A Critique Of Trinity Prayers

By Omoha Otuosorochi Junior

INTRODUCTION

Courts are created by the constitution or Statutes predicated on the constitution with their jurisdiction clearly stated or prescribed therein. No court can assume jurisdiction except it is statutorily endowed, as jurisdiction cannot be implied nor can it be conferred by agreement of parties. This position has been lent credence in the case of Osadebay v. A.G Bendel State (1991) 1 NWLR (pt. 169) 525

However, it is pertinent to note that there is a clear distinction between judicial power and jurisdiction, while jurisdiction is defined as the power of the court to hear and determine the subject matter in controversy between parties to a suit; Judicial power is the total powers which a court exercises when it assumes jurisdiction to hear a case. See the case of Bronik Motors Limited  v. Wema Bank Limited 1983 ISENLR 296 at pgs 278-279 and Shaaban & ANOR v. Sambo & Ors (2010) LPELR-SC.89/2010_SC.90/2010

The law that creates a court always vests it with jurisdiction which can either be original or appellate jurisdiction. A court is said to have original jurisdiction in a particular matter when that matter can be initiated before it as a court of first instance; while a court is said to have appellate jurisdiction when it can only go into the matter on appeal after it had been adjudicated on by a court of first instance. See the case of Sule v. Nigerian Cotton Board (1985) LPELR-SC. 113/1985

It won’t be less truth to reiterate that Court of Appeal has both Original and Appellate Jurisdiction. It will be noteworthy to state that Court of Appeal derives its Original Jurisdiction from Section 239 of the constitution of the Federal republic of Nigeria. See the case of Abubakar v. Attorney General of Federation (2007) 3 NWLR (pt. 1022) 601; and its appellate Jurisdiction from Section 240 of the Constitution of federal Republic of Nigeria. Then it will be important to further state that the appellate jurisdiction vested in the court of appeal is to hear and determine appeals from decisions of subordinate courts named therein and those that may be prescribed by statute. I will take an umbrage for this in the case of Local Government Service Commission, Ekiti State & Anor V. Jegede (2013) LPELR-CA/EK/07/M/2013

Having eminently stated above that Court of Appeal has an Appellate Jurisdiction to entertain a matter after it had been adjudicated on by a court of first instance, it’s now pertinent to add that it is not in all circumstances that an appeal shall lie as of right from the trial court to the court of appeal, which entails that in some circumstances  the leave of the court (Trial Court or Court of Appeal) must be sought and obtained before the intending appellant can appeal. See Section 242 CFRN. To this end, if the leave of the court is not  sought within the prescribed time, then the Applicant shall only have recourse to the trinity prayers. See the case of Deen Mark Construction Commany Ltd V. Abiola (2001) LPELR-CA/IL/13/99 (R)

Then it is important to state here that rights in law are meant to be asserted or exercised timeously (quia timet), or such right will deemed abandoned and same is  applicable in either appealing or  seeking for leave to appeal to court of Appeal. When the leave to appeal is being sought after the expiration of the prescribed time provided by the law, then the prospective Appellant shall file an application seeking for trinity reliefs; (a) Extension of time to seek leave to appeal , (b)Leave to appeal, and (c)Enlargement of time within which to file the appeal that is brought outside the stipulated time

This article tends to focus and state what an intending appellant is required to do in a situation where the leave of the court is required for an appeal and when such  leave is to be sought outside the prescribed time.

Trinity Prayers just like every other legal term or principle has not been given any generally acceptable definition. But for the purpose of our discussion here, we shall provide a working definition which shall guide our mind, on what we are talking about.

Then, to our humble view,  Trinity Prayers rule for extension of time is an application filed to an appellate court seeking the court to grant three co-existing reliefs, to wit: (a). Extension of time to seek leave to appeal (b). Leave to appeal and (c). Extension of time to appeal and the application is always being supported by an affidavit providing the reasons or good cause why the application should be heard or granted.

Note, Trinity Prayers is also known as Tripod prayers or Triple prayers or three legged prayers but all connote or depict three prayers in one application, just like the Holy Trinity of the Bible, that stands for three persons in one God.

Tripod prayers rule for extension of time was first stated by the Court of Appeal (Ibadan Division) in the case of Ibrahim v. Balogun (1999) 14 NWLR (Pt. 610) 254 and in that case it was stated that the rule that allows an applicant seeking for extension of time to combine all the three prayers in one motion paper stemmed from the need to combine in one application what would have required two or more applications. It is a rule contrived to save time by short-circuiting the long process of getting a result. Thus, at page 269 of the report, S. A. Olagunju JCA who read the lead judgment of the Court of Appeal in Ibrahim v. Balogun (1999) 14 NWLR (Pt. 610) 254 stated in this memorable way: ‘It is clear from the above decisions that the principle that there must be a union of three prayers for the validity of an application for enlargement of time within which to appeal; is applicable only when such an application is combined with an application for leave to appeal. See also the case of Intagro Ltd v. Bassey (2008) All FWLR (Pt. 419) 450 at 459 – 460, P. 473, paras. D – G (CA).

From the above mentioned locus classicus, it would be pertinent and crucial to note that Trinity prayers will only be applicable when an application is for an extension of time to appeal and which the appeal must be lodged with the leave of the appellant court and not as of right.

Trinity Prayer: Necessary Tool

Trinity Prayers become most important when the leave of the appeal Court is being needed, for an application for extension of time to appeal to be competent and also for the application to be granted after the expiration of the prescribed time provided for the appeal.

By virtue of the provisions of the constitution, any ruling or Judgment of a Federal High Court or a High Court, be it interlocutory or final, which cannot be the subject matter of an appeal as of right to the Court of Appeal under Section 241(1) of the Constitution is appealable with the leave of the Trial Court or the Court of Appeal under Section 242 of the Constitution. See Gbe v. Esewe (1988) 4 NWLR (Pt. 89) 435 at 444.

Once a ground of appeal against an interlocutory decision of the High Court is based on facts alone, or on mixed law and fact, it could not be filed in the Court of Appeal as of right without leave of either the trial court or the Court of Appeal. See Oluwole v. L.S.D.P.C (1983) 5 SC 1; Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718, Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt. 276) 410.

Note also, Where the right of appeal is exercised within the time stipulated by the law, appeal as of right is filed without ado in contradistinction to appeal with leave of court for which a prior approval of the court so authorized must be obtained. Where, however, a prospective appellant could not file his notice of appeal within the time stipulated for doing so by law, recourse is permitted to Order 6 Rule 9 (1&2) Court of Appeal Rules, 2016.

These rules of the court allow it to enlarge the time within which the prospective appellant can file his appeal and the indulgence applies to the two types of right of appeal which are rights exercisable with or without leave of court, see;  Alhaji Mojeed O. Ibrahim v. Chief Oyelakin Balogun & Ors. (1999) 14 NWLR (Pt. 610) 254 at 266 – 267.

In an application to appeal out of time stipulated by law, the applicant who is seeking leave to be allowed to exercise the prerogative to appeal as of right does not have any additional prayer to make than a straightforward one for an extension of time within which to file his notice of appeal.

However, where leave is required in the application to appeal out of time, the three reliefs (Trinity prayers) must be clearly stated and such an application must contain: (a) Extension of time to seek leave to appeal , (b)Leave to appeal, and (c)Enlargement of time within which to file the appeal that is brought outside the stipulated time. See Owoniboys Technical Services Ltd v. John Holt Ltd (1991) 6 NWLR (Pt. 199) 550; Akeredolu v. Akinremi (1989) 2 NWLR (Pt. 25) 710; Nalsa & Team Associates v. N.N.P.C. (1991).

Meanwhile, where leave is required in an application to appeal out of time, and the three prayers are not been sought, the law is well settled that the appeal will be rejected; see the case of  PETER ADEBOYE ODOFIN & ANOR v. CHIEF AGU & ANOR.(1992) 2 NWLR (Part 229) 350;  This case was commenced at the Akoko Grade A Customary Court in Ondo State by the Appellants as Plaintiffs. At the end of the trial, Judgment was entered for the Plaintiffs/Appellants. The Respondents’ appeal to the High Court was dismissed on the 16th of May, 1985. The Respondents failed to appeal within the 3 months allowed and so filed an application at the Court of Appeal praying for “(1) extension of time within which to seek for leave to appeal against the judgment delivered on the 16th of May, 1985 and (2) leave to appeal against the said judgment? There was no prayer for extension of time within which to appeal. In its ruling on the 21/10/85 the Court of Appeal granted the application and even granted extension of time to appeal which prayer was not sought. On appeal against that ruling, the Supreme Court held that in the absence of a prayer for extension of time to complete the circle of trinity prayers the application was fundamentally defective

Where Trinity prayers will be irrelevant:

It will be correct to hold that it is not in all instances that a prospective appellant will be expected to file trinity prayers. To this end, we beg to disagree totally to the view that if a prospective appellant is out of time to appeal, he must invariably seek the trinity reliefs. In our humble view, the trinity reliefs will be required only where the prospective appellant would have required leave of court to appeal within the time allowed by the rules.

Section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999 provides for a right of appeal as of right in six (6) instances. I cannot find any justification in law or rules for the need to require an applicant applying for extension of time to seek leave to appeal when he does not need leave to appeal under section 241(1) of the Constitution. The fact that he is out of time does not alter the fact that he has a right of appeal without leave. All he requires is extension of time to exercise his right of appeal as of right and not the trinity prayers or the tripod prayers, see Ibrahim v. Balogun & Ors. (1999) 14 NWLR (Pt. 610) 254; Akeredolu v. Akinremi (1986) 2 NWLR (Pt. 25) 710; Nalsa & Team Associates v. N.N.O.C (1991) 8 NWLR (Pt. 212) 652

Contents of the Trinity prayers rule for extension of time within which to appeal

In making trinity prayers, a prospective appellant must file an application at the Court of Appeal and not at the trial court, accompanied by an affidavit showing the good reasons or cause for delay in filing appeal or why the appeal should be heard.

Here, the authorities are unanimous on the position of the law that for an application for trinity prayers just like every other application for extension of time within which to appeal to succeed it must be accompanied by:

(a) An affidavit stating good and substantial reasons for the failure to appeal within the period prescribed by the appropriate law; and

(b) Grounds of appeal which prima facie show good cause why the appeal should be heard, In Re Williams (No.1) (2001) 9 NWLR (pt 718) 329 at 342 para F., the court lucidly stated that it is sufficient if the grounds of appeal are arguable and not frivolous.

The two conditions are distilled from plethora of cases, among which are:  Ojora v. Bakare (1976) 1 S.C. 47; Bowaje v. Adediwura, (1976) 20 6 S.C. 143; Alagbe v. Abimbola (1978) 2 S.C. 39; Ibodo v. Enarofia (1980) 5-7 S.C. 42; Moukarim v. Agbaje (1982) 11 S.C. 122; University of Lagas v. Olaniyan, (1985) 1 NWLR, (Pt.1) 156; and Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 2 NWLR. (Pt.77) 383.                                                                                                                                                                                                                                                                       CONCLUSION:

I reiterate that the importance of trinity prayers cannot be overemphasized, and I would profoundly state from the plethora of cases cited above, that when a prospective appellant who ought to appeal by the leave of the court but failed to seek the leave of the court within the prescribed time, that the only recourse that he shall have is to file an application seeking for trinity prayers. Hence, it should not be sent to mud so soon, that where he fails to seek the trinity prayers, his application shall be tantamount to be struck out.

Written by Omoha Otuosorochi Junior, a 400 level, law student in Ebonyi state University, Abakaliki, Ebonyi State.

Live intern @ ST. SEN SOLICITORS OF NO 8 OLD ENUGU ROAD KPIRIKPIRI ABAKALIKI EBONYI STATE.

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