HASSAN v. MAIKASUWA (2020)

HASSAN v. MAIKASUWA

(2020)LCN/14023(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, March 27, 2020

CA/YL/20M/2019(R)

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

USENI MALLAM HASSAN APPELANT(S)

And

MURTALA M. MAIKASUWA RESPONDENT(S)

RATIO

REQUIREMENT FOR AN APPLICATION FOR EXTENSION OF TIME TO APPEAL

By virtue of Order 6 Rule 9(2) of the rules of this Court 2016, all an applicant seeking an extension of time to appeal is required to do is to file an application supported by an affidavit and relevant exhibits that must show:-
a) Good and substantial reasons for failure to appeal within the prescribed time and
b) Arguable grounds of appeal which prima facie show good cause why the appeal should be heard – Ikenta Best (Nig.) Ltd. v. A-G Rivers State (2008) 6 NWLR (Pt. 1084) 612; Bowaje v. Adediwura (1976) 6 S.C 143; Ahmadu v. Salawu (1974) 11 S.C. 43; Alagbe v. Abimbola (1978) 2 SC 39; Ogbu v. Urum (1981) 4 SC 1.
At the back of the mind of the Court in exercising a judicial discretion on an application for extension of time to appeal and other reliefs is the consideration of doing substantial justice between the parties by hearing the dispute on the merits; so that the Court is not hindered by technicality which would circumvent a full determination of the grievance of a party on one side, and on the other side which could present a picture different from what the applicant is persuading the Court to accept as correct – Long-John v. Black (1998) 6 NWLR (Pt. 555) 524; Oladejo v. Adeyemi (2000) 3 NWLR (Pt. 647) 25; Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275. PER BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO J.C.A. (Delivering the Leading Judgment): By a Motion on Notice filed on 28/03/2019 and brought pursuant to Order 6 Rules 1, 9 and 10and Order 20 of the Court of Appeal Rules, 2016, the applicant prays this Court for the following reliefs:-

1) An order enlarging time within which the applicant may appeal against the final Judgment of the Taraba State High Court of Justice in Suit No. TRSW/34/2010 between USENI MALLAM HASSAN V. MURTALA M. SARKIN KASUWA delivered on 23/02/2011.
2) And for such other order(s) as the honorable Court may deem fit to make in the circumstances.

The grounds upon which application is brought are:-
1. The Respondent was the plaintiff before the Taraba State High Court of Justice, Holden at Wukari in Suit No. TRSW/34/2010 filed on the 3rd day of December, 2010 claiming amongst others general damages of N500,000 for injurious tampering with land in his possession. The Applicant before my Lords was the defendant in the suit.
2. On the 23rd day of February 2011, the High Court entered judgment for the Respondent in default of appearance of the Applicant herein.
3. The Applicant’s grouse is

that he was never served with the processes of the Court in the said No. TRSW/34/2010 before the lower Court delivered its judgment on the 23rd day of February 2011.
4. The Applicant only became aware of the judgment when enforcement was levied against him ejecting him from the house in dispute and his moveable properties thrown out.
5. The Applicant made effort to set aside the judgment of the lower Court and the enforcement orders to no avail.
6. The Applicant could not immediately appeal against the lower Court’s judgment and other decisions as he was forced by the perennial crisis in Wukari Taraba State to relocate from Wukari to MutumBiuTaraba State.
7. The relocation affected the Applicant financially and he could not immediately bear the cost of prosecuting an appeal.
8. Subsequent to his financial recovery, the Applicant briefed different counsel to assist him bring his appeal to life without success as the applicant’s application to the Court of Appeal have been struck out for one defect or the other
9. The Applicant is desirous of appealing the Judgment of the lower Court which was against him and affects his

constitutional right to fair hearing.
10. The main ground of Applicant’s grievance against the judgment of the lower Court is that proper service of the originating processes and other processes of the lower Court were not made on him before the delivery of the judgment of the lower Court thus denying him his constitutional right to fair hearing.
11. The Applicant has briefed a new counsel to prosecute his appeal.
12. The Applicant undertakes to be diligent in the prosecution of his appeal.
13. The judgment of the lower Court was made by the Court below without jurisdiction.
14. The time allowed by law for the Applicant to appeal against the judgment of the lower Court has lapsed, hence the filing of this application.
15. This honourable Court has the power to grant application in the interest of justice.
16. The Applicant has good and arguable grounds of appeal which go to the competence and jurisdiction of the lower Court to enter judgment and grant the reliefs it did in favour of the Respondent.

The application is supported by a twenty three (23) paragraph affidavit duly sworn to and to which was annexed Exhibit

‘A’ copy of the judgment of the lower Court and Exhibit ‘B’ copy of the proposed Notice of Appeal. The Respondent filed a thirty six (36) paragraph counter affidavit in opposition to the grant of the application. Annexed to the Respondent’s counter affidavit are Exhibits A, the Originating Summons dated 3rd December, 2010 served on the Respondent and endorsed by him, B and C copies of hearing notice dated 26th January, 2011 and affidavit of service dated 26th January, 2011 sworn to by the Court bailiff Joseph C. Kuban that the Respondent refused to accept service, D and E certified true copy of the Judgment of the High Court dated 23rd February, 2011 and affidavit of service sworn to by the Court bailiff dated 1st April 2011, F and G Motion on Notice dated 30th March, 2011 and affidavit of service dated 28th July, 2011 sworn to by the Court bailiff that the Respondent refused to accept service, H and I copy of the enrolled order of the High Court dated 12th October, 2011 and affidavit of service dated 13th October, 2011, J and K copies of writ of attachment dated 17th October, 2011 and affidavit of service dated 19th October, 2011

and L and M certificate of purchase dated 5th March, 2012 and evidence of payment for the purchase of the auctioned landed property dated 5th March, 2012. From the affidavit in support of the motion of notice, the Applicant wants an enlargement of time within which to Appeal against the judgment of Taraba State High Court delivered on 23rd February, 2011 on the ground that the High Court lacks the jurisdiction to have entertained the matter.

On the evidence contained in the counter affidavit, the Respondent is opposing the application on the premise that the complaint of the applicant that he was not served with the originating process as such the lower Court lacks jurisdiction is not true as the applicant was served with the originating process and all other Court processes.

In arguing the appeal, learned counsel to the applicant M. J. Ifegwu Esq. submitted that the applicant has satisfied the twin requirements of the law to wit 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 as enunciated under Order 6 Rule 9(2) of the Court of Appeal Rules, 2016.

He relied on the depositions in the following paragraphs of the supporting affidavit:-
“4) That I know as a fact that on 23rd day of February, 2011, the Taraba State High Court entered judgment for the Respondent in Suit No. TRSW/34/2010 in default of my appearance as applicant herein. Copy of the judgment of the lower Court is hereby annexed hereto as EXHIBIT A
5) That I know as a fact that I was never served with the processes of the Court in the said Suit No. TRSW/34/2010 before the lower Court delivered its judgment on the 23rd day of February, 2011 against me.
6) That I know as a fact that I only became aware of the judgment when enforcement was levied against me ejecting me from the house in dispute and my moveable properties thrown out.
10) That my fate was compounded when the Wukari crises started and it became very difficult to reach my counsel or go to Wukari to take any further steps in pursuit of my desire to appeal the lower Court’s judgment.
19) That I believe that I have good and arguable grounds of appeal which go to the competence and jurisdiction of the lower Court. Copy of my proposed

Notice of Appeal is attached hereto and marked Exhibit B.”

Learned counsel for the applicant submitted that the foregoing depositions have established good and substantial reasons for the delay in filing the Notice of Appeal, and the grounds of appeal are strong enough to show the reason why he should be allowed to appeal.

To the contrary, in the counter affidavit of the Respondent especially paragraphs 3, 4, 7, 8, 10, 11, 14, 18, 22, 23, 24, 26, 27, 30(v) and 33 it was deposed to that the reasons stated in the supporting affidavit are not good and substantial enough as envisaged under Order 6 Rule 9(2) of the Court of Appeal Rules, 2016. For clarity purposes, paragraphs 3, 4, 7, 8, 10, 11, 14, 18, 22, 23, 24, 26, 27, 30 (v) and 33 are reproduced here under:-
3. That I know as of fact that Suit No. TRSW/34/2010 was commenced by originating summons under the old Taraba State High Court Rules on 3rd day of December, 2010. The originating summons duly served on the Applicant and proof of service on the Defendant overleaf is hereto attached and marked as Exhibit “A”.
4. That I know as of the fact that, Mr. A. YahayaEsq of

counsel appeared and announced appearance for the Applicant and asked for adjournment on the ground that he had just been briefed by the defendant/Applicant.
7. That I know as of fact that in order to give the defendant/Applicant fair hearing, the trial judge granted the adjournment sought to enable the defendant comply with the rules of the Court as regards to filing of statement of defence.
8. That I know as of fact that, on the 26th January, 2011 when the case came up for hearing neither the defendant nor his counsel Mr. A. Yahaya appeared and did not file any statement of defence nor wrote a letter for any excuse.
10. That I know as of fact that, the application for adjournment was granted to 8th February, 2011 for hearing and a hearing notice was duly served on the defendant/Applicant by one Joseph C. Kuban who refused to accept service and the Court bailiff Joseph C. Kuban swore to affidavit of service and filed at registry of the High Court. The copies of the said hearing notice and the affidavit of proof of service on the defendant dated 26th January, 2011 are hereby attached and marked as Exhibit “B and C”.
11. That I know of

fact that, on the 8th February, 2011 when the case came up for hearing again, both the counsel and the defendant failed to appear and no excuse was sent to the Court by either of them.
14. That I know as of fact that, on 23rdFebruary, 2011, the Honourable judge Justice I. M. Sambo delivered his judgment in default of defendant’s appearance.
18. That the defendant/applicant had the opportunity in the world to have the said default judgment set aside since 2011 when the judgment was delivered but failed, refused and or neglected to do so which shows his indolent conduct at the lower Court and this appeal.
22. That I know as of fact that, the failure to file the appeal or have the judgment set aside was not due to any crises but due to the lukewarm attitude of the applicant and his conduct right from the beginning of the case before the lower Court.
23. That I know as of fact that, the Wukari crises started in 2013 and ended in 2014, while the judgment and the application for enforcement and auctioning of the applicant’s premises all took place in the year 2011, two (2) years before the crises.
24. That the applicant’s area which is known and called Akata Area was never affected by the crisis.

That the delay in filing the appeal was deliberate as can be seen from the Record of the trial lower Court.
27. That at time of the execution of the judgment, the applicant had moved away with his moveable property to an unknown destination and which made the Court to levied the execution on his immoveable property.
30. That I have been informed by U. I Sangai Esq ,principal counsel in U. I. Sangai & Co of plot No. 96 in his office at Street, Wukari Taraba State on the 5th April, 2019 in his office at about 2 O’ clock pm when I was served with the hearing notice of this honourable Court and I verily believe him to be saying the truth as follows:
v. That the writ of attachment and sale of goods and writ of attachment of immoveable property of the applicant/judgment debtor dated 17th October, 2011 served on the applicant 18th October, 2011 and the applicant refused to collect it and the Court bailiff Joseph C. Kuban left it at his house, the copies of said writs and affidavit of proof of service are hereto attached and marked as Exhibits of the as Exhibit “J and K”.

33.That the Respondents shall contend at the hearing of this application that the applicant was served with all the processes of the Court before the judgment, Ruling but failed, refused and or neglected to take step to have the judgment and the ruling set aside since it was obtained by default of appearance.

In the further affidavit of the Applicant filed on 27th September, 2019, the Applicant re affirmed and re stated his depositions in the affidavit in support of the application that he was not served with the originating process or any other Court process by the trial Court.

(1974) 11 S.C. 43; Alagbe v. Abimbola (1978) 2 SC 39; Ogbu v. Urum (1981) 4 SC 1.
At the back of the mind of the Court in exercising a judicial discretion on an application for extension of time to appeal and other reliefs is the consideration of doing substantial justice between the parties by hearing the dispute on the merits; so that the Court is not hindered by technicality which would circumvent a full determination of the grievance of a party on one side, and on the other side which could present a picture different from what the applicant is persuading the Court to accept as correct – Long-John v. Black (1998) 6 NWLR (Pt. 555) 524; Oladejo v. Adeyemi (2000) 3 NWLR (Pt. 647) 25; Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275.

The applicant has through paragraphs 4, 5 and 6 of the supporting affidavit raised the issue that the lower Court conducted the proceedings in his absence as he was not served with the originating process and all other Court processes. On the part of the Respondent, he has shown through paragraphs 3, 4, 8, 18, 22, and 26 of the counter affidavit that the Applicant was served with the originating process and all other

processes of the lower Court. That the failure and delay to file the appeal by the Applicant was due to his lukewarm attitude right from the beginning of the case before the lower Court.

However at paragraphs 4, 5, 6, 8, 9 and 11 of the further affidavit, the applicant has shown that the endorsement of service at the back of Exhibit A (the originating process) was not made by him, that Barrister A. Yahaya never represented him at the lower Court in the suit as he never had his instruction in that regard as deposed to at paragraph 4 of the counter affidavit.

From the affidavit in support of the application especially paragraphs 4, 7 and 8 it shows that while the applicant is saying that the lower Court entered Judgment in default of his appearance, that he was not served with any Court process (Paragraphs 4 and 5); Paragraphs 7 and 8 shows that he has a Counsel M. A. Yahaya in the case. Exhibit ‘A’ is the Judgment of the lower Court attached to the supporting affidavit. At Page 2 of Exhibit ‘A’ it is shown that the Applicant was represented by M.A. Yahaya Esq. in the proceedings before the lower Court. At paragraph 30 (i) of

the Counter affidavit it was deposed to that the Applicant was represented by Counsel A. Yahaya which the Applicant has not countered with cogent evidenced. Paragraphs 4, 5, 6, 15 and 20 of the supporting affidavit are hereby discountenanced.

At paragraph 10 of the supporting affidavit it was deposed to by the applicant that it was the Wukari crises that made it difficult for him to reach his counsel to file his Appeal. However at Paragraph 23 of the counter affidavit it was deposed to that the Wukari crises started in 2013 and ended in 2014, while the Judgment and its enforcement took place in 2011; two years before the crises started. This deposition in the counter affidavit was not countered in the further affidavit. It is therefore deemed admitted. After a thorough appraisal of the application together with the supporting affidavit and the counter affidavit, the application is unmeritorious and is hereby refused. Same is accordingly dismissed.

CHIDI NWAOMA UWA, J.C.A.: I read before now the ruling of my learned brother ABDULLAHI MAHMUD BAYERO, JCA. I agree with the decision refusing the application for lacking in merit, I also dismiss it for the same reasons.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead ruling just delivered by my learned brother Abdullahi M. Bayero JCA and I do not hesitate in agreeing with him that this application has no merit and should be dismissed.

The Applicant was represented by Counsel at the trial, yet he claims tongue – in – cheek that the judgment against him was a default judgment. And although judgment was delivered and executed in 2011, he claims that he could not appeal due to Wukari crises that occurred in 2013 and 2014.

The Applicant seeks for an indulgence of this Court. He cannot be granted such indulgence when he is parsimonious with the truth.

It is for this reason and the fuller reasons contained in the lead ruling that I too dismiss this application.

Appearances: