MR. Olawale Sulaiman Ayinla V. Irepodun Block Manufacturing Company & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the leading Judgment)

By the motion on notice filed on 25th June, 2013, the applicant prayed for the order further extending the time to file his notice of appeal against the decision of the High Court of Kwara State delivered on 3/7/2009 in Suit No. KWS/23/08 and leave to make use of record of proceedings in Appeal No. CA/IL/53/2010 in writing his Brief of Argument in the appeal (No. CA/IL/53B/2010).

The alternative to the 1st prayer was withdrawn by O. J. Adeseko Esq. Learned counsel for the applicant who moved the motion in court. A. B. Nuhu, Principal state council who appeared for the 4th – 6th respondents did not oppose, while A. B. Jimoh Esq. for 1st – 3rd respondents said the applicant has not been diligent.

The grounds relied upon as stated in the motion paper are that this court had, by the ruling delivered on 2/7/12 given the applicant leave to appeal against the judgment of the High Court of Kwara State, Ilorin division delivered in suit No. KWS/23/08 on 31/7/2008 as a party interested in the suit; the court in the same ruling allowed the applicant up to that 2/7/2012 to file the Notice of Appeal but he could not do so because his learned counsel and himself were not in court on that date and so could not file within the extended period.

Other grounds are that the record of appeal in appeal No. CA/53/2010 which the applicant intends to rely upon or use for writing the brief of argument in his own appeal has been transmitted to this court and is in respect of the same judgment delivered on 31/7/2009 in suit No. KWS/23/2008.

By the provision of order 7 Rule (1) and (2) of court of Appeal Rules, 2011, this court may enlarge the time allowed for doing things to which the Rules relate, upon the condition that in an application for enlargement of time to appeal, the applicant by affidavit evidence adduces good and substantial reasons for failure to appeal within the period allowed and shows by the grounds of appeal filed, good reasons why the appeal should be heard.

Thus, the grant or refusal of an application for enlargement of time is within the exercise of judicial discretion of court and the court is expected to be guided by fairness and equity bearing in mind the need for the court to hear and determine the rights of the parties on the merit in any given matter.

The court should therefore lean in favour of an applicant who has adduced cogent and substantial reasons for failure to comply with the period allowed, and has shown grounds of appeal that makes it imperative that the appeal should be heard. See Ekereke v. James 2012 All FWLR (Pt. 641) 1464; Ede v. Mba (2012) All FWLR (Pt. 612) 164.

The applicant in the instant case had obtained the order of this court on 2/7/12 enlarging the period to appeal, and has by affidavit evidence and exhibits shown that the failure to comply with that order was due to the fact the he was not aware of the proceedings of that date as a result of which neither himself nor his counsel was in court, and has also shown that he has good grounds of appeal.

I believe it is reasonable and fair to grant this leg of the application and it is thus granted.

On the prayer to rely on the record of appeal in CA/IL/53/2010, it is noted that this court had fully determined that appeal by the judgment delivered on 27/2/14, it has become imperative for the applicant to provide the record of his own appeal so as to avoid the complications and difficulty the reliance on the record of another appeal that has been disposed may create for both this court and the litigants alike. This prayer is accordingly refused.

On the whole, the prayer for further enlargement of time to file applicant’s Notice of Appeal is granted, and it is ordered that the Notice of Appeal as in exhibit C attached to the applicant’s affidavit shall be filed within 14 days of this order. The prayer for applicant to rely on, or use record of appeal in CA/IL/53/2010 is refused.

I make no order as to costs.

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Other Citation: (2014)LCN/7118(CA)