Extension of time for entering appeal

• Pages: 565-632

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(68) EXTENSION OF TIME FOR ENTERING APPEAL

1081. Adequate reasons must be given where leave to appeal out of time is

sought.

“The main reason given for the delay was that a copy of proceedings in the first case

in the Magistrate’s Court had to be applied for and had to be considered before an

appeal could be filed. One ancillary reason was also given, namely, that there are

conflicting judgments of the lower Court, and as the offence is one of a public nature,

it is in the public interest to settle the legal issues involved. But on the face of the

facts before us in this Court as admitted on both sides, both the primary reason for

appealing out of time and the subsidiary cannot be sustained. For the subsidiary we

have been told that an appeal was filed at one in the second case by Albert Younan

against his conviction in the second case. It was necessary to settle the issue that

appeal would suffice for this purpose. In fact, from what we have been told, the

Chief Justice of Western Nigeria has heard the appeal and has given his judgment.

As for the primary cause of the delay to appeal, this is what the learned Judge had to

say in his ruling: - “It is significant that although the record of proceedings was

supplied before the expiration of the statutory period of appeal yet, for the reasons

stated in paragraph (14) of Mr. C.A. Johnson’s affidavit, no steps were taken to file

an appeal until another Magistrate expressed a view on the same subject on 21st

December 1963 which was contrary to the decision of the 19th of October 1963.”

Para. (14) of the Deputy Director of Public Prosecutions’ (Mr. C.A. Johnson) affidavit

reads:- “14. That as there was another trial commenced on similar issue and identical

machine, though against different persons, I verily believe that it would amount to a

vexatious prosecution to proceed with the appeal in the first decision, whilst waiting

the decision of another Court on the same issue, more so when the first decision was

against the complainant.” Surely, this portion of the judgment of the learned Judge

makes a mockery of the whole matter and of the reasons given for the delay to file

an appeal against the acquittal by the learned magistrate in the first case. It is

abundantly clear that after the Chief Magistrate convicted in the second case, the

Director of Public Prosecutions decided to appeal in the first case and sought leave

to appeal out of time. They could have appealed in time had they wished, and the

reasons given for the delay were inadequate.” - Per Ademola, C.J.N. in Saffieddine

v. C.O.P. Suit No. 177/1964; (1965) 4 N.S.C.C. 39 at 42.

1082. Appellant wishing to appeal out of time.

(1) “In this case, each of the three prayers which I have discussed above is a

substantive prayer: none can be consequential to the other. I therefore, do not agree

with learned counsel for the respondents that the order for an extension of time to

appeal was a consequential order to either a prayer for extension of time within

which to seek leave or leave to appeal. Each of the three prayers must have to be

prayed for and only duly asked for before it can be granted.” - Per Nnaemeka-Agu,

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J.S.C., in Odofin v. Agu Suit No. S.C. 101/1989; (1992) 23 N.S.C.C. (Pt. I) 520 at

532; (1992) 3 N.W.L.R. (Pt. 229) 350 at 372.

(2) “It has to be emphasized that where leave to appeal against a decision is required

and time to seek leave to appeal and file notice of appeal has expired, it is imperative

that a “tripod application” be filed, that is, a prayer for (a) extension of time to seek

leave to appeal; (b) leave to appeal; and (c) extension of time to appeal. For there to

be a valid appeal the three relief’s must be granted.” - Per Akpata, J.S.C., in Odofin

v. Agu Suit No. S.C. 101/1989; (1992) 23 N.S.C.C. (Pt. I) 520 at 535; (1992) 3

N.W.L.R. (Pt. 229) 350 at 375.

(3) “Now, where as in this case, the application to appeal was made out of time, a

notice of appeal made out of time will require a prayer for enlargement of time

within which to file such notice of appeal. In the absence of a notice of appeal,

namely, the foundation of the appeal, there is no appeal before the Court – See

N.B.N. Ltd. v. N.E.T. (1986) 3 N.W.L.R. (Pt. 31) 667. I agree with Mr. Igbokwe

that the Court below lacked the competence to exercise jurisdiction to hear the

appeal. An important ingredient of the exercise of appellate jurisdiction is that there

is no feature in the case which prevents the Court from exercising its jurisdiction –

See: Madukolu v. Nkemdilim (supra).” - Per Karibi-Whyte, J.S.C., in Odofin v.

Agu Suit No. S.C. 101/1989; (1992) 23 N.S.C.C. (Pt. I) 520 at 528; (1992) 3 N.W.L.R.

(Pt. 229) 350 at 368 - 9.

(4) “But a person whose time to appeal under Section 25 of the Court of Appeal Act

of 1976 has expired and wishes to appeal out of time requires the following prayers

viz:- 1. Extension of time to seek leave to appeal; 2. Leave to appeal; and 3. Extension

of time within which to appeal. The last prayer includes filing of notice of appeal.

For any or all of these prayers to be granted the applicant must give cogent reasons

for delay in appealing within time. If an applicant fails to satisfy the Court about

reasons for delay on any or all of these prayers the Court of Appeal will lack jurisdiction

to entertain such Appeal. By not including a prayer for extension of time within

which to Appeal in their prayers the present respondent who were appellants before

the Court of Appeal have failed to fulfill one of the conditions precedent for the

Court of Appeal to entertain their appeal. The Court of Appeal nevertheless granted

to the respondents extension of time to Appeal, a prayer not asked for. It is erroneous

for it to do so. Courts do not grant a person prayers in excess of his requests. When

the Court of Appeal proceeded to hear the Appeal on merit it lacked jurisdiction to do

so.” - Per Babalakin, J.S.C., in Odofin v. Agu Suit No. S.C. 101/1989; (1992) 23

N.S.C.C. (Pt. I) 520 at 535; (1992) 3 N.W.L.R. (Pt. 229) 350 at 376.

(5) “Could a person whose time to appeal had expired simply apply for leave to

appeal without a prayer for extension of time within which to apply for leave? He

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cannot. I wish to pause here to emphasise that a person who wishes to seek leave on

any grounds to Appeal after the expiration of the statutory periods to Appeal under

Section 25 of the Court of Appeal Act (No. 43) of 1976 (or section 31 of the Supreme

Court Act (No. 12) of 1960) requires three substantive prayers, namely: for (i)

extension of time to seek leave to appeal; (ii) leave to appeal; and (iii) extension of

time within which to appeal. That any such application must contain these prayers is

not a matter of mere cosmetic importance which could be waved off with levity or

waived. Rather, it is a matter, which goes to the serious issue of the jurisdiction of

Court. The periods within which a party can appeal in our Courts are prescriptions

of statutes; and leave to appeal, where necessary, is a requirement of our

Constitution.” - Per Nnaemeka-Agu, J.S.C., in Odofin v. Agu Suit No. S.C. 101/

1989; (1992) 23 N.S.C.C. (Pt. I) 520 at 531; (1992) 3 N.W.L.R. (Pt. 229) 350 at

371.

(6) “In the case before us appellant made his application as prescribed by the rules,

but omitted a relevant prayer. That is the prayer extending time to give notice of

appeal. This notice is crucial and decisive because as admitted on both sides the

judgment appealed against was decided on the 16th May, 1985. The three months

within which to give Notice of appeal expired on the 15th August. 1985. Thus on the

4th and 21st October, 1985 when the application was made and the Court of Appeal

gave the ruling respectively, the appellant was more than six weeks out of time. It

was therefore necessary for the Court to enlarge the time for giving notice, to have

a valid notice of appeal before the Court. – See Order 3 rule 4 Court of Appeal

Rules 1981, see Premier Breweries Ltd. v. Anere Construction Co. Ltd. (1987) 3

N.W.L.R. (Pt. 62) 688.” - Per Karibi-Whyte, J.S.C., in Odofin v. Agu Suit No.

S.C. 101/1989; (1992) 23 N.S.C.C. (Pt. I) 520 at 528; (1992) 3 N.W.L.R. (Pt. 229)

350 at 368.

1083. Applicant seeking extension of time within which to appeal to the

Court of Appeal.

“It is trite law that an applicant seeking those relief must satisfy the condition prescribed

in Order 3 Rule 4 of the Court of Appeal Rules that is to say he must establish by

affidavit evidence good and substantial reasons for failure to appeal within the

prescribed period and exhibited notice of appeal containing ground of appeal which

prima facie show good cause why the appeal should be heard.” – Per Muntaka-

coomasie, J. C. A. in Dawash v.Dawan Suit No. CA/J/94/94; (1996) 1 N.W.L.R

(Pt . 427) 751 at 760.

1084. Applicant’s duty for extension of time within which to appeal.

“It was the duty of the appellant as applicant in the Court of Appeal to present

before the Court, whatever was essential to the clear and adequate consideration of

its application, and failure to do so would be a sufficient reason for refusing its

563 Extension of time for entering appeal Paras. 1082-1084