The University of Jos & Ors V. Amuruche Chukwuemeka Enwereji & Anor (1985)
LawGlobal-Hub Lead Judgment Report
AKANBI, J.C.A.
This is an application brought on behalf of the applicants praying the Court for an extension of time within which to apply for leave to appeal against the ruling of the Plateau State High Court in Suit No. NJ/208/1984 and for such further order or orders as the Court may deem fit to make. The reason for the delay in appealing within time is contained in paragraphs 7, 8, 9, 10 and 11 of the affidavit filed in support of the application.
These paragraphs read as follows:-
7. “That I am informed by the 3rd Applicant whom I verily believe that the 2nd Applicant, Professor E.U. Emovon. Vice Chancellor of the 1st Applicant University has been travelling intermittently outside Jos since the ruling of 10th January 1985 aforesaid and has not been able to study the said ruling and its effect on the University administration.
8. That I am informed by Mr. Brown-Peterside aforesaid whom I verily believe that he has just received instructions to appeal against the ruling given by the lower court particularly set out in Annexure ‘C’ aforesaid.
9. That I am again informed by M. Brown-Peterside aforesaid whom I verily believe that he has carefully studied the said ruling and has prepared proposed grounds of appeal which will be filed with the relevant application in the lower court in the event this application succeeds, a copy of which is annexed herewith and marked Annexure ‘E’.
10. That it is essential in the interest of justice that time be extended within which to file the necessary papers in the lower court pertaining or about 24/1/85.
11. That I am informed by the 4th Applicant whom I verily believe that to allow Annexure ‘C’ aforesaid to stand will impair the smooth running of the Faculty of Medicine of the 1st Applicant University and expose it to unnecessary expense.”
The grounds proposed to be canvassed if the application is granted also read as follows:-
1. “The learned trial Judge erred in law in failing to set aside the order made on the 19th of December, 1984 restraining the University from expelling the Respondents, and this error occasioned miscarriage of justice.
Particulars of Error
It is clear from the record before the lower Court that the Respondents were expelled on 13/11/84. The order restraining the expulsion on 19/12/84 is an ex post fact order which the learned trial Judge had no jurisdiction to make.
2. The learned trial Judge further erred in law in holding that he could take judicial notice of his judgment which is not certified as required by law under Section 73(1)(m) of the Evidence Act, and this error also led to failure of justice.
Particulars of Error
Section 131(1) of the Evidence Act makes it quite clear that the only evidence that can be given of a judgment is the document itself. The learned trial Judge was clearly in error in ignoring this section of the law, especially as the judgment to which he gave cognisance is not certified as required by Section 110(1) of the Evidence Act, being a public document. This is contrary to the Supreme Court decision in Dobadina Family & Anor. V. Ambrose Family & Ors. (1969) NMLR page 24 which is binding on him.”
It is pertinent also to observe that the ruling sought to be appealed from was delivered on 10th January, 1985 while the present application was filed in this Court on 25th April, 1985. However, time allowed for appealing in such interlocutory matters is fourteen (14) days vide Section 25(2)(a) of the Court of Appeal Act 1976. Evidently therefore, at the time the present application was brought there has been some delay of about two months and seventeen days on the part of the applicant.
It is also crystal clear from the paragraphs of the affidavit quoted above that the cause of the delay was solely and wholly attributed to the frequent out of station journeys made by the Chief Executive of the 1st defendant the Vice Chancellor who incidentally is the 2nd defendant in the matter.
Furthermore, it is also clear to me from those paragraphs that the import of the averments in those paragraphs of the affidavit, is that it was not possible for appellant’s counsel to receive instructions to prosecute this appeal in the interval between the making of the ruling and the filing of the application. However, Mr. Ogaba Ede, learned counsel for the respondent has argued that the reasons contained in those paragraphs are not sufficient to warrant the grant of the indulgence being sought by the applicants in that it did not say in clear terms that the Vice Chancellor was continually absent throughout the period of delay. That being so, he argued, no good reason has been shown why this application should be granted.
There is no doubt that in considering an application of this nature, which calls for the exercise of judicial discretion, the Court must satisfy itself that the reason(s) given by the applicant is good and that on the hard facts placed before the Court, he deserves to be granted the indulgence being sought.
From a perusal of the decided cases, it is evident that what will constitute good and substantial reason, warranting the exercise of discretion in an applicant’s favour, has to depend on the facts of each case. For as I said in the case of FAWZI SAMI MOUKARIM & Anor. V. ALIRAT ABENI AGBAJE FCA/I/M.12/79 delivered on 15/1/80 (unreported):-
“…each case must be treated on its own merit and that since the Court has a discretion to either grant or refuse the application, it must in the exercise of such discretionary power act judicially.”
I think there are three vital factors to consider in such cases. Viz: (a) the issue of delay and the reasons therefore: (b) the length of time that has elapsed before the application was brought and (c) whether the proposed grounds show prima facie good cause why the appeal should be heard.
Taking all these factors into consideration, I am inclined to the view that in the absence of any counter affidavit challenging the averments contained in the applicant’s affidavit and considering the fact that the period of delay in bringing this application cannot be said to be inordinate; this application ought not be refused. I am satisfied that those averments sufficiently explain the cause of delay and that the reason given is compelling enough to impel me to grant the application and give the applicants an opportunity to be heard on the proposed grounds of appeal.
In coming to this conclusion, I must say that I have allowed myself to be guided by the decision of the Supreme Court in the case of Adekunle Ojora against S. A. Bakare (1976) 1 SC 47 where that Court said:-
“In deciding to grant or refuse an application for appealing the length of time that has elapsed is always a material factor.”
I also bear in mind the case of Ademola Alagbe v. His Highness Samuel Abimbola & Iwo District Council and 2 Ors. (1978) 2 SC. p. 39, in which the Supreme Court again has this to say:-
“We think the totality of the reasons given both in the affidavit and further affidavit, bearing in mind that the delay was only of some six weeks, shows good and substantial reasons for the delay. In these circumstances, and having regard to the materials available to them and to our observation in Bowaje v. Adediwura referred to above, we think the Western State Court of Appeal should have exercised the discretion which they undoubtedly have in this matter in favour of the applicant/appellant. They were therefore in error in refusing the application for extension of time within which to apply for leave to appeal.”
(Italics mine)
Finally, in coming to the conclusion that the reason given for the failure to appeal within the prescribed period is good and substantial, I have again allowed myself to be persuaded by the facts deposed to in this case and the need to do substantial justice between the parties having regard to the proposed grounds of appeal annexed to the motion papers. I need only add that respondent’s counsel did not complain about these grounds. He has not argued that those grounds do not establish prima facie good cause why the appeal should be heard: and for my part, I consider that the grounds are arguable and counsel ought to be given a hearing.
Accordingly, time is hereby extended till the 23rd day of May, 1985, for the applicants to file their notice and grounds of appeal. I also hereby grant leave to appeal.
Other Citations: (1985) LCN/0012(CA)
