Abubakar Muhammed Mansur & Ors. V. The Governor, Taraba State & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE J.C.A. (Delivering the Lead Ruling)

By their Motion on Notice, filed in this court on June 20, 2011, the applicants beseeched this court with entreaties for the following reliefs:

1. An order for enlargement of time within which the applicants are to seek leave to appeal to the Court of Appeal, Yola (sic) in Suit No TRSJ/24/2007 between the parties herein, in the judgment delivered on the 15th Day of May, 2009, by the Hon Justice F. B. Andetur of the High Court of Justice, Taraba State;
2. An order granting leave to the applicants to appeal against the said judgment …;
3. An order extending the time within which the applicants can file an appeal against the said judgment…;
4. And for such further orders as the court may deem appropriate to make in the circumstance of the case.

Expectedly, there is a supporting affidavit of eight paragraphs attached to which are two exhibits: Proposed Notice of Appeal [exhibit A] and Judgment of Andetur J of the Taraba State High Court. All the respondents, stridently, opposed the application, hence the fifteen paragraph Counter Affidavit of the first- fourth and sixth respondents which parades exhibit ‘TR’- Legal Notice of 2011 and the four paragraph Counter Affidavit of the fifth respondent.

Against the background of these spirited contests of the application, this court ordered the parties to file their respective written addresses. They complied.

In their written address, filed on December 19, 2011, the applicants identified a sole issue for the determination of the application. The issue was couched thus:

Whether by the provisions of Order 7 Rule 10 of the Rules of this Court; sections 36 and 242 of the Constitution of the Federal Republic of Nigeria, 1999; paragraph 4 (d) and (e) of the supporting affidavit and the justice of this case, the applicants/appellants are not entitled to the Honourable Court’s discretion in granting this application.

The first, second, third, fourth and sixth respondents, in their written address, put forward the following as the issue calling for determination:

Whether by the affidavit in support of the applicants’ application, the applicants have met the conditions to warrant this court to exercise its discretion to grant them enlargement of time within which to appeal.

On his part, the fifth respondent formulated two issues as can be found in paragraph 3 [pages 3-4] of the written address filed on December 23, 2011.

In our humble view, the issue that calls for determination is a very narrow one. It is simply: whether, in the peculiar facts and circumstances of this case, the applicants are entitled to a favourable exercise of this court’s discretion as prayed. In a word, when disaggregated, the submissions of the applicants amount to an affirmation of their entitlement to a favourable exercise of discretion. On the other hand, the submissions of the respondents point to the opposite conclusion.

The main agitation of the applicants could be found in paragraphs 3- 3.9.4 of the said address. Their arguments revolve around two major premises. The first is that they have explained the reasons for the delay in filing their appeal within the prescribed time: reasons, which in their view, hinge on two “acts of God beyond human control”, namely, the fire incident that gutted the law office of their counsel and the subsequent appointment of the said counsel as the Honourable Attorney General for Ondo State so soon after the judgment: twin events that, allegedly, impeded the timeous advice of the applicants on the next steps after the judgment. Simply put, their contention is that incidents and events woven around the counsel for the applicants are implicated in the delay.

On the other hand, they contend that their proposed grounds of appeal are prima facie arguable and show good cause why the appeal should be heard. They cited so many authorities in support of their twin propositions.

The first; second; third; fourth and sixth respondents, relying on the Counter Affidavits of all the respondents and exhibit TR, urged the court to refuse the application. They advanced a host of reasons as could be seen from paragraphs 3.1-3.10 of their written address. In the main, their contention is that the reasons for the application are not weighty enough to sustain the factors that must be considered in an application of this nature, citing section 24 of the Court of Appeal Act, 2010; Order 7 rule 10 of the Court of Appeal Rules and decided cases. In particular, they deride the reasons advanced in paragraph 4 of the affidavit in support of the application. In their view, the depositions in the said paragraph have not shown good and substantial reasons for failure to appeal within the prescribed time. In a word, they maintain that the application is devoid of good and substantial reasons, see, paragraphs 3.8- 3.9 et seq of the written address.

On his part, the fifth respondent devoted pages 4-13 of his written address to the elucidation of the reasons for his opposition to the application. Instructively, while averments in paragraphs 3 (d) and (e) of the fifth respondent’s Counter Affidavit affirm the story of the fire incident in the applicants’ affidavit, the said fifth respondent, upon a perusal of exhibit A, the proposed Notice of Appeal, attached to the application, conceded that the said Notice “shows good cause why the appeal should be heard”. He, also, conceded that “at this stage, the court is not concerned about whether the appeal will succeed on those grounds of appeal”,[see, paragraph 4.04 of the written address].