Customary Court Of Appeal Benue State V. Abura Tsegba & Ors. (2010)

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UZO NDUKWE-ANYANWU, J.C.A. (Delivering the Ruling)

This is a motion on notice filed on 23rd December, 2008. The Applicant, the Customary Court of Appeal, Benue State is seeking for the following orders:

(1) An order for extension of time within which the Applicant may seek for leave to appeal against the decision of the Benue State High Court in Suit No. MHC/90/2004 delivered on 15/11/2004 by Hon. Justice E.N. Kpojime.

(2) An order granting the applicant leave to appeal against the decision of the Benue State High Court in Suit No. MHC/90/2004 delivered on 15/11/2004 by Hon. Justice Kpojime.

(3) An order for the extension of time within which the applicant may file Notice and Grounds of Appeal against the decision of Benue State High Court in Suit No. MHC/90/2004 delivered on 15/11/2004 by Hon. Justice E.N. Kpojime.

(4) An order granting leave to the Appellant to raise as fresh issue Abuse of Court Process which is contained in the Notice and Grounds of Appeal.

(5) AND for such order or further orders as this Honourable Court may deem fit to make in the circumstances.

In support of this notice is a 27 paragraphs affidavit deposed to by one Ngozi Ufelle, and 8 Exhibits marked 1-8. In support also, the Applicant filed his brief. Counsel adopted his brief and formulated one issue for determination namely:

(1) Whether the Applicant has made out a case to be granted leave to appeal.

Learned counsel, Ngozi-Ufelle submitted on behalf of the Applicant that the Appeal Court can exercise its discretion and grant an extension of time within which an Applicant can appeal against the decision of the Lower Court. Counsel submitted that when an applicant requires the Court to exercise its discretion, the applicant has a duty to exhibit for the Court’s use of all relevant documents. For this, the Applicant annexed Exhibits 1- 8. See the case of Impresit Bakolori Plc vs. Abdulazeez (2003) 12 NWLR Pt. 834 Pg 307 at 326.

Counsel cited Order 7 Rule 10(2) of the Court of Appeal Rules 2007 which has two requirements namely thus:

(1) Good and substantial reasons for failure to appeal with the prescribed period stated.

(2) Grounds of Appeal showing prima facie good cause why the appeal should be heard. See Ifekaanlu vs. Uzoegwu (2008) 15 NWLR Pt. 1111 Pg 508 at 517. Counsel submitted that good and substantial reasons have been provided in their affidavit in support. See N.I.W.A vs. S.P.D.C.N Ltd (2008) 13 NWLR Pt. 1103 Pg 48 at 6S; Akinpelu vs. Adegbare (2008) 10 NWLR Pt 1096 Pg 531 at 555; Bowafe vs. Adediwura (1976) 6 SC at 143. Also, in an application such as this the rules require that the grounds of appeal should only show good cause why the appeal should be heard. Ethiopian Airlines vs. Onu (2005) 11 NWLR Pt. 936 Pg 214 at 228; Obikoya vs. Wema Bank Ltd (1989) 1 NWLR Pt. 96 Pg 157.

Where an issue is being raised for the first time leave of Court is required to do so. Failure to do so will render the issue incompetent. See UBA PLC vs. S.A.F.P.U (2004) 3 NWLR Pt. 861 Pg 516 at 537; Leaders & Co. Ltd vs. Kusamotu (2004) 4 NWLR Pt. 864 Pg 519-at 540.