The Applicants application to join the suit as parties was granted by the court and the Applicants became 4th -8th Defendants; and they filed a statement of defence to the suit and subsequently an amended statement of defence but did not file any counterclaim against the 1st & 2nd Respondents as Claimants in the lower court. The hearing started and despite the objection of the Applicants (then 4th -8th Respondents) to the terms of settlement over the matter between the 1st & 2nd Respondents on the one side and the 3rd -5th Respondents on the other side. The terms of settlement was filed and the lower court entered the terms of settlement as the judgment of the court on 21st December, 2017; and on the 22nd December, 2017, the Applicant filed a motion for leave to appeal against the same. The lower court did not give a date or hear the application for leave to appeal against the consent judgment until the time (14 days) within which the appeal should be filed expired. Consequent upon this, the Applicants are filing this application seeking for the trinity prayers, for leave to appeal against the judgment of the lower court on 1st March, 2019 which is 2 years, 2 months and 8 days from the date the judgment was delivered. From the affidavit evidence before this court, the appeal should have been filed within 14 days of the judgment but the time expired after as no date was given within the time frame by the Court even though the Applicants filed on time. The challenge, however, is that the Applicants should have approached this court since then but after the expiration, it took the Applicants about 1 year to file this application.

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HELD

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Appeal Allowed

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ISSUES

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Whether the Applicants are deserving of the order sought vide their application.

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RATIONES DECIDENDI

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APPLICATION FOR EXTENSION OF TIME TO APPEAL – CONDITION PRECEDENT TO THE EXERCISE OF THE COURT’S DISCRETION IN GRANTING OF AN APPLICATION FOR EXTENSION OF TIME TO APPEAL

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An Applicant seeking for extension of time to appeal must satisfy certain conditions. It is not an application that an Applicant should take for granted and as a done deal. It is not like picking an item in the supermarket you have paid for. The power to grant such prayer is discretionary and like all discretionary powers of a court, it must be exercised judicially and judiciously. See Ubale vs. Dadiya (2008) 15 NWLR (Pt. III) 489; INEC vs. Atuma & Ors (2013) SC (Pt. V) 95.
A court will not grant a prayer for extension of time if the Applicant does not state good and substantial reasons that explain the delay in filing the appeal. While the Applicant is not required to account for each second, minute, hour, day, week, month and year of the delay, he will be required to generally state reasons for the delay covering the period. See Adeniyi & Anor vs. Tina George Industries Ltd & Ors (2019) LPELR-48891 (SC); Olatubosun vs. Texaco (Nig) Ltd Plc & Anor (2012) LPELR-7805 (SC).
The Applicant is also required to show in the affidavit that it is not taking the court on a wild goose chase. The Applicant must show that there are triable issues in the appeal. To satisfy this condition, the Applicant must file a proposed notice of appeal. The court will then look at the proposed grounds of appeal, without deciding it on the merit but must be clear and convinced that there is prima facie case for trial in the appeal if the leave is granted. See A.G. Federation vs. A.I.C. Ltd (1995) 2 NWLR (Pt. 378) 388; Unipetrol (Nig) vs. Bukar (1994) 5 NWLR (Pt. 344) 360.
The Applicants in this appeal must satisfy these two conditions before this court can exercise discretion in their favour. This is the clear, settled, unequivocal and trite position of the law. A little excursion into the case law will not be out of place in this regard. In Agbaso vs. Iwunze & Ors (2019) LPELR-48906 (SC), the apex court per Peter-Odili, JSC at page 23 held:
“This Court has power to extend the time within which to seek leave to appeal but the indulgence is not made as of course as there are certain conditions that must be in place for the discretion of the Court to be exercised in favour of the application.
There are firstly the existence of good and substantial reasons for failure to appeal within the prescribed period, and secondly the existence of grounds of appeal which prima facie show good cause why the appeal should be heard. See Adelekan v Ecu-Line NV (2006) 12 NWLR (Pt.993) 33 at 47; Obikoya v Wema Bank Ltd (1989) 1 NWLR (Pt.96) 157; Ibodo v Enarofia (1980) 5-7 SC 42; Holman Bros (Nig.) Ltd v Kigo (Nig) 8-11 SC 43; C.B.N. v Ahmed (2001) 11 NWLR (Pt.724) 369 at 393.”
Similarly, the Supreme Court in Jessco Maritime Resources Ltd vs. M/T Mother Benedicta & Anor ELC(2019) 3193 SC 1 driving home the same point held as follows:
“With the statutory provisions it needs no saying or for second guessing that an application for leave to appeal can only be successful where the applicant can establish that the delay in bringing the application is neither willful nor inordinate. That is to say thus:-
(a) that there are good and substantial reasons for failure to appeal within the period statutorily prescribed;
(b) that there are grounds which prima facie show good cause why the appeal should be heard. These two conditions must be satisfied before the court will exercise its discretion as to the grant of any application for extension of time or leave to appeal”
The court went on in the same case to hold:
“Again to be said is that there are two legs to the conditions to be fulfilled by an applicant for extension of time for the application to succeed, the first being that there is deposition in the affidavit in support showing good and substantial reasons for the delay in filing the appeal and which reasons are convincing and not ousted by a countering deposition from the other side. The second leg is that the grounds of appeal proposed are on face value display good cause why the appeal should be heard. These two legs or conditions are conjunctively applying(sic) and must co-exist before the application would be adjudged successful. That cannot be said to be the case in this instance where applicants counsel failed to show due diligence and interest in filing an appeal after being instructed by the applicant nine (9) months after the said instruction.”
Still, on this point, one more case will not harm anyone. It covers all the point raised above. It was earlier in time. This is the case of Akinpelu vs. Adegbore & Ors (2008) LPELR- 354 (SC), the apex court at pages 23-24 held:
“The granting of an application for enlargement or extension of time with which to appeal is at the discretion of the Court, which must be exercised judicially and judiciously. See Akinyede v. The Appraiser (1971) 1 All NLR 162; Alagbe v. Abimbola (1978) 2 SC 39; Obikoya v. Wema Bank Limited (1989) 1 NWLR (Pt. 96) 157. The discretion cannot be exercised in vacuo but in relation to the facts and circumstances of the case before the Court. The Court will take into consideration the following factors:
An applicant, in the matter, has a right of appeal as of right and therefore does not require leave of Court.
The affidavit in support of the application must give satisfactory explanation for the delay. In other words, the affidavit must show good and substantial reasons for the failure to appeal within the period prescribed. In other words, the affidavit must present some materials before the Court to enable it exercise its discretion.
The grounds of appeal must show good cause why the appeal should be heard. Once the grounds of appeal prima facie show good cause why the appeal should be heard, an application will be granted. The Court cannot at this stage consider whether the appeal will succeed. That has to come at the hearing of the appeal.
The justice of the case demands that the appeal should be heard. See Ibodo v. Enarofia, supra; Ogbu v. Urum (1981) 4 SC 1; Williams v. Hope Rising (1982) 1-2 SC 145; Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 165; Mobil Oil (Nig) Limited v. Chief Agadaigho (1988) 2 NWLR (Pt. 77) 383 and Shittu v. Osibanjo (1988) 3 NWLR (Pt. 83) 483.
An application for extension of time within which to appeal must show that special circumstances exist to justify that the application should be granted. See Osinupebi v. Saibu (1982) 7 SC 104. A special circumstances is of a particular kind, which is unique, beyond ordinary, regular and or usual circumstance. A special circumstance stands out on its own, punctuated with some amount of specialism. Mistake of counsel qualifies as a special circumstance. In other words, the Court would readily exercise its discretion to extend the period prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel. See Doherty v. Doherty (1964) 1 All NLR 299; Ahmadu v. Salawu (1974) 11 SC 43; Bowaje v. Adediwura (1976) 6 SC 143.”
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ISSUES OF JURISDICTION AND FAIR HEARING – EFFECT OF LACK OF JURISDICTION AND FAIR HEARING ON ANY JUDICIAL PROCEEDINGS

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“The Applicants in my view have stated very serious issues for trial. The issues of fair hearing and jurisdiction are the bedrock of any judicial process as any proceeding or judgment no matter how brilliant will amount to nullity if the court lacked jurisdiction or was conducted without fair hearing. See Arije vs. Arije & Ors (2018) LPELR-44193 (SC); Bamaiyi vs. The State & Ors NSCQLR Vol. 6 (2001) 156; Dangana vs. Usman (2013) 6 NWLR (Pt. 1349) 50; Ezenwaji vs. UNN (2011) 18 NWLR (Pt. 1598) 485. –

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ISSUE OF JURISDICTION- WHETHER THE COURT WILL BE CONCERNED WITH THE INABILITY OF AN APPLICANT TO EXPLAIN THE TIME LAPSE IN FILING AN APPLICATION FOR EXTENSION OF TIME TO APPEAL WHERE THE GROUND OF APPEAL BORDERS ON JURISDICTION

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“The law is settled to the effect that if the ground of appeal borders on the jurisdiction the court will no longer concern itself with the inability of the Applicant to explain the time-lapse in filing the application. I must state emphatically in line with the law that once the appeal deals with the issue of jurisdiction, it does not matter whether the above-stated conditions have been satisfied. In other words, once the proposed grounds of appeal deals with the issue of jurisdiction, it does not matter whether the Applicants could explain the delay. The issue of jurisdiction supersedes and swallows the other condition. Once the grounds of appeal deal with jurisdiction, a court will not concern itself with whether the Applicant was able to explain good and substantial reasons for the delay. See Jimoh vs. Minister FCT (2019)5 NWLR (Pt.1664)45 the apex court held:
“In granting an application for an extension of time to seek leave to appeal, leave to appeal and extension of time to appeal, if the ground of appeal complains of lack of jurisdiction and it appears so, the court would no longer inquire into the reasons for the delay.”
Similarly, the Supreme Court in Nigere & Anor vs. Okuruket & Ors (2017) 5 NWLR (Pt. 1559) 440; (2014) LPELR-22883 (SC) per Rhodes-Vivors, JSC at pages 23-25 held:
“I must emphasize the importance of leave and asking for it, since this is an application that requires leave. Leave means permission. Where the Rules provide for leave before a process is filed, and the process is filed without leave such a process would be thrown out, it being null and void. The applicants were right to apply for leave. The grant of an application for extension of time to appeal is a matter within the discretion of the judge. That discretion is properly exercised if the judge considers the rules governing the particular application before granting the application. In an application for extension of time within which to appeal, the affidavit in support of the application must be detailed on –
Good and substantial reasons for failure to appeal within the prescribed period, and
Grounds of appeal which prima facie show good cause why the appeal should be heard. Good reasons for delay and arguable grounds of appeal, not necessarily grounds of appeal that would succeed must co-exist before an application for extension of time to appeal can be granted. Where the judge exercises his discretion in the absence of (a),(b) above he would be acting as he likes, and giving the applicant uninhibited right to extension of time thereby defeating the purpose of the rules and putting the conduct of litigation in disarray.
A judge would readily accede to an application for extension of time to appeal if a good ground for the appeal is on jurisdiction. Where this happens to be the case the application would be granted even if no good reasons for the delay are before the Court. On (a) above the applicant is expected to give a detailed explanation for the delay. He should show something that entitles him to the exercise of the Court’s discretion. E.g. pardonable inadvertence, mistake or negligence of counsel. See Adeyemi v. YRS Ike Oluwa & Sons Ltd 1993 8 NWLR (Pt. 309) p. 27; FHA v. Kalejaiye 2010 12 SC (Pt. iii) p. 1; Ibodo v. Enarofia 1980 5-7 SC p. 42; Kotoye v. Saraki 1995 5 NWLR (Pt. 395) p. 256; Akinpelu v. Adegbore & 3 Ors 2008 4-5 SC (Pt. iii) p. 75; Nwora v. Nwabueze 2011 15 NWLR (Pt. 1271) p. 467.”
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ENLARGEMENT OF TIME TO APPEAL – EXERCISE OF THE COURT’S DISCRETION IN THE GRANT OF AN APPLICATION FOR ENLARGEMENT OF TIME TO APPEAL

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“I agree with the analysis of the facts and materials upon which his decision was eventually based, and by the provision of Order 6, Rule 9(2) of the Court of Appeal Rules, 2016, the power to grant such application for enlargement of time within which to appeal is at the court’s discretion. By the extant decisions of this court and the Supreme Court, it’s a discretionary power which will be exercised judicially and judiciously, and in which the court is required to take cognizance of the peculiar facts and circumstances of each case( see Supreme Court’s decision in Nwaneze V. Idris (1993) 3 NWLR (pt. 279) S.C.5) as no two cases, even where their facts are similar, will not likely present similar and peculiar circumstances.

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Rules, 2016|

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