"The application prays, inter alia, for "an order for extension of time within which the Appellant/Applicant may appeal against the judgment of the Court of Appeal, Lagos Division in the appeal No. CA/L/214/93 delivered on the 27th May, 1996". 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 "pima facie shorn 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 - 7476 (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 pima -facie is evidence of inordinate delay and crass indiligence. The only reason adduced by the instant applicant for the 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 the Appeal No. CA/L/214/93, being the genesis of the final judgment of the trial Court delivered on 20th November. 1993. in the 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. In any case, inadvertence of counsel is a matter of fact. The question is: what and which facts constitute this blanket or misty inadvertence of counsel pleaded by the applicant? 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 nonexistence 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" as Nnamani, JSC, calls it, in DURU v. NWOSU (1989) 20 NSCC 1 at 10 - 11, 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. I do not accept that paragraph 10(b) of the supporting affidavit, averring that the reason for delay was the nebulous inadvertence of counsel, can be taken to have established, satisfactorily, "good and substantial reasons for the delay".
Accepting this reason will ultimately expose the Courts to deluge of applications to revive and resurrect stale matters in the archives of our Courts. That definitely contravenes the age old policy that there must be end to litigation."
Per EKO, J.S.C. IN NNPC v. SAMFADEK & SONS LTD CITATION: (2018) LPELR-44980(SC)
