IN THE COURT OF APPEAL OF NIGERIA
IN THE AKWA JUDICIAL DIVISION
HOLDEN AT AKWA
CA APPEAL NO:………….…………
SUIT NO: HN/216/2006
BETWEEN:
1. DR. DANIEL UDOJI - - - - APPELLANT/
APPLICANT
AND
1. THE GOVERNMENT OF ANAMBRA STATE 2ND SET OF
2. ATTORNEY GENERAL AND COMMISSIONER RESPONDENTS
FOR JUSTICE ANAMBRA STATE
nd rd
2 & 3 Defendants joined pursuant to order of Court made
on 7/5/07
AND
1. CHIEF OBIORA OBAH
2. CHIEF CHRISTOPHER OBI
3. CHIEF SUNDAY IBEZIM
4. CHIEF CHARLES UNAIGWE
5. ICHIE GEORGE CHUKWUJEKWU
6. EMENIKE OSAKWE 1ST SET OF
7. ALBERTO OFO RESPONDENTS/
8. LEVI OKEKE MADUSOLUMUO PLAINTIFFS
9. JONATHAN MADUSOLUMUO
10. GREGORY NWAORAH
11. BERNARD EJINKONYE
12. CHARLES AMANCHUKWU
13. EDWIN MUONEKE
14. CHIEF (ICHIE ) CHUKS MUOMA (SAN)
Igwe-Elect of Oraifite under the Oraifite Chieftaincy Constitution
(for themselves and as representing members of Ezumeri quarters/
community of Oraifite, Ekwusigo Local Government Area).
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MOTION FOR EXTENSION OF TIME
MOTION ON NOTICE
BROUGHT PURSUANT TO ORDER 6 RULE 9 AND ORDER 8(1) OF THE
COURT OF APPEAL RULES 2021 AND UNDER THE INHERENT
JURISDICTION OF THIS HONOURABLE COURT
TAKE NOTICE that, this Honourable court will be moved on the ____ day of _____
2023 at the hour of 9 o’clock in the forenoon or so soon thereafter as Counsel on
behalf of the Appellant/Applicant may be heard praying for the Honourable Court
for the following orders:
1. AN ORDER EXTENDING the time within which the appellant/applicant may
transmit the Record of Appeal in this suit.
2. AN ORDER DEEMING the Record of Appeal filed and served on other
parties as properly filed and served.
3. AND FOR SUCH FURTHER ORDER(S) as the Honourable Court may deem
it fit to make in the circumstances.
GROUNDS OF THIS APPLICATION:
1. Judgment was delivered by this court in this matter on the 18th day of April,
2023 in favour of the 1st Set of Respondents/Plaintiffs.
2. That the Appellant/Applicant is dissatisfied with the Judgment of the trial
court.
3. That the Appellant/Applicant timeously filed its Notice of Appeal against the
Judgment of this court on the 28th day of April 2023.
4. That the time within which the Appellant/Applicant will therefore transmit the
Record of Appeal has since elapsed.
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MOTION FOR EXTENSION OF TIME
5. That the leave of this Honourable Court is required to transmit the Record of
Appeal in this matter out of time, hence this application.
6. That it will be in the interest of justice to grant the instant application as it will
afford the Honourable Court to decide the case on its merit.
DATED THIS 23RD DAY OF OCTOBER, 2023
_________________
EMEKA OBEGOLU, SAN. Ph.D.
B.I. CHUKWUMA ESQ. (Mcarb)
LOYIBO L. GOODLUCK ESQ.
(Counsel to the Appellant/Applicant)
No. 1,Nnalue Okonkwo Crescent
Off Flora IIlonza Drive, Ahocol Estate,
Akwa, Anabra State.
[email protected]
08033391892
09-2910498
[email protected]
Address for Service:
1. 1st Set of Respondent (1st – 14th)
C/o their counsel
Christ Okaro
Etiaba Chambers,
58 Onitsha Owerri Road
Nnewi Anambra State.
2. 2nd Set of Respondents
C/o Anambra State Ministry of Justice
Civil Litigation Section
Jerome Udorji Complex,
420110, Secretariat, Akwa.
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MOTION FOR EXTENSION OF TIME
IN THE COURT OF APPEAL OF NIGERIA
IN THE AKWA JUDICIAL DIVISION
HOLDEN AT AKWA
CA APPEAL NO:………….…………
SUIT NO: HN/216/2006
BETWEEN:
1. DR. DANIEL UDOJI - - - - APPELLANT/
APPLICANT
AND
2. THE GOVERNMENT OF ANAMBRA STATE 2ND SET OF
3. ATTORNEY GENERAL AND COMMISSIONER RESPONDENTS
FOR JUSTICE ANAMBRA STATE
nd rd
2 & 3 Defendants joined pursuant to order of Court made
on 7/5/07
AND
1. CHIEF OBIORA OBAH
2. CHIEF CHRISTOPHER OBI
3. CHIEF SUNDAY IBEZIM
4. CHIEF CHARLES UNAIGWE
5. ICHIE GEORGE CHUKWUJEKWU
6. EMENIKE OSAKWE 1ST SET OF
7. ALBERT OFO RESPONDENTS/
8. LEVI OKEKE MADUSOLUMUO PLAINTIFFS
9. JONATHAN MADUSOLUMUO
10. GREGORY NWAORAH
11. BERNARD EJINKONYE
12. CHARLES AMANCHUKWU
13. EDWIN MUONEKE
14. CHIEF (ICHIE ) CHUKS MUOMA (SAN)
Igwe-Elect of Oraifite under the Oraifite Chieftaincy Constitution
(for themselves and as representing members of Ezumeri quarters/
community of Oraifite, Ekwusigo Local Government Area)
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MOTION FOR EXTENSION OF TIME
AFFIDAVIT IN SUPPORT OF THE MOTION ON NOTICE
I, Amawhe Onyinye, Female, Adult, Christain, Nigerian Citizen of No.1, Nnalue
Okonkwo Crescent, Off Flora Ilonza Drive, Ahocol Estate, G.R.A, Akwa, do hereby
make Oath and depose as follows:
1. That I am the Litigation Secretary in the Law Firm Greenfield Chambers of
No.1, Nnalue Okonkwo Crescent, Off Flora Ilonza Drive, Ahocol Estate,
G.R.A, Akwa, counsel to the Appellant/Applicant and by virtue of which I
am conversant with the facts deposed herein.
2. That I have the consent of the Applicant and my employer to depose to
this affidavit and the facts herein deposed to are within my personal
knowledge except as otherwise stated.
3. That I was informed by my Principal, Emeka Obegolu, SAN in our office at
No.1, Nnalue Okonkwo Crescent, Off Flora Ilonza Drive, Ahocol Estate,
G.R.A, Akwa, on the 22nd of October, 2022 at about 1pm of the following
facts which I verily believe to be true follow:
a. That the lower court delivered judgement in this suit leading to this
appeal on 18th day of April, 2023.
b. That Notice of Appeal was timeously filed within time on the 28th day
of April 2023.
c. That the Record of Appeal was transmitted out of time.
d. That I know of a fact the Counsel who was handling this matter
personally is out of jurisdiction on a study leave abroad after filing
the said Notice of Appeal.
e. That due to this absence he had no delivered the judgement
including the case or briefed other Associates in chamber of the
progress of the matter.
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MOTION FOR EXTENSION OF TIME
f. That the delay to transmit record was not deliberate as it was not
within the knowledge of other associates on the progress of the
matter.
g. That the other parties will not be prejudiced if this application is
granted.
h. That the interest of justice will best be served if this application is
granted.
4. That I depose to this affidavit in good faith, believing the contents to be
true and correct to the best of my knowledge and in accordance with the
Oaths Act.
……………………
DEPONENT
SWORN TO AT THE COURT OF APPEAL
REGISTRY, AKWA
THIS _________DAY OF ________________, 2023.
\
BEFORE ME
COMMISSIONER FOR OATHS
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MOTION FOR EXTENSION OF TIME
IN THE COURT OF APPEAL OF NIGERIA
IN THE AKWA JUDICIAL DIVISION
HOLDEN AT AKWA
APPEAL NO:………….…………
SUIT NO: HN/216/2006
BETWEEN:
1. DR. DANIEL UDOJI - - - - APPELLANT/
APPLICANT
AND
2. THE GOVERNMENT OF ANAMBRA STATE 2ND SET OF
3. ATTORNEY GENERAL AND COMMISSIONER RESPONDENTS
FOR JUSTICE ANAMBRA STATE
nd rd
2 & 3 Defendants joined pursuant to order of Court made
on 7/5/07
AND
1. CHIEF OBIORA OBAH
2. CHIEF CHRISTOPHER OBI
3. CHIEF SUNDAY IBEZIM
4. CHIEF CHARLES UNAIGWE
5. ICHIE GEORGE CHUKWUJEKWU
6. EMENIKE OSAKWE
7. ALBERT OFO
8. LEVI OKEKE MADUSOLUMUO 1ST SET OF
9. JONATHAN MADUSOLUMUO RESPONDENTS/
10. GREGORY NWAORAH PLAINTIFFS
11. BERNARD EJINKONYE
12. CHARLES AMANCHUKWU
13. EDWIN MUONEKE
14. CHIEF (ICHIE ) CHUKS MUOMA (SAN)
Igwe-Elect of Oraifite under the Oraifite Chieftaincy Constitution
(for themselves and as representing members of Ezumeri quarters/
community of Oraifite, Ekwusigo Local Government Area).
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MOTION FOR EXTENSION OF TIME
WRITTEN ADDRESS IN SUPPORT OF THE MOTION ON NOTICE
1.0 INTRODUCTION
1.1. My Lords, this is an Application brought by way of Motion on Notice dated the
22nd day of September, 2023. The application is PURSUANT TO ORDER 6
RULE 9 AND ORDER 8(1) OF THE COURT OF APPEAL RULES 2021 AND
UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT.
The said application is praying the Court for the relief as endorsed on the
Motion on Notice.
a. AN ORDER EXTENDING the time within which the appellant/applicant
transmit the Record of Appeal in this suit.
b. AN ORDER DEEMING the Record of Appeal filed and served on other
parties as properly filed and served.
c. AND FOR SUCH FURTHER ORDER(S) as the Honourable Court may deem
it fit to make in the circumstances.
1.2. In compliance with the Rules of this Court, accompanying the application is
an affidavit of 4 paragraphs. We rely on all the averments in the affidavit. Also
accompanying this notice is this written address embodying the legal
submissions of Counsel in argument of this application. We shall at the
hearing of this application adopt same as our argument in support of the
Motion on Notice.
2.0 SUMMARY OF THE FACTS:
My lord the averments contained in the affidavit in support of the application
encompasses our summary of facts and we adopt it as our summary of facts
for that purpose.
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MOTION FOR EXTENSION OF TIME
3.0 ISSUES FOR DETERMINATION
We have formulated a sole issue for determination herein:
Whether the Appellant/Applicant is entitled to the prayers sought.
4.0 LEGAL ARGUMENT ON SOLE ISSUE
4.1 We humbly submit that this Honourable Court has the discretion to grant the
reliefs sought by the Appellant/Applicant in respect of the extension of time to file
its Appellant/Applicant to transmit the Record of Appeal. My Lords, as already
shown by the affidavit in support of this application, the Appellant/Applicant has
furnished grounds upon which this application is being prayed.
4.2 In AKINPELU V.S ADEGBORE [2008] 10 N.W.L.R, PART 1096, PAGE 531
AT PAGE 539, RATIO 7 S.C. the Supreme Court held that:
“When a court is invited to make an Order extending the time within which to
do certain things such as extending the time prescribed by the rules of
court for taking certain procedural steps, the court must always bear in
mind that rules of court must, prima-facie, be obeyed. Thus, to justify the
court exercising its discretion in extending the time which is prescribed by
rules of court to do certain procedural acts, there ought to be materials in
the supporting affidavit explaining the delay in taking timeously such
procedural steps”.
4.3 My Lords, since the Rules of this Honourable Court has accommodated a
situation where a party may not be able to meet up with limited time provided and
as such any orders made in this situation will be subject to the inherent jurisdiction
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MOTION FOR EXTENSION OF TIME
of this Honourable Court in the interest of justice to both parties, we humbly urge
my lords to exercise its discretion in favour of the Appellant/Applicant and grant
this application.
4.4 The provisions of ORDER 6 RULE 9 OF THE COURT OF APPEAL RULES
2021, states:
“The Court may enlarge the time provided by this 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”.”
4.5 My Lords under 16 in the alternative does not fall under this category. Order
16 falls under Alternative Dispute Resolution which happens to be the only
exception to Order 6 Rule 9.
4.6 More-so it has been held in a plethora of cases but to mention a few that the
Court has a duty to exercise this discretion judicially and judiciously.
4.7 For the success of this application, the applicant is required by Law to show
through the affidavit evidence in support of the application cogent reasons for
their delay in filing the said application. We commend my lord to the case of
KOLAWOLE V. ALBERTO [2002] FWLR [PT 130] 1761 AT 1783 – 1784.
4.8 We submit that the applicant has by virtue of the averments in paragraph 4 of
the affidavit in support of this motion fulfilled these conditions and it is further
submitted that the reasons stated in the above mentioned paragraphs of the
affidavit clearly satisfy the requirement of law and suffice as a sufficient proof of
the cause of the delay.
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MOTION FOR EXTENSION OF TIME
4.9 In the case of EJORKELE V. NWAFOR [2008] 15 N.W.L.R, (PT.1110),
page 418, AT PAGE 422, RATIO 5 S.C, it was stated that; “In an application for
extension of time within which to do an act, the applicant is invoking the
discretionary powers of the court. He must therefore place before the court
all the facts and materials necessary to enable the court exercise its
discretion judicially and judiciously. He is required to offer an explanation
to justify an extension of time and give substantial reasons for the delay in
complying with the rules.”
4.10 My Lords, the Courts in the interest of justice have always accommodated a
party who sought an enlargement of time to take a step out of time. The courts
have held in U.B.A. PLC V. MODE NIGERIA LIMITED, as follows:
“Outside the period of limitation for bringing an action prescribed by law, the
discretion of the court as to the range of the matters for which the court
may grant the indulgence of extending the time within which to do, act or
take a step in pre-trial, trial or post-trial proceedings appears to be infinite.
The only limitation is that since the dispensation to extend time is
discretionary. It must be exercised judicially and judiciously by balancing
the interest of the parties.” See also BRITISH AMERICAN TOBACCO
(INVESTMENTS) LTD V. A.G. OF LAGOS STATE & ORS (2014)16 NWLR (PT.
1433) 260 AT 294 PARAS A-F.
4.11 Also, in PANTAZIS V. PANTAZIS (2018) 17 NWLR (Pt. 1649) 499 at 510 the
Court of Appeal held inter alia:
“there is no contesting the position of the law to the effect that the grant or
refusal of an application by a trial court, falls within the discretion of that
court…the trial court is however fixed with a duty to exercise its discretion
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MOTION FOR EXTENSION OF TIME
judicially and judiciously, and reach its decision based on the evidence
placed before it, the application of sound principles of law and by giving
weight to relevant considerations. The duty to exercise discretion judicially
is so sacrosanct that a failure of the trial court to so do, would leave the
appellate court with no choice but to interfere with such decision, in the
interest of justice.”
4.12 Further on, in the case of MALAMI V OHIKHUARE (2018) 4 NWLR (Pt.
1610) 431 at 451 the Apex Court held inter alia:
“The law is settled that an application of this nature is not granted as a matter
of course. A grant or refusal of an application is purely at the discretion of
the court, which discretion must be exercised, judiciously and judicially
upon sufficient materials.”
4.13 Your Lordships, the Appellant/Applicant has deposed to facts that establish
that the delay in filing the Counter-Affidavit and Written Address to the Originating
Summons was not deliberate or calculated to bring disrepute to the Honourable
Court but rather the delay can be described as a result of mistake of Counsel.
4.14 The Courts have held in a plethora of authorities that mistake of counsel
should not be visited on the litigant.
4.15 In ZANNU & ORS v. WUSU (2009) LPELR-4396(CA) the Court of Appeal
held, thus:
"It is trite that sin of counsel should not be visited on the litigant. It is the
policy of the Courts and it is now an established principle that except in
some glaring and unpardonable situations, the negligence or fault on the
part of counsel should not be visited on the litigant since ultimately; it is the
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MOTION FOR EXTENSION OF TIME
litigant who suffers from such negligence. See Sanni v. Agara (2008) 4 WN
158. It is also the law that any litigant who fails to check on his counsel to
ascertain if necessary steps have been taken to comply with the rules of
Court is as guilty as his counsel. See University of Lagos v. M. I. Aigoro
(1984) 11 SC 152." Per ADZIRA GANA MSHELIA, JCA (Pp 13 - 14 Paras C -
A)
4.16 We therefore humbly urge this Honourable Court to exercise its discretion in
favour of the Appellant/Applicant herein.
4.17 It is submitted that upon the premises of the facts deposed to in the affidavit
in support of this motion the discretion of this court under Order 6 Rule 9 of the
Rules of this Court have been properly activated for the grant of this application in
the interest of justice and we urge the Court to so hold.
5.0. CONCLUSION
In conclusion and in further urging my lord to grant this application, we submit that
the grant of this application is in the ultimate interest of justice and fair hearing.
May this Court be pleased.
We are most obliged!
DATED THIS 23RD DAY OF OCTOBER, 2023
_________________
EMEKA OBEGOLU, SAN. Ph.D.
B.I. CHUKWUMA ESQ. (Mcarb)
LOYIBO L. GOODLUCK ESQ.
(Counsel to the Appellant/Applicant)
No. 1,Nnalue Okonkwo Crescent
Off Flora IIlonza Drive, Ahocol Estate,
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MOTION FOR EXTENSION OF TIME
Akwa, Anabra State.
[email protected]
08033391892
09-2910498
[email protected]
Address for Service:
3. 1st Set of Respondent (1st – 14th)
C/o their counsel
Christ Okaro
Etiaba Chambers,
58 Onitsha Owerri Road
Nnewi Anambra State.
4. 2nd Set of Respondents
C/o Anambra State Ministry of Justice
Civil Litigation Section
Jerome Udorji Complex,
420110, Secretariat, Akwa.
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MOTION FOR EXTENSION OF TIME
