Daniel Tayar Transport Enterprises Co. (Nig.) Ltd. & Ors V. Alhaji Liadi Busari & Anor (2000)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A. 

By their application dated 8th July, 1999 and filed on 12th July, 1999 the defendants/applicants are praying for the following orders:

(1) extension of time to apply for leave to appeal.

(2) leave to appeal against the ruling of Adefope-Okorie, J. sitting at the High Court, Ikeja delivered on 18/12/98.

(3) Extension of time within which to file notice and grounds of appeal.

The application is supported by a 16 – paragraph affidavit to which were attached three exhibits. The plaintiffs/respondents in opposition to the applications filed a 17 – paragraph counter-affidavit, to which they attached five exhibits:

When this application came before us on the 5th of July, 2000. Mr. Anthony Anozia learned counsel for the applicants in moving the said application submitted that it is brought pursuant to section 25 (4) of the Court of Appeal Act, 1976 and Order 3 rule 3(6) of the Court of Appeal Rules, 1981. He relied on the affidavit in support. He urged on the court not to countenance exhibits A. B, C and D attached to the counter-affidavit on the ground that they were not certified copies; thus, according to him, they contravene the provisions of sections, 109, 111 and 112 of the Evidence Act. He further submitted that he had filed a similar application before the court below within time but the application was not heard within the time prescribed by rules of court; hence this application. He again contended that there are substantial issues of law to argue at the Court of Appeal while urging that their application be granted.

Mr. Taiwo Kupolati, learned counsel for the plaintiffs/respondents submitted that the application is an abuse of court process and therefore should be dismissed.

I shall begin the consideration of this application by saying that generally, when a court is invited to make an order extending the time prescribed by the rules of court for taking certain procedural steps it must be borne in mind that such rules of court must be obeyed. If there is a default in taking the necessary steps to accomplish the procedural steps within the prescribed period a court’s order extending such period being a discretionary one, there must be some material upon which to base the exercise of that discretion. See Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1 All NLR (Pt.1) 1. Mr. Kupolati had in the course of his argument, submitted that the present application is an abuse of court process.

To counter the submission, Mr. Anozia prayed in aid the provisions of Order 3 rule 3(6) of the Court of Appeal Rules which are in the following terms: “where an application for leave to appeal from a decision of the court below has been brought within time specified by section 25 of the Act but has not been heard within that period, the court, if satisfied that there has not been an unreasonable delay in bringing the application may extend the time to appeal and in a proper case grant leave to appeal.”

It is the ruling delivered on 18th December, 1998 that forms the basis of the grievance of the applicants. Section 25 (2) of the Court of Appeal Act, Cap. 75 Laws of the Federation 1990 which prescribes the time within which to take procedural steps to appeal provides:

“The periods for the giving of notice to 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:-

In paragraphs 2 and 3 of the supporting affidavit, the applications depose thus: