MASHAYA v. TALATA MAFARA L.G. COUNCIL (2020)

MASHAYA v. TALATA MAFARA L.G. COUNCIL

(2020)LCN/14423(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/S/35M/2019(R)

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

MUH’D DAN SHATU MASHAYA APPELANT(S)

And

TALATA MAFARA L.G. COUNCIL RESPONDENT(S)

RATIO

WHETHER OR NOT WHERE THERE IS NO SAVING PROVISION FOR RE-LISTING OR RESTORATION, AN APPEAL THAT IS DISMISSED FOR FAILURE TO COMPILE AND TRANSMIT RECORDS, RENDERS THE COURT FUNCTUS OFFICIO

It may be proper to add here that as sympathetic as the position may seem, in this case where there is no saving provision for either a re-listing or restoration, an Appeal that is dismissed for failure to compile and transmit Records, renders the Court functus Officio since there is no saving provision in the 2016 Rules of Court. See the observations of this Court in the case of EZENWA & ORS vs. ESEDO & ORS (2017) LPELR- 42827 per OGUNWUMIJU, JCA, where he had this to say on the subject;
“It is apparent that the 2016 Rules on failure to transmit Records of Appeal appears to have inherited the harshness associated with the provision regarding the failure of an Appellant to file Brief of Argument. This became inevitable in the circumstances in which Court presently finds itself. In recent times, this Court has found itself inundated with the Appeals that are abandoned after a Notice of Appeal is filed and some after a record is transmitted. The large number of abandoned Appeals shows that the Appeals were filed not for the purpose of getting justice from this Court but for reasons which I would refrain from speculating. It must be remembered that the jurisprudence of Appellate jurisdiction is the presumption that the parties have actually had their day at the trial where they have called witnesses and tendered documents to prove their cause or defend any case against them. The Appellate jurisdiction is primarily to correct any miscarriage of justice by the lower Court. If the party calling for a review of the judgment of the trial Court is apparently unwilling or unable to prosecute the Appeal timeously as provided by the Rules, then in my view, the Rules of Court sanctioning such tardiness cannot be crucified”. PER OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): By a motion on notice brought pursuant to Section 6(6) of the Constitution of Nigeria 1999 (As Amended); Order 8 Rule 20 of the Court of Appeal Rules, 2016 and under the inherent jurisdiction of this Hon. Court, the Applicant prayed this Hon. Court for the following Orders:
1. AN ORDER setting aside the Order for dismissal made by this Honourable Court in Appeal No. CA/S/8S/2016 pursuant to Order 8 Rule 18 of the Court of Appeal Rules, 2016 on the 19th day of October, 2017.
2. AN ORDER of this Honourable Court restoring Appeal No. CA/S/8s/2016 for mention.
3. And for such further Order (s) as this Honourable Court may deem fit to make in the circumstances.

The grounds upon which this Application is brought to Court are as follows;
1. That the Judgment of the lower Court was delivered on the 16/6/2010 by the Hon. Justices of the Shari’ah Court of Appeal Zamfara State, Gusau.
2. The Appellant personally signed and filed his notice of appeal immediately, on the 21st day of June, 2010.
3. That the lawyer handling the Appeal one Bello Umar Esq., took over all

other processes including the prosecution of the Appeal.
4. That the Appellant kept in contact with the Counsel in order to ensure that all was going well with the Appeal, and the counsel kept on telling him there was no problem.
5. That due to the insurgency in Zamfara State, the Appellant’s village was among the villages ransacked in Talata Mafara/Anka Local Governments Areas of Zamfara State.
6. That when he contacted the Counsel who is now the Attorney General of Zamfara State sometimes in December, 2018, the Counsel could not give him a satisfactory answer about the Appeal.
7. That the Appellant then proceeded to Sokoto Court of Appeal registry to inquire on the situation of his appeal, and he was shocked when he was informed that, the Appeal was dismissed due to lack of diligence prosecution.
8. That when the Appellant returned to the Counsel and informed him about the situation, he told the Appellant that he was not aware of the position of the Court as regards the Appeal.
9. That by Order 8 Rules 20 of this Honourable Court Rules 2016, the Appeal can be restored by the Court, upon application on notice.

That granting this application is a condition precedent for relisting of the Appeal.In support of this Application, there is deposed to an Affidavit of nine (9) paragraphs by one Hamza Sani Esq., Male, Adult, Muslim, Nigerian, a Counsel in the law firm of M.A. Sambo & Co, Marhaban Law Chambers, as follows:-
1. That I am a counsel in the law firm of M.A Sambo & Co, Marhaban Law Chambers Sokoto, solicitors to the applicant and by virtue of which I am conversant with the facts of this application.
2. That I have the authority of both the Counsel handling this Application and that of the Applicant to depose to the facts in this affidavit based on the facts which came to my knowledge in the course of my duties afore said.
3. That I was together with M.A SAMBO ESQ, Principal partner in our law firm and of counsel handling this Application, at our office No.2 off Kano road, adjacent to U.B.A main branch, close to flyover, Sokoto on the 19th day of February, 2019 at around 12.30PM and I believe him on the following facts:
a. That the Judgment of the lower Court was delivered on the 16/6/2010 by the Hon. Justices of the Shari’ah Court

of Appeal Zamfara State, Gusau against him.
b. That the Applicant personally signed and filed his Notice of Appeal immediately after the Judgment, on the 21st day of June, 2010.
c. That the lawyer handling the Appeal one Bello Umar Esq. took over all other processes including the prosecution of the Appeal before this Court.
d. That the Applicant kept in contact with the Counsel in order to ensure that all was going well with the Appeal, and the counsel kept on telling him there was no problem.
e. That due to the insurgency bedeviling Zamfara State, the Applicant’s village was among the villages ransacked in Talatamafara Anka Local Governments Areas of Zamfara State by the armed bandits between 2015 to date.
f. That when he contacted the Counsel who is now the Attorney General of Zamfara State sometimes around December, 2018, the Counsel could not give him a satisfactory answer about the Appeal, as such he sense something might be wrong.
g. That the Applicant proceeded from Gusau to Sokoto Court of Appeal registry to inquire on the situation of his appeal, and he was shocked when he was informed that, the Appeal was dismissed

due to lack of diligence prosecution. The certified true copy of the proceedings of the Court is herewith attached and marked as exhibit’ A’.
h. That when the Applicant returned to the Counsel and informed him about the situation, the counsel, Mr. Bello Umar told the Applicant that he was not aware of the position of the Court as regards the Appeal.
1. That the Applicant had to also go back to where he is now staying as a refugee to source for money to come and continue prosecuting this Appeal.
j. That granting this application is a condition precedent for relisting of the Appeal.
k. That now the record of appeal was transmitted since 4/2/2016, and the Applicant is ready to prosecute the Appeal until its determination.
1. That having the Record of Appeal already transmitted before this honourable Court will make it easier for the Applicant and his Counsel to prosecute the appeal within a very short period of time, if it is relisted.
4. That it will be in the interest of justice to grant this application so that the Applicant will be given the opportunity of being heard.
5. That there are many appealable issues in the

Notice of Appeal of the Applicant.
6. That if the Application is granted, it will enable the Applicant exercise his Right of Appeal and of being heard before any order is made against him.
7. That the respondent will not be prejudiced by granting of the application.
8. That if the application is refused, applicant will be prejudiced.
9. That I deposed to this affidavit in good faith believing same to be true and correct and by virtue of the Oath Act, Laws of the federation 2004.

Learned Respondent’s Counsel M. S. Suleiman Esq., did not oppose the grant of this Application and so learned Applicant’s Counsel resorted to moving this motion in terms of the prayers on the motion paper.

It would be recalled that the Appeal sought to be re-listed by this Application was on the 19-10-2017 dismissed on the orders of this Court under Order 8 Rule 18 of the Court of Appeal Rules, 2016. The Order 8 Rule 18 of the Rules of this Court addresses the failure of a litigant to compile and transmit record of Appeal. For the avoidance of any doubt the provision of Order 8 Rule 18 is reproduced thus;

“ORDER 8 Rule 18 (1):
If the Registrar has failed to compile and transmit the records, under Rule 1 and the Appellant has also failed to compile and transmit the Records in accordance with Rule 4, the Respondent may by Notice of Motion move the Court to dismiss the Appeal.”
The records of this Court show that the Appeal sought to be re-listed was filed as far back as 21-6-2010 and thereafter for over six (6) years, the Appeal was left in limbo or literally abandoned for the period only for the Record of Appeal to be compiled and transmitted on the 4-2-2016. To rather make matters worse, a hearing Notice had to be issued and served on the learned Counsel to the Appellant, in order to put the Appellant on notice of the fact that the Appeal had been scheduled to be heard on the 19-10-2017, who still took no steps towards regularizing the Appellant’s long absence from the Court and his Appeal. This was what prompted this Court in listing the Appeal suo motu and summarily dismissing same for want of diligent prosecution. Having therefore failed to have complied and transmitted the Record of Appeal within the stipulated period allowed by the Rules of this Court, this Court

was therefore in good standing to have dismissed this Appeal on the Application of learned Respondent’s Counsel who was present in Court on the fateful date. In the case of NIGERIAN NAVY & ORS vs. LABINJO (2012) 17 NWLR AT 77-78 the apex Court per ONNOGHEN, JSC (As he then was) while interpreting Order 8 Rule 18 of the Rules of this Court had this to say on the subject;
“In fact I hold the considered view that an Appellate Court, in a situation like the one under consideration in this Appeal, has the inherent jurisdiction to suo motu list the Appeal and summarily dismiss same for want of prosecution without waiting for the Respondent to make the Application either orally or by way of a motion on notice as the Court has the inherent power to do away with frivolous, or vexatious Appeals so as to decongest its cause list particularly where the Appeal is intended to overreach or deny the Respondent the enjoyment of the fruits of the judgment in his favour by the lower Court.”
Against the backdrop of the foregoing, it is observed that learned Applicant’s Counsel has anchored his application on the provisions of Order 8 Rule 20 of the Rules Court.

It is important to state here that the extant Rules of this Court contain no such provision as Order 8 Rule 20. It would be recalled that the old Order 8 Rule 20, which was present in the 2011, Rules of this Court has since been yanked off for very obvious reason in the extant Rules of this Court of 2016. It was under the Old Order 8 Rule 20 of the 2011 Rules that had provision for re-listing an Appeal dismissed for want of diligent prosecution. For the avoidance of doubt the said old Order 8 Rule 20 of 2011 provides thus:
“An Appellant whose Appeal has been dismissed under this Rule may apply by notice of motion that this Appeal be restored upon such terms as it may think fit”.
It was this Rule, which formerly provided for the restoration of an Appeal that is dismissed. That Rule unfortunately, no longer exists in the 2016 Rules and that is the stark reality of the position as it presently stands, whether the Applicant likes it or not, the position now is that an Appeal, once dismissed can no longer be restored or re-listed as the case may be and that no application for restoration may henceforth be brought before

this Court. It may be proper to add here that as sympathetic as the position may seem, in this case where there is no saving provision for either a re-listing or restoration, an Appeal that is dismissed for failure to compile and transmit Records, renders the Court functus Officio since there is no saving provision in the 2016 Rules of Court. See the observations of this Court in the case of EZENWA & ORS vs. ESEDO & ORS (2017) LPELR- 42827 per OGUNWUMIJU, JCA, where he had this to say on the subject;
“It is apparent that the 2016 Rules on failure to transmit Records of Appeal appears to have inherited the harshness associated with the provision regarding the failure of an Appellant to file Brief of Argument. This became inevitable in the circumstances in which Court presently finds itself. In recent times, this Court has found itself inundated with the Appeals that are abandoned after a Notice of Appeal is filed and some after a record is transmitted. The large number of abandoned Appeals shows that the Appeals were filed not for the purpose of getting justice from this Court but for reasons which I would refrain from speculating. It must be

remembered that the jurisprudence of Appellate jurisdiction is the presumption that the parties have actually had their day at the trial where they have called witnesses and tendered documents to prove their cause or defend any case against them. The Appellate jurisdiction is primarily to correct any miscarriage of justice by the lower Court. If the party calling for a review of the judgment of the trial Court is apparently unwilling or unable to prosecute the Appeal timeously as provided by the Rules, then in my view, the Rules of Court sanctioning such tardiness cannot be crucified”.

I endorse this observation and adopt it as if it were mine and adjudge this Application unmeritorious. It is according dismissed. There are no orders as to cost.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree.

ABUBAKAR MAHMUD TALBA, J.C.A.: I read before now the Ruling of my learned Brother FREDERICK O. OHO JCA, and l agree with his reasoning and conclusions. An application to restore an appeal dismissed by the Court of Appeal pursuant to Order 8 Rule 18 of the Court of Appeal Rules 2016 is like hitting one’s head against a concrete wall. The

wall will certainly not give way. It is a final decision and such appeal cannot he revived, restored or relisted by the Court of Appeal. In other words, being an order of dismissal the Court of appeal becomes functus officio. It lacks the jurisdiction to entertain the appeal. See ASALU & ORS VS DAKAN & ORS (2006) LPELR 573 (SC).
It is in view of the above settled principle of law I hold that the application lacks merit.
It is accordingly refused and dismissed. No order as to cost.

Appearances:

A. SAMBO, Esq. For Appellant(s)

S. SULEIMAN, Esq. For Respondent(s)