THE DISCRETION OF THE COURT OF APPEAL TO GRANT LEAVE TO APPEAL, EXTENSION OF TIME TO APPEAL, AND THE CIRCUMSTANCES UNDER WHICH SUCH DISCRETION IS EXERCISABLE.

The court of appeal has the discretion to grant motion for extention of time and leave to appeal even when a preliminary objection has been raised on the failure to seek the leave at the first instance but such discretion should be done judicially in ensuring justice is served.


BAMKOLE v. AYANLAJA (2025) 19 NWLR (Pt. 2019) 81


The decision of the court of appeal in this case presents a profound judicial exposition on the nature, scope and limits of the Court of Appeal’s discretionary powers in relation to applications seeking (i) leave to appeal, (ii) extension of time within which to seek leave to appeal, and (iii) extension of time within which to file a competent appeal. The factual matrix of the appeal is instructive. The appellant, being dissatisfied with the ruling of the High Court of Lagos State, lodged an appeal to the Court of Appeal on three grounds. However, in doing so, he did not seek the requisite leave of court in respect of grounds 2 and 3, which were perceived to raise issues of mixed law and facts.


The first respondent, in its brief, raised a preliminary objection challenging the competence of grounds 2 and 3, contending that by virtue of section 241(2) of the 1999 Constitution, those grounds required prior leave before they could be validly argued. Although the appellant insisted in his reply brief that both grounds did not require leave, he later adopted a precautionary approach by filing a formal application seeking four principal reliefs:


(a) extension of time to seek leave to appeal on grounds 2 and 3;


(b) extension of time within which to appeal on the said grounds;


(c) leave to appeal on grounds 2 and 3; and


(d) an order deeming the already-filed grounds 2 and 3 as properly filed.


This “trinity prayer” format is now well-established in appellate practice and is typically invoked where the time to appeal has lapsed, or where the grounds require leave, or both. The appellant’s supporting affidavit carefully chronicled the circumstances leading to the application and emphasised that the reliefs sought were essential for the proper exercise of his constitutional right of appeal under section 243(1) of the 1999 Constitution. He further grounded his application on the need to regularise the notice of appeal in order to ensure that the real issues in controversy between the parties were adjudicated upon on the merits.


In opposition, the first respondent filed a counter-affidavit and a written address, arguing that the appellant had failed to place sufficient materials before the court to justify the grant of the application. Counsel invoked the constitutional requirement for leave in interlocutory appeals founded on facts or mixed law and facts, relying strongly on section 241(2). Counsel submitted that leave to appeal is not granted as a matter of course, and that the duty lay heavily on the applicant to provide full and credible materials to enable the court exercise its discretion judicially.


Central to the controversy were the provisions of Order 6 rules 2 and 9(1) of the Court of Appeal Rules, 2021, which respectively regulate applications for leave and empower the Court to enlarge time for taking procedural steps, except those governed by Order 16. These provisions, read alongside the constitutional framework, formed the legal foundation for the Court’s inquiry. 


In determining the issue, the court of appeal held that:


“The grant of an application for extension of time is at the discretion of the court which is a right conferred by law on the Court of Appeal in certain circumstances to be exercised according to the dictates of its conscience uncontrolled by the judgment or conscience of others. The discretion must be exercised judicially and judiciously to uphold the principle of substantial justice, and not exercisable on a mere figment of imagination but upon facts and circumstances necessary for the proper exercise of that discretion. In the instant case, whilst the applicant presented cogent reasons for the court to exercise its discretion in his favour, the respondent did not present any cogent reason why the court should not exercise its discretion in the applicant’s favour”. 


Upon a painstaking consideration of the competing positions, the Court of Appeal delivered a unanimous and compelling ruling in favour of the appellant. The Court reaffirmed that the power to grant leave to appeal and extension of time is a discretionary one, conferred by law and exercisable upon principles of equity, fairness and substantial justice. Importantly, the Court underscored that such discretion is not to be exercised arbitrarily or according to private sentiment but must be guided strictly by judicial and judicious reasoning, having regard to the peculiar facts presented.


The Court held emphatically that the appellant had furnished cogent, credible and persuasive reasons warranting the exercise of discretion in his favour. The application was not frivolous, nor brought in bad faith. Rather, it sought to correct a procedural misstep and ensure that the appellant’s substantive rights were not extinguished by mere technical defects. In sharp contrast, the respondent failed to demonstrate any compelling legal or equitable reason why the court should refuse the application.


In arriving at its conclusion, the Court of Appeal placed reliance on long-standing judicial authorities which establish that “where there are two competing applications, one aimed at terminating proceedings on technical grounds and the other aimed at preserving the appeal by regularising procedural defaults, the Court must prefer the application which sustains the appeal. Authorities such as Makinde v. Orion Engineering Services (U.K.) Ltd. (2014) 11 NWLR (Pt.1417) 1 and Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt.212) 652 were cited with approval. The Court further drew on principles from Shanu v. Afribank (2000) 13 NWLR (Pt.684) 392 and South Atlantic Petroleum Ltd. v. Minister of Petroleum Resources (2014), which endorse the Court’s power to permit correction of procedural defects even when raised by a preliminary objection.”


Ultimately, the Court held that substantial justice demanded the granting of the appellant’s trinity prayers. The Court reasoned that appellate litigation should not be sacrificed on the altar of procedural rigidity, especially where the applicant has shown good cause and the respondent has failed to demonstrate prejudice. Thus, the Court granted all the reliefs sought, deeming grounds 2 and 3 as properly filed.


This landmark decision in Bamkole v. Ayanlaja therefore stands as an authoritative restatement of the law: the Court of Appeal will, in appropriate cases, elect the path that preserves rather than extinguishes an appeal, provided that the applicant supplies credible materials justifying such indulgence. It reinforces the judiciary’s aversion to technical justice and its unwavering commitment to ensuring that disputes are resolved on their merits where the true demands of justice are ultimately served.



About the Authors:
Jamilu Haruna Usman and Adamu Umar Adam are members of the Research and Litigation Directorate, Solace Chambers, Bayero University, Kano. They can be reached via 09068341589 & 07062519698, respectively.