Oboh Monday Osalumhense V. Peter Agboro (2005)

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ABBA AJI, J.C.A.

By a motion on notice brought pursuant to Order 3 rules 4(1) and (2) of the Rules of this Court, the applicant prayed this court for the following orders:

“(1) Extension of time within which to apply for leave to appeal against the judgment of the Warri High Court in Suit No.W/136/2004;

(2) Leave of this Court to appeal against the said judgment;

(3) Extension of time within which to appeal against the said judgment;

and for such order or other orders as this court may deem fit to make in the circumstances.”

The application is supported by a 15-paragraph affidavit deposed to by the applicant himself, Oboh Monday Osalumhense. Arguing the application, Ainerua, Esq. for the appellant relied on the paragraphs of the supporting affidavit and the annextures thereto and urged us to grant the application. He submitted that they have attached several exhibits in support of their application and they have explained the reasons why they are late as contained in paragraphs 3-14 of the affidavit in support.

He continued that the reasons purely is inadvertence of counsel which cannot be visited on the litigant citing Impresit Bakolori Plc. v. Abdulazeez (2003) 10 Federal Reporter 246; (2003) 12 NWLR (Pt.834) 307.

The learned respondent’s Counsel, Tudje, Esq. opposed to the application being granted and to that extent he submitted, they have filed a 13-paragraph counter-affidavit and that they are relying on all the paragraphs of the affidavit and the annexture thereto being exhibit ‘A1’, a certified true copy of notice and grounds of appeal earlier filed by the applicant before the lower Court and which has not been referred to by the applicant in his application. He contended therefore that this application is an abuse of the process of this court, that exhibit ‘DD’ annexed to the applicants supporting affidavit is intended to mislead the Court, the applicant having already filed a notice and grounds of appeal on the 18/1/2005 before bringing the present application for leave to appeal. Learned Counsel referred to Order 3 rule 5 of the Rules of this court and submitted that an appeal is deemed to have been filed when the notice and grounds of appeal have been filed in the Registry of the lower court. He urged us not to grant the application.

In his reply to the learned respondent’s submission, Mr. Aineru for the applicant submitted that, exhibit ‘A1’ was filed out of time and it is a worthless document and there is no need to bring it before the court as it is not relevant to the application.

In an application of this nature, what the law stipulates are as provided by Order 3 rules 4(1) and (2) of the Rules of this court: –

“4(1) The Court may enlarge the time provided by these rules for the doing of anything to which these rules apply;

(2) Every application for an enlargement of time in 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 above provision, the court may enlarge the time provided by the rules for the doing of anything to which the rules apply. However, every application for an enlargement of time in which to appeal must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and by the grounds of appeal which prima facie show good cause why the appeal should be heard. Thus, the fundamental requirements for the grant of an application for an extension of time within which to appeal are: