National Judicial Council & Ors V. Hon. Justice Jubril Babajide Aladejana & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

This application was filed on the 4/3/2010 by the Appellants/Applicants seeking the following reliefs from the Court:-

“1. AN ORDER extending the time within which the Appellants/Applicants may appeal against the decision of the Federal High Court Abuja (Coram: Adamu Bello. J.) delivered on 26th June, 2009 in Suit No. FHC/ABI/CS/167/2007.

2. AN ORDER deeming as properly filed and served the Appellants/Applicant’s Notice of Appeal dated and
3. AND for such further order or other orders as this Honourable court may deem fit to make in this circumstances.”

At the oral hearing of the application in Court on the 31/1/2010 the learned Senior Counsel for the Applicants O.O. Soyebo, leading other Counsel, referred to and relied on the six (6) paragraphs affidavit in support of the application to which were attached copies of the judgment of the FHC, Abuja, delivered on 26/6/09 in Suit No. FHC/ABJ/CS/167/2007, notice of appeal dated 25/9/09 and notice of appeal dated 28/9/09 all marked as Exhibits NJC1, NJC2 and NJC3 respectively. Paragraph 3(c)- (k) and (n) of the supporting affidavit was specifically relied on as containing reasons for the delay in filing the appeal and that the grounds of the appeal are substantial and arguable and we were urged to grant the application as prayed.

Mr. O.O. Olowolafe, learned Counsel for the 1st Respondent said he opposed the application on point of law though he did not file a counter affidavit. According to him, the application is incompetent because it does not contain or seek for what have become popularly known as the trinity prayers as follows:-

(a) extension of time within which to seek leave to appeal,

(b) leave to appeal, and

(c) extension of time within which to appeal.

He argued that even through the decision the Applicants seek to appeal against was a final decision and the appeal was as of right, since they were out of time and the grounds contained in the proposed notice of appeal include those on mixed facts and law and facts alone, the Applicants need to seek the leave of the Court to appeal on such grounds.

For that reason, he said the trinity prayers have become necessary for the application to be competent relying on the cases of:-

AKEDEREDOLU v. AKINREMI (1986) 2 NWLR (95) 710 and ADAKA v. OLADEJI (2000) 13 NWLR (683) 135 at 143 – 4.

Learned Counsel then urged us to hold that since the application does not contain or seek for the trinity prayers as required in these authorities, it is incompetent and to strike it out.

The learned Counsel for the 2nd and 3rd Respondents, Mr. Morakinyo Assistant Director Civil Litigation, MOJ, Ekiti State told the Court he had nothing to say but leaves the objection to the discretion of the Court.

In response, the learned Senior Counsel for the Applicants said that the application is competent and does not need to seek for the trinity prayers since the Applicants’ appeal is against a final decision and therefore as of right. She asked for time to forward authorities in support of her position to the Court and serve the learned Counsel for the Respondents. The learned Senior Counsel had sent in the cases of:-