(2018) LPELR-45051(CA)

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1 ANYA v. ANYA CITATION: In the Court of Appeal In the Owerri Judicial Division Holden at Owerri ON FRIDAY, 22ND JUNE, 2018 Suit No: CA/OW/299M/2016(R) RAPHAEL CHIKWE AGBO Before Their Lordships: AYOBODE OLUJIMI LOKULO-SODIPE ITA GEORGE MBABA Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal MRS. DOROTHY ANYA - Applicant(s) And DR. KALU ANYA - Respondent(s) RATIO DECIDENDI 1. APPEAL - LEAVE OF COURT/LEAVE TO APPEAL: What an appellant must do when he is out of time and leave to appeal is required "...This is against the backdrop of the provisions of Order 6 Rule 3, 4, 6 and 9 of the 2016 Rules of this Court all of which in my considered view disclose what is expected of an applicant seeking leave to appeal and who has defaulted in doing so within the period prescribed by law for that purpose. The provisions in question read thus: - "Order 6 Rule 3 Where an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen days after the date of refusal. Order 6 Rule 4 Wherever under these Rules an application may be made either to the Court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances, which makes it impossible or impracticable to apply to the Court below. Order 6 Rule 6 Where an application for leave to appeal from a decision of the Court below has been brought within the time prescribed by the Court of Appeal Act but has not been heard within that period, the Court, if satisfied that there has not been an unreasonable delay in bringing the application, may extend time to appeal and in proper case grant leave to appeal. Order 6 Rule 9(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16. Order 6 Rule 9(2) Every application for 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."per LOKULO- SODIPE, J.C.A. (Pp , Paras. E-C) - read in context

2 2. APPEAL - FILING/ENTRY OF APPEAL: Statutory period for filing an appeal against an interlocutory/final decisions of court "The Court of Appeal Act in Section 24 provides for the periods within which a person aggrieved by a decision of the lower Court should give his notice of appeal or notice of his application for leave to appeal against the decision. The periods are (i) 14 days in an appeal in a civil cause or matter where the appeal is against an interlocutory decision, and (ii) three months where the appeal is against a final decision. The Court of Appeal Act also provides in Section 24(3) that where an application for leave to appeal is made in the first instance to the Court below, the person making such application shall in addition to the period prescribed by Subsection (2) of the Section be allowed a further period of fifteen days from the date of the determination of the application by the Court below to make another application to the Court of Appeal. And the provision of Subsection 4 of Section 24 leaves no one in doubt that the Court has the power to extend the periods prescribed in Subsections (2) and (3)."Per LOKULO-SODIPE, J.C.A. (Pp , Paras. C-B) - read in context 3. APPEAL - EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Whether the complaint of jurisdiction on appeal dispenses with the reason for an applicant s delay to file an appeal "In any event, it will appear to be settled going by the many cases decided by the Supreme Court and this Court, that when the issue of jurisdiction is raised in the proposed grounds of appeal, in an application for leave to appeal, then the question of "inordinate delay" in bringing the application fizzles into nothingness as it were. In the same vein it is also the position of the law, that when a proper issue of jurisdiction (in contradiction to a frivolous issue of jurisdiction), is raised in the proposed grounds of appeal in an application for leave to appeal, such issue of jurisdiction prima facie show good cause why the appeal should be heard. See in this regard the case of NGERE V. OKURUKET (2014) LPELR (SC) wherein the Supreme Court per Rhodes-Vivour, JSC; dwelling amongst others on the issues to the effect - (i) as to whether an applicant whilst still in disobedience of the orders of a Court is entitled to a hearing in respect of a prayer seeking to appeal against the judgment of the Court in question (an argument which canvassed in his written address); and (ii) what is required of an applicant applying to the Supreme Court for enlargement/extension of time within which to appeal (and the provisions of which are no different from those of Order 6 Rule 9 of the 2016 Rules of this Court) said thus: "xxx The Court of Appeal granted a perpetual injunction restraining the applicants from laying any claim to the stool of Okan-Ama of Ngo yet while that order still stands the 1st applicant in his affidavit introduced himself as of the Palace of Okan-Ama Ngo. This amounts to disobedience of the orders of the Court of Appeal. The question to be answered is whether the 1st applicant (who is now a contemnor) should be heard and can be entitled to the discretion of this Court? Section 287(3) of the Constitution reads: "(3) The decisions of the Federal High Court, the National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts, respectively." The judgment of a Court of competent jurisdiction subsists until upset on appeal. While the judgment subsists every person affected by it or against whom an order is made must obey it even if it appears wrong. Judgments take effect immediately they are delivered and every Court has inherent power to proceed to enforce judgments at once. The enforcements on delivery can only be interrupted by a stay of execution provided there is an appeal. Parties are thus bound to obey Court orders that are clear and unambiguous, notwithstanding the fact that the order may be wrong. So long as a party refuses to implement or obey a Court order, he would not be given a hearing in any subsequent application. xxxx There are exceptions to the above. A party in disobedience of a Court order may be heard in subsequent application if - (a) the party seeks to appeal against the order of which he is in contempt, (b) he challenges the order on the ground of lack ofjurisdiction; (c) the order ought not to be sustained because there were procedural irregularities in the process of making the order. The above are some of the instances when a party in disobedience of a Court order may be heard in a subsequent application. The applicants (sic) application falls within the above instances especially (a). Since the applicants (1st applicant's) disobedience has not impeded the course of justice in this case by making it difficult for the Court to find out the truth, together with the fact that the applicants are not asking this Court to exercise its discretion to grant equitable reliefs, but to allow him exercise his constitutional right to appeal the Court ought to exercise its discretion to hear the appeal, if the applicant satisfies the Court that he is entitled to be allowed to appeal. xxxx I must emphasize the importance of leave and asking for it, since this is an application that requires leave. Leave means permission. Where the Rules provide for leave before a process is filed, and the process is filed without leave such a process would be thrown out, it being null and void. The applicants were right to apply for leave. The grant of an application for extension of time to appeal is a matter within the discretion of the judge. That discretion is properly exercised if the judge considers the rules governing the particular application before granting the application. In an application for extension of time within which to appeal, the affidavit in support of the application must be detailed on - (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. Good reasons for delay and arguable grounds of appeal, not necessarily grounds of appeal that would succeed must co-exist before an application for extension of time to appeal can be granted. Where the judge exercises his discretion in the absence of (a),(b)above he would be acting as he likes and giving the applicant uninhibited right to extension of time thereby defeating the purpose of the rules and putting the conduct of litigation in disarray. A judge would readily accede to an application for extension of time to appeal if a good ground for the appeal is on jurisdiction. Where this happens to be the case the application would be granted even if no good reasons for the delay are before the Court. On (a) above, the applicant is expected to give adetailed explanation for the delay. He should show something that entitles him to the exercise of the Courts discretion. e.g. pardonable in advertence, mistake or negligence of counsel. xxxx This Court would exercise its discretion to extend time to appeal once satisfied that the failure to appeal within time was caused by pardonable in advertence, carelessness or negligence of counsel. The length of time is immaterial if the applicant is able to show good cause or substantial reasons for the delay. That is to say if undue delay is not explained to the satisfaction of the Court the application would fail. The reasoning being that when no credible excuse is given no indulgence can be granted. xxxx The rule does not say that the grounds of appeal should succeed rather it says that the grounds of appeal should show good cause why the appeal should be heard. A ground of appeal which shows good cause why the appeal should be heard is one which raises substantial issues of fact or law. It is a serious issue of jurisdiction when the High Court delivers conflicting rulings on jurisdiction. The applicants ground of appeal on jurisdiction justifies the hearing of this appeal. It is usually the practice of the Courts that where the ground of appeal is substantial, the Court may be inclined to grant the application even if the reason for delay is not substantial. This is premised on the reasoning that an applicant with an arguable appeal should not be denied his constitutional right to appeal. xxxx Where as in this application the proposed grounds of appeal complain of lack of jurisdiction and it is astrong and arguable point it would no longer be necessary to look into the reasons for the delay. Jurisdiction is a question of law. A fundamental issue in every case. A constitutional issue that can be raised at any time. xxx The grant of this application is geared towards ensuring that justice is done between the parties. A party should never be denied the right of appeal if he satisfies the conditions for appeal. In this case the applicants have satisfied this Court to exercise its discretion in their favour because of the serious ground on jurisdiction. Application is granted.xxx" See also the case of ADIGWE V. FRN (2015) LPELR (SC) wherein the Supreme Court per Ibrahim Tanko Muhammad, JSC; said thus: - "Although the general requirement of the law is that the two conditions stipulated by the Supreme Court Rules that the applicant should satisfactorily, by an affidavit, explain away the delay in failing to appeal within the prescribed period and to furnish arguable grounds of appeal must co-exist as held in many decided authorities such as: xxxxxx some exception is made to the general rule and that is where a ground of appeal complains of absence of jurisdiction. Where that appears to be the case and the proposed grounds do not appear spurious or frivolous, then the Court would no longer consider the reasons adduced for the delay necessary. The issue of jurisdiction, fundamental as it is, would obviate any need to consider the delay occasioned see: xxxxx" Suffice, it to say that as the Applicant has glaringly raised the issue of jurisdiction in respect of the consent judgment the lower Court entered or decreed in the petition and cross petition of the parties that the said Court entertained (and which cannot be said to be frivolous) particularly in grounds 1, 2 and 3 of the proposed notice of appeal attached as Exhibit "G" to the instant motion on notice, I am of the considered view that it will be a proper exercise of discretion by the Court to grant the orders sought by the Applicant. Accordingly, the Orders sought by the Applicant are granted as prayed."per LOKULO-SODIPE, J.C.A. (Pp , Paras. E-C) - read in context

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4 AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Lead Ruling): This is a ruling in the motion on notice dated 7/12/2016 and filed on the same date brought by the Appellant/Applicant (hereafter to be simply referred to as Applicant ) pursuant to Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999; Order 7 Rules 2 & 4 of the Court of Appeal Rules, Therein, the Applicant seeks for the following: - (i) AN ORDER EXTENDING TIME for the Applicant to seek leave to appeal against the consent judgment decreed on the 14th July, 2016 in Suit No: HIK/8D/2015: Dr. Kalu Anya vs. Mrs Dorothy Anya; (ii) LEAVE to appeal against the consent judgment decreed on the 14th July, 2016 in Suit No: HIK/8D/2015: Dr. Kalu Anya vs Mrs. Dorothy Anya; (iii) EXTENTION OF TIME within which to appeal against the consent judgment decreed on the 14th of July, 2016 in Suit No: HIK/8D/2015: Dr Kalu Anya vs Mrs Dorothy Anya. The motion has a supporting affidavit of 13 paragraphs. Various processes pertaining to the petition for the dissolution of marriage between the Respondent and 1

5 Applicant were annexed as exhibits to the supporting affidavit and they include: (i) Exhibit A Notice of Petition; Exhibit B Answer and Cross Petition to the petition for Dissolution of Marriage; Exhibit C Reply to Answer and Cross Petition; Exhibit D Terms of Settlement filed on 20/6/2016; Exhibit E Judgment Order of the lower Court issued on 14/7/2016; and Exhibit F Motion on Notice dated and filed before the lower Court on 26/9/2016 wherein the Applicant sought for an order granting her leave to appeal against the consent judgment decreed on 14/7/2016 in Suit No. HIK/8D/2015 Dr. Kalu Anya vs. Mrs. Dorothy Anya. The Respondent filed a counter affidavit of 26 paragraphs in response to the supporting affidavit. The Applicant filed a further and better affidavit of 19 paragraphs to the counter affidavit of the Respondent. The Court ordered parties to file and exchange written addresses given the apparent contentious nature of the instant motion on notice as evinced by the affidavits filed by the parties and they duly complied with the order. 2

6 The motion was entertained on 26/3/2018 and parties adopted the processes they respectively filed in respect of the motion on notice in aid of their different positions in the said motion. In her written address, and in line with depositions made in the supporting affidavit of the instant motion, the Applicant disclosed that she was the Respondent/Cross Petitioner in Suit No. HK/8D/2015 before the lower Court and that she subscribed to terms of settlement on the instruction of her then counsel and that the said terms of settlement Exhibit D was adopted by the lower Court. That the lower Court made orders based on the said Exhibit D and same translated to Exhibit E on 14/7/2016. It was also disclosed by the Applicant that she subsequently sought for further legal counsel and came to the realisation that no matter how well-intentioned parties' actions were, they all amounted to a nullity same having been done in want of jurisdiction and pursuant to an irregular and incompetent procedure. That against this backdrop, she filed a process Exhibit 3

7 E, before the lower Court on 26/9/2016 (within the time to do so), seeking for leave to appeal against the consent judgment delivered by the lower Court, but that the state of helplessness foisted on her (Applicant) prevented the application from being heard and determined; hence the need to file the instant motion before this Court. The issue for the determination of the motion as formulated by the Applicant reads: - Can and should my lords' (sic) grant applicants' (sic) prayers sought in her application. It is the stance of the Applicant that the answer to the issue should be in the affirmative. This is more so as the "leave of Court being sought is to question the jurisdiction of the lower Court and to correct a procedural and substantive error. It is the stance of the Applicant that her motion has met the required criteria and equally falls squarely and essentially within the exception put in place by the law inasmuch as it has brought to the fore the issue of jurisdiction. The Applicant submitted to the effect that a consent judgment cannot be given for a matrimonial cause of the kind defined 4

8 in Section 114(1)(a) of the Matrimonial Causes Act. That this is a rule of public service and solely within the control of the Court and cannot be compromised or waived and parties cannot confer competence on a Court to so act. That it is clear that the Matrimonial Causes Rules expressly forbids the decreeing of a consent judgment in a matrimonial cause such as the dissolution of a marriage; hence the lower Court had no statutory or procedural jurisdiction to do so either under the matrimonial Causes Act or the Matrimonial Causes Rules. That any agreement by parties to obtain a decree in matrimonial causes of the kind defined in Section 114(1)(2) of the Matrimonial Causes Act, which includes a decree for dissolution of marriage, smacks of condonation, connivance and collusion in presenting the petition. That a party or parties is/are expected to adduce evidence in respect of his or their respective claim and for the Court to decide one way or another. This is more so where the custody of infant children is involved. That it is not enough for the lower Court to subscribe to whatever postulation that a party or parties put forward before it. 5

9 That the lower Court must satisfy itself that what ever arrangement it acceded to, is in the best interest of the children of the marriage. That this much is clear from the provisions of Section 71(1) of the Matrimonial Causes Act. In his written address, the stance of the Respondent is that what has given rise to the motion before the Court is aptly encapsulated in Exhibits A, B, C, D and E (which have been referred to hereinbefore). The Respondent said that it was in the light of pleadings of the parties and reliefs sought by them and which went to clearly show that parties had made up their minds to go their individual ways and that what remained to be settled was the issue of the custody of the children of the marriage and their maintenance, that the parties were encouraged by their respective counsel to propose terms of settlement that would cater for the interest of the children of the marriage. That this was what gave birth to Exhibit D, a document signed by the parties and their counsel. The Respondent also went further to point out that it was obvious from Exhibit D that the settlement tilted in favour of the Respondent/Crosspetitioner. 6

10 Having expressed the view that the Applicant being out of time within which to appeal as of right, has now brought the instant motion, the Respondent proceeded to formulate two issues for determination in the motion and they read thus: - a) Whether from the totality of facts before the Honourable Court there is a live issue left to be determined on appeal and thereafter or whether the whole exercise would be academic. b) Whether it would be in the overall interest of justice for the Honourable Court to exercise its discretion in favour of the Applicant. Dwelling on the first of his two issues, and having referred to the depositions in paragraphs 5, 6, 7, 8, 9 of the counter affidavit, the Respondent submitted that it was clear that the marriage between him and the Applicant would never be revived. That this being the case, leave to appeal; an eventual appeal; and subsequent divorce proceedings devoid of any iota of defect in law; would not foist the Applicant on him (Respondent) as a wife. That to him (i.e. Respondent), the divorce proceeding is a dead, spent and closed issue and therefore merely academic. 7

11 The Respondent urged this Court to resolve the first of his two issues in his favour. It is the stance of the Respondent in respect of his issue 2 that he will be attending to the maintenance of the children of the marriage in the best manner a father would be expected to do to his children and in this regard referred to paragraphs 11, 13, 17 and 20 of his counter-affidavit. That by re-opening the matter by way of the instant application, the Applicant is saying that the Respondent should stop attending to the responsibilities bestowed on him under the terms of settlement/consent judgment. The Respondent then asked the question, whether such a step would satisfy the welfare of the children which is paramount in considering who would be given custody of the children in a situation where the parents could no longer carry on with their marriage. The Respondent stated that it was clear from the depositions in paragraphs 14,15,16,18,19,21 and 22 of the counter affidavit, that it is the Applicant that is in contempt of the judgment she seeks to appeal against. Stating the well settled positions of law to be (i) that a judgment of a Court, no matter how conducted, until set aside must 8

12 be obeyed; and (ii) that an appeal does not serve as stay; the Respondent submitted that this Court cannot be urged by a contemnor to exercise its discretion in favour of extending the time within which to appeal. The Respondent also argued to the effect that the Applicant has not advanced cogent, credible and convincing reasons for the delay in bringing the instant motion, hence that she has not shown why this Court should exercise its discretion in her favour. Stating again to the effect that the parties in this application are not willing to continue with the marriage; that the children of the marriage are in the custody of the Applicant and that he (Respondent) is religiously providing for the maintenance of the children, the Respondent submitted that the scale of justice in this matter tilted in favour of refusing the motion. The Applicant filed a reply on point of law to the Respondent s written address. Therein, it is the stance of the Applicant that the instant motion is not academic and non-existent and proceeded to proffer arguments relating to the marriage in respect of which she and the Respondent went to the lower Court. 9

13 Arguments were also canvassed to show that the instant motion was not an academic one inasmuch as it raises the issue of jurisdiction. The issue for determination in the instant motion in my considered view would appear to be more in tune or compatible with the issue formulated by the Applicant than the two issues formulated by the Respondent and under which he (Respondent) was glaringly arguing in favour of the correctness of all that were done before the lower Court, when the Applicant has not been granted the leave being sought to initiate her appeal. Even though I have said hereinbefore that the issue for the determination of the motion is more in tune with that formulated by the Applicant, I will however recouch the same to read thus: - Whether the Applicant has placed before the Court sufficient materials to procure the orders which she seeks? This is against the backdrop of the provisions of Order 6 Rule 3, 4, 6 and 9 of the 2016 Rules of this Court all of which in my considered view disclose what is expected of an applicant seeking leave to appeal and who has defaulted in doing so within the period prescribed by 10

14 law for that purpose. The provisions in question read thus: - Order 6 Rule3 Where an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen days after the date of refusal. Order 6 Rule 4 Wherever under these Rules an application may be made either to the Court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances, which makes it impossible or impracticable to apply to the Court below. Order 6 Rule 6 Where an application for leave to appeal from a decision of the Court below has been brought within the time prescribed by the Court of Appeal Act but has not been heard within that period, the Court, if satisfied that there has not been an unreasonable delay in bringing the application, may extend time to appeal and in proper case grant leave to appeal. Order 6 Rule 9(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order

15 Order 6 Rule 9(2) Every application for 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. The Court of Appeal Act in Section 24 provides for the periods within which a person aggrieved by a decision of the lower Court should give his notice of appeal or notice of his application for leave to appeal against the decision. The periods are (i) 14 days in an appeal in a civil cause or matter where the appeal is against an interlocutory decision, and (ii) three months where the appeal is against a final decision. The Court of Appeal Act also provides in Section 24(3) that where an application for leave to appeal is made in the first instance to the Court below, the person making such application shall in addition to the period prescribed by Subsection (2) of the Section be allowed a further period of fifteen days from the date of the 12

16 determination of the application by the Court below to make another application to the Court of Appeal. And the provision of Subsection 4 of Section 24 leaves no one in doubt that the Court has the power to extend the periods prescribed in Subsections (2) and (3). As said hereinbefore, the Applicant on 26/9/2016 filed a motion on notice before the lower Court Exhibit F in which she sought for an order granting her leave to appeal against the consent judgment of the lower Court decreed on 14/7/2016. It is indisputable that the Applicant in the circumstance filed her application for leave to appeal within the time prescribed by the Court of Appeal Act for that purpose. The Applicant aside from disclosing in the supporting affidavit, that the lower Court fixed the motion for 7/11/2016 (being a date by which the lower Court could no longer validly grant her leave to appeal against the consent judgment given on 14/7/2016 if the said Court was so inclined to do), also deposed to facts that went to show that the Judiciary Staff Union of Abia State embarked on a strike in the month of October 2016 and that as a result of the 13

17 ongoing strike, the motion for leave to appeal could not even be called for any form of judicial action. The Respondent has not controverted any of the depositions the Applicant made regarding the filing of the motion for leave to appeal before the lower Court and that the developments the Applicant deposed to made it impossible for the said motion to be entertained and determined by the lower Court before the period of three months prescribed for appealing by the Court of Appeal Act, elapsed. In the circumstances, I cannot but say that the Applicant has shown that there was no undue delay on her part in bringing the instant motion filed on 7/12/2016 before this Court. This is more so when it is realised from the flow of the supporting affidavit that the Applicant did not even wait until the strike embarked upon by the Judiciary Staff Union of Abia State was called off before she approached this Court. I therefore see no undue delay on the part of the Applicant in bringing the instant motion. In any event, it will appear to be settled going by the many cases decided by the Supreme Court and this Court, that when the issue of jurisdiction is raised in the proposed 14

18 grounds of appeal, in an application for leave to appeal, then the question of inordinate delay in bringing the application fizzles into nothingness as it were. In the same vein it is also the position of the law, that when a proper issue of jurisdiction (in contradiction to a frivolous issue of jurisdiction), is raised in the proposed grounds of appeal in an application for leave to appeal, such issue of jurisdiction prima facie show good cause why the appeal should be heard. See in this regard the case of NGERE V. OKURUKET (2014) LPELR 22883(SC) wherein the Supreme Court per Rhodes-Vivour, JSC; dwelling amongst others on the issues to the effect (i) as to whether an applicant whilst still in disobedience of the orders of a Court is entitled to a hearing in respect of a prayer seeking to appeal against the judgment of the Court in question (an argument which canvassed in his written address); and (ii) what is required of an applicant applying to the Supreme Court for enlargement/extension of time within which to appeal (and the provisions of which are no different from those of Order 6 Rule 9 of the 2016 Rules of this Court) said thus: 15

19 xxx The Court of Appeal granted a perpetual injunction restraining the applicants from laying any claim to the stool of Okan-Ama of Ngo yet while that order still stands the 1st applicant in his affidavit introduced himself as of the Palace of Okan-Ama Ngo. This amounts to disobedience of the orders of the Court of Appeal. The question to be answered is whether the 1st applicant (who is now a contemnor) should be heard and can be entitled to the discretion of this Court? Section 287(3) of the Constitution reads: "(3) The decisions of the Federal High Court, the National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts, respectively." The judgment of a Court of competent jurisdiction subsists until upset on appeal. While the judgment subsists every person affected by it or against whom 16

20 an order is made must obey it even if it appears wrong. Judgments take effect immediately they are delivered and every Court has inherent power to proceed to enforce judgments at once. The enforcements on delivery can only be interrupted by a stay of execution provided there is an appeal. Parties are thus bound to obey Court orders that are clear and unambiguous, notwithstanding the fact that the order may be wrong. So long as a party refuses to implement or obey a Court order, he would not be given a hearing in any subsequent application. xxxx There are exceptions to the above. A party in disobedience of a Court order may be heard in subsequent application if - (a) the party seeks to appeal against the order ofwhich he is in contempt, (b) he challenges the order on the ground of lack ofjurisdiction; (c) the order ought not to be sustained because there were procedural irregularities in the process of making the order. The above are some of the instances when a party in disobedience of a Court order may be heard in a subsequent application. The applicants (sic) application falls within the above instances especially (a). 17

21 Since the applicants (1st applicant's) disobedience has not impeded the course of justice in this case by making it difficult for the Court to find out the truth, together with the fact that the applicants are not asking this Court to exercise its discretion to grant equitable reliefs, but to allow him exercise his constitutional right to appeal the Court ought to exercise its discretion to hear the appeal, if the applicant satisfies the Court that he is entitled to be allowed to appeal. xxxx I must emphasize the importance of leave and asking for it, since this is an application that requires leave. Leave means permission. Where the Rules provide for leave before a process is filed, and the processis filed without leave such a process would bethrown out, it being null and void. The applicants were right to apply for leave. The grant of an application for extension of time to appeal is a matter within the discretion of the judge. That discretion is properly exercised if the judge considers the rules governing the particular 18

22 application before granting the application. In anapplication for extension of time within which to appeal, the affidavit in support of the application must be detailed on (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. Good reasons for delay and arguable grounds of appeal, not necessarily grounds of appeal that would succeed must co-exist before an application for extension of time to appeal can be granted. Where the judge exercises his discretion in the absence of (a),(b)above he would be acting as he likes and giving the applicant uninhibited right to extension of time thereby defeating the purpose of the rules and putting the conduct of litigation in disarray. A judge would readily accede to an application for extension of time to appeal if a good ground for the appeal is on jurisdiction. Where this happens to be the case the application would be granted even if no good reasons for the delay are before the Court. On (a) above, the applicant is expected to give adetailed explanation for the delay. He should show something that entitles him to the 19

23 exercise of the Courts discretion. e.g. pardonable in advertence, mistake or negligence of counsel. xxxx This Court would exercise its discretion to extend time to appeal once satisfied that the failure to appeal within time was caused by pardonable in advertence, carelessness or negligence of counsel. The length of time is immaterial if the applicant is able to show good cause or substantial reasons for the delay. That is to say if undue delay is not explained to the satisfaction of the Court the application would fail. The reasoning being that when no credible excuse is given no indulgence can be granted. xxxx The rule does not say that the grounds of appeal should succeed rather it says that the grounds of appeal should show good cause why the appeal should be heard. A ground of appeal which shows good cause why the appeal should be heard is one which raises substantial issues of fact or law. It is a serious issue of jurisdiction when the High Court delivers conflicting rulings on jurisdiction. The applicants ground of appeal on jurisdiction 20

24 justifies the hearing of this appeal. It is usually the practice of the Courts that where the ground of appeal is substantial, the Court may be inclined to grant the application even if the reason for delay is not substantial. This is premised on the reasoning that an applicant with an arguable appeal should not be denied his constitutional right to appeal. xxxx Where as in this application the proposed grounds of appeal complain of lack of jurisdiction and it is astrong and arguable point it would no longer be necessary to look into the reasons for the delay. Jurisdiction is a question of law. A fundamental issue in every case. A constitutional issue that can be raised at any time. xxx The grant of this application is geared towards ensuring that justice is done between the parties. A party should never be denied the right of appeal if he satisfies the conditions for appeal. In this case the applicants have satisfied this Court to exercise its discretion in their favour because of the serious ground on jurisdiction. Application is granted.xxx 21

25 See also the case of ADIGWE V. FRN (2015) LPELR (SC) wherein the Supreme Court per Ibrahim Tanko Muhammad, JSC; said thus: - Although the general requirement of the law is that the two conditions stipulated by the Supreme Court Rules that the applicant should satisfactorily, by an affidavit, explain away the delay in failing to appeal within the prescribed period and to furnish arguable grounds of appeal must co-exist as held in many decided authorities such as: xxxxxx some exception is made to the general rule and that is where a ground of appeal complains of absence of jurisdiction. Where that appears to be the case and the proposed grounds do not appear spurious or frivolous, then the Court would no longer consider the reasons adduced for the delay necessary. The issue of jurisdiction, fundamental as it is, would obviate any need to consider the delay occasioned see: xxxxx 22

26 Suffice, it to say that as the Applicant has glaringly raised the issue of jurisdiction in respect of the consent judgment the lower Court entered or decreed in the petition and cross petition of the parties that the said Court entertained (and which cannot be said to be frivolous) particularly in grounds 1, 2 and 3 of the proposed notice of appeal attached as Exhibit G to the instant motion on notice, I am of the considered view that it will be a proper exercise of discretion by the Court to grant the orders sought by the Applicant. Accordingly, the Orders sought by the Applicant are granted as prayed. The Applicant has 21 days with effect from today within which she is to file at the registry of the lower Court, a notice of appeal in the manner of Exhibit G attached to the motion on notice filed on 7/12/2016. I make no order as to costs. RAPHAEL CHIKWE AGBO, J.C.A.: I agree ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my learned brother, A.O. LOKULO- SODIPE JCA, that this application is meritorious and should be granted. I too grant it and abide by the consequential orders of my learned brother. 23

27 Appearances: U.O. Essien For Appellant(s) O. Awa with him, C.C. Nnana For Respondent(s)

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