Yahaya Muhammed & Ors V. Mr. Julius Oladimeji Kayode (1994)

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MOHAMMED, J.C.A.

This is an application brought on behalf of the applicants praying this court for the following orders:

1. An order extending the time within which the Applicants may seek leave to appeal from the Rulings of the Kogi State High Court of Justice delivered on the 20th day of May 1993 and 8th day of July 1993 in suit No. KGS/OB/4/92.
2. An order granting leave to appeal from the said Rulings of the Kogi State High Court of Justice delivered on the 20th day of May, 1993 and 8th day of July 1993.
3. An order extending the time within which the applicants may file such appeal, as per the Notices of Appeal containing the grounds of appeal, marked as Exhibits to the affidavit in support of this application and, to deem the Notice of Appeal as properly filed.
4. And for such further and/or other orders as this Honourable court may deem fit to make in the circumstances.

The application is supported by a 4 paragraph affidavit to which the 2 rulings of the lower court and 2 Notices and grounds of appeal are exhibited. Uyi Igunma moving the application for the applicants said he relied on all the paragraphs of the affidavit with the attachments particularly paragraphs 3(f) and 4(a), (b) and (c) which disclosed reasons for the delay.

A 17 paragraph counter-affidavit was filed by the respondent in opposing the application. Mr. Aderinboye had submitted for the respondent that having regard to the principle that justice delayed is justice denied, and the fact that hearing in the case has virtually been concluded by the parties at the lower court this application is nothing but aimed at delaying justice. He relied on paragraphs 4, 5, 6 and 7 of the counter affidavit and 3(f) of the affidavit in support of the application. In particular it was argued for the respondent that the issues raised in the proposed appeals in this application could still be raised in an appeal against the final judgment if the applicants fail to succeed in the case at the lower court on the authority of Bank of Baroda v. Mercantile Bank (Nig.) Ltd. (1987) 6 SCNJ 165: (1987) 3 NWLR (Pt.60) 233 and University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156 at 169. Counsel therefore urged the court to dismiss the application.

In reply, Mr. Igunma relying on the case of Saraki v. Kotoye 11/12 SCNJ Part 1 page 26 at 49, (1992) 9 NWLR (Pt.264) 156 pointed out that the applicants, in the circumstances of this case are not precluded from exercising their right of appeal and therefore urged the court to grant the application.

It is now well settled that for an applicant praying for the grant of extension of time to apply for leave to appeal, leave to appeal and extension of time to appeal, to succeed, the applicant must show good and substantial reasons for not appealing within the prescribed period and exhibit grounds of appeal which prima facie show good cause why the appeal should be heard. In Re-Adewunmi (1988) 3 NWLR (Pt.83) 483 and Co-operative and Commerce Bank (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (Pt.284) 630.

In the present application, the reasons given for the delay in appealing within the prescribed period is contained in paragraphs 3(f), 4(a), (b) and (c) of the affidavit filed in support of the application. These paragraphs read:-

“3(f) That it was only on the 21st day of July 1993 that their counsel advised them on the urgent need to appeal against the aforesaid rulings and they promptly briefed him to appeal.

4. That I am informed by Uyi Igunma Esq., counsel handling the case for the applicants and I verily believe as follows:-

(a) That after he got the applicants’ brief to appeal he had to make arrangement to get certified true copies of the rulings (Exhibits A & B) from the High Court of Justice Obangede.

(b) That because he resides in Katsina State some time elapsed before he could obtain the aforesaid rulings which are necessary for this application.

(c) That the rulings exhibits A & B are crucial to the determination of the substantive suit.’”

The grounds proposed to be canvassed in the two appeals if the application is granted also read as follow in the 1st Notice of Appeal:

“1. The learned trial Judge erred in law when he rejected the two civil subpoenaes marked R4 and R5

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