Obasi Alaede & Anor V. Ignatius Oguguo (2006)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A.

The appellants/applicants have asked that time be extended to enable them appeal against the decision of the Imo State Customary Court of Appeal delivered on 12th May, 2003. SECTION 245 OF THE 1999 Constitution which creates the right of appeal in respect of decisions of the Customary Court of Appeal of a state provide: –

(1) “An appeal shall be from the decisions of a customary court of Appeal to the court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.”

By section 24 of the Court of Appeal Act, cap 36, Laws of the Federation 2000, this court may extend the period within which to either appeal or file application for leave to appeal. Order 3 Rule 4(1) of the Court of Appeal Rules has similarly empowered the court of Appeal. The two legislations are for ease of reference hereunder reproduced:

“S. 24 (1) Where a person desires to appeal to the notice of appeal or notice of his application for leave in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.

(2) The period for the giving of notice of appeal or notice of application for leave to appeal are –

(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against interlocutory decision and three months where the appeal is against a final decision.

(b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.

(3) where an applicable to leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the Court of Appeal.

(4) The court of Appeal may extend the periods prescribed in subsection 2 & 3 of this section.”

Order 3 Rule 4 (1)

“The Court may enlarge the time provided by these rules for the doing of anything to which these rules apply.”

(Underlining supplied for emphasis)

The power conferred on this court by the foregoing provisions is discretionary. Order 3 rule 4 (2) of the same rules stipulates what the appellants/applicants herein must satisfy this court for time to be extended to enable them appeal when it state: –