TSAMIYA JCA (Delivering the Lead Ruling): The applicant in this motion on notice has prayed the court to enlarge the time within which he may appeal inrespect of judgment delivered by the Rivers State High Court in suit No. PHC/1807/2000 on 13 September 2004. This motion was filed on 16 June 2011. In the main affidavit in support, it was deposed that the appeal had hitherto been filed within time specifically on 20 September 2004 but that on 29 May 2007 the appeal was struck out for what the counsel described as “incompetent” hence he decided to make another effort to file the appeal. There was a counter-affidavit.
The question to be answered here is this; has there been such an undue delay that would prevent this court from exercising its discretion in favour of the applicant? It is trite law that where an application is made to the court on a prayer for enlargement of time to file a notice of appeal out of time, the applicant must show verily, why he should be granted the prayer. …