Chief Godsaveus Ijezie V. Kingsley O. Ijezie (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE, J.C.A. (Delivering the Lead Ruling)

By his application dated 23rd day of October, 2013 and filed on 1st day of November, 2013 the Applicant prays for the following Orders viz:-

1. AN ORDER extending the time within which the appellant/Applicant may apply for leave to appeal against the judgment of the Imo State Customary Court of appeal delivered on 23rd February 2012 by Hon. Justice P.I. Opara in Customary Court of appeal No. CCA/OW/A/60/2009 Chief Godsaveus Ijezie V. Kingsley O. Ijezie.
2. LEAVE to appeal against the judgment of Imo State Customary Court of appeal, Owerri delivered on 23rd February 2012 by Hon. Justice P.I. Opara in Customary Court of Appeal Number: CCA/OW/A/60/2009 Chief Godsaveus Ijezie v. Kingsley O. Ijezie.
3. AN EXTENSION of time for the appellant/Applicant to appeal against the judgment of Imo State Customary Court of Appeal in Customary Court of Appeal No: CCA/OW/A/60/009 Chief Godsaveus Ijezie v. Kingsley O. Ijezie delivered on 23 February, 2012 by Hon. Justice P.I. Opara.
4. AN ORDER DEEMING THE Notice of Appeal dated 23rd May, 2012 already filed by the appellant/applicant and also served on the Respondent/Respondent, which is exhibited hereto and marked Exhibit “A” and contained in pages 304 – 307 of the bundle of documents already compiled and transmitted to the Honourable Court as the record of appeal as properly filed and served.
5. AN ORDER granting Leave for the Appellant/applicant’s appeal to be hard on the bundle of document already compiled and transmitted by the Appellant/Applicant to the Honorable Court as the record of appeal.

AND FOR SUCH ORDER or other Orders as this Honorable Court may deem fit to make in the circumstances of the case.”

The application is predicated on five grounds namely:-

“1. The appeal is challenging the jurisdiction of the Customary Court of Appeal, Imo State.

2. The appeal raises an issue of fair hearing.
3. This honourable Court has the power to depart from its rules.
4. The applicant has been bedridden with stroke.
5. In the interest of justice.”

The application was supported by 27 paragraph Affidavit deposed to’ by one WISDOM IJEZIE, the son of the appellant/applicant on 1st day of November, 2013. The said Affidavit had attached to it three documents marked as exhibits “A”, “B” and “C” respectively.

It is here relevant to state that the Respondent did not file Counter affidavit against the Appellant/Applicant’s Motion on Notice. The said Motion on Notice was argued on 2nd day of June 2014.

The Learned Counsel to the Appellant/Applicant withdrew legs 1 and 2 of the application. Legs 3, 4, and 5 of the motion on Notice were moved.

U.O. Okoi Esq. for the appellant/applicant relied on the Affidavit in support of the application and the exhibits attached. He informed the Court that no Counter affidavit was filed against the application. He, urged the Court to grant the application as prayed.

J.T.U. Nnodum Esq. SAN for the Respondent opposed the application. That the Applicant has not given adequate explanation for his lateness. Most importantly, according to the Learned Silk for the Respondent, the grounds contained in the Proposed grounds of appeal did not raise any question of customary law as provided under Section 245(1) of the 1999 Constitution. He retried on the following cases:-

1. HIRNOR & ANOR VS YONGO & ORS (2003) 9 (PART 824) 77 at 94 and 98.
2. PAM VS GWOM (2000) 2 NWLR (PART 644) 322 at 335 – 336
3. OHAI VS AKPOOEMOMYE (1999) 1 NWLR (PART 588) 521 at 427-529.
4. GOLOK VS DIYALPWAN (1990) 411 at 419 – 421.

The Learned silk urged this court to refuse the application.

Now it must be stated that whether an application or motion seeking for extension of time within which to appeal will be granted or refused depends to a large extent upon the materials or facts placed before the Court by the Applicant. This Court has been endowed or imbued with wide discretion within the penumbra of Order 7 Rule 10 (1) of the Court of Appeal Rules 2011 to consider such application with utmost sense of responsibility. In other words this Court must exercise its discretion as donated under the said Rule judicially and judiciously. The said Order 7 Rule 10(1) and 7 provide as follows:-

“10(1) The Court may enlarge the time provided by these Rules for doing of anything to which these Rules apply except the filing of Notice of intention not to contest any application under Rules 8 above.

(2) Every application for 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 annex to the Notice of appeal.”