IN THE COURT OF APPEAL OF NIGERA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
ON THURSDAY, THE 26TH DAY OF JUNE, 2025
BEFORE THEIR LORDSHIPS:
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
HANNATU AZUMI LAJA BALOGUN JUSTICE, COURT OF APPEAL
ISHAQ MOHAMMED SANI JUSTICE, COURT OF APPEAL
APPEAL NO. CA/PH/295M/2023
BETWEEN:
(For themselves and as representing the Executive Committee
of COOKEY-GAM WAR CANOE HOUSE OF OPOBO-KINGDOM).
AND
10 MR. HILLY COOKEY-GAM
11 OBIENIMI J. S. COOKEY-GAM
(For themselves and as representing the direct descendants as well
as members and family of LATE CHIEF COOKEY-GAM WAR CANOE
HOUSE OF OPOBO-KINGDOM except the Defendants).
AND
AND
10 WARISENIBO BALAFAMA S. COOKEY
11 WARISENIBO PAUL BEN COOKEY
12 WARISENIBO DONALD D. COOKEY
13 WARISENIBO NICOLAS BELLGAM
14 WARISENIBO ROLAND COOKEY
(For themselves and as representing the members of the
Wariseniapu Council of Chief Cookey-Gam War Canoe House
of Opobo except the Claimants).
RULING
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
In a judgment delivered on 25th day of July, 2023, the High Court of Rivers State sitting at Port Harcourt (the lower Court), struck out Suit No. PHC/678/CS/2021 instituted by the Applicants herein, then as Claimants, for want of jurisdiction. Dissatisfied with the decision of the lower Court, the Applicants approached this Court on 17th November, 2023 via an application seeking for the tripod prayer of extension of time within which to seek for leave to appeal; leave to appeal and extension of time within which to appeal the said decision of the lower Court. Applicants also pray for leave to appeal against the decision of the lower Court awarding cost of N200,000.00 against them. On 27th June 2024, the Applicants refiled the same application, seeking the same reliefs. The earlier application of 17/11/2023 was withdrawn and struck out on 27/05/2025. Therefore, the extant application upon which issues were joined and argued by the parties is the Notice of Motion filed on 27th June, 2024. In the said Notice of Motion, the Applicants prayed for:
The grounds upon which the application is predicated as stated on the face of the Notice of Motion are as follows:
An Affidavit of 16 paragraphs sworn to by one John Monday Bright, a Litigation Clerk in the Law Firm of A. A. Brown & Co., Solicitors to the Applicants, was filed in support of the application. Attached to the application as Exhibits A & B respectively, are the Judgment sought to be appealed against and the Proposed Notice of Appeal anchored on five grounds of appeal. Summary of the facts as gleaned from the Affidavit is that after the judgment of the lower Court, the Applicants instructed A. A. Brown, Esq, personally to appeal against the judgment but because he fell ill, he could not file the appeal within time. Soon after his recovery, A. A. Brown, Esq travelled to the United Kingdom where his wife is resident to follow up on his health. That the inability of the Applicants to appeal within time was the fault of counsel, caused mainly by his ill health and the subsequent demise and burial of his elder brother, Alex Joe Brown on 28/10/2023, which shocked and devastated him. It was further deposed that the Proposed Notice of Appeal contains arguable and substantial grounds of appeal.
The 1st – 6th Respondents, as well as the 7th – 14th Respondents both filed Counter Affidavit in opposition to the application. While the Counter Affidavit of the 1st – 6th Respondents was deposed to by Senibo Dienye S. Bellgam, the 2nd Respondent, that of the 7th - 14th Respondents has Warisenibo Roland T. Cookey-Gam, the 14th Respondent, as the deponent. In both Counter Affidavits, the deponents denied that A. A. Brown, Esq was ever sick. They also denied the fact that he travelled to the UK or that the deceased, Alex Joe Brown, is his brother.
In response to the two Counter Affidavits of the 1st- 6th and 7th – 14th Respondents, John Monday Bright deposed to two Further Affidavits wherein the data and visa pages of the International Passport of A. A. Brown was annexed as Exhibit A to show that he entered the UK on 24/09/2023 via Heathrow Airport. The Nigeria Immigration Service Exit Stamp also bears that out. Learned counsel for the parties also filed Written Addresses and Replies along with their respective Affidavits. At the hearing of the application on 18/06/2025, C.A. Azunku, Esq, counsel for the Applicants, adopted the Applicants’ Written Address and urge the Court to grant the application. On their part, Isaac Odoyi, Esq and V.N. Tambari, Esq, counsel representing the 1st – 6th Respondents and 7th – 14th Respondents respectively, adopted their respective processes and urged the Court to refuse and dismiss the application.
RESOLUTION OF THE APPLICATION
I have carefully read the Affidavit and Further Affidavits in support of the application together with the Exhibits annexed thereto as well as the two Counter Affidavits in opposition thereto. I have also read the opposing arguments proffered by learned counsel for the parties in their respective Written Addresses and Replies. In view of the settled position of the law on the twin requirements for the grant of trinity or tripod prayers, I will not review counsel submissions, rather, I will go straight into the determination of the application and only refer to the submissions where necessary and appropriate. I reckon I will save precious judicial time and space by this approach.
From the face of the Notice of Motion, the judgment of the High Court of Rivers State sought to be appealed against was delivered on 25/07/2023. Therefore, as at 17/11/2023 when the first application was filed, the time within which the Applicants will file their appeal has expired by 25 days. Under section 24 (4) of the Court of Appeal Act, this Court is empowered to extend time for filing Notice of Appeal or notice of application for leave to appeal. As a general rule, the guiding principles for the grant of an application for extension of time to seek leave to appeal, leave to appeal and for extension of time to appeal is that the Applicant must show good and substantial reasons for the lateness in bringing the application. Secondly, he must exhibit a good and arguable grounds of appeal, i.e., the grounds of appeal must show good cause why the appeal should be heard. Both conditions are conjunctive and must co-exist before an application containing trinity or tripod prayers can be granted. Where one of the two conditions is not met, the application cannot be granted. On the other hand, where the two conditions are satisfied, the Court should exercise its discretion in favour of the Applicant(s). These two conditions or twin requirements are embodied in Order 6 Rule 9(2) of the Court of Appeal, Rules, 2021, as follows:
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 Braithwaite vs. Dalhatu (2016) LPELR-40301 (SC); Amadi & Anor vs. Wopara & Ors (2021) LPELR-58286 (SC); Merchantile Bank Nigeria Plc vs. Imesco Enterprises Ltd (2022) LPELR-57850 (SC).
Learned counsel for the 1st – 6th Respondents, Isaac Odoyi, Esq., conceded in his written address that a reasonable inadvertence of counsel or error in judgment is an acceptable explanation for delay in applying for extension of time to appeal. He, however, maintained that the Court must be satisfied that the allegation of fault of counsel is genuine and true. It was counsel’s submission that the Applicants cannot use the alleged sickness, subsequent travel and burial of late Alex Joe Brown to justify the delay in filing their Notice of Appeal as A. A. Brown Esq is not the only counsel in A. A. Brown & Co. On his part, E. E. Obomanu, Esq, who settles the written address on behalf of the 7th – 14th Respondents, submitted that the illness of counsel and the death of counsel’s brother are not good and substantial reason envisaged by Order 6 Rule 9(2) of the Rules of this Court.
The fact that the Applicants have instructed A, A. Brown, Esq., to appeal against the judgment of High Court of Rivers State in Suit No. PHC/678/CS/2021, has not been faulted. Even though the deponents to the two Counter Affidavits have denied the fact of sickness and travel of the Applicants’ counsel to the UK, the Further Affidavits have confirmed this fact. If, as argued by the Respondents’ counsel, that the sickness of counsel and the fact that he travelled abroad to attend to his health, coupled with the death and subsequent burial of his elder brother after his return from UK, do not constitute good and substantial reasons for the 25 days delay in filing the appeal within time, as instructed by the Applicants, I do not know what else will constitute such a good and substantial reason within the contemplation of Order 6 Rule 9(2) of the extant Rules of this Court. In the exercise of my judicial discretion, I am satisfied that the entire fault of not filing the appeal within the prescribed time is not that of the Applicants, but of the counsel engaged by them. I am also satisfied that the failure of counsel to file the appeal timeously has been adequately explained in the Affidavit and Further Affidavits of John Monday Bright. The law is settled that the sin, inadvertence and mistake of counsel cannot be visited on the litigant. That is to say, a litigant cannot be punished or denied access to Court on account of the blunders of his counsel unless it can be shown that the litigant himself contributed to the blunders. See SPDC Nigeria Ltd & Ors vs. Agbara & ors (2015) LPELR-25987 (SC); Abah vs. Monday & Ors (2015) LPELR-24712 (SC); Adegbite & Anor vs. Amosu (2016) LPELR-40665 (SC); GTB Plc vs. Innoson Nig. Ltd (2022) LPELR-56657 (SC); Fajebe & Anor vs. Opanuga (2019) LPELR-46348 (SC). In the instant application, there is nothing unreasonable in the inadvertence of A. A. Brown, Esq., to file the appeal within time and there is no evidence to show that the Applicants contributed in the inadvertence of counsel as to deny them the benefits of this settled position of law.
Learned counsel for the 1st – 6th Respondents and that of 7th – 14th Respondents made a heavy weather of the decision of the Supreme Court in the case of Malari vs. Leigh (2019) 3 NWLR (Pt.1659) 332 @ 368 where similar application was refused. The facts in the case of Malari & Ors vs. Leigh also reported as (2018) LPELR-43823 (SC) are clearly distinguishable from the facts of the instant case which renders the former case inapplicable to the latter. In Malari’s case the Applicant exhibited chronic tardiness by waiting for four years before applying for leave to appeal the judgment of the trial High Court. When the Court of Appeal refused his application, he waited for another five years before applying to the Supreme Court for leave to appeal the Ruling of the Court of Appeal. Therefore, the dictum of the Supreme Court relied upon by the Respondents’ counsel was made in relation to the peculiar facts and circumstances of that case. Here, there is no tardiness at all on the part of the Applicants themselves, just as there is no evidence to show that the Applicants were responsible for the tardiness of their counsel who approached this Court after only 25 days delay. As stated above, I am satisfied that the delay by counsel, which is not inordinate, has been explained.
The next consideration is whether the grounds of appeal raised arguable issues of law. Upon examination of the 5 grounds of appeal contained in the Proposed Notice of Appeal, I hold the view that there are arguable legal issues to be canvassed on appeal. Whether the issues will succeed or not is immaterial at this point.
On the whole, I am satisfied that the Applicants have made out a case for the grant of the trinity prayers sought by them and I hereby grant the application as prayed in the Applicants’ Notice of Motion. Leave is also granted the Applicants to appeal against the award of N200,000.00 cost. The Notice of Appeal, in terms of the Proposed Notice of Appeal annexed as Exhibit B to this application, shall be filed at the lower Court within 14 days.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
C.A. Azunku for the Applicants.
Isaac Odoyi for the 1st - 6th Respondents.
V.N. Tambari for the 7th – 14th Respondents.
