Salami Usman Okoayaba V. Dr. Alhaji Raheem Olaoye & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A.(Delivering the Leading Judgment)

By a motion on notice dated and filed on the 23/4/13, the Applicant herein sought for extension of time to seek leave to appeal, leave to appeal and extension of time within which to file appeal against the decision of the High Court of Kwara State which was delivered on the 29th October 2012. In addition, the motion sought for stay of proceedings at the lower Court.

The application is predicated on five grounds and supported by affidavit of five paragraphs. Attached to the affidavit are a letter requesting for certified copy of the ruling of the lower Court dated 22/10/2012, the ruling of the lower Court against which the Applicant seeks to appeal and the proposed notice of appeal, which were marked A, B and C respectively.

In reaction to this application, the Respondent filed a Counter affidavit of eighteen paragraphs.

This application came up for hearing on the 11th June 2013. In moving the motion, Mr. M. A. Bello, learned Counsel for the Applicant relied on all the paragraphs of the affidavit, particularly paragraphs 3(b)(g) (1) and (J), and submitted that the proposed grounds of appeal challenge the jurisdiction of the lower Court. According to the learned Counsel, where the grounds of appeal challenge the jurisdiction of the lower Court, the application for extension of time ought to be granted. In aid, learned Counsel cited the authority in Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271) 467.

In his reply, Mr. A. Akorede, learned Counsel for the Respondent relied on all the paragraphs of the Counter affidavit, particularly paragraphs 6, 8-17 and submitted that the paragraphs referred to have not been controverted in any manner. In a further argument, learned Counsel submitted that even after the ruling (Exhibit B) the Applicant participated in the proceedings without raising the issue of his application for record of proceedings or Exhibit A. Finally, learned Counsel urged the Court to refuse the application as the proposed grounds of appeal are frivolous.

For an Applicant to succeed in an application for extension of time to appeal, he must meet the conditions laid down under Order 7 rule 10(2) of the Court of Appeal Rules 2011 which 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.”

By this provision, an Applicant who seeks for extension of time to appeal is required to:-

(1) Set forth good and substantial reasons for his failure to appeal within the prescribed period in an affidavit in support of his application.

(2) His grounds of appeal must prima facie show Good cause why the appeal should be heard.

These two conditions must be satisfied conjunctively, barring certain exceptions. See Idris v. Audu (2005) 1 NELR (Pt. 908) 612, Deem Mark Construction Co. Ltd. v. Abiloa (2002) 3 NWLR (Pt. 754) 418, Iroegbu v. Okwordi (1990) 6 NWLR (Pt. 159) 643.

Learned Counsel for the Applicant has particularly relied on paragraphs 3(b)(g)(1) and (J) of the Supporting affidavit. I will reproduce the said paragraphs for the purpose of clarity thus –

“3(b) The preliminary objection concerned the incompetence of the Claimants/Respondents’ originating process on the ground that it was not signed by a legal practitioner known in law as defined by the legal practitioners Act and required by the necessary Rules of Court.