The State of Ekiti V. Adebayo Aderiye & Ors (2016)

LawGlobal-Hub Lead Judgment Report

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

The motion before the Court dated 25/4/2016 and filed on same date has been brought by the Appellant/Applicant pursuant to Order 7 Rules 1 and 2; Order 17 Rule 3 of the Court of Appeal Rules 2011; and under the inherent jurisdiction of the Court. The Applicant seeks for the following: –
?1. LEAVE AND AN ORDER of this honourable Court enlarging the time within which the applicant can seek leave to appeal against the ruling delivered by the Lower Court in Suit No: HAD/12C/2014 presided over by HON. JUSTICE A.L. OGUNMOYE between THE STATE OF EKITI V. ADEBAYO ADERIYE & 6 ORS on the 15th day of December 2015.
2. AN ORDER of this honourable Court granting leave to the applicant to appeal against the ruling delivered by the Lower Court in Suit No: HAD/12C/2014 presided (sic) by HON. JUSTICE A.L. OGUNMOYE between THE STATE OF EKITI V. ADEBAYO ADERIYE & 6 ORS on the 15th day of December 2015.
3. AN ORDER extending the time within which to file the Notice of Appeal against the ruling of the Lower Court delivered on 15th December, 2015.
4. AN

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ORDER of this Honourable Court deeming the already filed Notice of Appeal as properly filed and served on the Respondents.
5. AN ORDER deeming the record of appeal already transmitted to the Registry of this Court as properly transmitted and served on the parties.
6. AN ORDER of this Court for Leave to argue the grounds of appeal contained in the Notice of Appeal as grounds of mixed law and facts.
7. And for such other order or further orders as this Honourable Court may deem fit to make in the circumstances.?

The grounds of the application as set out therein are: –
?1. The Trial Court delivered its ruling in Suit No: HAD/12C/2014 culminating into this appeal on 15th December, 2015.
2. The Appellant/applicant diligently appealed against the ruling within the time allowed under the rules.
3. The time within which to seek leave to appeal before the trial Court has elapsed.
4. The appellant/applicant did not seek or obtain/leave of your Lordships at the time of filing the notice of appeal.
5. The record of appeal has been compiled, transmitted and duly served on parties.
6. The leave of your lordship

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is a prerequisite to the appellant regularizing the Notice of Appeal.
7. Failure to obtain leave was not deliberate but due to erroneous impression that the grounds of appeal contains (sic) issues of law alone.?

The motion has a 15 Paragraph supporting affidavit to which two Exhibits are attached. They are Exhibit ?A? which is a certified copy of the ruling of the Lower Court delivered on 15/12/2015 and Exhibit ?B? which is a copy of the notice of appeal lodged on 21/12/2015 at the registry of the Lower Court by the Applicant against the ruling in Exhibit ?A? and the position of which the Applicant seeks to regularise by the instant motion. The notice of appeal is dated 21/12/2015.

The Court entertained the instant motion on 25/5/2016. Ahmed Tafa of counsel for the Applicant in moving the motion relied on the supporting affidavit and the two Exhibits annexed thereto. He urged the Court to grant the prayers being sought by the Applicant. He also adopted and relied on the written address attached to the motion in urging the Court to grant the application before it.
?
C. Omokhafe of counsel for the 1st,

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3rd and 4th Respondents did not oppose the motion.

B. Fasakin learned lead counsel for the 2nd Respondent; O. Olatawura of counsel for the 5th and 7th Respondents; and A. Oso learned lead counsel for the 6th Respondent; respectively, all opposed the motion on grounds/points of law. Learned lead counsel for the 2nd Respondent stated that his opposition to the motion is based on Paragraphs 6(b) and 10(b) of the Court of Appeal Practice Direction, 2013 (hereafter to be simply referred to as ?the Practice Direction?). He urged the Court to refuse prayer 5 as it is his position that the record was transmitted outside the time stipulated by the Practice Direction. Learned lead counsel also submitted that this Court pursuant to Paragraph 10(b) (supra) will not grant a motion to appeal in matters such as the one that the instant motion is about save the appeal raises point(s) of law only. It is his stance that the instant appeal is not on point(s) of law only. That the Court therefore cannot properly grant an extension of time in respect of an appeal that does not raise point(s) of law only. That is to say that the Court cannot properly grant a

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motion for extension of time to do that which the Court cannot grant in the first instance.

Olatawura of counsel for the 5th and 7th Respondents associated himself with the submissions of Fasakin, learned lead counsel. He also referred to Paragraph 10(c) of the Practice Direction and submitted that this Court is enjoined to order the accelerated hearing of the matter which the motion before it is about, as the grounds of appeal are not purely of law alone. He urged the Court to refuse the motion.

Oso, learned lead counsel for the 6th Respondent in opposing the motion also associated himself with the submissions of learned counsel for the other Respondents that are opposed to the motion. He urged the Court to dismiss the motion and order an accelerated hearing of the case at the Lower Court.
?
In his reply on points of law, Tafa of counsel for the Applicant submitted that the Practice Direction cannot override the provisions of the Constitution. That the Constitution permits the Applicant to lodge an interlocutory appeal with the leave of this Court and that the Practice Direction cannot take this away. He also said that the proposed grounds of

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appeal in the notice of appeal in any event are grounds of law. Furthermore, learned counsel referred to Paragraphs 3 and 1(1) of the Practice Direction respectively, and submitted that the type of matter before the Lower Court does not fall within the ambit of cases to which the Practice Direction applies.

I consider it expedient to first resolve the points of law raised by the Respondents that are opposing the instant motion vis–vis the response of Tafa of counsel to same before delving into its merit. This is because the points of law if sustained will make the consideration of the application on the merit unnecessary. And for this purpose, I intend to determine three specific issues, namely, the source of the appellate power cum jurisdiction of this Court; whether the Practice Direction can and has in any way derogated from the Applicant?s right of appeal; and whether the Practice Direction is in any event applicable to an appeal in respect of the matter the application before this Court is about.
?
It is now trite that right of appeal in Nigeria is statutory as there is nothing known to the Nigerian legal system as ?an

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inherent right of appeal?. This Court as an appellate Court primarily (and I have used the word ?primarily? most advisedly) derives its power cum jurisdiction to entertain appeals from Courts subordinate to it in the hierarchy of Courts in Nigeria, from the amended 1999 Constitution of the Federal Republic of Nigeria. In this regard, see generally the provisions of Sections 240 ? 248 of the Constitution. The interlocutory appeal which the Applicant has brought or seeks to bring relates to a matter before the High Court of a State (i.e. Ekiti State High Court) and the provisions of Sections 240, 241, 242, 243 and 248 are very relevant or germane against the backdrop of the issues I had set out hereinbefore. The provisions of the Constitution read thus: –
?Section 240: Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of

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Appeal of State, Customary Court of Appeal of a State and from decisions of a Court martial or other Tribunals as may be prescribed by an Act of the National Assembly.
Section 241(1): An appeal shall lie from the decisions of the Federal High Court or High Court to the Court of Appeal as of right in the following cases ?
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or likely to be contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court ?
(i) where the liberty of a

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person or custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision (sic) determine the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) in such other cases as may be prescribed by any law in force in Nigeria.
Section 242(1): Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court

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of Appeal is of the opinion that the interest of justice do not require an oral hearing of the application.
Section 243: Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be:
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any other powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the power, practice and procedure of the Court of Appeal.
Section 248: Subject to the provisions of any Act of the National Assembly, the President of the

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Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.?
As said hereinbefore, I used the word ?primarily? regarding the source of the appellate power cum jurisdiction of this Court most advisedly. This is because I am aware that there are some other enactments that make provisions in relation to the appellate powers and/or jurisdiction of this Court. One of such enactment is the Court of Appeal Act, 2004 which in Section 24 makes provisions for ?time for appealing?. I am also aware that the High Court Law of Ekiti State, Cap. H3, in Sections 21 and 22 dealing with ?appeal against acquittal or discharge? and ?Right of appeal from interlocutory decisions? would appear to have conferred rights of appeal from the Ekiti State High Court to this Court in certain regards. Section 21 of the High Court Law of Ekiti State provides thus: –
?Where an accused person has been acquitted or discharged by a Judge, the Attorney General, or any prosecutor aggrieved by the decision of the Judge to acquit or discharge the accused person, may appeal as of right to

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the Court of Appeal from the decision on the ground that it is erroneous in law;
while Section 22(1) and (2) of the same Law provide thus: –
?(1) An appeal shall lie from the High Court to the Court of Appeal, with the leave of the High Court or the Court of Appeal, from interlocutory decisions made in the course of any civil proceedings before the High Court sitting before the High Court sitting at first instance.
(2) The right of appeal conferred by Subsection (1) of this section shall extend only to decisions in civil proceedings relating to matters that are not in the Exclusive Legislative List or the Concurrent Legislative List.”

I however do not think that I need dwell on the provisions of Section 21 (supra) at all as judgment has not been given by the Lower Court in the matter before it not to talk of an acquittal or discharge having been entered. In the same vein, I do not see the need to dwell on the apparent incongruity of the provisions of Section 22 (supra) with the provisions of the amended 1999 Constitution relating to the appellate power cum jurisdiction of this Court as re-produced hereinbefore because the

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instant application relates to an interlocutory proceedings in a criminal matter before the Lower Court. Suffice it to say that the provisions of Sections 240 and 241 of the amended 1999 Constitution re-produced hereinbefore are no different from the provisions in Sections 220 and 221 of the 1979 Constitution which the Supreme Court has had cause to interpret in the case of NALSA & TEAM ASSOCIATES V. NIGERIAN NATIONAL PETROLEUM CORPORATION (1991) LPELR ? 1935 (SC) as far back as 15/11/1991 and thereafter in a long line of cases. In the NALSA case (supra) the Supreme Court in dwelling on rights of appeal said on page 14 per Nnaemeka-Agu, JSC; thus: –
?Before I can properly consider the issues which have been canvassed in this appeal, it is useful to advert to the true nature of the right of appeal either to this Court or the Court of Appeal. Section 213(2) and (3) or Section 220 and 221, as the case may be, create two different rights of appeal, namely: (i) right of appeal as of right (Sections 213(2) or 220(1); and (ii) right of appeal with leave of Court (Section 213(3) or 221 of the Constitution). Whereas an intending appellant can

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validly exercise his right of appeal as of right at will within the time fixed by statute, leave of either Court is a condition precedent to his exercise of the right of appeal with leave. It is trite that where that condition precedent is necessary but has not been fulfilled, there is no appeal. Any notice of appeal filed upon only facts or mixed law and fact without leave where leave is necessary is null and void and of no effect. See on this Olowosoke v. Oke (1972) 11 S.C.1. ?.?
See also the case of AULT & WIBORG (NIG.) LTD V. NIBEL INDUSTRIES LTD (2010) LPELR ? 639 (SC) amongst many others.
It is in my considered view very glaring from the provisions of the amended 1999 Constitution hereinbefore re-produced, that this Court derives it appellate power cum jurisdiction from the Constitution and that the said Constitution vests this Court with jurisdiction in respect of appeals filed within the stipulated statutory period as prescribed by the Court of Appeal Act (i.e. an Act of National Assembly) as of right by an aggrieved party, or with leave of the Federal High Court or a State High Court by an aggrieved

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party (including an interested party in civil proceedings); and an accused person and prosecuting authorities only in criminal proceedings. In other words, there is no provision of the Constitution conferring any kind of right of appeal on any person having an interest in criminal proceeding. Flowing from all that has been said is that the Applicant clearly has two different rights of appeal at its disposal to exercise, namely right to appeal as of right; and right to appeal with leave of the Court. These rights of appeal, the Applicant can also exercise together or separately depending on nature of the decision of the Lower Court it is aggrieved with, and the grounds of appeal the Applicant relies on in bringing an appeal.

The next issue is whether the Practice Direction can in anyway derogate from the rights of appeal donated by the Constitution and particularly the rights of appeal (either as of right or with leave) possessed by the Applicant.

The Constitution unequivocally declares its own supremacy and the inviolability its provisions in Section 1(1) and (3). The provisions read thus: –
?1.(1) This Constitution is supreme and its

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provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria; and
1(3) If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
The rights of appeal possessed by the Applicant, is by virtue of the provision of Section 243(b) to be exercised in accordance with the Court of Appeal Act (i.e. an Act of the National Assembly) and rules for the time being in force regulating the power, practice and procedure of the Court of Appeal. The President of the Court of Appeal is vested with the power to make rules regulating the practice and procedure of this Court pursuant to Section 248 of the Constitution. It is apparent that it is for the purpose of activating the rights of appeal donated by the Constitution and ventilating or pursuing same with judicial pronouncements thereon that the Court of Appeal Act, Cap. C36, in Part V titled ?PROCEDURE? (and which consists of Sections 24 ? 29) specifically makes provisions for time for appealing. Furthermore, pursuant to powers

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conferred by Section 243 of the Constitution (supra), the President of the Court of Appeal has made both the Court of Appeal Rules, 2011 and the Practice Direction. The Court of Appeal Rules, 2011 (hereafter to be simply referred to as ?Rules of this Court?) as well as the Practice Direction are undoubtedly enactments given the provisions of the Interpretation Act, Cap. 123, in Section 37. The relevant provisions in this regard read: –

?37(1) Without prejudice to the provisions of Section 18 of this Act, in this Act the following expressions have the meaning hereby assigned to them respectively, that is to say ?
?enactment? means any provision of an Act or subsidiary instrument;
?subsidiary instrument? means any order, rule, regulation, rules of Court or byelaws made either before or after the commencement of this Act in exercise of powers conferred by an Act.”
In my considered view it is in keeping with the provisions of Section 248 of the Constitution and the Interpretation Act (both supra) that the Rules of this Court titled S.I. No. 3 of 2011 (i.e. Statutory Instrument No. 3 of 2011)

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in Order 1 Rule 3 declare that ?the practice and procedure of the Court shall be as prescribed by these Rules notwithstanding any written law or rule of practice to the contrary obtaining in any of the states?. In the same vein it would appear obvious that it is in complete appreciation of the provision of Section 12(1)(a) of the Interpretation Act that the Practice Direction which is titled S.I. 7 of 2013 came to be made by the President of the Court of Appeal pursuant to the provision of Section 248 of the Constitution. In this regard it is worthy to note that while the provisions of Section 12(1)(a) of the Interpretation Act expressly states amongst others that where an Act confers a power to make subsidiary instrument, proclamation or notification, the power shall include ?power to make different provisions for different circumstances?; the Practice Direction in Paragraphs 1 and 2 dwells extensively on its applicability, objective and guiding principle. (I will set out the provisions of these two paragraphs later in this ruling).
?
The immutable position of the Constitution and which has received consistent judicial approval in a

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long line of cases, is that the Constitution being the foundation of all other law, the provisions of any other law should not be seen as contravening any provision of the Constitution. The position in this regard applies to subsidiary instruments, such as the Rules of this Court and Practice Direction are, and which are perhaps, (if not), in the lowest rung in the hierarchy of laws or enactment in this country. See PDP V. CPC (2011) LPELR ? 2909 (SC) wherein the Supreme Court in dwelling on the Constitution said per Onnoghen, JSC; on pages 23 ? 27 thus: –
?It is settled law that in interpreting a constitutional provision the Court should adopt a broad approach to the process. Also settled is the principle that where the words of the Constitution or statute are plain, clear and unambiguous, they must be given their natural, ordinary meanings as there is nothing, in effect to be interpreted. In that case, the words must be given their plain/natural meanings, as there is nothing to interpret…

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It is also settled law that the provisions of the Constitution of the Federal Republic of Nigeria are supreme and have binding force on all authorities and persons throughout the Federal Republic of Nigeria and that any other law which is inconsistent with its provisions is void to the extent of the inconsistency as the constitutional provision must prevail over such Act/law ….<br< p=””

</br<

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..
On the aspect concerning application of Court rules in computation of time with regards to periods of Court vacation, I must say that rules of Court have the status of subsidiary legislation far below constitutional provisions which sit at the apex of the hierarchy and consequently supreme.
Secondly, no Court rules which are contrary to Section 285(5), (6) and (7) can apply to election matters or be valid. The sections enact as follows-<br< p=””

</br<

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I hold the considered view that in terms of time to do anything relating to an election petition or judgment thereon or arising therefrom, it is the above provisions that apply and that no Court has the power to extend the times as constitutionally provided in Section 285(5) – (7) of the 1999 Constitution (as amended), by interpretation of the sections or otherwise.?

It is in my considered view clear from the consistent judicial position regarding the provisions of the Constitution vis–vis those of any other enactment (such as the Practice Direction), that the said Practice Direction cannot

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derogate from the rights of appeal the Applicant has pursuant to the provisions of Section 241 and/or 242 of the Constitution.

The matter however does not end here. This is because, it needs to be resolved whether the Practice Direction has indeed derogated from the right of appeal possessed by the Applicant and which it now seeks to exercise as suggested by learned counsel for the Applicant in response to the reliance on the Practice Direction by the Respondents (save 1st, 3rd and 4th) in opposing the instant motion. This is because if it has, then it must necessarily be declared void to the extent of such inconsistency. It is with this at the back of my mind that I had hereinbefore said that I will re-produce the provisions of Paragraphs 1 and 2 of the Practice Direction which dwell extensively on its applicability, objective and guiding principle. The provisions in question read thus: –
?1. This Practice Direction shall, save to the extent and as may otherwise be ordered by the President, Court of Appeal, pursuant to Section 248 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), apply to:
(i) All Criminal Appeals

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relating to offences of Terrorism, Rape, Kidnapping, Corruption, Money Laundering and Human Trafficking.
(ii) Interlocutory appeals challenging the ruling of the Court below on an interlocutory application.
2(a) The purpose of this Practice Direction is to establish, a specialized system of case management in the Court of Appeal, that will provide for the fair and impartial administration of criminal and civil appeals arising out of cases listed in 3(a)(i) and (ii) below, and the rules made under this Practice Direction shall be construed and applied to eliminate unnecessary delay in the transmission and conduct of appeals and reduce the expense and time spent on ppeals by all parties before the Court;
(b) This practice Direction shall enable the Presiding Justices of the Divisions of the Court to fast track the hearing of appeals in respect of cases which fall under the offences of Terrorism, Rape, Kidnapping, Corruption, Money Laundering and Human Trafficking.
(c) The rules made under this Practice Direction shall apply mutatis mutandis to all criminal cases, which fall under the category of offences listed above as well as well as

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interlocutory appeals.
(i) Create a system for fast tracking the hearing and determination of interlocutory applications and appeals from the decision of the Court below on interlocutory applications and preliminary objections, and for offences Terrorism, Rape, Kidnapping, Corruption, Money Laundering and Human Trafficking;
(ii) Ensure that in the determination of appeals, the Court will only determine applications which cannot be taken with the substantive appeals or based on clear issues of facts and not recondite points of law;
(iii) Ensure that the attitude of each panel of the Court should be to take all steps in the determination of appeals to reduce the delay occasioned by interlocutory appeals as much as is reasonably possible. This shall be in furtherance of the need to minimize the delay occasioned at the Lower Courts by ensuring expeditious dispatch of interlocutory appeals;
(iv) Reduce the time spent on hearing and determination of interlocutory applications both at the trial Court and on appeals and minimize the avenues for parties to make use of interlocutory applications as a means of frustrating the expeditious conduct of

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cases both at the trial Courts and on appeal;
(v) Ensure that the conduct of appeals are not stalled by unpreparedness of the Court or parties and that the Appeals are timeously conducted and adjourned hearing dates respected;
(vi) Minimize undue adjournments and delays occasioned by counsel or the Court;
(vii) Reduce the delay in the delivery of the Court?s Ruling and Judgments in the category of cases listed above;
(vii) Ensure that where possible, trials are not delayed by hearing and determination of interlocutory appeals.?

It is in my view clear from the provisions reproduced above (and which require no interpretation as they are clear and couched in splendid ordinary English language) that the Practice Direction is in no way concerned with the procedure or manner of activating a right of appeal; on the contrary, it is designed for the management of appeals to which its provisions are applicable as set out in Paragraph 1 thereof, for purpose of the expeditious prosecution of such appeals.
?
The enactments in operation in this Court that deal with the manner in which an appeal or appeals in a criminal

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matter/proceedings (such as the one the Applicant desires to lodge against the ruling of the Lower Court) can be activated, are the Court of Appeal Act and the Rules of this Court. See in this regard again Section 24 of the Court of Appeal Act and Order 17 Rules 1, 3(1), 4(1) and (7) in particular of the Rules of this Court. Section 24 of the Court of Appeal Act provides thus: –
?(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of the appeal or notice of his application for leave to appeal in such manner as may be directed by the rules of Court which the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.
(2) The periods 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 an interlocutory decision;
(b) in an appeal in a criminal cause or matter, ninety days from the decision appealed against.
(3) Where an application for leave to appeal is made in the first instance to the Court below, a person making such application

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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 Subsections (2) and (3) of this Section.?

I cannot but observe at this stage that given the fact that the instant application is in respect of a criminal matter before the Lower Court, the provision of Section 2(a) above is clearly inapplicable to it. The provisions of Order 17 Rules 1, 3(1), 4(1) and (7) (supra) read thus: –
?1. This Order shall apply to appeals to the Court from any Court or Tribunal acting either in its original or appellate jurisdiction in criminal cases, other than a Court-martial, and to matters related therewith.
3(1) A person desiring to appeal to the Court against any judgment, sentence or order of the Court below, whether in the exercise of its original or appellate jurisdiction, shall commence his appeal by sending to the registrar of the Court below a notice of appeal or notice of application for

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leave to appeal or notice of application for extension of time within which such a notice shall be given, as the case must be, in the form of such notice respectively set forth as forms 1, 2, 3, 4, 5 or 7 in the Second Schedule to these Rules.
4(1) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the Appellant himself, except under the provision of Sub-rules (5) and (6) of this Rule.
7.An appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the Court below.?

When the instant application is considered in the light of the provisions of Section 2(b), (3) and (4) of the Court of Appeal Act as well as Order 17 Rules 1, 4(1) and (7) of the Rules of this Court, it becomes obvious in my considered view that the said application cannot be one to which the provisions of the Practice Direction are applicable. This is because inasmuch as the purpose of the instant motion is to enable the Applicant to properly activate his intended appeal, there is actually no appeal before

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this Court to which the provisions of the Practice Direction can be applied.

Learned counsel for the Applicant also argued that the Practice Direction cannot be applicable to the instant matter the instant motion is about because it is not one of the matters stated in Paragraphs 1 and 3 of the Practice Direction. With respect, I consider the submission to be hollow. It is true that the Practice Direction in Paragraph 1(i) enumerates the specific criminal appeal to which it is applicable. The submission of learned counsel for the Appellant has however conveniently overlooked the provision of Paragraph 1(ii) of the Direction which makes the said Direction applicable to interlocutory appeals challenging the ruling of the Court below on an interlocutory application. The provision of Paragraph 1(ii) contains no dichotomy between interlocutory appeal in civil proceeding and interlocutory appeal in criminal proceeding or matters; neither does it restrict itself to interlocutory appeals challenging the ruling of the Court below on interlocutory applications in the appeals specified in Paragraph 1(i). I am of the considered view that it will do serious violence

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to the clear and unambiguous provision of Paragraph 1(ii) and thereby defeating the expeditious hearing of any type of interlocutory appeal, for this Court to hold as submitted by learned counsel to the Applicant that the Practice Direction is not applicable to the interlocutory appeal the Applicant desires to pursue in this Court in respect of the interlocutory application decided against it by the Lower Court on 15/12/2015. In other words, an interlocutory appeal in any criminal proceeding is within the contemplation of the Practice Direction by virtue of Paragraph 1(ii) thereof; while the provision of Paragraph 1(i) of the Direction makes the provisions of the Practice Direction applicable to substantive appeals in respect of the offences set out therein. This conclusion however does not derogate from my earlier finding that the Practice Direction is not applicable to the application before the Court inasmuch as the Applicant is yet to bring its appeal as an appeal pursuant to the provisions of Sections 24(2)(b) and (4) of the Court of Appeal Act and Order 17 Rules 3(1) and (7) of the Rules of this Court can only be deemed to have been brought only when the

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notice is filed in the Registry of the Lower Court within the period the Applicant has for appealing against the decision he seeks to appeal against (i.e. ninety days) and which the Applicant by the application before the Court has glaringly shown that it has not done. See ODOFIN V. AGU (1992) 3 NWLR (PT. 229) 350 wherein the Supreme Court decided amongst others to the effect that a notice of appeal filed outside the periods prescribed by law for appealing and the position of which has not been regularised cannot ignite the jurisdiction of this Court.

Flowing from all that has been said hereinbefore, is that the submissions on points of law by the 2nd, 5th and 7th, and 6th Respondents respectively challenging the competence of the Applicant?s motion as it were; and predicating same on the Practice Direction, have no legal basis and consequently lack merit. I will therefore now proceed to consider the Applicant?s motion on the merit.
?
In the grounds of the motion before the Court, the Applicant made it clear that the ruling of the Lower Court it desires to appeal against was delivered on 15/12/2015 and that though it duly filed its notice

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of appeal against the ruling within the time allowed by rules, it however did not procure the leave of the Lower Court within the time it was enjoined to do so or that of this Court, before lodging the said notice in the registry of the Lower Court. Depositions in line with the grounds of the application are contained in the supporting affidavit of the motion. It was also disclosed in the said affidavit to the effect that the initial omission to obtain leave of the Lower Court or that of this Court within the time prescribed for appealing was due to counsel?s erroneous impression that the grounds of appeal in the notice of appeal raise issues of law only and that the leave of this Court was now being sought as it is a prerequisite to the regularisation of the notice of appeal already filed. It was equally disclosed in the supporting affidavit that the Applicant had earlier filed an application on the 1st February, 2016 for the purpose of regularising the position of the notice of appeal filed against the ruling of the Lower Court but that same was withdrawn and struck out due to the irregularities it contained. The notice of appeal in question ?

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Exhibit ?B? on its face is dated 21/12/2015 and was filed in the registry of the Lower Court on the same date. As I have observed hereinbefore, none of the Respondents to the application filed any counter affidavit to the supporting affidavit. Indeed, given the submissions of the respective learned counsel for the 2nd Respondent; 5th and 7th Respondents and 6th Respondent, in opposing the motion, it is clear that they too share the view that the grounds of appeal in the said notice are such that require the leave of this Court before they can be properly countenanced by this Court in the appeal the Applicant desires to bring.
?
The position of the Supreme Court and this Court in respect of the manner(s) of activating appeals that have not been activated within the periods prescribed by law for that purpose is settled. If the appeal sought to be activated is one that can be lodged as of right, then all that the law requires of the of the party seeking to lodge such an appeal is to apply for orders extending the time within which to appeal and a deeming order in respect of the notice of appeal if one had already been filed. There are many cases

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that decide this much; the case ofAULT & WIBORG (NIG.) LTD V. NIBEL (supra) being one of them. In the majority judgment of the Supreme Court in the case, Tabai, JSC; who delivered the lead judgment, in dwelling on rights of appeal and manners of activating appeals when not activated before the expiration of the periods prescribed by law for the purpose said on pages 9 ? 15 thus: –
?However the Notice of Appeal dated the 14th of March, 2003 and filed on or about the 17th of March, 2003 aptly captures the grounds upon which the Court of Appeal refused the application for extension of time to appeal. Ground ONE of the Notice of Appeal states:-
“(1) Error of Law in holding that application filed on the 10/1/2003 is incompetent as leave was not sought for Enlargement of Time. Their lordships of the Court of Appeal erred in law when they held that the application filed on the 10th January, 2003 JUSTICES Court for enlargement of time to appeal from the judgment of the High Court of Ogun State in this case is incompetent because leave was not obtained for enlargement of time to appeal.”
“Particulars of Error<br< p=””

</br<

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And for a comprehensible resolution of the issue before us therefore it is also necessary to examine the provisions of Section 242(1) of the Constitution..?
In my considered opinion where a party can only appeal to the Court of Appeal with the Leave of the Federal High Court or the High Court or the Court of

36

Appeal as provided in Section 242 (1) of the Constitution and he fails to so seek leave to appeal within the period prescribed by law then he has the duty to apply for extension of time within which to seek leave to appeal leave to appeal and extension of time within which to appeal. It is then and only then that the party in default of appealing with leave of Court is required to invoke the trinity prayers to appeal. Where however a party can appeal as of right as provided in Section 241(1)(a) of the Constitution and he fails to utilise his right to appeal within the period prescribed by law he only needs to apply for extension of time within which to appeal. And since he was not required in the first place to seek leave to appeal he has no duty to apply for extension of time within which to seek leave to appeal.
I have earlier reproduced herein above the motion filed at the Court below on the 10th January, 2003 by the Appellant. It prayed simpliciter for “an Order of this appellate Court enlarging the time within which to file a Notice of Appeal from the decision of the High Court of Ogun State holding at Otta (as per the judgment of Hon. (Mr.)

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Justice, Onamade given on the if’ (sic) of July, 2002)…” There were no prayers for extension of time within which to seek leave to appeal and leave to appeal. In its decision on the 4th of March, 2003 the Court of Appeal struck out the application for incompetence, the reason being that in addition to the prayer for enlargement of time, the Appellant ought to have applied for extension of time within which to seek leave to appeal and leave to appeal. With respect, the Court of Appeal was wrong. By its decision the Court of Appeal tried to impose on the Appellant a duty which Section 241(1)(a) of the Constitution never imposed on it. The judgment of the Ogun Stale High Court on the 17th of July, 2002 was “a final decision of the Court sitting at first instance” within the meaning of the provisions of Section 241(1)(a) of the Constitution. Having regard to the fact that the Appellant’s right to appeal is as of right, all it needed to do was simply to apply for extension of time within which to appeal. Before concluding this judgment it is necessary to comment briefly on the decision in PETER ADEBOYE ODOFIN & ANOR v. CHIEF AGU & ANOR.(1992) 2 NWLR (Part

38

229) 350 relied upon and quoted extensively by learned counsel for the Respondent in support of his submission. The case was commenced at the Akoko Grade A Customary Court in Ondo State by the Appellants as Plaintiffs. At the end of the trial judgment was entered for the Plaintiffs/Appellants. The Respondents’ appeal to the High Court was dismissed on the 16th of May, 1985. The Respondents failed to appeal within the 3 months allowed and so filed an application at the Court of Appeal praying for “(1) extension of time within which to ask for leave to appeal against the judgment delivered on the 16th of May, 1985 and (2) leave to appeal against the said judgment? There was no prayer for extension of time within which to appeal. In its ruling on the 21/10/85 the Court of Appeal granted the application and even granted extension of time to appeal which prayer was not sought. On appeal against that ruling this Court held that in the absence of a prayer for extension of time to complete the circle of trinity prayers the application was fundamentally defective. The case is clearly distinguishable from the instant case. The decision of the High Court on the 16th of

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May, 1985 against which the Respondents sought to appeal, was a decision in exercise of its appellate jurisdiction and not in exercise of its jurisdiction as a Court sitting at first instance. Having regard to the fact that the Respondent’s right to appeal was with the leave of Court and it defaulted in appealing within the 3 months prescribed by law it had the obligation to apply for extension of lime within which to seek leave for appeal, leave to appeal and extension of time to appeal. The case therefore is not authority for the submission that whenever a party wishing to appeal fails to do so within the time allowed by law, he had a duty to apply for the trinity prayers. The instant case is one where the Appellant’s right of appeal is as of right under Section 241(1)(a) of the 1999 Constitution. In the circumstances it is inconceivable to require the Appellant to seek extension of time to seek leave to appeal and leave to appeal when by virtue of the clear constitutional provision he does not need leave to appeal. In view of the foregoing considerations I hold that the application filed on the 10th of January, 2003 for enlargement of time within which to

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appeal was properly before the Court. Furthermore the ground of appeal involves questions of law alone and which also entitles the Appellant to appeal as of right. On the whole this appeal succeeds and is accordingly allowed
Tobi, JSC; in his concurring judgment agreed with the lead judgment without reservation.
Fabiyi, JSC, agreed with the lead judgment. He would however appear to have also agreed with the position of the law as expressed in the dissenting judgments of Onnoghen and Ogbuabu, (JJ.SC) and thereby departing from the stance in the lead judgment on the point in question. What his lordship said on pages 32 ? 35 is hereby re-produced and it goes thus: –
?It is clear that the parties are at one that the judgment or the trial Court, for which the appellant desired to appeal was a final decision. The provision of Section 241(1)(3) of the stated 1999 Constitution is applicable to this

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matter Learned counsel for the appellant submitted with force that when an appeal is from a final decision in a case or from a decision which has finally decided the rights of the parties in the proceedings in issue, the appeal is brought as of right. I agree with him. That is the correct statement of the law. See: Omonuwa v. Oshodin & Anr. (1985) 1 NSCC 147. It is more so, since the proposed grounds of appeal involve questions of law alone touching on the legality or interests awarded by the trial Court. Refer to Section 241 (1)(b) of the 1999 Constitution, See: Adeyemi v. Y.R.S Ike-Oluwa & Sons Ltd (1993) 8 NWLR (Pt. 309) 27 at page 43. In a final decision where the rights of the

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parties have been finally determined, appeal is brought as of right. And where there is a right of appeal, no leave of Court is needed or desirable in my considered view. It seems this goes without saying. The above is often confused with interlocutory appeals wherein the rights of the parties in a case have not been decided upon. A proceeding in an action is said to be interlocutory when it is incidental to the principal object of the action, namely the judgment. An application to appeal after 14 days of such a ruling is guided by Section 25(2) of the Court of Appeal Act (No. 43) 1976, this requires the three usual prayers, often referred to as the ‘trinity’. See also Section 31 of the Supreme Court Act (No. 12) of 1960. The three substantive prayers required are:-
(i) Extension of time within which to seek leave of appeal,
(ii) leave to appeal; and
(iii) Extension of time within which to appeal.
When leave to appeal is necessary, it must be applied for and duly obtained See: Amudipe v. Arijodi (1978) 2 LRN 28; Atanda v. Olarewaju (1988) 4 NWLR (Pt. 89) 394, Odofin & Anor v. Agu & Anor (1992) 3 NWLR (Pt 229) 350; 368, 376; Nigerian

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Air Force v. Shekete (2002) 18 NWLR (Pt. 798) 129 at 158. It is my considered view, based on decided authorities, no leave was required by the appellant to file the appeal in question as desired. This is because it is all appeal from the final judgment of the trial High Court which finally determined the rights of the parties. With due respect to the Court below, the applicant’s application ought not to have been struck out. Enlargement of time to appeal ought to have been granted without much ado in the prevailing circumstances. For the above reasons and those contained in the lead judgment of my learned brother, Tabai, JSC. I allow the appeal and hereby set aside the decision of the court below?
I am of the considered view that the pronouncement of Fabiyi, JSC; to the effect that all interlocutory appeals would require the trinity prayers if brought outside the periods prescribed in Section 24(2) of the Court of Appeal Act overlooks the right of appeal in an interlocutory appeal on ground(s)/point(s) of law only and as such appealable as of right within the time frame prescribed in the said Section 24(2).

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Adopting the reasoning in the lead judgment to such an appeal, it would appear that what will be needed to regularise any default in respect of an interlocutory appeal on grounds of law only, not activated within the prescribed period is to seek for an order of extension of time to file appeal and a deeming order if the notice had been previously filed. Be that as it may.

Without prejudice to the observations I have made in respect of the decision in the case of AULT & WIBORG (NIG.) LTD V. NIBEL (supra) there is no doubt that the desired appeal by the Applicant against the ruling of the Lower Court delivered on 15/12/2015 requires the trinity prayers by the showing of the Applicant in that he never before the filing of the notice of appeal marked Exhibit B procured the leave of any Court to lodge the said notice of appeal which on its face disclosed that it was being brought under Section 242 of the amended 1999 Constitution and which section donates a right of appeal with leave to the Applicant. In this regard see the preamble as it were, in the said notice and which reads thus: –
?I Ahmed Tafa Esq, the counsel to the Appellant in the

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above named case and desirous of appealing under Section 242 of the Constitution of the Federal Republic of Nigeria 1999 and Order 17 Rule 3(1) of the Court of Appeal Rules, 2011, DO HEREBY GIVE NOTICE OF APPEAL on the following grounds:
The preamble re-produced above, is in my view clearly antithetical to the submission of learned counsel for the Applicant suggesting that any of the grounds in the notice of appeal is that of law in contradistinction to mixed law and fact.
See also the cases of (i) ERISI V. IDIKA (1987) 4 NWLR (Pt. 66) 502 which was applied by this Court, per Ugo, JCA; in the unreported decision delivered on 27/4/2015 in APPEAL NO. CA/EK/8/M/2015 ?CHIEF AKIN FALAKI & ORS V. CHIEF ISRAEL FAGBUYIRO & ORS. In the said decision, leave to appeal was granted in respect of the notice of appeal the subject matter of the motion before the Court and a deeming order also made as the regularisation of the position of the notice was done while the period during which leave could be obtained had not expired and (ii) the NALSA case (supra) wherein the Supreme Court explained the correctness of its decision in the Erisi case.
?
It

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is clear from reported decisions of this Court and those of the Supreme Court in respect of an application such as the one before the Court that an applicant seeking for same must satisfy two conditions. They are that the application must show (i) good and substantial reasons for the failure to appeal within the period prescribed, and (ii) grounds of appeal which prima facie show good cause why the appeal should be heard. In other words, the non-satisfaction of the two conditions at all; or satisfaction of only one of the two conditions must result in the failure of a motion for the trinity prayers. See in this regard the case of UKWU V. BUNGE where the Supreme Court dwelling on an application for extension of time within which to appeal said per Ogwuegbu, JSC; thus: –
?The principles governing the grant of extension of time to apply for leave to appeal and extension of time to appeal as stated earlier in this judgment have been settled in several decisions of this Court some of which have been considered in this judgment. Order 3 Rule 4(2) provides that there should be: (i) substantial reasons for the failure to appeal within time, and (ii) grounds

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of appeal which prima facie show good cause why the appeal should be heard. The two must be present?…?

From the uncontroverted depositions in the supporting affidavit of the instant motion, it is clear that the notice of appeal which the Applicant seeks to regularise was filed within the period prescribed by the Section 24 of the Court of Appeal Act, to be precise within 7 days of the ruling of the Lower Court being complained of. The ruling was delivered on 15/12/2015. It is also clear from what has been said hereinbefore that the Applicant had within the time frame it has for appealing tried to regularise the position of the notice of appeal it had filed but that the bid or attempt in that regard failed because of irregularities in the process brought by learned counsel for the Applicant. This is just as it was disclosed in the supporting affidavit to the effect that the non-procurement of requisite leave prior to the filing of the notice of appeal was due to fault of counsel as it were. I have given serious consideration to the grounds in the notice of appeal and I am of the view that the said grounds of appeal prima facie show

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cause why the appeal should be heard. In this regard, I cannot but note that by grounds 1 and 2 in the notice of appeal the Applicant is challenging the correctness of the decision of the Lower Court on the basis that the law and decision the learned trial Judge relied upon in coming to his decision in refusing the Applicant?s motion to re-open its case do not support the decision of the Lower Court. The proper application of law and previous decisions of Courts to a matter before a Court, in my considered view glaringly show good cause why an appeal against that alleged act of commission should be heard. Flowing from all that has been said above, is that I find the Applicant to have fulfilled the requisite conditions that it needed to establish for the purpose of securing the exercise in its favour of the granting of the trinity prayers (i.e. 1 ? 3) in the motion papers with effect from the date of this ruling. I am also of the considered view that the Applicant is entitled to the other orders it seeks in the motion papers with effect from the date of this ruling as they can be conveniently granted given the success of the trinity prayers. I will

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however dwell briefly on prayer 5 in the motion papers. It is for a deeming order in respect of the records of appeal already before the Court. Learned lead counsel for the 2nd Respondent in opposing the instant motion on points of law had submitted that the prayer in question cannot be granted in the light of the provision of Paragraph 6(b) of the Practice Direction. The Practice Direction in Paragraph 6(b) provides for a period of seven days for the registrar of the Court below with the assistance of the Applicant (as Appellant) to compile and transmit the record of appeal to this Court after the filing of the notice of appeal. By   the Applicant (as Appellant) has a further 7 days within which to compile and transmit the record of appeal if the registrar fails to do so within the 7 days he has for that purpose. The record of appeal presently before this Court was transmitted sequel to the notice of appeal filed by the Applicant on 21/12/2015 and the position of which has just been regularised and I must say that it was compiled and transmitted within the time provided by the Rules of this Court for that purpose. It was transmitted to this Court

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on 12/1/2016. In other words, if not that there was need to regularise the position of the notice of appeal filed on 21/12/2015 by seeking for the requisite leave of this Court to appeal (and which clearly has now been granted), there would have been no need for the regularisation of the position of the record as it was not filed out of time. Now, that it has been held that the Practice Direction applies to the instant appeal, it definitely cannot be said that the record of appeal before the Court has not been compiled and transmitted within the 7 days given to the registrar of the Lower Court to do this after the filing of the notice of appeal which by law cannot be deemed to have been properly filed earlier than today. In the circumstances it would appear that the only order that the Applicant can seek in relation to the record of appeal that is already before this Court in this appeal, and which obviously now stands as having been transmitted within the first period of 7 days provided by the Practice Direction for the compilation and transmission of records in an interlocutory appeal is indeed one deeming it as having been properly transmitted. The

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Applicant in the circumstances of the instant appeal, definitely cannot be expected to retrieve the records already transmitted and served on the parties based on the notice of appeal filed on 21/12/2015 the position of which has now been regularised. Neither can the Applicant be expected to first wait for the expiration of the 7 days the registrar of the Lower Court has within which to act under Paragraph 6(b) of the Practice Direction, to first expire before taking steps to regularise the position of the said records and thereby having to seek for an order of extension of time in respect of the record and a deeming order. All that I am saying is that just like the situation in APPEAL NO. CA/EK/8/M/2015 (supra) where the applicant seeking for leave to appeal within time prescribed for appealing did not require an order for extension of time before this Court pursuant to its inherent power granted the deeming order prayed for in respect of the notice of appeal, as the said notice was filed within the prescribed period for lodging the appeal and leave in relation thereto also sought within the prescribed period, the same inherent power can be properly used to

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deem the record of appeal in the instant appeal to be properly transmitted inasmuch as the time within which the record of appeal is to be transmitted by the registrar of the Lower Court from the date of the filing of the notice of appeal is still running. In other words, contrary to the position of learned lead counsel for the 2nd Respondent, that prayer 5 cannot be granted in the light of Paragraph 6(b) of the Practice Direction, I hold the view that it is most expedient for the Court to grant the said prayer in the light of the provision of the said Paragraph 6(b) as doing so would only promote the expeditious prosecution of the instant interlocutory appeal and which is one of the purposes of the Practice Direction.
?
In conclusion, the motion before the Court succeeds and the Applicant is hereby granted the following orders: –
?1.Order enlarging till today the 29th day of June, 2016, the time within which the applicant can seek leave to appeal against the ruling delivered by the Lower Court in Suit No: HAD/12C/2014 presided over by HON. JUSTICE A. L. OGUNMOYE between THE STATE OF EKITI V. ADEBAYO ADERIYE & 6 ORS on the 15th day of

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December 2015.
2. Order granting leave to the applicant to appeal against the ruling delivered by the Lower Court in Suit No: HAD/12C/2014 presided (sic) by HON. JUSTICE A. L. OGUNMOYE between THE STATE OF EKITI V. ADEBAYO ADERIYE & 6 ORS on the 15th day of December 2015.
3. Order extending till today the 29th day of June, 2016, the time within which the Applicant is to file the Notice of Appeal against the ruling of the Lower Court delivered on 15th December, 2015.
4. Order deeming the record of appeal already transmitted to the registry of this Court as properly transmitted and served on the parties with effect from today the 29th day of June, 2016.
5. Order deeming the already filed Notice of Appeal as properly filed and served on the Respondents with effect from today the 29th day of June, 2016.
6. Order granting the Applicant leave to argue the grounds of appeal contained in the Notice of Appeal as grounds of mixed law and facts.”

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Other Citations: (2016)LCN/8828(CA)