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PARTY SEEKING EXTENSION OF TIME TO APPEAL AGAINST A DECISION MUST ESTABLISH

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Applications for extension of time to appeal or leave to appeal are not granted as a matter of course. See Solanke v. Somefun (1974) 1 SC 141. The party who seeks leave or extension must satisfy the twin conditions stipulated in order 7 rule 10(2) of the Court of Appeal rules 2007 which provision is same as the new rules under order 7 rule 10(2) of the Court of Appeal rules 2011. Order 7 rule 10(2) stipulates as follows: “Every application for an enlargement of time within 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. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.” From the aforesaid provision reproduced above an applicant in an application of this nature must establish two preconditions to earn the discretion of the court. (1) He must set forth in his supporting affidavit good and substantial reasons for failure to appeal within the prescribed period. (2) His grounds of appeal must show prima facia good cause why the appeal should be heard. The applicant must satisfy the court by establishing the two conditions conjunctively before the application will be granted. See Bowaie v. Adediwura (1976) 6 SC 143; Alaegbe v. Abimbola (1978) 2 SC 39; Mobil Oil (Nig.) v. Agadaigho (1988) 2 NWLR (Pt.77) 383.

— R.O. Nwodo, JCA. Onujabe & Ors. v. Fatimah Idris (CA/A/71/M/2009, 28 June 2011)

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extension of time

LEAVE FOR EXTENSION OF TIME TO FILE AN APPEAL MAY ONLY BE GRANTED UPON APPLICATION BY A PARTY

The periods of time within which to give a notice of appeal against the decision of the Court below to this Court may be extended by the Court at the instance of a person/s who intend/s to appeal to the Court in both civil and criminal cases, in deserving cases. A valid and competent Notice of Appeal can be given or filed after the expiration or outside the periods of time stipulated under the provisions of Section 27 (2) of the Act, when and only if, the periods of the time was extended by the Court, as a condition precedent. Accordingly, the prior permission or leave of the Court, by way of extension of the relevant period of time within which to give the notice of appeal, is necessary and required for the validity and competence of a notice of such an appeal to the Court. Without the prior permission first sought and obtained by an Appellant for extension of time to appeal before giving or filing a Notice of Appeal in the Court, a purported Notice of Appeal given or filed after the expiration or outside the limited period of time, would be fatally and incurably, invalid and incompetent, thereby depriving the Court of the requisite jurisdiction to entertain and adjudicate over the appeal. See Amadi v. INEC (2012) LPELR – 7831 (SC), Awhinashi v. Oteri (1984) 5 SC, 38, Enweliku v. State (1970) 1 Ail NWLR, 57, Peba v. State (1980) 8 – 11 SC, 76.

— M.L. Garba JSC. Kingsley Okoro V. The State (SC.85/2013, 17 Feb 2023)

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WHERE NO LEAVE FOR EXTENSION OF TIME IS SOUGHT, SUPREME COURT MAY STRIKE OUT CASE WITHOUT CALLING FOR ADDRESS

The above being the position of the statutory provision as interpreted, enunciated and expounded by this Court, it is now beyond arguments that a Notice of Appeal filed or given out of time is incurably and fatally incompetent such that the need to call for address from the parties on the incompetence does not arise. Because the issue goes to deprive the Court of the requisite jurisdiction to adjudicate over purported appeal brought by such a notice, it can properly and competently be raised and decided at the judgment stage by the Court without the need to revert back to the parties for a hearing, being the final appellate Court in the Country, since no amount of arguments, and matter how otherwise ingeneous, could breeze life into an already dead appeal; ab initio. See Omokuwajo v. FRN (2013) 9 NWLR (Pt. 1359) 300 at 332 (SC), NNPC V. Roven Shipping Ltd. (2019) 9 NWLR (Pt. 1676) 67 at 92 (SC), Ogar v. Igbe (2019) LPELR-48998 (SC), Oni v. Fayemi (2019) LPELR 49299 (SC), Eneyo v. Ngere (2022) LPELR-56880 (SC).

— M.L. Garba JSC. Kingsley Okoro V. The State (SC.85/2013, 17 Feb 2023)

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NO EXTENSION OF TIME IN ELECTION MATTERS

In a purely civil matter, the filing of a process a day after the period prescribed for the filing can be regularized on the application of the defaulting party. But in election matters, even a slight infraction of the rules, particularly those relating to time, can be fatal to the process filed. See Benson v. Allison (1955-56) WRNLR 58, Emerue v. Nkerenwen (1966) 1 All NLR 63, Ige v. Olunloyo (1984) 1 SCNLR 158. An election petition is a proceeding sui generis. See Buhari v. Yusuf (2003) 6 SC (Pt. 11) 156. In the circumstances, appellants could not have filed a motion for extension of time and if one had been filed it could not have been entertained by the tribunal. See Paragraph 18(5) of the 1st Schedule to the Act (supra).

— N.S. Ngwuta JSC. Yaki (Rtd) & Anor. V. Senator Bagudu & Ors. (SC.722/2015, 13 Nov 2015)

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BRIEF OF ARGUMENT TO BE FILED AFTER EXPIRATION OF TIME

Any brief of argument filed by a party out of time and without extension of time sought and obtained is incompetent and will not be taken but struck out at the hearing of an appeal. Where the extension of time granted has also expired, the party will still need another extension of time for revalidation or else the brief will be incompetent and liable to be struck out. See the cases of: (1) Mohammed V. Klargester (Nig.) Ltd. (1996) 1 NWLR (Pt. 422) p.54 at p.61 and (2) Goji V. Ewete (2001) 15 NWLR (Pt. 736) p.373.

— O.F. Omoleye JCA. Amaechi V. The Governor of Rivers State & Ors. (CA/PH/342/2015, 8 May 2017)