NAGOMA KUDDI & ANOR v. ATANDA KUDDI & ORS
(2018)LCN/12219(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/S/61M/2017(R)
RATIO
APPEAL: THE EFFECT OF WITHDRAWAL OF APPEAL
“The consequence of withdrawal of an appeal is unambiguously clear, Order 11 Rule 5 of the Court of Appeal Rules, 2016 which provides: “O.11 R.5. An appeal which has been withdrawn under this Order, whether with or without an order of the Court, shall be deemed to have been dismissed.” leaves no room for any ambiguity or any other interpretation. The appellant having willingly withdrawn the said appeal has to swallow the bitter pill of the consequence of his action. The appeal having been withdrawn, in the words of Order 11 Rule 5. stands dismissed and can no longer be brought to life.” PER AMINA AUDI WAMBAI J.C.A.
JUSTICE
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
1. NAGOMA KUDDI
2. MAMMAN IHIKO Appellant(s)
AND
1. ATANDA KUDDI
2. NOMAU SULE
3. UMARU TUMAKI
4. ONO KUDDI Respondent(s)
ABDULLAHI MAHMUD BAYERO J.C.A. (Delivering the Lead Ruling):
This is a ruling on a motion on notice filed on 25/04/2017 in which the Appellants/Applicants pray the Court for an order extending the time by two weeks within which the Appellants may file and serve their Notice of Appeal against the judgment of the Sharia Court of Appeal, Kebbi State in Suit No.SCA/KBS/ZR/11/2012 delivered on 24th December, 2012. On 10/10/2018 date of hearing the motion, learned counsel for the Appellants/Applicants adopted their written address filed on 03/05/2018 and a further affidavit filed on 23/02/2018. The Respondents through their counsel adopted their joint counter affidavit filed on 16/01/2018 and a written address in support of the counter affidavit filed on 15/05/2018.
FACTS
The Applicants were the Appellants in suit number SCA/KBS/ZR/11/2012 before the lower Court. That their Appeal was dismissed by the lower Court and it was for that reason that they filed a Notice of Appeal in Appeal number CA/S/1162/2013. That on 23rd May, 2016 this honourable Court struck out the Notice of Appeal on the ground that the receipt number was not endorsed on the Notice of Appeal, thus making it irregular. That it was on this basis that the Applicants filed a proposed notice of Appeal on 25/04/2017 and sought for an extension of time for two weeks within which the Appeal may be entered. In arguing the application, counsel formulated the following issues for determination: –
a) Whether by the order of this honourable Court delivered on 23/05/16 striking out the Notice of Appeal in Appeal No. CA/S/116S/2013, the Applicants are estopped from bringing a fresh Appeal challenging the decision of the Sharia Court of Appeal in SCA/KBS/ZR/11/2012.
b) Whether the Applicants have furnished sufficient reasons to grant the application for extension of time to Appeal.
According to counsel, Section 244(1) of the 1999 Constitution of the Federal Republic of Nigeria provides that:- An Appeal shall lie from the decision of Sharia Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Sharia Court of Appeal with respect to any question of Islamic personal law which the Sharia Court of Appeal is competent to decide.
2) Any right of Appeal to the Court of Appeal from the decision of a Sharia Court of Appeal conferred by this section shall be: –
a) exercisable at the instance of a party thereto or, with the leave of the Sharia Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest in the matter.
He said in compliance with Order 7 of the Rules of this Court 2016, they filed a notice of Appeal in suit number CA/S/116S/2013, that the Applicants caused the Record of Appeal to be compiled and transmitted to this Court, that the Appellants brief of argument was duly filed and served. That the Respondents counsel on 23rd May, 2016, drew the attention of this honourable Court orally to the failure of the Registry to note the number of the receipt issued, as evidence of payment of filing fees on the Notice of Appeal and the Record of Appeal as required by Order 7 Rule 7 of the Rules of this Court 2016. According to counsel, taking a cue from the objection of the Respondents counsel, he applied to withdraw the Notice of Appeal and the Court struck it out but did not dismiss it. That it was the Notice of Appeal only that was struck out not the entire Appeal.
That the Applicants are at liberty to file a fresh Notice of Appeal by applying for extension of time to do so, as the Appeal was not determined on the merit. He referred to NWITE V. THE STATE (2013) 17 NWLR (PART 1382) S.C. 157 and STRABAG CONSTRUCTION (NIG) LTD V. IBITOKUN (2010) AFWLR PT 535 Pg 203 at 245. He said the Applicants are on solid ground to bring a fresh Appeal and to seek for an order of extension of time to do so.
That in considering this application, this Court needs to consider: –
a) Whether there are substantial reasons for the failure to Appeal within time.
b) Whether the grounds of Appeal show prima facie good cause why the Appeal should be heard.
He referred toCHIEF VICTOR UKWU & ORS V CHIEF MARK BUNGE (1997) 8 NWLR (PT 518) 527. Learned counsel further submitted that at paragraph 7 of the supporting affidavit, it was deposed to that the delay in filing the Notice of Appeal and the instructions to counsel to do so was because of the abject poverty of the Applicants as peasants. That it was for this reason and bearing in mind the earlier cost of the earlier Appeal that the Applicants were unable to file the Notice of Appeal until eleven months after the striking out of the Notice of Appeal in Appeal Number CA/S/116s/2013.
According to counsel, assuming that the Applicants were to file the Notice of Appeal on the date the Notice of Appeal was struck out, a fresh motion on notice will still be required to be filed seeking for extension of time. That the delay was not a mark of disrespect to this honourable Court; or a mark of indolence on the part of the Applicants.
He urged this honourable Court to observe that the Suit Number at the Sharia Court of Appeal is SCA/KBS/ZR/11/2012 which means that the Appeal was filed in the year 2012 same year the judgment was delivered which was on 24th December, 2012. That the suit which was struck out had an Appeal number CA/S/116/2013 meaning it was filed in 2013. That all these goes to show that the Applicants were neither indolent nor disrespectful and urged the Court to grant the application.
That in further demonstration of the Applicants intention to speedily prosecute the Appeal, the Applicants are seeking for a limited time within which to file the notice of Appeal. He submitted that the Notice of Appeal contained two grounds of Appeal which touches on the jurisdiction of the Sharia Court that conducted the trial even when it was apparent that the Respondents were not Muslims and the testator was also until his death a traditional religion practitioner. According to counsel, since the Appeal borders on issue of jurisdiction this Court ought to entertain it as the issue can be raised at any time. He referred to UKWE V. BUNGE (Supra) and urged the Court to grant the application.
In his response, learned counsel for the Respondents submitted that they filed a joint counter affidavit filed on 16/01/2018 and a written address in opposition to the application filed on 15/05/2018. In the written address counsel argued that the Applicants were the Appellants in Appeal No. CA/S/116S/2013 which was withdrawn by them after the Appellants brief of argument was filed. That the Respondent did not object to the application for withdrawal and this Court delivered a bench ruling and dismissed the Appeal on 23rd May, 2016. That the Applicants after two years of the dismissal by this Court, bring this application on the 28th April, 2017 for extension of time to Appeal against the same judgment of Kebbi Sharia Court of Appeal subject of the Appeal No.CA/S/116S/2013 without stating any reason for the delay.
Counsel adopted the two issues formulated by the Applicants for determination and submitted that the Applicants admitted that it was the Appeal not the Notice of Appeal that was withdrawn and was accordingly dismissed, as reflected at page 2 of the application in the grounds upon which the application is brought.
According to counsel, the same Applicants counsel is now contending that this Court only strike out the Notice of Appeal but did not dismiss the suit. He cited OLADAPO V. BANK OF THE NORTH (2001) 1 NWLR (Pt 694) 255 at 269 and submitted that they should not be allowed to approbate and reprobate. Counsel further submitted that the Applicants withdrew the Appeal after filing of briefs of argument. That it will be too late to withdraw the Appeal at that stage without facing the consequences of such withdrawal under Order 11 Rule 5 of the Court of Appeal Rules 2016. He placed reliance on SETRACO V. KPAJI (2017) LPELR 41560 (SC). That the only option open to the Applicants is to Appeal against the dismissal of Appeal No CA/S/116s/2013 and not to file another application to file the same Appeal.
According to counsel, the cases cited by the Applicants counsel in their written address are distinguishable from this one in that where a case is struck out without filing brief of argument, the effect is different where the Appellants brief has been filed and the Appeal is ripe for hearing.
On issue 2 counsel submitted that the only affidavit filed by the Applicants and served on them, is the affidavit in support of the application deposed to by Janet Mary Ladebe on 25th May, 2017; that if there is another affidavit deposed to by Bode Awelewa on 23rd February, 2018 they are not aware of its existence because they were not served with it. Counsel further submitted that assuming without conceding that the Applicants have the right to bring this application notwithstanding the dismissal of Appeal No. CA/S/116S/2013, the Applicants have the onerous duty of satisfying the Court with cogent reasons for the delay and they must have an arguable ground of Appeal.
According to counsel, no single reason has been advanced by the Applicants for their failure to file the application immediately the earlier Appeal was dismissed. That paragraph 6 of the supporting affidavit, only states that the failure to file the Notice of Appeal is not out of disrespect to this honourable Court. They did not state the reason for the delay. He submitted that the failure to state the reason for the delay is fatal to this application. He cited LEMIT ENGINEERING LTD. V. REYNOLDS CONSTRUCTION CO. LTD. (2015) LPELR 24682 (CA).
Counsel stated that the grounds of Appeal did not genuinely raise issue of jurisdiction because apart from the statements of the applicants establishing the religion of the Respondents, there is no evidence heard establishing those statements. That under Islamic law, statement of parties is not evidence but akin to statement of claim or defence which need evidence to prove it.
He cited JATAU V. MAILAFIYA (1998) LPELR 1598 (SC) and MARINHO & ANOR V. UBA PLC & ANOR (2017) LPELR 43253 (CA) and urged the Court to hold that the Applicants have no right to bring this application by virtue of the ruling of this Court dismissing the Appeal No.CA/S/116s/2013; that the Applicants did not establish their entitlement to the relief of extension of time to Appeal with good reasons for the delay and arguable grounds of Appeal. Finally, he urged the Court to dismiss the application with costs to the Respondents.
RESOLUTION OF THE APPLICATION
The application prays for extension of time by two weeks within which the Applicants may file and serve their Notice of Appeal against the judgment of the Sharia Court of Appeal, Kebbi State as contained in the motion paper. It is supported by an affidavit of 10 paragraphs deposed to by one Janet Mary Ladele a counsel in the chambers of the applicants counsel. Annexed to the application are exhibits JM and JM1. I shall determine this application based on the twin issues formulated by the applicants counsel which was adopted by the Respondents counsel thus: –
a) Whether by the order of this honourable Court delivered on the 23rd of May 2016 striking out the Notice of Appeal in Appeal No. CA/S/116S/2013, the Applicant is estopped from bringing a fresh appeal challenging the decision of the Sharia Court of Appeal in SCA/KBS/ZR/11/2012.
b) Whether the Applicants have furnished sufficient reasons to the grant of the application for extension of time.
At paragraph 3 of the supporting affidavit to the application it was deposed to thus: – That the Appellants had filed an Appeal against the judgment of the Sharia Court of Appeal in Suit No. SCA/KBS/ZR/11/2012 and filed their Brief of Argument when their counsel sought to withdraw it on the 23rd of May 2016 before this honourable Court because the Notice of Appeal was not competent.
At paragraphs 3 a) b) and d) of the counter affidavit it was deposed to thus:-
“a) That the Applicants filed an Appeal in Appeal No. CA/S/116S/2013.
b) That the Applicants have even filed their Appellants brief of argument before the Appeal was withdrawn.
c) That this honourable Court has no jurisdiction to hear an Appeal dismissed.
From the averments in both the paragraphs of the supporting affidavit and the counter affidavit, it is crystal clear that the Applicants/Appellants have filed an Appeal against the Judgment of Kebbi Sharia Court in Suit No. SCA/KBS/ZR/11/2012 and also filed their brief of argument, before the Appeal was subsequently withdrawn by their Counsel when the Appeal came up for hearing on 23rd May, 2016 and subsequently struck out by this honourable Court. It is the argument of the Applicants counsel that in the Appeal in which the Notice of Appeal was struck out, the Appeal was not determined on its merit, as such the Applicants are at liberty to file a fresh notice of Appeal, and seek for extension of time to do that.
The Respondents on the other hand are of the position that at the stage the Applicants withdrew the Appeal after filing their brief of argument will be too late for them to re-file it without facing the consequences of such withdrawal under Order 11 Rule 5 of the Court of Appeal Rules 2016. The issue for determination now is what is the effect of the withdrawal of the Appeal which came up for hearing on 23rd May, 2016, after the Applicants have filed their brief of argument. For clarity purposes Order 11 Rule 5 of the Rules of this Court 2016 provides: –
An Appeal which has been withdrawn under this Order whether with or without an order of the Court, shall be deemed to have been dismissed. What then is the effect of the order striking out the Notice of Appeal in Appeal No. CA/S/116S/2013 by this honourable Court on 23rd May, 2016? In the case of SETRACO V. KPAJI (2017) LPELR 41560 (SC); (2017) 1 SCNJ 169 at 200 the Supreme Court held: –
A point to be noted in this matter is that briefs have been filed by parties even though, that of the respondent had embedded in it a preliminary objection contesting the validity of the Notice of Appeal before the Notice of withdrawal of the appeal was filed and moved by learned counsel for the appellant. This Court had in a similar scenario in the YOUNG SHALL GROW MOTORS LTD V. AMBROSE O. OKONKWO & ANOR. (2010) 3 SCNJ 396 at 409 – 412 stated as follows: – “A case which has been withdrawn and subsequently struck out/dismissed when the point of litis contestio has been reached cannot be relisted for another bite at the cherry… In other words, after briefs of argument have been exchanged by the parties whereby issue between them became crystallized litis contestio can be deemed to have been reached. A withdrawal from that point in time must, as an inflexible rule lead to the dismissal of the appeal”.
What I am laboring to put across is that in interpreting Order 11 Rule 5 of the Court of Appeal Rules, under which the withdrawal was made, the appellant had reached a point of no return and there is no turning back the hand of the clock. In similar circumstances Kalgo JSC in Kraus Thompson Organization V. NIPSS (2004) 17 NWLR (Pt 901) 44 at 64 described the situation thus: – “Once the Respondent applies under the said Rule, the appeal must be dismissed and such dismissal is final…Therefore the order striking out the Appeal is in full compliance with the provisions of Order 5 Rule 10 of the Court of Appeal Rules and “striking out” amounts to a “Dismissal” of the Appeal, there is no relisting of such an Appeal”.
In the case at hand, the wordings of the Notice of Discontinuance or Withdrawal left no doubt that it was the intendment of the Appellant to withdraw from further prosecution of the appeal. In fact, those were the exact words as stated under Order 11 Rules 1 and 2 of the Court of Appeal Rules underscored what was expected and the Court obliging in carrying out those wishes cannot now be told that the resultant effect was not what was expected. A party cannot be allowed to play with the processes of the Court as the mood propels him irrespective of the plain, clear and unambiguous provisions of the law he had set out to utilize.
The party must sink and swim with what he had by his own volition activated. I place reliance on ABALOGU V. SHELL PETROLEUM DEVELOPMENT COMPANY LTD (2003) 6 SCNJ 162 at 284 Per lGUH JSC. The case OF EZOMO V. A. G. BENDEL STATE (1986) 4 NWLR (Pt.36) 448 at 362 could easily have had this case in mind and I shall quote Aniagolu JSC thus: – “Having held that the withdrawal notice filed by Mr. Obasiyi was validly filed. Order 3 Rule 18 of the Court of Appeal Rules would automatically take effect. By Rule Sub-rule 5 of Rule 18, an Appeal which has been withdrawn under this Rule, whether with or without an Order of the Court shall be deemed to have been dismissed. This Sub-rule 5 is in identical terms with Order 7 of Rule 17 (5) of the Supreme Court Rules 1977 and the current Order 8 Rule 6(5) Supreme Court Rules 1985. The effect of the withdrawal notice filed by Mr. Obasiyi, in my view, was to terminate the appeal filed against the judgment of the High Court with or without an order of Court.”
In the case at hand, the Applicants through their counsel withdrew the Notice of Appeal which was subsequently struck out at the point when lits contestio has been reached, in other words after briefs of argument have been exchanged by the parties and issues between them became crystallized litis contestio can be deemed to have been arrived at, a withdrawal at that stage must lead to the dismissal of the Appeal. I therefore hold that the order striking out the Notice of Appeal on application of the Applicants counsel made by this honourable Court on 23rd May, 2016 amounts to the dismissal of the Appeal. The application for extension of time is accordingly dismissed.
AMINA AUDI WAMBAI, J.C.A.: I have read the Ruling of my learned brother, Abdullahi M. Bayero, JCA. I agree with his reasoning and conclusion that the appeal is devoid of any merit.
The consequence of withdrawal of an appeal is unambiguously clear, Order 11 Rule 5 of the Court of Appeal Rules, 2016 which provides:
O.11 R.5. An appeal which has been withdrawn under this Order, whether with or without an order of the Court, shall be deemed to have been dismissed. leaves no room for any ambiguity or any other interpretation. The appellant having willingly withdrawn the said appeal has to swallow the bitter pill of the consequence of his action.
The appeal having been withdrawn, in the words of Order 11 Rule 5. stands dismissed and can no longer be brought to life.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Ruling of my learned Brother ABDULLAHI M. BAYERO. JCA just delivered and I am in agreement with his reasoning and conclusion in disallowing the Application as completely lacking in merit and for dismissing it on the account of the reason. I abide by the consequential order made thereto.
Appearances:
Sir Olukayode A.For Appellant(s)
G. ShehuFor Respondent(s)
