YAHAYA & ORS v. MOHAMMED & ANOR (2022)

YAHAYA & ORS v. MOHAMMED & ANOR

(2022)LCN/16628(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, June 30, 2022

CA/S/58M/2022(R)

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Between

1. ALH. IBRAHIM YAHAYA 2. LAWALI MUZA ZURU 3. HAJIYA GOMMA AHMED APPELANT(S)

And

1. MUKHTAR A. MOHAMMED 2. THE SHERIF OF KEBBI HIGH COURT RESPONDENT(S)

RATIO

THE POSITION OF THE LAW ON FILLING AN APPLICATON FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL

The Rules of this Court under Order 6 Rule (9)(1) particularly Rule (9)(2) require of the person who applied for enlargement of time within which to appeal, to furnish good and substantial reasons for failure to appeal within the prescribed time and further present grounds of appeal which prima facie show good cause why the appeal should be heard.

The time prescribed for the filing of appeals from decisions sought to be against is as provided by the Court of Appeal Act 2004 (as amended) at Section 24(2)(a). It follows therefore that the applicant who is appealing against an interlocutory decision or a final decision has fourteen days and three months respectively to appeal that decision. PER HUSSAINI, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgement): The applicants filed a Motion on Notice at the Registry of this Court on the 1st April, 2022 and by it, sought for an order “for extension of time within which the applicants may file their Notice of Appeal against the ruling of the Kebbi State High Court of Justice in Suit No. KB/ZR/HC/9M/2020 delivered on the 19th day of January, 2021. And for such further Orders as this honourable Court may deem fit in the circumstances”. The application was made or brought pursuant to Order 6 Rule 9 (1) and (2) of the Court of Appeal Rules, 2021 and Section 24(2)(a) and (4) of the Court of Appeal Act 2004 (as amended) and the inherent jurisdiction of this Court.

On the 1st June, 2022 when the application came up for hearing learned counsel for the applicant relied on the affidavit of 4 paragraphs deposed to by one Naomi Hayanchi in support of the application as well as the annextures attached marked as Exhibit A, i.e the ruling delivered at the High Court, sitting in Zuru on the 19th January, 2021. Exhibit ‘B’ the Motion on Notice filed at the High Court of Kebbi State on the 1st April 2022 seeking as it were, an Order to set aside the attachment and sale of house of Mukhtar A. Muhammad, the 1st Respondent herein. Also attached or annexed to the motion as Exhibit ‘C’ is the proposed Notice and Grounds of Appeal. The motion before us was accompanied with a Written Address of counsel.

Further to this, the learned appellants’ counsel relied on the further affidavit filed on the 9th May, 2022 along with the document or process captioned “Reply on Point of Law” filed on same date. The Counter-Affidavit and the Reply on Point of Law, no doubt were filed in response to the 1st Respondent’s Counter Affidavit and the 1st Respondent’s Written address filed on the 26th April, 2022 in opposition to the application for extention of time. As indicated before, learned counsel on both sides moved the Court and adopted the process filed by them, with the one urging us to grant his request for extention of time and the other urging us to refuse the application and dismiss same.

It can be recalled that the Kebbi State High Court in the ruling delivered by it on the 19th January, 2021 vide Motion No. KB/ZR/HC/9M/2020 had reason to set aside the sale, attachment and auction of the immovable property of the 1st respondent herein (Mukhtar A. Muhammad) for contravening the provisions of the Sheriff and Civil Process Act and judgment enforcement Rules for the breach of the Fundamental Right to fair hearing of the 1st respondent.

It would appear there was no appeal against that ruling and Order as at when due and that explains why the applicants are now before us seeking for the reliefs for extension of time as aforesaid to appeal against that decision of the Kebbi State High Court of Justice delivered on 19th January, 2021. As at the 1st April, 2022 when this Motion on Notice was filed, seeking for extension, it is already over one (1) year eight (8) months since the ruling sought to be appealed against was delivered. In the words of the apex Court in Yesufu v. Cooperate Bank Ltd. (1989) LPELR – 3522 (SC); “The length of delay is bringing the application is immaterial so long as good and substantial reason justifying it is proffered. See Alagbe vs. Abimbola & Ors. (1978) 2 SC 39.”

By the affidavit in support of the application at paragraph 3(a)-(f) thereof, are facts deposed to suggest that the proceedings or the application lodged or filed at the Registry of this Court seeking to set aside the ruling of the 19th January, 2021 of which the ruling was given only on the 19th January, 2021, was the reason as being the cause of the delay in appealing within the prescribed time to appeal that ruling. Paragraph 3(a)-(f) of the affidavit in support states thus: –
3. “That I was informed by Garba Abubakar Shehu Esq., of counsel and counsel handling this case in chambers on the above address on the 28th day of March, 2022 at about 11:30am of the following facts as follows: –
a. That the applicants are the Respondents in Motion No. KB/ZR/HC/9M/2020 which ruling was delivered on the 19th day of January, 2021 by the Kebbi State High Court sitting at Zuru Division. The judgment is hereby annexed as Exhibit “A”.
b. That the applicants intend to appeal against the decision and briefed Mr. Garba Abubakar Shehu Esq., to appeal the judgment.
c. That after studying the ruling Mr. Garba Abubakar Shehu Esq., decided to file another motion to set aside the ruling of the Court since the Court lacks the jurisdiction to entertain the application having been brought after 21 days limited by Section 46 of the Sheriffs and Civil Process Law of Kebbi State.
d. That Mr. Garba Abubakar Shehu Esq., filed the application before the trial Court to set aside its order granted without jurisdiction but the application was not heard until 28th February, 2022 and ruling delivered on the 21st March, 2022 where the application was refused. The said copy of the motion is hereby attached and marked as Exhibit “B”.
e. That by 21st March, 2022 the time limited for appeal against the ruling has expired.
f. That the Kebbi State High Court cannot extend time for appeal to Court of Appeal.”

However, the 1st respondent, by the Counter-Affidavit deposed to on his behalf by Alhaji Adam Baba on 26th April, 2022 in opposition state thus at paragraph 4 and 5(i)(ii)(a)(b) thus: –
4. “That our office was served with the applicant’s originating process on the Friday the 22nd day April, 2022.
5. That upon perusal of the applicants’ processes particularly the applicants’ joint affidavit in support, I was told and informed by A.S ADOMAI, Esq., of counsel to the 1st respondent in our office situates at 4th floor labour house central business district, Garki, FCT Abuja on the 23rd day of April, 2022 at about 9:47am in course of further briefing on this matter that Paragraph 3(b), (c), (d), (e)”, (g); (h), (i), (j), (k) and 4 of the affidavit in support of the application are false, frivolous, untrue and therefore same are denied intoto by the 1st respondent, the true facts of the matter runs as follows;
Contrary to paragraph 3(b), (c) of the applicants’ affidavit in support, the applicants did not intend to appeal the rulings of the Court below that was delivered on the 19th day of January 2021 and as at the time the applicants filed motion No: KB/ZR/HC/11M/2021 on the 21st day of February 2021 to set aside the ruling delivered in motion No: KB/ZR/HC/9M the applicants were already out of time to appeal to this Court against same
a. In addition to the above, the applicants did not take any step against the above ruling until when the 1st Respondent filed an application for the execution of the above ruling, the application dated the 9th day of February, 2021 is hereby pleaded and marked as exhibit “K”.
b. The jurisdiction of the Court bellow to hear and determine application No: KB/ZR/HC/9M/2020 was intact Contrary to paragraph 3(d), (e) of the applicant’s affidavit in support motion No: KB/ZR/HC/11M/2021 was heard and determined timeously and same was refused for lack of merit.
a. In addition to the foregoing the Court bellow delivered its ruling in motion NO: KB/ZR/HC/11M/2021 on the 21st day of March 2022 but the applicants did not file their application for the extension of time to appeal until on the 1st day of April. 2022, barely 13th days after the ruling because the applicants were or are in sleeping slumber.
b. The applicants decided not to appeal against the ruling but rather filed motion No: KB/ZR/HC/11M/2021 seeking the order of the Court below to set aside the above ruling that was delivered on the 19th day of January, 2021.”

I can give a quick summary of the facts deposed to in the 1st Respondent’s counter – affidavit thus: –
1. The 1st Respondent has denied in totality, the averments at paragraphs 3(b)(c)(d)(e)(g)(h)(i)(j)(k) and 4 of the supporting affidavit.
2. Given the affidavit in Support of the application, the applicant had no desire to appeal the ruling of 19th January, 2021.
3. That the applicants were already out of time to file their appeal as at the time and date the Motion on Notice No. KB/ZR/HC/11M/2021 was filed on the 15th February, 2021 wherein they sought to set aside the ruling delivered on the 19th January, 2021 in Motion No. KB/ZR/HC/9M/2020.
4. The applicant did not take any step against the ruling delivered on 19th January, 2021 until when the 1st respondent took steps to execute the ruling.
5. That the application in Motion No. KB/ZR/HC/11M/2021 was filed and heard and determined in good time but same was refused for lack of merit, the ruling having been delivered on 21st March, 2022.
6. The applicant did not file any application for extension of time to appeal the ruling delivered on 21st March, 2022 until on 1st April, 2022.
7. Rather than appeal the ruling in Motion No. KB/ZR/HC/11M/2021, the applicant sought for an Order to set aside that ruling. The applicant filed further affidavit on the 9th May, 2022 and debunked facts deposed and contained in the 1st Respondent’s counter affidavit.

I have given my thoughts to the submissions made by the respective counsel in their written addresses in support of the application and in opposition respectively. When I took a look at the Motion paper and the relief sought by the applicant vis-à-vis the affidavit deposed to in support of the application, I begin to wonder if at all the affidavit evidence supplied by the applicant was meant or intended to truly support the prayer(s) or the reliefs contained in the Motion paper. I refer in particular to paragraph 3 (b)(c)(d)(e) of the supporting affidavit which do not have any nexus or link between the facts deposed to therein and prayer 1 contained in the Motion paper. Affidavits in support of a relief contained in a motion paper is expected to supply facts which, when considered along with the reliefs sought, can be taken as the reasons why the relief is being sought.

As indicated before I do not see any link between the prayer in the motion paper and paragraph 3(b)(c)(d)(e) of the supporting affidavit. The Rules of this Court under Order 6 Rule (9)(1) particularly Rule (9)(2) require of the person who applied for enlargement of time within which to appeal, to furnish good and substantial reasons for failure to appeal within the prescribed time and further present grounds of appeal which prima facie show good cause why the appeal should be heard.

The time prescribed for the filing of appeals from decisions sought to be against is as provided by the Court of Appeal Act 2004 (as amended) at Section 24(2)(a). It follows therefore that the applicant who is appealing against an interlocutory decision or a final decision has fourteen days and three months respectively to appeal that decision.

In the instant application, the ruling of which was delivered on 19th January 2021, whether the ruling so delivered was interlocutory decision or final decision of that Court, the applicant can only appeal against that decision upon good reasons furnished through affidavit evidence to account for the delay. Indeed, the affidavit evidence furnished in the supporting affidavit do not in fact, support the prayers contained in the Motion paper hence the Motion on Notice is rendered incompetent by the absence of relevant supporting affidavit evidence.
Given the failure on the part of the Applicants to furnish good and substantial reasons for the delay in filing appeal, the mere fact that there exist the Proposed Notice of Appeal which prima facie contains arguable grounds, cannot on that alone determine the application in favour of the appellant. There must be contemporaneous existence of the twin conditions upon which the Court can exercise its dissection under Order 6 rule 9(2) of the Rules of this Court to grant the Application. The instant application must fail and same is refused and dismissed.

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

MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead ruling of my learned brother Sa’idu Tanko Hussaini JCA. I agree with the reasoning and conclusion that this application fail and hereby refused. I abide by all the consequential orders in the lead ruling.