Whether Lack of Money is an Exceptional Reason for Failure to Appeal within Time

CASE TITLE: ILIYASU v. RAMAT POLYTECHNIC, MAIDUGURI (2022) LPELR-56964(CA)

JUDGMENT DATE: 10TH JANUARY, 2022

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: OYEBISI FOLAYEMI OMOLEYE, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This is an application for extension of time to appeal.

FACTS

In the Motion on Notice dated the 27th day of October, 2020 filed on the 6th day of November, 2020 brought under Order 6 Rules 1 and 9(1) of the old Court of Appeal Rules, 2016 and under the inherent jurisdiction of the Court, the Applicant sought the following:

1. Extension of time within which to seek leave to appeal against the decision of the National Industrial Court contained in the judgment delivered by the Hon. Justice E.D.E. ISELE, dated the 27th day of February 2020 in Suit No. NICN/MAID/04/2017.

2. LEAVE to appeal against the decision of the National Industrial Court contained in the judgment delivered by the Hon. Justice E.D.E. ISELE dated the 27th day of February 2020 in Suit No. NICN/MAID/04/2017.

3. Extension of time to appeal against the decision of the National Industrial Court contained in the judgment delivered by the Hon. Justice E.D.E. ISELE dated the 27th day of February 2020.

The grounds upon which the application is predicated are inter alia:

1. That judgment was delivered in this case, Suit No. NICN/MAID/04/2017 on the 27th day of February 2020.

2. That the Appellant/Applicant had 3 months within which to appeal against the said decision of the National Industrial Court in Suit No. NICN/MAID/04/2017 delivered on the 27th day of February, 2020 if he is dissatisfied with the judgment.

3. That the time within which to appeal against the said judgment by the Appellant/Applicant has lapsed.

4. The Appellant/Applicant is dissatisfied with the judgment but could not appeal against the said decision within time because of lack of funds as a result of the covid-19.

In support of the application is an affidavit of thirteen paragraphs. The supporting affidavit filed on the 6th day of November, 2020 was deposed to by Musa Adamu, a Litigation Clerk in the Law Firm of Messrs S.J. Gani & Co., Counsel to the Applicant. Annexed to the affidavit are two documents marked Exhibits MA1 and MA2. Exhibit MA1 is the judgment of the National Industrial Court, in the Kano Judicial Division, Holden at Kano, delivered on the 27th day of February 2020 in Suit No. NICN/MAID/04/2017 between the Applicant, Dr Abdullahi Iliyasu as the Claimant and Ramat Polytechnic, Maiduguri as the defendant. Exhibit MA2 is the proposed Notice of Appeal containing five grounds of appeal dated the 27th of October, 2020. Additionally, the application was supported with a Further Affidavit of ten paragraphs filed on the 11th day of March, 2021.

The Further Affidavit was also deposed to by Musa Adamu of the Litigation Clerk in the Law Firm of Messrs S.J. Gani & Co., Counsel to the Applicant.

ISSUES FOR DETERMINATION

The Court of Appeal determined the application on a lone issue viz:

Whether the Applicant has provided enough reasons for this Hon. Court to grant this application?

DECISION/HELD

In conclusion, the Court of Appeal dismissed the application.

RATIOS:

• APPEAL – EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Whether the grant of an application for extension or enlargement of time to appeal is at the discretion of the Court; how same should be exercised
• APPEAL – EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Whether lack of money is an exceptional reason for failure to appeal within time in consideration of an application for extension of time to appeal
• APPEAL – EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Principles guiding the grant of an application for extension of time within which to appeal
• APPEAL – EXTENSION/ENLARGEMENT OF TIME TO APPEAL: What constitutes good and substantial reasons to grant extension of time to appeal