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June 24, 2019 8:45 am
"In NNPC v Samfadek & Sons Ltd (2018) 7 NWLR (PT 1617) 1, the apex court per EKO, JSC held thus:
"Order 2 Rule 31 of the rules of this court obligates the applicant in an application for extension of time within which to appeal, firstly; to set forth, in the supporting affidavit, "good and substantial reasons for failure to appeal within the prescribed period" and in addition to establish that the proposed grounds of appeal "prima facie show good cause why the appeal should be heard."
The applicant, citing Ikenta Best (Nig) Ltd v A.G. Rivers State (2008) 2 – 3 SC (PT 1) 128, (2008) LPELR – 1476 (SC), is no doubt aware that he is enjoined, in order to succeed, to meet the simultaneous existence of the two conditions.
Failure to appeal after over 21 years prima facie is evidence of inordinate delay and crass indiligence. The only reason adduced by the instant applicant for delay, in appealing the Court of appeal decision delivered on 27th, May, 1996 in the appeal No. CA/L/214/93, is the unparticularised or non specific and nebulous inadvertence of counsel. The bare faced averment in paragraph 10 (b) of the supporting affidavit runs thus
That the Appellant/Applicant’s counsel appealed the sister decision in appeal No. CA/L/178/98 & CA/L/214/99 but inadvertently omitted to file a separate Notice of Appeal against the judgment in appeal No. CA/L/214/93.
The decision in appeal No. CA/L/214/93, being the genesis of the final judgment of the trial court delivered on 20th November, 1993 in suit No. ID/1532/89 from which appeals Nos. CA/L/178/98 and CA/L/214/99 sprang, could not have been a sister appeal of the two subsequent appeals No. CA/L/178/98 & CA/L/214/99.
...The burden of proving the alleged inadvertence of counsel lies on this applicant. He has to prove the existence of such inadvertence of counsel resulting in this crass indiligence or inordinate delay to appeal a decision after over 21 years, in order to succeed in this application: Section 132 of the Evidence Act, 2011. The burden of first proving the existence or nonesixtence of the alleged inadvertence of counsel lies on this applicant, who would fail if no evidence at all were produced on either side: Section 133 Evidence Act. The burden of first introducing this prima facie evidence"...falls on the applicant. The reason is obvious: what is alleged without proof can be denied without proof. The Respondent has no burden of disproving any assertion of fact, requiring proof, that is not proved. It is only when a party, who has the initial burden of leading evidence on a particular issue, does so prima facie that he throws the burden of rebutting that evidence on the defendant or respondent to refute or rebut: Eseigbe v Agholor (1993) 9 NWLR (PT 316) 128 (SC) at 144." -
PER A. O. OBASEKI-ADEJUMO, J.C.A. IN DR. JOSEPH NWOBIKE, SAN VS FEDERAL REPUBLIC OF NIGERIA
APPEAL NO: CA/L/856C/2018
LEGALPEDIA ELECTRONIC CITATION: LER[2019] CA/L/856C/2018
