Local Government Service Commission, Ekiti State & Anor V. Mr. M. K. Bamisaye (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A.:(Delivering the Lead Ruling)

By a motion on notice dated 5th November, 2013 and filed on the 15th November, 2013, the Applicants herein sought for extension of time within which to seek leave to appeal against the decision of National Industrial Court sitting at Ibadan, which was delivered on the 26th November, 2012; leave to appeal and extension of time to file the notice of appeal.

The motion which is predicated on eight grounds is supported by a five paragraphs affidavit.

Annexed to the affidavit are the judgment against which the applicants seek to appeal, an enrolment order, a letter addressed to the Governor of Ekiti State and the proposed notice of appeal which are marked exhibits A, B, C and D respectively.

In arguing the application, Mr. Gbemiga Daramola, learned Counsel for the Applicants relied on all the paragraphs of the supporting affidavit and the exhibits thereof, particularly paragraph 4(c), (d) and (e). Learned Counsel emphasized that the only reason for their failure to appeal within the prescribed period is the parties’ involvement in negotiation to settle the matter out of court.

Mr. O. O. Ayenakin, who did not file a counter affidavit, elected to oppose the application on points of law. On this segment of the argument of the learned Counsel for the applicants, learned Counsel submitted that the applicants have failed to set forth in their supporting affidavit good and substantial reasons for their failure to appeal within the prescribed period.

Paragraph 4(c), (d) and (e) of the supporting affidavit provides as follows:-

“4. That I stated thus:-

(c) That the Appellants/Applicants applied to this Hon. Court (within time) for leave to appeal against the judgment which leave was granted on the 15th of February, 2013, the enrolment of Order of this Hon. Court granting leave to the Appellants/Applicants to appeal against the lower court judgment dated 26th of November, 2012 is herewith attached and marked as EXHIBIT B.

(d) That the Respondent sought for the amicable settlement of this appeal out of court which the Appellants/Applicants considered and this necessitated the Appellants/Applicants to put the filing of the Notice of Appeal on hold, Certified True Copy of the letter written by the Respondent’s Counsel dated 2nd March, 2013 is herewith attached and marked EXHIBIT C.

(e) That considering the unfolding events and the circumstances surrounding this appeal, the Appellants/Applicants are of the opinion that parties can no longer settle the appeal out of court.

Application for extension of time to appeal is governed by Order 7 Rule 10(2) of the Court of Appeal Rules 2011 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 why the appeal should be heard…..”

By the provision of Order 7 Rule 10(2) of the Rules of this Court, it is very clear that an application of this nature is not granted as a matter of course. For an applicant who has come before this court for such equitable relief he must satisfy the requirement of Order 7 Rule 10(2) of the rules of this Court which I have reproduced hereinabove. The requirements contained in Order 7 Rule 10(2) of the Rules of this Court are two fold. They are:-