Obasi Alaede & Anor V. Ignatius Oguguo (2006)
LawGlobal-Hub Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.C.A.
The appellants/applicants have asked that time be extended to enable them appeal against the decision of the Imo State Customary Court of Appeal delivered on 12th May, 2003. SECTION 245 OF THE 1999 Constitution which creates the right of appeal in respect of decisions of the Customary Court of Appeal of a state provide: –
(1) “An appeal shall be from the decisions of a customary court of Appeal to the court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.”
By section 24 of the Court of Appeal Act, cap 36, Laws of the Federation 2000, this court may extend the period within which to either appeal or file application for leave to appeal. Order 3 Rule 4(1) of the Court of Appeal Rules has similarly empowered the court of Appeal. The two legislations are for ease of reference hereunder reproduced:
“S. 24 (1) Where a person desires to appeal to the notice of appeal or notice of his application for leave in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.
(2) The period for the giving of notice of appeal or notice of application for leave to appeal are –
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against interlocutory decision and three months where the appeal is against a final decision.
(b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) where an applicable to leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the Court of Appeal.
(4) The court of Appeal may extend the periods prescribed in subsection 2 & 3 of this section.”
Order 3 Rule 4 (1)
“The Court may enlarge the time provided by these rules for the doing of anything to which these rules apply.”
(Underlining supplied for emphasis)
The power conferred on this court by the foregoing provisions is discretionary. Order 3 rule 4 (2) of the same rules stipulates what the appellants/applicants herein must satisfy this court for time to be extended to enable them appeal when it state: –
“(2) Every application for an enlargement of time in 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.”
(Underlining supplied for emphasis)
The relief asked by the appellants/applicants is necessary for time allowed for the filing of their appeal has lapsed. Filing an appeal without obtaining extension of time within which to file the appeal constitutes an incurable irregularity. See Adeyeme v. YRS Ike Oluwa & Sons Ltd (1003) 8 NWLR (Pt 309) 27, The Registered Trustees of CAC v. Uffien (1998) 10 NWLR (Pt 569) 312 and Federal Housing Authority v. Abosede (1998) 2 NWLR (Pt 537) 117.
If appellants/applicants herein must succeed the rule of court mandatorily requires them to show:
(a) Good and substantial reasons for their failure to appeal within the time prescribed by law; and
(b) Grounds of appeal which prima facie show good cause why the appeal must be heard.
By the first requirement, it is incumbent for the applicants to aver to such facts in their supporting affidavit which entitle them to the exercise in their favour of this court’s discretion. The relief they seek is never granted as a matter of course.
As to the second requirement, all that applicants have to show is that their grounds of appeal are substantial and arguable.
It must be stressed that the two conditions laid down in order 3 Rule 4 (2) of the Court of Appeal Rules 2002 must be jointly met by the applicant herein. They are not entitled to the relief they seek if they satisfy us of one without satisfying us of the other. The two requirements must be conjunctively and not distinctly met. See Daniel Tayer Transport Enterprises Ltd v. Busari (2001) 1 NWLR (pt 695) 482.
Now, respondents’ objection is anchored on the fact that none of the five grounds of appeal in the appellants/applicants’ notice raises any question of customary law and such other matters as may have been prescribed by an Act of the National Assembly. It is respondents/objectors counsel’s contention that there is no legislation of the National Assembly in existence in relation to these “matters” other than customary law.
The objection is brought by virtue of Order 3 Rule 15 of the rules of this court. What this objection portends is better deciphered by reference to Order 1 Rule 2 of the Court of Appeal Rules which defines the word “appellant” as meaning “any person who desires to appeal or appeals from a decision of the court below or who applies for a leave to so appeal and includes a legal practitioner representing such a person in that behalf”
Learned respondents counsel’s submission is that appellants/applicants grounds of appeal being not complaints on the lower court’s decision, regarding customary law are incompetent and not arguable. He would carry the day if the proposed grounds of appeal are indeed so.
In Golok v. Diyalpwan (1990) 3 NWLR (pt 139) 411, the supreme court in considering the right of appeal under S. 224 (1) of the 1979 constitution which is in pari materia to S. 245 (1) of the 1999 Constitution, stated per Uwais JSC (as he then was) thus.-
“It is clear from the provisions of subsection (1) of section 224 of the 1979 constitution that there is only one right of appeal to Appeal from the decision of a customary court of appeal. That right pertains to a complaint or ground of appeal which raises a question of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law”(Underlining supplied for emphasis)
The five grounds of appeal in the appellants/applicants, notice of appeal without their particulars provide as follows:
- Ground One: Error in Law
the learned trial justices of the Customary Court of Appeal Owerri erred in law by importing and relying on issue neither canvassed by the parties nor found on any ground of Appeal by the appellants to allow the appeal.
- GROUND TWO: ERROR IN LAW
The learned trial justices of the Customary Court of Appeal Imo State erred in law by holding that the lower court disregarded both exhibits A and B and came to a wrong conclusion whereas exhibits A and B where thoroughly and painstakingly considered by the trial court.
- GROUND THREE: ERROR IN LAW
The learned trial justices erred in law by importing and relying on extraneous matters to found that the appellants/respondents proved a case of pledged against respondents/appellants.
- GROUND FOUR: ERROR IN LAW
The learned trial justices of the Customary Court Appeal erred in law by allowing the appellants/respondent’s appeal in ground one when it has no jurisdiction to entertain same.
- GROUND FIVE: ERROR IN LAW
The learned trial justices of the customary Court of Appeal Owerri erred in law by allowing the appeal in respect of Ala Udeafor land when the appellant abandoned his appeal in respect of same.
Ground 3 is a complaint that the justices of the court of appeal in deciding that the customary court of appeal in deciding that the respondents/objectors herein had established their case of customary pledge against the applicants relied on extraneous matters. Such a question indubitably relates to the non-application of customary law and accordingly valid.
The ground persists and on its basis alone the right of appeal as provided under s. 245 (1) of the 1999 Constitution does enure to the appellants/applicants herein.
Respondent’s objection to appellants/applicants application for extension of time is, therefore, without merit. It is accordingly dismissed.
Ground 3 in the appellants’ notice might be arguable but the question which must be further answered is: have the appellants/applicants explained, by the materials before us, why they failed to appeal within the time allowed them by S. 25 of the Court of Appeal Act and order 3 rule 4 (2) of the rules of this court? The answer to this equally important question is to be found in the affidavit in support of the instant application. Respondents have not filed any counter affidavit to the affidavit in support.
Paragraphs 7, 8, 9, 1 0, 11 and 12 of the twenty paragraph supporting affidavit have been relied upon by counsel as facts explaining the applicants’ inability to file their appeal within the three months allowed by law. They are hereunder reproduced for ease of reference:
- That we are dissatisfied with the judgment of Customary Court of appeal Owerri and asked our counsel to appeal against the said judgment to this Honourable Court.
- That before we could perfect our counsel’s brief for the appeal, I took ill for which I nearly lost my life.
- I went to hospital and underwent several medical tests which failed to disclose cause of my illness but my health was failing and deteriorating with each passing day.
- That I was later taken to a native doctor who handled my case and I was able to recover gradually.
- Owing to my said illness the time, attention and resources of the applicants were channeled towards saving my life.
- That before I could get back to our counsel to file this appeal verily believes him, that we require leave of the Honourable court to file our appeal out of time.”
The point has been emphasized by learned appellants/applicants’ counsel that since the foregoing averments have not been controverted same must be acted upon. I am unable to agree. The fact remains that applicant must give cogent reasons, not just reasons, why they were unable to file their appeal within the time prescribed. The reasons advanced in the above paragraphs remain mere ipsi dexit of the deponent thereto. The issues the averments left unanswered include –
- At what point in time did the deponent fall sick and for what type of sickness?
- The suit and indeed the appeal at the customary court of appeal was fought by at least the two applicants and in a representative capacity; where was the 2nd appellant/applicant who enjoyed the same position and authority to initiate the appeal within the time prescribed by the law as did the 1st appellant/applicant?
Most certainly common sense dictates that 1st appellant/applicant, supplies such documents from his doctor to enable us determine the degree of his incapacity and duration of same. Applicants story as conveyed in the relevant averments in their supporting affidavit appear to me concocted and not cogent enough to command reliance upon. A reasonable tribunal would not act on averments which are not persuasive and appear on their very face to be manifest lies. I am neither impressed nor satisfied Applicants having failed to satisfy us of the second requirement which need to be necessarily met together with the other requirement regarding the agreeability of their grounds of appeal, are not entitled to the relief they seek.
See Okereke v. WDIC (2003) 2 NWLR (Pt. 804) 219 CA and Impresit Bakolori v. Abdulazeez (2003) 12 NWLR (pt 834) 307. Time cannot be extended to them to appeal. I so hold.
The application is hereby dismissed. No order is made as to cost.
Other Citations: (2006)LCN/2025(CA)
