Cyril Ikeh & Anor V. Mrs. Chioma Ikeh & Ors (2008)

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PAUL ADAMU GALINJE, J.C.A.

By an application dated and filed on the 10th December, 2007, the Applicants sought for the following orders: –

1. Enlargement of time within which the Appellant/Applicant may seek leave to appeal the Judgment/Ruling of Honourable Justice E. O. Williams Dawodu of the Ikeja Division of the High Court of Lagos State In Suit No. ID/327M/2001 delivered on the 15th day of July, 2005.
2. Leave to appeal against the Judgment/Ruling of Hon. Justice E. O. Williams Dawodu of the Ikeja Judicial Division of the High Court of Lagos State in Suit No. ID/327M/2001 delivered on the 15th day of July, 2005.
3. Enlargement of time within which the Appellants/Applicants may file their notice of appeal against the Judgment/Ruling of Hon. Justice E. O. Williams Dawodu of the Ikeja Division of the High Court of Lagos State in Suit No. ID/327M/2001 delivered on the 15th day of July, 2005.

This motion is supported by a twenty paragraphs affidavit sworn to by Okeoghere Onoruvie a legal practitioner in the law firm of Uche C. Ihediwa and Co. representing the 2nd Appellant/Respondent in this appeal.

Annexed to the affidavit are exhibits A, B, C and D. Exhibit A is a copy of the letter intended to be submitted to the Court by Applicant’s counsel Exhibit B is a certified True Copy of the Judgment/Ruling. Exhibit C is the proposed notice of appeal, while exhibit D is a photocopy of the motion on notice.

In reaction to the application aforesaid, the Respondent filed a 15 paragraphs counter affidavit, dated 27th February, 2008, a further counter affidavit of 8 paragraphs dated 29th February, 2008 and a 2nd further counter affidavit or paragraphs dated 4th March, 2008.

This application came up for hearing on the 5th of June, 2008. Before the application was heard, Mr. Mbagwu, learned counsel for the Applicant, withdrew prayers 1 and 2 because the decision that the Applicant is seeking to appeal against is a final decision and the Applicant does not need trinity prayers. The two prayers were accordingly struck out.

In arguing the motion, Learned counsel relied on all the paragraphs of the supporting affidavit, particularly paragraphs 4-18 and the four exhibits annexed thereto and urged this Court to grant the application.

Mrs. Sylvia Shinaba, learned counsel for the Respondents in her submission relied on all the paragraphs of the three counter affidavits. In a further argument, learned counsel submitted that there are no replies to the three counter affidavits, as such the facts deposed therein are presumed admitted. Finally, learned counsel urged the Court to dismiss the application as the facts deposed in the supporting affidavit are false.

From the onset I wish to make it clear that an application for extension of time within which to appeal is not granted as a matter of course.

For an Applicant to succeed in an application of this nature, he must comply with the provision of Order 7 Rule 10 (2) of the Court of Appeal Rules 2007 which provides as follows: –

“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 the appeal should be heard.”

This provision has laid down two conditions, which must co-exist, or else an application for enlargement of time will not be granted. These conditions are: –

1. Good and substantial reasons for failure to appeal within the prescribed period.
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.

See Ibodo & Ors v. Enarofia and Ors (1980) 12 NSCC 195; Mobil Oil (Nig) Ltd v. Agadaigbo (1988) 19 NSCC (Pt.1) 777; Adelekan v. Eco Line NV (2006) 12 NWLR (Pt. 993) 33: Maduabuchukwu v. Madubauachukwu (2006) 10 NWLR (pt. 989) 475; Solumade v. Kuti (2006) 2 NWLR (Pt. 965) 558.

Learned counsel for the Applicant laid emphasis on paragraphs 4-18 of the supporting affidavit. I will start with a consideration of paragraph 4 of the supporting affidavit, which reads thus: –