Mr. Peter Taiwo Onabanjo V. Eng. N. Sivarasa (2010)
LawGlobal-Hub Lead Judgment Report
HUSSEIN MUKHTAR, J.C.A.
By a motion on notice dated and filed 15th April, 2009, the applicant has sought for an order extending the time within which he may appeal against the judgment of the High Court of Lagos State per Alogba, J delivered on the 26th June, 2008.
The application is supported by an affidavit of fifteen paragraphs of each date, and some Exhibits including certified copies of (1) the judgment sought to be appealed against as Exhibit A, (2) the proposed Notice of Appeal as Exhibit D.
An application for extension of time to appeal is regulated by the clear provision of order 7 rule 10(2) of the Court of Appeal Rules 2007, which provides thus:-
“Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
This provision is so clear and unambiguous that it does not plant any game of hide and seek.The conditions must be satisfied to qualify an applicant for the exercise of a court’s discretion in his favour. The provision is so much clear and user friendly that every applicant could predict his chances of success or failure virtually with mathematical exactitude.
The court’s duty here is to simply look at the supporting affidavit to see if the first condition is fulfilled and then proceed to examine the proposed Notice of Appeal and see if the second condition too has been satisfied. If both are satisfied the application must succeed but both conditions must be satisfied simultaneously in order to secure the success of the application.
The relevant portions of the supporting affidavit, from which reasons for the delay in filing Notice of Appeal have been deposed, is hereunder produced:-
“3. That after trial, on the 26th day of June, 2008, judgment was given against me. A copy of the said judgment is attached as Exhibit ‘A’.
- That the main document which formed the basis of the judgment of court was an Agreement to sell the property dated 24th October, the Agreement to sell the property is annexed herewith as Exhibit ‘B.’
- That after the judgment, the Court was on vacation from 17th July, 2008 to 8th September, 2008 and subsequently there was a strike action by Lagos State Judiciary Staff from December, 1st to 12th January, 2009.
- That apart from the above, my former counsel, Oyetunji Badmus did not advise me on the need to appeal.
- That subsequently, I discovered that my former counsel collaborated with the Claimant/Judgment Creditor.
- That this became known when Mrs. Ndidi Francisca Ameda filed an action at the Lagos High Court in Suit No. ID/1582/08 seeking to claim half plot of the land in dispute in this case.
- That the 1st Defendant in the said suit no. ID/1582/08 has listed my former counsel Mr. Oyebanji Badmus as a proposed witness on behalf of the Respondent herein.
A copy of the list of witness and this witness statement on oath filed is attached as Exhibit ‘C’.
- That I subsequently briefed another counsel, Nasiru Tijani, Esq., who has prepared a Notice of Appeal challenging the judgment of the Lower Court dated 26th June, 2008. A copy of the proposed Notice of Appeal is attached herewith as Exhibit ‘D.’
- That I was informed by Nasiru Tijani, Esq., my counsel and I verily believe him that the Grounds of Appeal in Exhibit ‘D’ are substantial and arguable.
- That the delay in filing the Notice of Appeal was due to the fault of my then counsel and the prolonged Lagos State Judiciary Staff strike.”
An applicant seeking for extension of time to appeal must show good and substantial reasons why the appeal was not filed within the statutory time frame. The reasons for the delay must not only be good but also substantial, that is to say there most be very strong reasons explaining every moment of the delay. The word substantial has been defined in the Oxford Advanced Learner’s dictionary 6th Edition at page 1196 thus:-
“Large in amount or value; large and solid; strongly built.”
The learned counsel for the applicant submitted that both twin conditions under Order 7 rule 10(2) must be met otherwise the application will not be granted. See Dalodma Vs Yale (2009) 6 NWLR (Pt 1137) 409 at 421; Emmanuel Vs Gomez (2009) 7 NWLR (Pt 1139) 1. The applicant’s counsel referred to the depositions in paragraphs 3 – 12 of the supporting affidavit and submitted that the applicant has shown good and substantial reasons for the delay. He further submitted that the length of the delay in filing the application is immaterial as long as good and substantial reasons have been shown. See U.B.N. Plc Vs Ndace (1998) 3 NWLR (Pt 541) 331; Daloriana Vs Yale (supra); Iroegbu Vs Okwordu (1990) 6 NWLR (Pt 159) 643 at 667; Kalu Vs Igwe (1991) 3 NWLR (Pt 178) 168 at 174.
The applicant’s counsel further submitted that it is sufficient if the grounds of appeal are arguable and not necessarily that they are likely to succeed. See Apataku Vs Alabi (1985) 2 S.C. 329; Oloko Vs Ube (2001) 13 NWLR (Pt 395) 256; Emanuel Vs Gomez (supra) at page 11. The applicant’s counsel referred to the grounds in the proposed Notice of Appeal Exhibit D and submitted that they are arguable. He urged the court to grant the application.
The learned counsel for the respondent referred to the reasons given in the supporting affidavit which include courts vacation, judicial workers’ strike and failure of the applicant’s former lawyer to advise him. He submitted that the judgment was delivered on the 26/6/08 while vacation commenced late in July, and ended in September, 2008. The strike stated 2nd December, 2008 and was called off on the 10th January, 2009. The period of over 7 months delay has not been explained by the applicant. Moreover even vacation period of the court has nothing to do with delay in filing an appeal since the registry is open during vacation. The vacation affects only court sittings not registry work. Even then court sittings is not completely suspended since there are some vacation judges that attend to urgent matters and sit during that period.
It is pertinent to note that delay in filing the notice of appeal must be substantially explained giving good reasons for every moment of the delay. Leaving gaps that are unexplained in the supporting affidavit will in effect operate negatively against the application. In other words the applicant must give good reasons for the whole period of the delay in filing the Notice of Appeal. In Ukwu Vs Bonge (1991) 3 NWLR (Pt 182) 677 at 689 C-D this court per Omosun, JCA held thus:-
“Whether the delay in filing an appeal is for a short period or a long time, the applicant for extension of time must in order to succeed be able to give substantial reasons for the delay of the whole period. It is undue delay which has not been satisfactorily explained that defeats the application. Ojora Vs Hakare (1976) 1 SC 47; Akano Vs Adediran (1975)1 NMLR 391 referred to.”
An applicant seeking for extension of time or any indulgence for that matter has a duty to show that he is entitled to such discretionary power of the court being exercised in his favour.
The applicant’s failure to explain the reason for the delay for a period of over seven months in effect tantamount to failure to satisfy the first condition under order 7 rule 10(2). Failure to satisfy any of the twin conditions is, in fact, as good as failure to satisfy both. The two conditions under order 7 rule 10 must both be met by an applicant for extension of time to appeal since the provision is conjunctive and not disjunctive.
However, I will still look at this ground of the appeal to see if they show such good cause enough, why the appeal must be heard. They are as follows:-
1) “The learned trial Judge erred in law when it held that the agreement to sell the land dated 24th October, 1990 tendered as exhibit P3 conveyed interest in the land on the respondent when there was no consent of the Governor to the transaction as required by law.
2) The learned trial Judge erred in law in granting the claims of the claimant/respondent for a declaration that by virtue of Exhibit P3, the land in dispute is the property of the claimant/respondent and also an order that possession be given to the claimant.”
These two grounds seem to be an appellate verdict on the decision of the lower court. I am of the view that the first ground which is the germane one is a temporary impediment, which could be met by obtaining the Governor’s consent at anytime, and does not suffice as a good cause why the appeal must be heard. None of the two mandatory conditions has been satisfied by the applicant. The application is therefore unmeritorious and it is hereby dismissed for lacking in merit.
There shall be cost of N10,000.00 to the respondent against the applicant.
Other Citations: (2010)LCN/3540(CA)
