Union Bank of Nigeria V. Alhaji Sadiku O. Lawal (2008)

LawGlobal-Hub Lead Judgment Report

PAUL ADAMU GALINJE, J.C.A.

By a motion on notice dated 11th January 2007 and filed on even date, the applicants sought for the following reliefs: –

1. Extension of time within which to file Notice of Appeal against part of the judgment of the Federal High Court (Coram Mohammed J.) dated 3rd May, 2006.

2. An order deeming the Notice of Appeal already filed and served as being properly filed and served.

3. Such further order or other orders as this Honourable Court may find fit to make.

The motion is supported by an 11 paragraphs affidavit deposed to by the applicant himself. Exhibited to the affidavit are a certified true copy of the judgment against which the applicant is seeking to appeal and the proposed grounds of appeal, which are marked exhibits A and B respectively.

Applicant’s further affidavit in support of the motion herein is dated and filed on the 7th of October 2007.

The Respondent filed a counter affidavit of seven paragraphs. The counter affidavit which is dated and filed on the 11th of September 2007 was deposed to by one Otobong Umoh, a legal practitioner in the law firm of Messrs Paul Usoro & Co.

After the affidavits and counter affidavit were filed and exchanged, parties were ordered to file written addresses. The Applicant’s written address is dated 11th January 2007 and filed on the 17th October 2007, while the Respondent’s written address is dated and filed on the 22nd day of November 2007. When the application came up for hearing on the 28th April 2008, learned counsel for the parties adopted their respective written addresses.

I wish to state clearly from the onset that an application of this nature is not granted as a matter of course. See Solanke v. Sumerun (1974) 1 SC 149; Oladele v. Aromolaran II (1991) 3 NWLR (Pt. 181) 564; Universal Insurance Co. Ltd. V. Osemnengie (2006) All FWLR (Pt. 295) 730 at 737 paragraph D.

For an Applicant to succeed he must set forth in his supporting affidavit good and substantial reasons for failure to appeal within the prescribed period and secondly, his grounds of appeal must show prima facie good cause why the appeal should be heard. See Order 7 rule 10 (2) of the Court of Appeal Rules 2007.

These two conditions must co-exist and the Court must be satisfied that the two conditions are present before the application will be granted. See Bowaje v. Adediwuara (1976) 6 SC 143; Alagbe v. Abimbola (1978) 2 SC 39; Ibodo v. Enarofia (1980) 5-7 SC 42; Mobil Oil Nig. Ltd v. Agaddaigho (1988) 2 NWLR (Pt 77) 383.

The relevant paragraphs of the supporting affidavit which tend to explain the reasons for the delay are hereunder set out as follows: –

“5. That shortly after the judgment was delivered on 3rd May, 2006 which was in my favour I travelled out of the country.