Ganiyu Layinka Garuba Aremu & Ors V. Iyabo Immam (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Lead Ruling)

This is an Application brought pursuant to Section 24(4) of the Court of Appeal Act 1976 (as amended) and inherent powers of this Court preserved by Section 6(6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Applicants are praying for the following reliefs:-

1. An Order extending the time within which to apply for leave to appeal against the Ruling of the High Court of Justice, Kwara State sitting in its Appellate Session when it delivered, the said Ruling on 16/05/2012 in the Suit No. KWS/7A/2011.
2. An Order granting leave to appeal.
3. An order for extension of time within which the Applicants may file their Notice and Grounds of Appeal against the said Ruling.

The motion is supported by an Affidavit of 16 paragraphs to which the Notice and Grounds of Appeal, the Ruling of the Appellate lower Court and the proposed Notice of Appeal were attached as Exhibits ‘A’, ‘B’ and ‘C’ respectively. No counter affidavit filed opposing the Application.

Moving the Application, the learned counsel for the Applicants, said he was relying on

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all the paragraphs of the affidavit in support of the motion and the Exhibits particularly Paragraphs 4-13 of the affidavit in support and submitted that the Applicants have fulfilled all the conditions required to grant the Application.

In an Application for an extension of time within which to appeal from the decision of the High Court to the Court of Appeal pursuant to Order 7 Rule 10(2) of 2011 Court of Appeal Rules the conditions to be satisfied before this Court exercise its discretion in favour of an Applicant are:-

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

(2) Grounds of Appeal which prima facie show good cause why the Appeal should be heard. See OKERE v. NLEM (1992) 4 NWLR (Pt. 234) 132: YESUF v. CO-OPERATIVE BANK LTD. (1989) 3 NWLR (Pt. 110) 483. It is also the requirement of the law that these two conditions must be satisfied conjunctively for the Application to succeed. See CO-OPERATIVE AND COMMERCE BANK (NIG.) LTD. v. EMEKA OGWURU (1993) 3 NWLR (Pt. 284) 630.

?Similarly, it is the requirement of the law that leave must be obtained for an Appeal from the final decision of

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the High Court sitting in its appellate jurisdiction to the Court of Appeal, pursuant to Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See IYANBOYE v. BALOGUN (1990) 5 NWLR 392 AT 410.

In the present application, no leave of this Court was sought for an order granting leave to the Applicant to appeal against the final decision of the High Court sitting in its Appellate jurisdiction. Even if the present Application is granted as sought by the Applicant, that would not suffice the Applicant to appeal to this Court. Failure to seek such leave, in my view is fatal to the Applicants’ Application.

On the other angle of the Application, the reasons given by the Applicant for the delay in appealing within the prescribed period are contained in Paragraphs 4, 5, 6, 7 and 8 of the Affidavit in support as follows:-