Index

• Date: 18 July 2012

865

2963. Principles guiding the Court in applications for enlargement of time

to appeal.

“The two conditions for granting an application like this must co-exist, namely, good

and substantial reasons why the appeal was not filed within time and grounds of

appeal which prima facie show good cause why the appeal should be heard. See:

Ibodo v. Enarofia (1980) 5-7 S.C. 42; Kigo v. Holman Bros. (1980) 8-11 S.C. 43;

In re Adewunmi & Ors. (1988) 3 N.W.L.R. (Pt. 83) 483; Obikoya v. Wema bank

Ltd. (1989) 1 N.W.L.R. (Pt. 96) 157; Yesufu v. Co-operative Bank Ltd. (1989) 3

N.W.L.R. (Pt. 110) 483. The appellants have completely failed to satisfy these

conditions.” - Per Kutigi, J.C.A., in Awachie v. Chime Suit No. CA/E/5M/90;

(1990) 5 N.W.L.R. (Pt. 150) 302 at 309-310.

2964. Proper prayers to seek where time within which to appeal has expired.

(1) “Time within which to appeal is by Section 25(2) of the Court of Appeal Act,

1976 fixed at 14 days from the date of the interlocutory decision. Section 25(4) gives

power to the Court to extend such time in appropriate cases. This jurisdiction

can only be invoked where there has been a substantive prayer to that effect in

a motion on notice. In the absence of such prayer, a prayer in a motion asking

the Court to deem an invalid notice to appeal as duly and properly filed cannot be

a substitute after the expiration of time to appeal. This was the situation before

the Court below.” – Per Karibi-Whyte J.S.C., in Nalsa & Team Associates v.

N.N.P.C. Suit No. S.C. 133/1988; (1991) 22 N.S.C.C. (Pt. II) 660 at 680; (1991)

8 N.W.L.R. (Pt. 212) 652 at 680.

(2) “I would like to seize this opportunity to reiterate that such a prayer deeming

an incompetent or invalid notice of appeal as having been duly filed a long time

after the statutory period to appeal had expired cannot properly be a substitute

for a substantive prayer for extension of time to appeal. Without a prayer asking

the Court to invoke its statutory power to extend time to appeal as contemplated

by Section 25(4) of the Court of Appeal Act 1976, or Section 31(4) of the Supreme

Court Act, 1960, neither Court has power to deem any invalid or incompetent

notice of appeal as having been dully filed. The Court of Appeal was, therefore

in error to have thought that it had such a power.” – Per Nnaemeka-Agu, J.S.C.,

in Nalsa & Team Associates v. N.N.P.C. Suit No. S.C. 133/1988; (1991) 22

N.S.C.C. (Pt. II) 660 at 670; (1991) 8 N.W.L.R. (Pt. 212) 652 at 670.

2965. Reasons for providing a specific period for time within which to

appeal.

“The rules of Court provide for specific period or time within which an aggrieved

party can set the appeal process in motion. There are two main reasons for this.

First is to ensure that the appeal is heard speedily and second to enable the

successful party reap the fruits of the judgment without undue delay.” - Per

Time within which to appeal Paras. 2963-2965

866

VOL. 1 PT. II APPEAL 2

Tobi, J.C.A., in Dahuwa v. Adeniran Suit No. CA/L/179/85; (1993) 2 N.W.L.R.

(Pt. 277) 580 at 586.

2966. Rules of Court governing procedure for appeal against decision of

Election Tribunal.

“In Adegbuyi v. Mustapha (supra) at pages 185 - 186 paragraphs B - F, my Lord

Justice Alagoa, J.C.A., said: “The preamble to the Practice Directions, No.2 of 2007

reads as follows; “For the purpose of appeals coming to the Court of Appeal under

section 149 of the Electoral Act, 2006 No.2 this Practice Directions shall be strictly

observed by all parties: It is very clear from this preamble that certain specie of

appeals are not covered under the ambit of section 149 of the Electoral Act, 2006 ....

These provisions are clear and unambiguous, the 1st, appellant in the present appeal,

now being considered, was not returned as the winner by Independent National

Electoral Commission and his complaint at the Election Petition Tribunal against the

return of the 1st respondent was dismissed. In that case, the decision appealed against

certainly does not come within the contemplation of section 149 of the Electoral Act.

Section 51 of the First Schedule to the Electoral Act, 2006 provides that in such

cases, recourse must be had to the Practice and Procedure relating to appeals in the

Court of Appeal regard being had to the need for urgency in electoral matters.” I

agree with the view of my Lord Justice Alagoa, J.C.A., and I feel bound by the

decision of the Supreme Court in Buhari v. Obasanjo (supra). Section 24(2)(a) of

the Court of Appeal Act, 2004 provides as follows: “The periods 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 an

interlocutory decision and three months where the appeal is against a final decision.”

In the instant case, the judgment against which the cross appeal is filed was delivered

on the 28th of May 2010. Notice of cross appeal was filed on the 22nd of June 2010,

a period of less than one month. The cross appeal was therefore filed within time.

This is so because the Tribunal did not nullify the return of the 1st and 2nd cross

appellants as the elected Governor and Deputy Governor of Osun State as

contemplated by section 149 of the Electoral Act, 2006.” Per Ogunbiyi, J.C.A., in

Aregbesola v. Oyinlola (2011) 9 N.W.L.R. (Pt. 1253) 458 at 625 - 626.

2967. What application for enlargement of time to appeal must show.

“The applicant praying the Court for an enlargement of time within which to

appear must show good and substantial reasons for failing to appeal within time.

In the instant case the applicants have failed to show good and substantial, reasons

for failing to appeal within time and as such the Supreme Court would not exercise

its discretion in their favour for the enlargement of time to file the interlocutory

appeal.” - Per Onalaja, J.C.A., in Koku v. Koku Suit No. CA/I/M.222/98; (1999)

8 N.W.L.R. (Pt. 616) 672 at 680-681.

Paras. 2965-2967

867

(176) TRIAL COURT RAISING AND RESOLVING ISSUES SUO MOTU

2968. Appellate Court’s attitude to trial Court raising and resolving issue,

suo motu.

“Now, I ask myself this question: - “What should be the reaction of a Court of

Appeal to such a situation? I should look at the situation from two angles. First, if the

issue raised and resolved suo motu by the learned trial Judge materially affects his

mental orientation, which directly leads to the conclusion and the judgment reached,

an appellate Court will certainly quash the judgment. Second if the issue raised and

resolved suo by the learned trial Judge is not really material to the judgment reached,

an appellate Court will not interfere with the judgment. There is one fine point I

would like to highlight here. Even if the learned trial Judge was influenced by the

issue he raised and resolved suo motu in his final judgment, but there is other admissible

evidence outside the pet personal ideas of the learned trial Judge, which still till the

balance in favour of the judgment, an appellate Court will be most reluctant to quash

the judgment.” – Per Tobi, J.C.A., in Adeniran v. Ako Suit No. CA/L/322/88;

(1992) 2 N.W.L.R. (Pt. 223) 350 at 370- 371.

2969. Court deciding issues suo motu.

(1) “In Alhaji Onibudo & Ors. v Alhaji Akibu & Ors. 7 S.C. 60 at 62:- “It needs

to be emphasised that the duty of a Court is to decide be-tween the parties on the

basis of what has been demonstrated, tested, canvassed and argued in Court. It is

not the duty of a Court to do cloistered justice by making an inquiry into the case

outside Court, even if such inquiry is limited to examination of documents when the

documents had not been examined in Court and their examination out of Court

disclosed matters that had not been brought out and exposed to test in Court.” - Per

Awogu, J.C.A., in Okelola v. Boyle Suit No. CA/L/1278/87; (1989) 5 N.W.L.R.

(Pt. 119) 46 at 57-58.

(2) “In the words of Nnaemeka Agu, J.S.C., in Ugo v. Obiekwe (1989) 1 N.W.L.R.

(Pt. 99), 566 at 582: A Judge who in our system must be and be seen as an impar-tial

umpire will be anything but that if he takes up a material point, no matter how clear

it may appear and, without hearing any of the parties to be affected by the decision,

decides it. That cannot be even handed justice.” - Per Awogu, J.C.A., in Okelola v.

Boyle Suit No. CA/L/1278/87; (1989) 5 N.W.L.R. (Pt. 119) 46 at 58.

(3) “ On this same point, Coker, J.S.C., observed in Owe v. Oshinbajo (1965) I All

N.L.R. 72 at 76: “We point out that where it is necessary that a point or points

arising for determination in a case should be further clarified by evidence after the

close of the trial, it is the duty of the Court try-ing the case to invite the parties to

supply such evidence or exp-lain such point or points and it is wrong for the Court in

these cir-cumstances to substitute its own views for matters on which there should

Trial Court raising and resolving issues suo motu Paras. 2968-2969