"The extant prayer is for enlargement of time to appeal - prayer 3 of the motion paper. The twin requirements of the prayer are stated in Order 6 Rule 9 (2) of the Rules of the Court thus "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." See also Nigerian Laboratory Corporation and Anor. v. Pacific Merchant Bank Ltd. (2013) 8 W.R.N. 1 at 19 thus "Thus, the fundamental requirements as per the above provisions are two: (a) Good and substantial reasons for failure to appeal within the period prescribed, and (b) Grounds of appeal which prima facie show good cause why the appeal should be heard."
These two requirements are interwoven such that they must co-exist. If one is satisfied and the other is not, then the whole application will collapse. See generally Doherty v. Doherty (1964) 1 All NLR 299; (1964) NMLR 144; (1964) LLR 226; (1964) 3 NSCC 213, Ibodo & Ors. v. Enarofi & Ors. (1980) 5 - 7 S.C. 42; (1980) 12 NSCC 196 Mobil Oil Ltd. v. Agadaigho (1988) 4 S.C. 178; (1988) 19 NSCC (pt. 1) 777, Okere v. Nlem (1992) 4 NWLR (pt. 234) 132, Balogun v. Afoloju (1994) 7 NWLR (Pt. 355) 206, Okwelume v. Anoliefo (1996) 1 NWLR (Pt. 425) 468, Federal Housing Authority v. Abosede (1998) 1 SCNJ 133."
The proposed notice of appeal is attached to the motion paper as Exhibit C. It has six grounds of appeal. The said grounds of appeal appear on the surface arguable. One of the twin prayers for enlargement of time to appeal has therefore been satisfied by the applicants. The second requirement is "good and substantial reasons." Something is said to be 'good' if it is of high quality or an acceptable standard, while something is said to be 'substantial' if it is of value or importance or considerable vide Oxford Advanced Learner's Dictionary 7th Edition pages 642 and 1476, respectively.
It follows that the reason(s) for delay should meet the parameters (supra) for an application for enlargement of time to appeal to succeed. Paragraphs 3 - 9 of the affidavit in support of the application (supra) contain the reasons for delay to the effect that after the applicants attempted to appeal on 03.01.13, and the application for leave to appeal was refused by the Court below on 09.07.13, the applicants briefed counsel to file the application for enlargement of time to appeal which was filed on 23.05.16, close to three years interval.
The affidavit evidence leaves material facts on the time the applicants briefed counsel and why it took counsel time to process the brief as well as the interest and vigilance shown by the applicants to keep abreast of the progress of the brief vide Nigerian Laboratory Corporation and Anor. v. Pacific Merchant Bank Ltd. (supra), Ngere (supra). These gaps do not make the reason for delay good and substantial. Once a judgment is entered and an aggrieved party is out of time in appealing against it the delay should be accounted for in a satisfactory manner by good and substantial reasons. Counsel did not proffer reason(s) for counsel's blame for not appealing within time. See Obeya v. First Bank Plc. (2012) ALL FWLR (pt. 636) 544. Agreed the primary objective is to do justice vide Olatubosun v. Texaco (Nig.) Plc (2012) 44 WRN 1 at 13. But in an application of this nature which requires the judicious and judicial exercise of discretion, it should not be seen counsel assumed responsibility merely to save his client and have the application granted on the presumed basis of fault of counsel. The matter is better put in Obeya (supra) at 556 and 558 - 559 where the Court per the lead judgment prepared by Rhodes - Vivour, J.C.A., (now J.S.C.), held inter alia thus "For an application for extension of time to succeed, the applicant must show: (a) Good and substantial reasons for failure to appeal within the prescribed period; and (b) Grounds of appeal which prima facie show good cause why the appeal should be heard. Both (a) and (b) must co-exist before the application can be granted. This is a discretion which must be exercised judiciously.
That is to say, the judge must consider (a) and (b) and not act as he likes, (a) and (b) are the requirements to be considered. Any action short of that, the judge would be said to have acted arbitrarily. In (a) there must be a detailed explanation why the applicant was unable to appeal within the time ... I am also of the view that after a litigant briefs counsel to handle his case he should not go to sleep, rather he should be vigilant and keep himself abreast of the progress of his case." (My emphasis). See further National Inland Waterways Authority v. The Shell Petroleum Development Company of Nigeria Ltd. (2008) 13 NWLR (pt. 1103) 48 at 66 - 67, where it was emphasized that if it is the fault of counsel, the fault should be so specified in the affidavit which would be excusable, but that if it is a factual blunder, the party, as owner of the facts of the case, must accept full responsibility and not pass the buck to counsel.
Being a discretionary remedy where no excuse is offered no indulgence will be given vide Williams v. Hope Rising Voluntary Funds Society (1982) 13 NSCC 36. The length of delay becomes material where there are no good and substantial reasons for the delay vide Ikenta Best (Nig.) Ltd. v. A. - G., Rivers State (2008) 6 NWLR (pt. 1084) 612 at 649 following Ojora v. Bakare (1976) 1 S.C. 47 at 52. In this case, the length of delay of over two years is in the circumstances of the case inordinate. Accordingly, I conclude that prayers 1, 2 and 4 (supra) in the motion paper are incompetent and are hereby struck out while prayer 3 thereof is not made out for lacking in materials showing good and substantial reasons for delay in appealing which prayer is hereby dismissed for lacking in merit vide F.H.A. v. Abosede (1998) 2 NWLR (pt. 537) 177, Nigerian Laboratory Corporation and Anor. (supra)."
Per IKYEGH, J.C.A.IN SERIKI & ORS v. ADEPEGBA & ANOR CITATION: (2018) LPELR-45007(CA).
