CUSTOMARY COURT OF APPEAL BENUE STATE V. ABURA TSEGBA & ORS. (2010)

CUSTOMARY COURT OF APPEAL BENUE STATE V. ABURA TSEGBA & ORS.

(2010)LCN/3682(CA)

In The Court of Appeal of Nigeria

On Thursday, the 1st day of April, 2010

CA/J/289/2008

RATIO

APPEAL: WHAT IS THE REQUIREMENT FOR A PARTY SEEKING TO FILE AND ARGUE ANY FRESH ISSUE IN THE APPELLATE COURT

When a party seeks to file and argue any fresh issue in the appellate Court, he must first seek and obtain leave of Court before filling such an issue. An appellant will not be allowed to raise a point or issue that was not raised or argued at the trial Court, but where the issue has to do with jurisdiction of the Court, it can be raised at anytime and even on appeal for the first time without leave. Akintaro vs. Egungbohun (2007) 9 NWLR Pt. 1038 Pg 103; Ehigbe vs. Omokhafe (2004) 18 NWLR Pt. 905 Pg 319. PER UZO NDUKWE-ANYANWU, J.C.A.

APPEAL: THE GENERAL RULE FOR GRANTING LEAVE TO APPEAL

The general rule is that leave to appeal will be granted where the grounds of appeal raise issues of general importance or a novel point of law or where the grounds show a prima facie arguable appeal. Alamieyeseigha vs. Chief Justice of Nigeria (2005) 1 NWLR Pt. 906 Pg 60; Kigo (Nig) Ltd vs. Holman Brothers (Nig) Ltd (1980) 5 – 7 SC Pg 62; Ofora vs. Odunsi (1964) 1 All NLR Pg 55.

A question which was not raised at the lower court cannot be raised in the appellate Court for the first time without leave. Agedah vs. Nkwocha (2002) 9 NWLR Pt.771 Pg 113.

Where the statutory period in which to exercise a right of appeal has expired, the Court cannot entertain an application for leave to appeal, unless the application contains a prayer for extension of time within which the appellant may seek leave to appeal and also a prayer for extension of time within which to file such an appeal. Deen Mark Construction Co. Ltd vs. Abiola (2002) 3 NWLR Pt. 754 Pg 418; Iroegbu vs. Okwordu (1990) 6 NWLR Pt. 159 Pg 643. PER UZO NDUKWE-ANYANWU, J.C.A.

APPEAL: WHAT RELIEFS SHOULD A PARTY SEEKING LEAVE OF COURT TO APPEAL AS AN INTERESTED PARTY APPLY FOR

It is also mandatory, that a party, seeking leave of court to appeal as an interested party outside the prescribed time must apply to the Court for 3 reliefs namely:

(1) Extension of time within which to seek leave to appeal.

(2) Leave to appeal.

(3) Enlargement of time within which to file the appeal.

In Re-Madaki (1996) 7 NWLR Pt. 459 Pg 153; Owema Bank (Nig) Plc vs. N.S.E. Ltd (1997) 8 NWLR Pt. 515 Pg 1. C.C.B. (Nig) Ltd vs. Ogwuru (1999) 3 NWLR Pt. 284 Pg 630. PER UZO NDUKWE-ANYANWU, J.C.A.

JUSTICES:

ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria

UZO NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

Between

CUSTOMARY COURT OF APPEAL BENUE STATE – Appellant(s)

AND

1. ABURA TSEGBA
2. ATTORNEY-GENERAL, BENUE STATE
3. BENUE STATE HOUSE OF ASSEMBLY
4. SAALUUN DENGUUN – Respondent(s)

UZO NDUKWE-ANYANWU, J.C.A. (Delivering the Ruling).: This is a motion on notice filed on 23rd December, 2008. The Applicant, the Customary Court of Appeal, Benue State is seeking for the following orders:
(1) An order for extension of time within which the Applicant may seek for leave to appeal against the decision of the Benue State High Court in Suit No. MHC/90/2004 delivered on 15/11/2004 by Hon. Justice E.N. Kpojime.
(2) An order granting the applicant leave to appeal against the decision of the Benue State High Court in Suit No. MHC/90/2004 delivered on 15/11/2004 by Hon. Justice Kpojime.
(3) An order for the extension of time within which the applicant may file Notice and Grounds of Appeal against the decision of Benue State High Court in Suit No. MHC/90/2004 delivered on 15/11/2004 by Hon. Justice E.N. Kpojime.
(4) An order granting leave to the Appellant to raise as fresh issue Abuse of Court Process which is contained in the Notice and Grounds of Appeal.
(5) AND for such order or further orders as this Honourable Court may deem fit to make in the circumstances.
In support of this notice is a 27 paragraphs affidavit deposed to by one Ngozi Ufelle, and 8 Exhibits marked 1-8. In support also, the Applicant filed his brief. Counsel adopted his brief and formulated one issue for determination namely:
(1) Whether the Applicant has made out a case to be granted leave to appeal.
Learned counsel, Ngozi-Ufelle submitted on behalf of the Applicant that the Appeal Court can exercise its discretion and grant an extension of time within which an Applicant can appeal against the decision of the Lower Court. Counsel submitted that when an applicant requires the Court to exercise its discretion, the applicant has a duty to exhibit for the Court’s use of all relevant documents. For this, the Applicant annexed Exhibits 1- 8. See the case of Impresit Bakolori Plc vs. Abdulazeez (2003) 12 NWLR Pt. 834 Pg 307 at 326.
Counsel cited Order 7 Rule 10(2) of the Court of Appeal Rules 2007 which has two requirements namely thus:
(1) Good and substantial reasons for failure to appeal with the prescribed period stated.
(2) Grounds of Appeal showing prima facie good cause why the appeal should be heard. See Ifekaanlu vs. Uzoegwu (2008) 15 NWLR Pt. 1111 Pg 508 at 517. Counsel submitted that good and substantial reasons have been provided in their affidavit in support. See N.I.W.A vs. S.P.D.C.N Ltd (2008) 13 NWLR Pt. 1103 Pg 48 at 6S; Akinpelu vs. Adegbare (2008) 10 NWLR Pt 1096 Pg 531 at 555; Bowafe vs. Adediwura (1976) 6 SC at 143. Also, in an application such as this the rules require that the grounds of appeal should only show good cause why the appeal should be heard. Ethiopian Airlines vs. Onu (2005) 11 NWLR Pt. 936 Pg 214 at 228; Obikoya vs. Wema Bank Ltd (1989) 1 NWLR Pt. 96 Pg 157.
Where an issue is being raised for the first time leave of Court is required to do so. Failure to do so will render the issue incompetent. See UBA PLC vs. S.A.F.P.U (2004) 3 NWLR Pt. 861 Pg 516 at 537; Leaders & Co. Ltd vs. Kusamotu (2004) 4 NWLR Pt. 864 Pg 519-at 540.
Counsel urged the Court to grant his prayers.
In reply, the Respondent filed a Counter affidavit of 6 paragraphs on 28th April 2009. A further counter affidavit of 4 paragraphs was filed on 18th May, 2009. Also a brief of argument was filed on 21st August 2009. In it, the Respondent formulated 4 issues for determination namely:
(l) Whether the applicant has shown good reasons for failure to appeal within time.
(2) Whether the grounds of appeal in the proposed appeal show good course why the appeal should be heard.
(3) Whether leave can be granted to raise a fresh issue of abuse of court process in respect of Suit No. MHC/90/2004.
(4) Whether the applicant could be heard by the Court of Appeal while in disobedience of the order of the honourable court.
The learned counsel to the Respondent, G.A. Ibu who settled the brief argued the four issues formulated very convincingly.
In an application like this, the applicant is urging the Court to exercise its discretionary powers to grant leave.
These discretionary powers have been bequeathed on the Court, the Court however in the exercise of these powers, ought to exercise these powers judiciously and judicially.
Order 7 Rule 10(2) of the Court of Appeal Rules 2007 stipulates that good and substantial reasons for the delay must be given. The Applicant in his affidavit of 27 paragraphs gave his reasons for the delay. Reasons for delay does not necessary have to be watertight. At least, the applicant has given sufficient reasons for the delay.
Going through the gamut of documents filed by both parties it is obvious that a recondite ground of appeal has been filed. This ground is whether appeals can be entertained by the Court of Appeal even where the issues are not primarily customary law issues. Moreover, a High Court in Benue State has already declared the proceedings in the Benue Customary Court of Appeal null and void. In all its ramification, these issues boarder on jurisdiction of the Customary Court of Appeal and that of the High Court of Benue State. What can be more recondite?
When a party seeks to file and argue any fresh issue in the appellate Court, he must first seek and obtain leave of Court before filling such an issue. An appellant will not be allowed to raise a point or issue that was not raised or argued at the trial Court, but where the issue has to do with jurisdiction of the Court, it can be raised at anytime and even on appeal for the first time without leave. Akintaro vs. Egungbohun (2007) 9 NWLR Pt. 1038 Pg 103; Ehigbe vs. Omokhafe (2004) 18 NWLR Pt. 905 Pg 319.

A question which was not raised at the lower court cannot be raised in the appellate Court for the first time without leave. Agedah vs. Nkwocha (2002) 9 NWLR Pt.771 Pg 113.

It is also mandatory, that a party, seeking leave of court to appeal as an interested party outside the prescribed time must apply to the Court for 3 reliefs namely:
(1) Extension of time within which to seek leave to appeal.
(2) Leave to appeal.
(3) Enlargement of time within which to file the appeal.
In Re-Madaki (1996) 7 NWLR Pt. 459 Pg 153; Owema Bank (Nig) Plc vs. N.S.E. Ltd (1997) 8 NWLR Pt. 515 Pg 1. C.C.B. (Nig) Ltd vs. Ogwuru (1999) 3 NWLR Pt. 284 Pg 630.

For an application for extension of time to appeal to succeed, the Applicant must show to the Court that the delay in bringing the application is neither willful nor inordinate. Also that there are good and substantial reasons for failure to appeal within the prescribed period; and that there are grounds which prima facie show good cause why the appeal should be heard. Okere vs. Nkem (1992) 4 NWLR Pt 234 Pg 132; C.C.B. (Nig) Ltd vs.Oguru (1993) 3 NWLR Pt 284 Pg 630; S.B.N Plc vs. Abdulradin (1996) 4 NWLR Pt. 443 Pg 460; Ogboyoro vs. Omenuwoma (2005) 1 NWLR Pt. 906 Pg 1; Federal Government of Nigeria vs. A.I.C. Ltd (2006) 4 NWLR Pt. 970 Pg 337.
In an application for extension of time to appeal counsel’s error of judgment if reasonable, is an acceptable ground for delay to apply for leave to appeal. So also counsel’s inadvertence is a pardonable and acceptable reason why the Court will exercise its discretion to grant such an application. Shanu vs. Afribank (Nig) Plc (2000) 10 – 11 SC Pg 1; Doherty vs. Doherty (1964) 1 All NLR Pg 299; Bowaye vs. Adediwura (976) 6 SC Pg 143.
Negligence or fault on the part of counsel should not therefore be visited on the litigant. It is the litigant that suffers for the negligence of his counsel and that is why the Court do not normally punish a litigant for the mistake or inadvertence of his counsel. The discretion is particularly exercised in-respect of procedural matters. In such situation, the discretion of the Court although always required to be exercised judicially; would be exercised with a leaning towards accommodating, the party’s interest and a determination of the case on the merits. Omenuwoma (2005) 1 NWLR Pt. 906 Pg 1.
For these reasons above I am minded to grant the prayers of the applicant in his motion on notice filed 23rd December, 2008.
I hereby make the following orders:
(1) Time has been extended to today for the Applicant to seek leave to appeal ‘against the decision of the Benue State High Court in suit. No. MHC/90/2004 delivered on 15th November, 2004.
(2) Leave is hereby granted the applicant to appeal against the decision of the Benue State High Court in Suit No. MHC/90/2004 delivered on 15th November, 2004.
(3) The Applicant is hereby granted 7 days within which to file and serve his Notice and Grounds of appeal against the decision of Benue State High Court in Suit No. MHC/90/2004 delivered on 15th November, 2004.
(4) The Applicant/Appellant is hereby granted leave to raise, as fresh issue, abuse of Court processes which is contained in the proposed Notice and Grounds of appeal.
Cost of N10,000.00 is awarded to the Respondents.

ZAINAB A. BULKACHUWA, J.C.A.: I agree.

ABUBAKAR DATTI YAHAYA, J.C.A.: I read in advance, the lead Ruling just delivered by my learned brother UZO NDUKWE-ANYANWU J.C.A. I agree with the reasoning and conclusions contained therein. I abide by the Orders made including the one as to costs.

Appearances

G. Ofodile Okafor SAN;
N.O.P. Ufelle Esq. For Appellant

AND

G.A. Ibu Esq.
O.B. Ogbonoko Esq;
M.A. Abounu Esq. For Respondent