Alh. Musa Sanusi Olaiya V. Miss Obasa Omotade Oluwabukola (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the Lead Ruling)

The applicant herein has by a motion on notice filed on 14th October 2013 sought for the following reliefs:

1. An order…for extension of time within which to seek leave to appeal against the judgment of the Kwara State High Court in Suit No: KWS/69/2009 delivered on the 19th day of December 2012, a copy of which is annexed herewith as Exhibit A.
2. Leave to appeal against the Judgment of the Kwara State High Court in Suit No: KWS/69/2009 delivered on 19th December, 2012, a copy of which is annexed herewith as Exhibit A.
3. An Order…for the extension of time within which the Applicant can file his notice of appeal against the judgment of the Kwara State High Court in Suit No: KWS/69/2009 delivered on 19th December 2012.
4. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this application.

The application is premised on four main grounds thus:

(a) The judgment of the lower trial court which necessitated this appeal was delivered on the 19th day of December 2012.

(b) The Applicant has 90 days from date of the decision to file his notice and grounds of appeal.

(c) The said 90 days within which the Applicant has to file his notice and grounds of appeal has lapsed.

(d) The failure of the Appellant to file his notice and grounds of appeal before this Honourable Court within time allowed was not a deliberate on the part of the Applicant or his counsel.

The application is supported by eleven-paragraph affidavit. The relevant paragraphs explaining the reasons for the delay in filing the Notice of Appeal are hereunder reproduced:

“5. That I know as a fact that the applicant fell ill few weeks before the judgment was delivered and had remained indisposed till few days ago when he was able to come to our office to instruct us of his desire to appeal.

6. That I know as a fact that the appellant is desirous to prosecute the appeal to its logical conclusion.”

The judgment sought to be appealed against, which is annexed to the supporting affidavit as exhibit A, was delivered on 19th December 2012 by Hon. Justice Halima Saleeman, J. An appeal must be filed within the period specified by statute and the Constitution. The failure of a party to appeal within the statutory time frame, does not despondently extinguish such right. His fallback position is to apply for extension of time to appeal. If he also requires leave, as in the instant case, it must come on tripod reliefs.

The applicant must explain the cause of the delay and give cogent reasons why the notice of appeal was not filed within the statutory period. Furthermore, the applicant must also show that he has an arguable and not just a frivolous appeal. In other words, the applicant must show that he has good grounds of appeal with reasonable prospect of success but he is not required to show that the appeal will succeed for certain. Order 7 Rule 10(2) of the Court of Appeal Rules 2011 provides 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.

The Supreme Court and this Court alike have in a plethora of authorities stressed the mandatory requirement for the fulfillment of following twin conditions in every application for extension of time within which to appeal:

(a) Good and substantial reasons for failure to appeal within the prescribed period, and