Procter & Gamble Nigeria Limited V. Nwanna Trading Stores Limited (2007)
LawGlobal-Hub Lead Judgment Report
MOHAMMED LAWAL GARBA, J.C.A.
This application which was filed on the 5/2/10 prays for a lone relief as follows:-
“An order for enlargement of time within which to appeal to the Court of Appeal against the judgment of the Niger State High Court sitting at Minna, Niger State in Suit No. NSHC/MN/25/2001 delivered on 21st day of May, 2007, the time allowed by the Rules of this Honourable Court having expired.”
The grounds for the relief set out on the motion paper are thus:-
“i. The judgment of the High Court in Suit No. NSHC/MN/25/2001 was delivered on 21/5/07 when some was signed by the learned trial Judge.
ii. The three months within which defendant is to appeal against the said judgment expired in August 2007.
iii. Defendant was not aware that the case has been concluded and judgment delivered until August 2009 when plaintiff s Counsel by his letter dated 13th August, 2009 wrote demanding the payment of the judgment debt stated to be N75,903,450.00 and N20,000.00
iv. Defendant’s inability to appeal within the period prescribed by S. 24(2)(a) of the Court of Appeal Act, is due to the ill health of Counsel assigned to conduct the case which after the case was adjourned for address, took ill and did not thereafter report the state of the case either to the defendant or to the law Firm of Abdulai, Taiwo & Co.
v. Defendant is aggrieved by the said judgment and is desirous of appealing against the some and has retained senior Counsel, Chief T.J. Onomigbo Okpoko, OON, SAN as leading Counsel in the appeal
vi. Defendant has good, substantial and arguable grounds of appeal and there is a very good chance of the appeal succeeding in the Court of Appeal
vii, The grounds of appeal raise substantial issues of law deserving of due consideration by the Court of Appeal AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.”
The application is supported by a 17 paragraphs affidavit deposed to by one Abdulrasheed Sadiq Esq., of Abdulai Taiwo & Co. Law Firm.
Copies of a number of documents were attached to the affidavit and marked as Exhibits A, A1, B, B1 and C.
From the record of the Court, two (2) counter affidavits were filed for the Respondent in opposition to the application, both sworn to by Nwanna Nwamu; the Chief Executive of the Respondent. The first one was filed on 12/2/10 while the 2nd was filed on the 24/6/10.
Pursuant to an order by the Court, learned Counsel for the parties filed written addresses in support of their respective position in the application. The Applicant’s address was filed on 13/7/10, the Respondent’s address on 20/7/10 and the Applicant’s Reply Address on the 17/1/11 but deemed on the 2/2/11 when the application came up for oral hearing in the Court.
The Applicant’s addresses were adopted by Mr. S.I. Ameh, SAN leading T.T. Okpoko Esq. and Samuel Ibrahim, Esq. while Ibrahim Isiaku, SAN leading Moses E. Agwulomu relied on the counter affidavit filed on the 24/6/10 and adopted the Respondent’s address. We were urged by Ameh, SAN to grant the application as prayed and Isiaku, SAN urged us to refuse and dismiss the application.
In the written address settled by C.A. Ajuyah, SAN for the Applicant, a single issue was raised for determination in the appeal. It is:-
“Has the applicant disclosed good and sufficient case for the Honourable Court to exercise discretion to grant an extension of time to appeal?”
It was then submitted that it is not in dispute that the judgment to which application relates is a final decision by virtue Section 24(1)(i)(a) of the 1999 Constitution the appeal against it is as right. The Constitutional provisions as well as Section 25(1) and(2) of the Court of Appeal Act were set out and it was pointed out that the period of time within which the Applicant was to file its appeal expired on August, 2007. That the Applicant failed to file its appeal within the time prescribed by law, is why the application was filed for extension of the time.
Order 7 Rules 1 and 10(2) were set out and it was submitted that all they require the Applicant to do is to show good and substantial reasons for the delay in bringing the application and that there is good cause why the appeal should be heard. The cases of: YESUFU v. COOPERATIVE BANK (1989) 3 NWLR (110) 483 and SHITTA v. SINBANJO (1988) 3 NWLR (83) 483 were cited on the position.
According to the learned Senior Counsel, the Applicant’s affidavit has satisfied both conditions for the court to exercise its discretion in granting the prayer sought.
He specifically set out and relied on paragraphs 3,4,5,6,7,8,9,10,11 and 16 of the supporting affidavit, arguing that the fact that Counsel took ill and failed to report the progress of the case or any follow up action has not been denied by the Respondent.
Furthermore, that the fact of Counsel’s illness was supported by Exhibit ‘B’; the medical report issued in India and Exhibit ‘B1’ which was a letter from the said Counsel and so good and substantial reason for the delay is shown. Learned Senior Counsel said that a party’s default in taking steps in proceedings occasioned primarily by ill health of Counsel deserves sympathetic consideration in the exercise of discretion by the courts as it is not their practice to visit such fault on the client. Reliance was placed on:
AKINYEDE v. THE APPRAISER (1971) ALL NLR 164, DOHERTY v. DOHERTY (1964) ALL NLR 292, BOWAJE v. ADEDUWURA (1976) 6 SC 143 at 147 and KALU v. IGWE (1991) 3 NWLR (178) 168. It was further contended that where an applicant has shown good and substantial reason justifying the delay in appealing, the length of time it was out of time becomes immaterial in the consideration of the application such as the present one. The cases of ALAGBE v. ABIMBOLA (1978) 2 SC 39 and KALU v. IGWE (supra) were relied for the submission.
It was also submitted that the proposed notice of appeal; Exhibit C, contains grounds of appeal which disclose good and substantial cause for the appeal to be heard for there are issues from them which “will certainly task the intellect and reasoning faculties of an Appellate Court.”
The learned Senior Counsel argued further that the Applicant is not expected at this stage to show that the grounds must succeed, but only to show that the grounds are arguable which he said, the Applicant has done by affidavit and Exhibit C. Reference was made on the submissions, to inter alia, the statements in OLOKO v. UBE (2001) 13 NWLR (729) 494 AND HOLMAN BROTHERS NIG. LTD. (1980) 8- 11 SC 43 at 62-3 and was further submitted that since the Respondent did not deny paragraphs 14 and 15 of the Applicant’s affidavit, it is deemed to have admitted that the grounds of appeal are substantial and arguable. EKE v. MILAD. IMO STATE (2007) ALL FWLR (381) 1720 was cited and reference made to Section 17 of the Court of Appeal Act on the constitutional right to appeal against the judgment of a court.
It was finally submitted that the Applicant has by its affidavit and grounds of appeal disclosed good cause upon which court can exercise its discretion to grant the application as prayed.
In his own address, the learned Senior Counsel for the Respondent relying on the 13 paragraph affidavit filed on 24/6/10, had also raised a sole issue, in pari materia with the one formulated in the Applicant’s address for determination in the application. His submissions on the issue are that it is trite that in this type of application, the Applicant must satisfy the court as to the reasons for his failure to appeal within the prescribed period and also show that the proposed grounds of appeal raise substantial issues which are arguable. In addition, that the two (2) must be satisfied jointly and not in the alternative, relying on the authorities of:-
EFP CO. LTD. v. NDIC (2007) 9 NWLR (1039) 216 at 238-9.
GOJI v. EWETE (2007) 8 NWLR (1029) 72 at 82-3.
BUCKNOR v. KEHINDE (2007) 1 NWLR (1016) 540 at 591 and ADEOSUN v. AKINYEMI (2007) 4 NWLR (1023) 47 at 51. He said the reasons for the delay as given in the Applicant’s affidavit can be reduced to the illness of Counsel and his failure to disclose or file a report on the status of the case. The learned SAN pointed out that it is not in dispute that the judgment sought to be appealed against was delivered on 21/5/07 and the present application was filed on the 13/7/10; a period of more than three (3) years in between. It was argued that there was no medical report to show the date Counsel was rushed to hospital or for how long he was on admission at the hospital which are matters within his personal knowledge. Further that if at all Counsel was rushed to hospital, it was before the date judgment was delivered and that Exhibit ‘B’ shows that Counsel was admitted at Appollos Hospitals on 12/2/09 and discharged on the 23/2/09; a period of about two (2) years after judgment was delivered. In further argument, the learned Senior Counsel said the period of about two (2) years after the judgment had not been accounted for by the Applicant and one year after the discharge of Counsel from hospital has not also been explained. He then cited and referred to several cases in which applications such as the present one were refused because the affidavit evidence did not disclose good and satisfactory reasons for the delay in appealing within the time prescribed by law. They include:
ADEOSUN v. AKINYEMI (supra). GOJI v. EWETE (supra). SAVANNAH BANK (NIG.) PLC v. CBN (2007) 8 NWLR (1035) 26 and MUHAMMED v. KPELAI (2001) FWLR, (69) 1404.
It was also the contention of the Respondent that the Applicant had not been vigilant and cannot be absolved of blame for the delay and that the Applicant has failed to satisfy the first condition for the grant of the application, to warrant a consideration of the 2nd condition. The case of BUCKNOR v. KEHINDE (supra) was relied on for the submission and we were urged to hold that the Applicant has not sufficiently explained the delay.
We were urged by the learned Senior Counsel to discountenance the paragraphs 14 and 15 of the Applicant’s affidavit for dealing with the merit of the grounds of appeal and being legal conclusion respectively.
It may be recalled that I had stated at the beginning of this ruling that two counter affidavits were filed by the Respondent in the application and that the learned Senior Counsel had relied on the counter affidavit filed on 24/6/10 in opposing the application. The other counter affidavit filed on the 12/2/10 was not adverted by the learned Senior Counsel for the Respondent and so by implication, abandoned. The said counter affidavit is struck out on that ground.
The Reply address filed by the Applicant did not respond to any new issue or point that was raised in the Respondent’s address. What was done in the said Reply address was to take each of the submissions by the Respondent on the facts deposed to in the affidavit in support of the requirements for the grant of the application and further argue the application. It is now trite that a Reply address or brief as the case may be, is not an avenue or forum to further argue or re-argue an application or appeal, but meant to answer or respond to new points canvassed in the Respondent’s address which called for such a reaction. A Reply cannot properly be used to challenge the substance of the arguments by the Respondent on the facts deposed to in an affidavit. All that the arguments contained in the Respondent’s address say is that the Applicant has not by the averments in the affidavit in support of the application satisfied the requirements of Order 7 Rule 10(2) for the grant of the prayer for extension of time. This is in response to the Applicant’s arguments that the affidavit had met or satisfied the said requirements and did not raise any new issue or point that warrant a Reply since the affidavit containing the facts in support of the application as well as the counter affidavit are before the court and no amount of arguments can change the facts deposed therein. It merely amounts to further argument of the application for a Reply to refute the arguments of the Respondent on such facts which speak for themselves. For instance whether or not the Respondent had denied any of the facts contained on the Applicant’s affidavit is a matter of fact to be decided on the state of the averments contained in the parties’ affidavits. The same thing applies to whether the Applicant has explained the delay by showing good and substantial reason therefor and whether the grounds show good reason why the appeal should be heard.
Perhaps I should remind learned Senior Counsel that it’s the peculiar facts and circumstances of every application as disclosed in the affidavit evidence of the parties that primarily form the basis of the determination of whether such an application deserved to succeed or fail.
Because the facts and circumstances of a case are very rarely the same as that of any other case, the exercise by this Court of the discretion on whether or not to grant applications such as the present one cannot be tied down to any previous decisions on the exercise of similar applications. As a result the principle of stare decisis only applies to the exercise of a discretion as a guide and not a binding principle in the exercise of the discretion one way or the other in applications such as this one. See: ANYAH V. AFRICAN NEWSPAPERS OF NIG. LTD. (1992) 6 NWLR (247) 319 at 334, LONG-JOHN V. BLAKK (1998) 6 NWLR (555) 524 AT 543, GABARI V. ILORI (2002) 14 NWLR (786) 78 AT 102.
Be that as it may, would proceed now to consider the Rules of Court, facts deposed to in the affidavits of the Application and Respondent in line with the ossification proffered in their respective addresses to determine the application.
Before then however, we are urged by the learned Senior Counsel for the Respondent to discountenance paragraphs 14 and 15 of Applicant’s affidavit for dealing with the merit of the appeal and being legal conclusion. The averments in the paragraphs are in the following terms:-
“14. Chief Okpoko the Lead counsel has informed me and I verily believed him that from his careful perusal of the brief, the Defendant/Applicant has a very good case on this appeal and has o very good chance of success in the appeal He has accordingly formulated and settled Defendant’s proposed original grounds of appeal set out in the proposed Notice of appeal now shown to me and marked as Exhibit C.
- I have read the proposed grounds of appeal thoroughly and I know that they raise very substantial issues of law which an appellate court is likely to uphold at the hearing of the appeal”
I would readily agree with the submission that paragraph 14 is clearly not an averment of fact but a legal opinion on the strength of the proposed grounds of appeal. The same thing applies to the ending part of paragraph 15 which stated the opinion that the grounds or issues arising therefrom “which an appellate court is likely to uphold at the hearing of the appeal.”
It is common knowledge that affidavits are supposed to contain only depositions of facts which to the deponent’s belief are true.
Section 86 of the Evidence Act makes the following provisions in that regard:-
“Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.”
As a follow up, Section 87 of the Act provides that-
“An affidavit shall not contain extraneous matter’ by way of objection, or prayer, or legal argument or conclusion.”
Clearly an averment in an affidavit which does not contain deposition of facts or which contain opinions or conclusions would run foul of the above provisions and therefore invalid. Undoubtedly, paragraphs 14 and 15 contravene the provisions of Sections 86 and 87 of the Evidence Act to the extent that they do not contain depositions of facts but rather opinions of the deponent on the grounds of appeal.
The said paragraphs are liable to be and are struck out, thereby upholding the objection by the learned Senior Counsel for the Respondent on them.
By the provisions of Order 7 Rule 10(1) Court of Appeal Rules 2007 this Court was given the discretionary powers to enlarge the time provided by the Rules for the doing of anything to which the Rules apply except the filing of notice of intention not to contest an application under Rule 8. The import of the provisions of Order 7 Rule 10(1) is that where the doing of anything is regulated or provided for by the Rules to be done on any prescribed or limited period of time, the court is conferred the discretion to enlarged such time in deserving cases.
Then specifically, Order 7 Rule 10(2) provide for the applications such as the present one. The provisions are thus:-
“10(2) 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.”
These provisions are clear and precise of what the requirements are for an application for enlargement of time within which to appeal.
Because of the deliberate use of the word “shall” in the provisions, no doubt is left that they are mandatory and to be complied with by all such applications before a court can properly invoke the judicial discretion conferred in Order 7 Rule 10(1) to enlarge the time within which to appeal.
The learned Senior Counsel for the parties are one and I agree with them, that the requirements or conditions stated in the provisions must be satisfied by an Applicant to warrant the grant of an application for enlargement of time to appeal.
This is the position of judicial authorities on the interpretation and application of the provisions to any given set of facts and circumstances that may arise in a case.
The requirements or conditions which have been judicially recognized from the provisions are two (2) numbers as set out in the case of MINISTER. P.M.B. v. E.S.L. LTD. (2010) 12 NWLR (1208) 261 at 280 where it held that:-
“A party seeking an enlargement of time within which to appeal to the Court of Appeal is expected, going by Order 3 rule 4(2) of the Court of Appeal Rules, to satisfy through affidavit evidence the two conditions laid down as follows:-
(a) good and substantial reasons for failure to appeal within the period prescribed by Section 25(2)(a) of the Court of Appeal Act; and (b) that there are good grounds of appeal which prima facie show good cause why the appeal should be heard.
The two conditions must co-exist.”
The provisions of Order 3 Rule 4(2) of the Court of Appeal Rules 2002, considered in the case are now Order 7 Rule 10(2) in the Court of Appeal Rules, 2007 under consideration in the present application. See also the cases of:
NWANI v. BAKARI (2007) 1 NWLR (1015) 333 at 343. E.F. P. CO. LTD. v. N.D.I.C. (2007) 9 NWLR (1039) 216 at 238-9.
The learned Senior Counsel for the Applicant, it may be recalled, had relied on specifically paragraphs 3-11 and 16 of affidavit in support of the application in arguing that good and substantial reasons have been disclosed by the Applicant for the delay in filing the appeal. Because of the length of the said paragraphs, I do not intend to set them out here but they are to the effect that Counsel who handled the case at the High Court took ill and did not make a report of the position of the case and that until the Applicant received Exhibit ‘A’ , a demand letter/notice from the Respondent to pay the judgment debt in August 2009; it did not know that judgment was delivered in the case. That an application for enlargement of time to appeal was filed on 24/8/09. These averments are said to be good and substantial reason for the delay by learned Senior Counsel for the Applicant
Now I have perused the averments contained in the 13 paragraphs counter-affidavit filed on the 24/6/10 in respect of the present application. Manifestly, there is no deposition to challenge, let alone controvert the averments of the Applicant in the above mentioned paragraphs on the reasons why the appeal could not be filed within the prescribed period of time. In other words, the Respondent did not dispute all the depositions by the Applicant which relate to the reasons for the delay in filing the appeal and so in law, the Respondent is taken or deemed to have conceded to such facts. The undenied and unchallenged depositions of facts are therefore deemed to have been admitted by the Respondent and would require no further proof as the court is entitled to take or consider them as correct, true and established. See: LIJADU v. LIJADU (1991) 1 NWLR (169) 627. GLOBE FISHING IND. LTD. v. COKER (1990) 11 SCNJ.
OGUNLOWO v. OGUNDARE (1993) 7 NWLR (307) 610, ENWERE v. COP (1993) 6 NWLR (299) 335. In fact in the case of this Court had held that such uncontroverted and undenied averments of facts in affidavits must be accepted by the court without hesitation. There is though a caveat that even if accepted, the averments must be cogent and sufficient to support the reliefs sought for by the Applicant before they could warrant the grant of the application. So even where not challenged and accepted by the court as the correct positions asserted therein, before the court can judiciously act and rely on them for the grant of the relief sought, the averments of an affidavit must satisfy the court that they reasonably support and entitle the Applicant to such relief. If the court, for any sound reason, is not satisfied with the sufficiency or potency of the facts in an affidavit which as not challenged, then the mere fact that the facts were not controverted or even denied by the other party, would add no probative value or worth to them for the purpose of the application.
The question I ask here is whether the fact that the learned Counsel for the Applicant had taken ill at the conclusion of the case before the High Court in 2007 and did not make a report of the case to his colleagues in chambers until Exhibit ‘A’ was received in August 2009 from the Respondent’s Counsel, good and substantial reason/s for the delay in filing the appeal.
In the case of ANNPP v. ALBISHIR (2011) 2 WRN. 1 at 25 Oguntade JSC, in his Lead judgment had referred to the statement of Tobi, JSC in the now famous case of IKENTA BEST NIG. LTD. v. A.G. RIVERS STATE (2008) 22 WRN, (2008) 2 SCNJ 152. (2008) 2- 3 SC (Pt. 1) 28. (2008) 6 NWLR (1084) 612 at 642 with approval on what good and substantial reasons are.
The erudite and proficient professor and law Lord had said that:-
“The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reasons must not be bad in the sense that they are unacceptable, Substantial reasons are essential, material and important reasons. Reasons which are peripheral or dance ground the periphery strangely cannot suffice. The pendulum should weigh in favour of the grunting the application and not just enough to balance the weight or on an even keel.”
The ANPP v. ALBISHIR case is also reported in (2010) 8 NWLR (1198) 118.
Put in simple language, the good and substantial reasons prescribed in Order 7 Rule 10(2) are credible, convincing, cogent, strong, material and important reasons which explain why the appeal could not be filed within the prescribed period of time. Self induced reason/s, tenuous, flimsy reason/s or reasons which are not viable in law do not and cannot amount to good and substantial reasons because they would ordinarily be bad, unconvincing and peripheral reasons which do not possess the quality and potency to explain the delay and support the application for extension of time to appeal.
Generally speaking, illness of Counsel immediately before or after the date on which a decision was delivered, depending on the peculiar facts and circumstance disclosed in an affidavit which were not challenged or even denied would provide sufficient and cogent reason to satisfactorily explain the delay by a party in filing an appeal against the said decision within the time limited by law. This is because ill health or sickness and seriousness thereof is not something that can usually or normally be predicted. The seriousness, the time it strikes or occurs and how long it lasts are ordinarily beyond control by the person affected. So for that reason, no reasonable person can deny seriously, that sickness or ill health is good and substantial reason for the delay in filing an appeal by a Counsel who suddenly took ill such that he could no longer perform his usual professional functions and duties during such illness.
However the illness is not to be taken in isolation of other surrounding and relevant factors such as the length of period of the delay, the attitude of the Applicant, availability of other Counsel in the chambers of the sick Counsel e.t.c. Like I have mentioned elsewhere, each case would have to be treated and considered on its own peculiar facts and circumstances as disclosed in the affidavit evidence. An Applicant is supposed to demonstrate from the facts in the affidavit in support of the application that there are detailed explanations which are reasonably acceptable for the period of the delay in filing an appeal and also show that the grounds of the proposed appeal prima facie show good cause why the appeal should be heard. Because of the present position of the law on the requirements to be met for the application, the submission that where the proposed grounds show good cause why the appeal be heard, the period of the delay is not relevant is old school and no longer viable. Both the delay, its nature and length as well as the requirement of the grounds of the proposed appeal must be conjunctively satisfied by the affidavit evidence before the application can be granted. For emphasis, the Supreme Court in the case of IKENTA BEST NIG. LTD. v. A.G. RIVERS STATE (supra) leaves no doubt that the two conditions must be satisfied together to warrant the grant of an application for extension of time to appeal under the Court of Appeal Rules. This is what the apex Court said at 642:-
“As it is, rule 4(2) provides for two conjunctive conditions for enlargement of time to appeal They are good and substantial reasons and, the grounds of appeal primo facie showing good cause. I want to say again that the two conditions are conjunctive not disjunctive. This means that the two conditions just be present in the affidavit or proved by the applicant.”
Again in the ANPP v. ALBISHIR (supra) in which the above case was cited with approval, the Supreme Court had stated that:-
“In order to exercise its discretion to grant any application for extension of time within which to appeal, the court has never compromised on the issue that the two conditions stated above must be satisfied conjunctively. The two conditions must be established in the affidavit evidence in support of the application. Where only one out of the two conditions is satisfied, the application cannot be granted.”
However I agree with the learned Senior Counsel for the Applicant that once an applicant has shown good and substantial reason for the delay, the length of such delay no longer matters in the consideration of the application. But the length of the delay as stated earlier is a relevant factor in the determination of whether the reason for the delay is good and substantial.
From the unchallenged averments in paragraph 8 of the Respondent’s counter affidavit, the learned Counsel who handled the case for the Applicant at the High Court had closed his case before that court on the 22/11/06, on which date Counsel also agreed to submit written addresses in the case. By the deposition in paragraph 5 of the affidavit in support of the application, the learned Counsel for the Applicant, Mr. Olowu did not show up in the office at Abuja from that date but was later said to have taken ill. For that reason, the Law Firm, (office) in which the said
Counsel practiced “was completely in the dark as to any development or movement in the case” until August 2009, almost three (3) years after the last appearance by Counsel at the office of the law firm in Abuja, when the demand notice in Exhibit ‘A’ was received by the law firm.
Undoubtedly, from the 21/5/07 when judgment was delivered by the High Court and the date Exhibit ‘A’ was received, the law firm handling the Applicant’s case had gone to sleep and forgotten about both the learned Counsel and the case he handled in the High Court as borne out by the averment in paragraph 8 of the affidavit in support of the application. The paragraph is to the effect that it was only after receipt of Exhibit ‘A’ that the law firm then sent a delegation to see Mr. Olowu over the case. That situation does not show diligence and seriousness on the part of the law firm, in handling the Applicant’s case.
The facts and circumstances of this application show that it is not only the illness or ill health of the Counsel that was responsible for the delay in filing the appeal, it must be pointed out, but also the tardiness of the firm from which the Counsel practiced that waited for two and half years to look for Counsel who had not shown up in the office in order to find out the position of the Applicant’s case. Because it is not the practice of the courts to visit the sin of a Counsel or law firm on a party who is not responsible for the attitude of Counsel, see: BOWAJE v. ADEDIWURA (1976) 6 SC 143. OSINUPEBI v. SAIBU (1982) 7 SC 104. AKINPELU v. ADEGBORE (2008) 10 NWLR (1996) 531 at 555, I find that the ill health of Counsel was primarily responsible for the delay in filing the appeal against the decision of the High Court. It is cogent, convincing and acceptable reason for the purpose of this application.
The explanations contained in affidavit in support of the application are good and substantial reason for the delay in filing the appeal. The first of the two siamese twin conditions has been satisfied by the affidavit of the Applicant.
The second condition is that the grounds of the proposed appeal should show on their face, good reason or cause why the appeal should be heard.
Now grounds of appeal are the specific complaints or attack against the decision by the trial or lower court and so provide or serve as a mirror through which this Court can take a peep through the appeal itself. At this stage though, the Court is not and would be concerned with the success of an appeal, it is to on the face of the grounds look at the strength or viability of the grounds in terms of their being arguable at the hearing of the appeal. Once the proposed grounds of appeal are prima facie arguable on established principles of law, then good reason or cause would exist why the appeal should be heard. See:
IBODO v. ENAROFIA (1980) 5-7 SC.42, UNILAG v. OLANIYAN (1985) 1 NWLR (1) 156.
OBIKOYA v. WEMA BANK (1989) 1 NWLR (96) 187. E.F.P. v. N.D.I.C. (2007) 9 NWLR (1039) 216 at 239.
I have calmly and carefully read the eight (8) grounds of appeal contained in the notice of appeal marked as Exhibit ‘C’ and attached to the affidavit in support of the application. Clearly on their face, the grounds of appeal are quite arguable and therefore grounds which show good reason why the appeal should be heard. Perhaps I should emphasize here that the court is not concerned with whether the grounds of the proposed appeal would succeed at the appeal. The only task for the court at this stage is to ensure that prima facie, the grounds of appeal are not frivolous but that viable arguments in law can be proffered in support thereof. I am in no doubt that the grounds contained in Exhibit C attached to the affidavit in support of the present application are arguable in law and so show good cause why the Applicant’s proposed appeal should be heard. The 2nd condition has thereby been satisfied by the Applicant.
In the final result, I find merit in the application and is granted as prayed. Accordingly, time is hereby extended for the Applicant within which to appeal against the decision of the Niger State High Court in Suit No. NSHC/MN/25/2001 delivered on 21/5/07.
The notice of the said appeal shall be filed within seven (7) days from today.
Other Citations: (2007)LCN/2251(CA)
