MR. MOSES BUNGE VS THE GOVERNOR OF RIVERS STATE & ORS
June 5, 2025SAIDI OGUNDIMU & 3 ORS V BELLO KASUNMU & ORS
June 5, 2025Legalpedia Citation: (2006) Legalpedia (SC) 74111
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Fri Jun 16, 2006
Suit Number: SC.381/2001
CORAM
IDRIS LEGBO KUTIGI, JUSTICE SUPREME COURT
ALOYSIUS IYORGYER KATSINA-ALU,JUSTICE SUPREME COURT
DAHIRU MUSDAPHER, JUSTICE SUPREME COURT
IGNATIUS CHUKWUDI PATS-ACHOLONU, JUSTICE SUPREME COURT
GEORGE ADESOLA OGUNTADE, JUSTICE SUPREME COURT
PARTIES
PRINCE ASHIMIU ISIAKA & ORS
APPELLANTS
SAIDI OGUNDIMU & ORS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
Following the judgment of the Ogun State High Court holden at Abeokuta, delivered on the 28th day of May, 1990, the 7th – 12th Defendants or 2nd set of Defendants (now Appellants), by motion dated 19th day of November 1991, applied to the Court of Appeal Ibadan, for enlargement or extension of time within which to appeal and to seek leave to appeal, as well as for leave to appeal against the judgment delivered some eighteen months earlier. The application was supported by an affidavit, further and better affidavit, the proposed notice and grounds of appeal as well as the proposed Appellants’ brief for the appeal should the application succeed. The Respondents filed counter-affidavits in opposition. The motion was taken in the Court of Appeal and the ruling was delivered on the same day. The application was refused and dismissed. Aggrieved by the decision of the Court of Appeal, the Defendants/Applicants/Appellants have now appealed to this court.
HELD
Appeal Allowed.
ISSUES
Whether the appellants have shown by affidavit good and substantial reasons for their failure to appeal within the prescribed time?
RATIONES DECIDENDI
INTERLOCUTORY APPEAL – ATTITUDE OF COURT TO INTERLOCUTORY APPEALS
“This being an interlocutory appeal against the decision of the Court of Appeal refusing to grant an application by the appellants for extension of time within which to appeal etc against the judgment of the High Court, I will in this judgment be brief and go straight to the point or points necessary for the disposal of the issue in the appeal without attempting to prejudge any issue yet to be decided on appeal by the Court of Appeal (see for example Egbe V. Ollogu (1972) 1 ALL N.L.R. (PT. 1) 95, Mortune V. Gambo (1979) 3 – 4 S.C. 54).”
EXTENSION OF TIME TO APPEAL – REQUIREMENTS FOR THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
“Now, it is settled by a chain of authorities that for an application for extension of time in which to appeal etc to succeed, the applicant must show – (a) good and substantial reasons for failure to appeal within the prescribed period, and (b) the grounds of appeal which prima facie show good cause why the appeal should be heard. The two conditions, (a.) & (b.) above, must be satisfied together at the same time. If one fails, the entire application will fail (see Order 3 rule 4(2) of the Court of Appeal Rules, (1981) (as amended); Ibodo V. Enarofia (1980) 5 – 7 S.C. 42; Williams V. Hope Rising Voluntary Funds Society (1982) 1 – 2 S.C. 145. Therefore, the affidavit in support of the application must state clearly the reasons for the delay in complying with the rules of court. The length of time of delay is immaterial provided the applicant is able to explain the delay and show good cause why the appeal should be heard vide Alagbe V. H. H. Samuel Abimbola & Ors. (1978) 2 S.C. 39. If there is no good and substantial reason for the delay the court may refuse the application as was done by the Court of Appeal herein (see Ojora V. Bakre (1976) 1 S.C. 47, Akano & Anor. V. Adediran (1975) 1 N.M.L.R. 391.”
EXTENSION OF TIME TO APPEAL – CIRCUMSTANCES WHEN COURT MAY EXERCISE ITS DISCRETION IN GRANTING OF AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
“A court of law would normally exercise its discretion in favour of an applicant where his being out of time is due to pardonable inadvertence caused by the negligence or inadvertence of counsel as in this case where counsel died after instruction to him by the appellants (see for example Bowaje V. Adediwura (1976) 6 S.C. 143, Akinyede V. The Appraiser (1971) 1 ALL N.L.R. 162, Ahmadu V. Salawu (1974) 1 ALL N.L.R. (PT. 2) 318).”
RULES OF COURT – CONSEQUENCES WHEN A PARTY FAILS TO DO AN ACT WITHIN THE PERIOD PRESCRIBED BY THE RULES OF COURT
“It is now settled practice that rules of court for doing an act must be obeyed. Where an applicant fails to do an act within a stipulated period, he must explain away the delay to the satisfaction of the court. Where he fails to do so, no indulgence should be granted to him.”
EXTENSION OF TIME TO APPEAL – DUTY OF A PARTY WHO WISHES THE COURT TO EXERCISE ITS DISCRETION IN HIS FAVOUR IN GRANTING AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
“It is settled law, that an applicant who wishes that the discretion of the court below under the above rules be exercised in his favour must satisfy the two conditions prescribed under the rules. It is not enough to satisfy just one of the two: see I. V. E. (1980) 5-7 S.C. 42.”
BE VISITED ON THE PARTY
“It is to be borne in mind in this connection that a court would not visit the mistake or negligence of counsel on the client. See Bowaje V. Adediwura (1976) 6 SC. 143 at 147 where this court per Bello, JSC (as he then was) observed: ‘This court would readily exercise its discretion to extend the periods 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 T. A. Doherty & Anor. v. R. A. Doherty (1964) 1 All NLR 299 and G.B.A. Akinyede v. The Appraiser (1971) 1 All NLR 162).’”
EXERCISE OF DISCRETION – CIRCUMSTANCES WHEN AN APPELLATE COURT MAY INTERFERE WITH THE EXERCISE OF DISCRETION BY A LOWER COURT
“The argument has been pressed on us that an appellate court does not readily interfere with the exercise of discretion by the lower court. It was not and it could not however be argued that the unwillingness of an appellate court to interfere with the discretion of the lower court was an immutable principle of law. In Enekebe V. Enekebe (1964) 1 ALL N.L.R. 102 AT 100 (Reprint). This court per Bairamian, JSC explained the approach of an appellate court in these words: ‘The discretion conferred on the trial Judge is unfettered but there is a right of appeal, and, to quote from Lord Simon’s speech in Blunt v. Blunt (1943) A.C. 517 at p. 526.’ (Italics supplied by me). ‘If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court’s discretion will have been exercised on wrong or inadequate materials, but, as was recently pointed in this House in another connexion in Charles Osenton v. Johnston (1942) A.C. 130, 138: ‘The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, and had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations … then the reversal of the order on appeal may be justified’.”
CASES CITED
Not Available
STATUTES REFERRED TO
Court of Appeal Rules, (1981) (as amended)|
