Alh. Isa Yusuf V. Abuja Investment & Property Development Co. Ltd & Anor. (2009)

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AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.

 In the motion on notice dated 11th November, 2008 and filed on 12th November, 2008, before this Court, the Defendant/Appellant (who will hereinafter simply be referred to as “the Applicant”) seeks for:-

“An Order of the Honourable Court extending the time within which the Appellant/Applicant can file their Notice of Appeal, the time allowed by the Rules of court having expired.”

Given the disposition of the Respondent to oppose the motion, the Court ordered that parties should file written submissions. Parties duly complied.

They filed and exchanged written submissions in respect of the motion. C. Odili Achilike Esq. settled the Applicant’s written address dated 24th March, 2009 and filed on 26th March, 2009 in support of the instant motion. Respondent’s written address in opposition to the motion dated 2/4/2009 and filed on the same day was settled by Akpama Ekwe Esq.

The motion was moved on 29/9/2009. In doing this, learned lead counsel for the Applicant, C. Odili Achilike relied on the supporting affidavit of the motion. He also adopted the aforementioned written address dated 24/3/2009 and filed on 26/3/2009 as his argument in respect of the said motion. The Court was urged to grant the application before it.

Learned lead counsel for the Respondent, Akpama Ekwe opposed the motion in question. For this purpose, he relied on the counter affidavit sworn to by one Oghenemaro Hilary Okene on 24th November, 2008 and also adopted the written address dated 2/4/2009 and filed on the same day as his argument in opposing the motion.

In the Applicant’s written address, Applicant’s counsel, disclosed that the Applicant is by this motion praying this Court for an Order extending the time within which the Applicant can file its Notice of Appeal against the interlocutory decision of the High Court of the Federal Capital Territory presided over by Hon. Justice A.A.I. Banjoko delivered on 22nd October, 2008 in Suit No. FCT/HC/CV/873/07 – Alh. Isa Yusuf (as Plaintiff/Applicant) v. Abuja Investment and Property Development & Anor (as Defendants/Respondents). The High Court of the Federal Territory will hereinafter be simply called “the lower court”.

The lone issue formulated for the determination of the motion before the Court in the written address of the Applicant is:- “whether from the circumstances of this case as deposed to in our affidavit in support of this Motion on Notice, the Applicant’s Motion before the Honourable Court is proper and one in which this Honourable Court can exercise its discretion in granting the prayers being sought by the Applicant.”

A lone Issue was likewise formulated for the determination of the motion before the Court in the Respondent’s written address. The Issue is:-

“whether or not the Applicant has met the conditions for the exercise of this honourable court (sic) discretion in extending the time within which the Applicant can file her Notice of Appeal”.

I am of the considered view that the Issue which has to be determined in the instant motion is simple and straightforward and it is whether or not the Applicant has placed before the Court, materials upon which the Court can predicate the exercise of its discretion to grant the Orders being sought? This is against the backdrop of the provision of Order 7 Rule 10 (2) of the 2007 Rules of this Court which reads thus:-

“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. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”

In the Applicant’s written address the conditions the Applicant must meet in order to procure the indulgence sought from this Court were correctly stated as (i) that the Applicant must show good and substantial reasons for not appealing within time prescribed by law for doing this; and (ii) that the Applicant’s grounds of appeal must prima facie show good cause why the appeal should be heard.