Gabriel Oruche Vs Commissioner Of Police Delta State (1997)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

All Courts of record exercise their discretion on facts before them. One of the cardinal principles of our judicial system is the rights to various stages of appeal. Though right of appeal is not always of right, all appeals are to be filed within the periods specified by the various substantive statutes and the Constitution.

Once a party has failed to appeal within the time stipulated in the statute, he should not be despondent, as he in certain cases can ask for enlargement of time within which to do so. But the Court will only accede to this enlargement of time on disclosure of good and substantial reasons why the time specified within which to appeal has not been adhered to Williams v. Hope Rising Voluntary Funds Society (1982) 1 All NLR 1.

The Court’s discretion will only be granted if it is clearly shown that the failure to appeal within the time stipulated by law was not due to dilatoriness and or deliberate non observance of certain procedure and that it was not due to the fault of the appellant. Of course, added to these is that the grounds of appeal are substantial and arguable in the light of the facts apparent on the record.

The appellant in this case in the affidavit in the Court of Appeal asking for extension of time to appeal, cursorily mentioned that he never received copy of the judgment or the proceedings not until two and a half months after the High Court delivered its judgment or sometime after the time provided by law to appeal. Nothing more was deposed to as facts. Against this was the counter-affidavit of the respondent that the appellant deliberately never went to receive the judgment and on the date he went a copy was given to him.

S.258(1) of the Constitution makes it mandatory for the Court to deliver copies of its judgment, authenticated, to parties, within seven days of its delivery. The affidavit of the appellant has not alluded to any fact that the judgment was asked for and not handed to him. It must be pointed out that once the parties are on notice of the judgment date, it is their duty to be in Court to receive copies of it and not the function of the Court to search for the parties. The counter-affidavit of the respondent, clearly indicated that the appellant deliberately never went to collect the judgment. This self-induced violation of S.258(1) (supra), is entirely the fault of the appellant.

For the foregoing reasons, therefore, I find no reason to interfere with the sound decision of the Court of Appeal. The appeal is hereby dismissed and the decision of the Court of Appeal refusing to extend the time within which to appeal is upheld.

I. L. KUTIGI, J.S.C.: There is no doubt that an applicant seeking enlargement of time within which to appeal must (1) give substantial reasons for failure to appeal in time and (2) the grounds of appeal must prima facie show good cause why the appeal should be heard. (See Order 3 Rule 4(2) Court of Appeal Rules 1981 and Ibodo v. Enarofia (1980) 5-7 SC 42. The affidavit evidence before the Court of Appeal clearly showed that the appellant had failed to give substantial reasons why he failed to appeal in time. To me that is sufficient to dismiss the appeal. The Court of Appeal was therefore right in dismissing the application as it did. I find no merit in the appeal. It is accordingly dismissed.

E. O. OGWUEGBU, J.S.C.: I have considered the submissions of both counsel written and oral. The appellant did not advance any reasonable explanation by way of affidavits for his delay in appealing within the time prescribed by law. It is not enough to aver as was done in paragraph 6 of the affidavit in support of the motion that the appellant and his counsel were not present on the day judgment was delivered in the High Court and his counsel “requested for a copy of the judgment”.

How and when the request was made was not stated. What other effort was made by the appellant/counsel to procure the copy of the judgment was not also stated in the affidavit. The respondent’s averments in the counter-affidavit were not challenged. Indeed there was no material before the court below on which to exercise its discretion. The application was rightly dismissed.

In the circumstance, this appeal is dismissed. It is most frivolous and should be discouraged.

S. U. ONU, J.S.C.: The appellant has in this appeal not adduced any good and substantial reasons why the Court of Appeal’s Ruling of 17th April, 1996 refusing to grant him leave to appeal should. be disturbed. That court’s decision stating clearly that the counter-affidavit of the respondent stating that Mr. A. Onwalu was in court on the date the judgment was delivered had not been controverted and as such no good and substantial reasons were given by the appellant for failing to appeal against the decision of the High Court, Issele-Uku within the prescribed time.

For these and the reasons given by my learned brother Belgore, J.S.C. with which I entirely agree, I too, dismiss this appeal.

Other Citation: (1997) LCN/2768(SC)