Practice and Procedure 2

• Pages: 919-1848

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PRACTICE AND PROCEDURE 2

(218) EXTENSION OF TIME TO APPEAL

2054. An application for extension of time within which to appeal.

(1) “Only two questions are required to be considered when determining such an

application under Order 3, rule 4(2) of the Court of Appeal Rules, 1981 as follows: -

“(a) whether good and substantial reasons for failure to appeal within the prescribed

period has been set forth in an affidavit; (b) whether grounds of appeal which “prima

facie” show good cause why the appeal should be heard have been exhibited. After

considering paragraphs 5-12 of the affidavit in support as well as the Notice of Grounds

of appeal filed in support of this application, it would appear “ex facie”, i.e. superfi-

cially that the two conditions set out under Order 3, rule 4(2) above have been com-

piled with in which case the application should be granted.” – Per Akpabio, J.C.A. in

Ifebuzor & Ors. v. Nwabeze & Ors. Suit No. CA/E/116M/96; (1998) 8 N.W.L.R.

(Pt. 560) 148 at 159-159.

(2) “I think it is common knowledge within the legal circle that filing of an appeal

within the time stipulated by a statute or where time has been extended by a Court

for the filing or where leave of Court is obtained for doing same, an appeal purported

to be filed in violation of the statutory provision amounts to no appeal at all.

I find support in the recent Supreme Court decision, per Belgore, J.S.C. in

Oruche v. C.O.P. (1997) 4 N.W.L.R. (Pt. 497) 1 page 5 where it has been stated as

follows: - “One of the cardinal principle of our judicial system is the rights to various

stages of appeal. Though right of appeal is not always of right, all appeals are to be

filed within the periods specified by the various substantive statutes and the Constitu-

tion. Once a party has failed to appeal within the time stipulated in the statute, he

should not be despondent, as he in certain cases can ask for enlargement of time

within which to do so. But the Court will only accede to this enlargement of time on

disclosure of good and substantial reasons why the time specified within which to

appeal has not been adhered to. Williams v. Hope Rising Voluntary Society (1982)

1 All N.L.R. 1. The Court’s discretion will only be granted if it is clearly shown that

the failure to appeal within time stipulated by law was not due to dilatoriness and

deliberate non observance of certain procedure and it was not due to the fault of the

appellant. Of course added to these is that the grounds of appeal are substantial and

arguable in the light of the facts apparent on the record.”

In the present appeal, the situation is even worse; leave to appeal or extension

of time within which to appeal or seek leave to appeal or extension of time to appeal

as the case may be, was not obtained from either the lower Court or this Court.

Now, granted that the misconception of learned counsel for the applicants

that no leave was required before an interlocutory decision of the lower Court be

appealed against was correct, then, what stopped the applicants from asking for

extension of time within which to file their appeal? That requirement too was not

complied with. Thus, from the sum total of what I have so far said, it is clear to me

that there is no valid and subsisting appeal before this Court.” - Per Muhammed,

J.C.A. in Adamu v. Bashiru Suit No. CA/5/12SM/97; (1997) 10 N.W.L.R. (Pt. 523)

81 at 93-94.

Extension of time to appeal para. 2054

(3) “It seems tolerably clear that the law stipulates two conditions which must be

satisfied to enable the Court in exercise of its discretion to enlarge the time to appeal

in favour of the applicant. These are: - (a) applicant must by way of affidavit evi-

dence show good and substantial reasons for failure to appeal within the statutory

period; and (b) he must subjoin his proposed grounds of appeal which said grounds of

appeal at first sight should show good cause why the appeal should be heard. It is

perhaps pertinent to observe that these two conditions are conjunctive and not dis-

junctive. In other words, they must each be separately satisfied. See: Okere & Ors.

v. T. Nlem (supra) and Co-operative & Commerce Bank Nig. Ltd v Emeka Ogwuru

Kings Law Reports (1993) 3 N.W.L.R. (Pt. 284) 630 Vol. IV (1993) P. 215.” – Per

Achike, J.C.A. in Okwelume v. Anoliefo Suit No. CA/E/82M/95; (1996) 1 N.W.L.R.

(Pt. 425) 468 at 479.

(4) “Compliance with the provisions of Order 3 rule 4(2) of the Court of Appeal

Rules 1981 is a sine qua non on the granting of this application even though I have

held that it is not an abuse of Court process, that sub-rules provides: - “Even applica-

tion 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 the grounds of appeal which, prima facie, show good cause why the

appeal should be heard. When the time is so enlarged a copy of the order granting

such enlargement shall be annexed to the notice of appeal.”

A plethora of judicial decisions in interpreting this sub-rule have fashioned out

two conditions that must be satisfied before a Court can grant indulgence to a party

to appeal outside the prescribed period. The two conditions are: - (a) an affidavit

setting forth substantial and valid reason is explaining the failure to appeal within the

prescribed time, and (b) the existence of grounds of appeal substantial enough as to

prima facie show good cause why the appeal should be heard. See: (1) Bank of

Baroda v. Mercantile Bank (Nig.) Ltd. (1987) 3 N.W.L.R. (Pt. 60) 233; (2) Ibodo

v. Enarofia (1980) 5 – 7 S.C. 42; (3) Alagbe v. Abimbola (1978) 2 S.C. 39 and (4)

Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 2 N.W.L.R. (Pt. 77) 383.” - Per Aderemi,

J.C.A. in Daniel Tayar Trans Ent. Ltd. v. Busari Suit No. CA/L/266M/99; (2001)

1 N.W.L.R. (Pt. 695) 482 at 488.

(5) “As regards the first principal issue both learned counsel to the parties rightly

conceded that two conditions must be satisfied before the application can be granted

viz: 1. The delay for not bringing the appeal within the stipulated time must be

satisfactorily explained; 2. The grounds of appeal must be substantial and recondite.

The law as it is now is that both conditions must co-exist (i.e.) both must be satisfied.

It is not question of satisfying one and leaving the other. Learned counsel to the

appellant/applicant submitted that the 2 conditions have been satisfied while learned

counsel to the respondent as seen (supra) contended that some of the conditions had

been satisfied.” – Per Okunola, J.C.A. in Ajisefini v. D.P.P. Suit No. CA/I/M67/97;

(1998) 8 N.W.L.R. (Pt. 562) 447 at 451.

(6) “But let me go further to say: - it is not in doubt and indeed it is the law, that in an

application for enlargement of time within which to appeal, the applicant must comply

with two conditions precedent which must co-exist namely: - “File with his applica-

tion which shall be supported by an affidavit:- (a) setting forth good and substantial

reasons for failure to appeal within the prescribed period and; (b) by grounds of

Para. 2054 Vol. 17 Pt. II: PRACTICE AND PROCEDURE 2 920

921 Extension of time to appeal Para. 2054

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

Orah, J.C.A. in Aduku v. Adejoh Suit No. CA/J/109/92; (1994) 5 N.W.L.R. (Pt.

346) 582 at 596.

(7) “Firstly, Order 7 rule 4(2) of the Supreme Court Rules 1977 sets out the condi-

tions which an applicant must satisfy before this Court will grant him extension of

time within which to appeal. If an applicant does not meet those conditions, his

application ought, ordinarily, to be refused. The rule reads: - “(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 the failure to appeal within the pre-

scribed period, and by grounds of appeal which prima facie show good cause why

the appeal should be heard. When time is so enlarged a copy of the order granting

such enlargement shall be annexed to the notice of appeal.” There must therefore

be: - (i) good and substantial reasons for the failure to appeal within the period pre-

scribed, and (ii) grounds of appeal which prima facie show good cause why the

appeal should be heard.” - Per Aniagolu, J.S.C. in Ibodo & Ors. v. Enarofia & Ors.

Suit No. S.C.15/1980; (1980) 12 N.S.C.C. 195 at 200.

(8) “The principles on which the Court will grant an application for extension of time

within which to appeal have been explained in a number of decisions of the Supreme

Court of which mention may be made of Ojora v. Bakare (1976) 1 S.C. 49; Bowaje

v. Adediwura (1976) 6 S.C. 142; Moukarim v. Agbaje (1982) 11 S.C. 122; Univer-

sity of Lagos v. Olaniyan (1985) 1 N.W.L.R. (Pt. 1), 156; Mobil Oil (Nig.) Ltd. v.

Agadaigho (1988) 2 N.W.L.R. (Pt. 77), 383. The authorities are unanimous on the

proposition of the law that for an application for extension of time within which to

appeal to succeed there must co-exist: - (a) Good and substantial reasons for the

failure to appeal within the period prescribed by the appropriate law and (b) Grounds

of appeal which prima facie show good cause why appeal should be heard. The two

conditions emanate from Order 3 sub-rule 4(2) of the Court of Appeal Rules 1981.”

- Per Adekeye, J.C.A. in Ilekun v. MILAD Suit No. CA/E/1/M.73/99; (2000) 17

W.R.N. 137 at 149.

(9) “And this, again, opens the door to look at Order 4 rule (2) of the Rules which, in

my opinion, is complementary and germane with the principle above discussed. The

ipsissima verba of the order and Rules are: - “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.

………” Imminent in the order and rule are two pre-conditions necessary for the

invocation of equity to intervene in the favour of an applicant. These conditions are:

- i. Good and substantial reasons for failure to appeal within the prescribed period.

Pausing here for a while, since in mathematics the larger includes the smaller I will

hold that “a good and substantial reason” for failure will suffice. It is, a fortiori. ii.

Grounds of appeal which prima facie show good cause why the appeal should be

heard.” - Per Mukhtar, J.C.A. in A-G. Ogun State v. Coker Suit No. CA/I/M.41/93;

(1993) 9 N.W.L.R. (Pt. 316) 241 at 251.