Chief Of Air Staff & Ors. V. Flying Officer Ojeikere Edward & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Ruling)

By a motion on notice dated 18th March, 2010 and filed on the 19th March, 2010, the Applicants herein sought for extension of time to appeal against the judgment of Akanbi J. of the Federal High Court Lagos, which was delivered on the 8th of May, 2009.

The motion aforesaid is supported by a ten paragraphs affidavit deposed to by Mr. Donatus Sunday Oluya a legal officer in the Applicants’ Directorate of Legal Services Headquarters’ Nigerian Airforce. Annexed to the application are the judgment that is sought to be appealed against and the proposed grounds of appeal which are marked exhibits NAF1 and NAF2 respectively.

In reaction to the motion on notice aforesaid, the Respondent filed a counter affidavit of 21 paragraphs on the 7th April, 2010.

When the motion came up for hearing on the 12th of April, 2010, Mr. J.A. Adamu, learned counsel for the Applicants relied on all the paragraphs of the supporting affidavit, especially paragraphs 3-10.

In a further argument, learned counsel submitted that the reasons for the delay in filing the appeal within the prescribed period are contained in paragraph 5(C-D) of the supporting affidavit. As for the grounds of appeal, learned counsel made reference to paragraph 5(E) and contends that the grounds of appeal prima facie show good cause why the appeal should be heard.

On the counter affidavit learned counsel submitted that paragraphs 3, 4, 8, 9, 11, 12, 13, 14, 15, 17, 18 and 19 contravene the provisions of section 87 of the Evidence Act. Finally, learned counsel urged this court to grant the application.

Mr. S.A Adukwu, learned counsel for the Respondents relied on all the paragraphs of the counter affidavit. Learned counsel cited the authority in Doherty V. Gomez (2009) 7 NWLR (Pt. 1139) 1 at 11, and C. Ebohan v. Ekwunibe & Sons Trading Co. (1999) 10 NWLR (Pt.622) 242 at 245. Finally learned counsel urged this court to dismiss the application.

On reply on point of law, learned counsel for the applicant urged this court not to visit the mistake of counsel on the litigant.

It is the law, that for an Applicant who seeks for extension of time to appeal to succeed, he must satisfy the twin conditions stipulated under order 7 rule 10 (2) of the Court of Appeal Rules 2007. This rule provides as follows:-

“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”.

The two conditions are:-

“1. That the Applicant shall set out in the supporting affidavit, good and substantial reason why the appeal was not filed within the prescribed period.

2. The proposed notice of appeal shall contain, grounds of appeal which prima facie show good cause why the appeal should be heard.”

These conditions must be satisfied conjunctively otherwise the application will not be granted.