YUSSUF ALHASSAN v. MAGAJI ALI & ANOR
(2019)LCN/12587(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/K/433/M/2016(R)
RATIO
COURT AND PROCEDURE: WHERE A SUIT IS DISMISSED FOR ABUSE OF JUDICIAL PROCESS
“The law is trite that when a suit or an application has been dismissed for being an abuse of judicial process, the effect or legal implication is that the suit or application must have been dismissed on the merit. Thus, the plaintiff or applicant (as the case may be) can no longer readily reapply for the said process to be relisted at the same Court, unless and until the dismissal order has been set aside by an appellate Court. See the decisions in the cases ofNIGERIA AIRWAYS LTD. VS. LAPITE (1990) LPELR 1998 (SC); ATTORNEY-GENERAL OF LAGOS STATE VS. ATTORNEY-GENERAL OF THE FEDERATION & ORS. (2014) LPELR 22701 (SC) and GENERAL ELECTRIC COMPANY VS. AKANDE & ORS. (2012) LPELR 8097 (SC).” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
YUSSUF ALHASSAN Appellant(s)
AND
1. MAGAJI ALI
2. MALLAM SULE Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Lead Ruling):
This ruling pertains to the motion on notice, dated the 10th day of August, 2016 and filed on the 24th day of August, 2016 and filed on the 24th day of August, 2016. Therein, the applicant by the said motion sought for the grant of the following prayers:
1. AN extension of time within which to seek leave to appeal against the rulings of Hon. Justice Binta Fatima Zubairu of High Court 1, Zaria, Kaduna State delivered on the 10th day of July, 2013 and on the 28th day of April, 2016 in suit No. KHD/Z/89/2013 between Yusuf Alhassan Vs Magaji and Mallam Sule.
2. Leave to appeal against the rulings of Hon Justice Binta Fatima Zubairu of High Court 1, Zaria, Kaduna State delivered on the 10th day of July, 2013 and on the 28th day of April, 2016 in suit No. KHD/Z/89/2013 between Yusuf Alhassan Vs. Magaji Ali and Mallam Sule.
3. An extension of time within which to appeal against the rulings of Hon. Justice Binta Fatima Zubairu of High Court 1, Zaria, Kaduna State delivered on the 10th day of July, 2013 and on the 28th day of April, 2016 in suit No. KHD/Z/89/2013 between Yusuf Alhassan Vs. Magaji Ali and Mallam Sule.
4. Any order(s) this honourable Court deems fit to make in the circumstance.
The said motion on notice which was grounded on seven grounds was also supported, by a 12 paragraph affidavit and a five paragraph further affidavit deposed to and filed on the 24th day of August, 2016 and the 8th day of February, 2017, respectively. In opposition to the motion on notice, the 1st and 2nd respondents jointly deposed and filed their counter affidavit on the 18th day of November, 2016.
In compliance with the directive given by this Court, the parties filed and exchanged their written addresses in support of their respective positions. The applicant?s written address was prepared by Solomon Kaine Esq. and it was filed on the 24th day of February, 2017. The respondents? written address on the other hand was prepared by Yemi S. Adekunle Esq. and it was filed on the 10th day of March, 2017. The applicant also filed his reply address on the 15th day of March, 2017 in response to new issues raised in the respondents, written address.
For the determination of this application, the learned counsel for the parties distilled and donated a sole issue each for resolution. The issue donated by the learned counsel for the applicant is reproduced below:
‘Whether this application is proper before this honourable Court having regard to the fact that the trial Court by its subsisting ruling of 28th day of April, 2016 in suit No. KDH/Z/89/2013 dismissed the applicant’s application which prayed for the setting aside of the order of dismissal of 10th day of July, 2013 in suit No. KDH/Z/89/2013 between the applicant and the respondents on the ground that the said application was an abuse of judicial process.’
The issue crafted by learned counsel for the respondent is also reproduced below:
‘Whether this application is proper before the Court of Appeal in the circumstance of this case.’
The issue formulated by the parties are materially the same, save for the difference in drafting styles. However, the issue donated by learned counsel for the respondents is more apt and on point in respect of the application under consideration. Therefore, the issue donated by learned counsel for the respondents is hereby adopted for resolution in the determination of this application.
ARGUMENT ON ISSUE
Before I proceed into considering the merit or otherwise of the instant application under consideration, let me quickly address an issue raised by the respondents’ counsel; that the instant application was filed prematurely at this Court. The learned counsel for the respondents contended that the applicant’s application at the lower Court was merely struck out because the applicant and his counsel failed to diligently prosecute the application when they failed to show up on the date the application was fixed for hearing. He submitted, that the applicant was expected to refile the application at the lower Court notwithstanding the fact that the learned trial judge pronounced that the application has been dismissed. He placed reliance on and referred us to the provision of Order 31 Rule 4 (2) of the Kaduna State (Civil Procedure) Rules, 2007.
It is important to point out, that the applicant’s motion on notice dated the 17th day of June, 2016 which was dismissed on the 28th day of April, 2016 attached as Exhibit B to the supporting affidavit to the application under consideration in this ruling, was termed an abuse of Court process by the lower Court before it was dismissed. For ease of reference the ruling of the lower Court which dismissed the said motion on notice is reproduced below as follows:
‘Court: This application is an abuse of judicial process. It is hereby dismissed.’
(See Exhibit D attached to the applicant’s further affidavit filed on the 8th day of February, 2017.)
The law is trite that when a suit or an application has been dismissed for being an abuse of judicial process, the effect or legal implication is that the suit or application must have been dismissed on the merit. Thus, the plaintiff or applicant (as the case may be) can no longer readily reapply for the said process to be relisted at the same Court, unless and until the dismissal order has been set aside by an appellate Court. See the decisions in the cases ofNIGERIA AIRWAYS LTD. VS. LAPITE (1990) LPELR 1998 (SC); ATTORNEY-GENERAL OF LAGOS STATE VS. ATTORNEY-GENERAL OF THE FEDERATION & ORS. (2014) LPELR 22701 (SC) and GENERAL ELECTRIC COMPANY VS. AKANDE & ORS. (2012) LPELR 8097 (SC). Therefore the order of the lower Court which dismissed the applicant’s motion on notice cannot be refiled at the lower Court as the learned counsel for the respondents has contended and the contention of the learned counsel for the respondents in this regard is hereby found by me to be without any legal merit and it is accordingly discountenanced.
Let me also point out clearly, that this application was filed in the main as an avowed bid by the applicant to seek for the leave of this Court, to extend time for the applicant to seek leave and leave to appeal against the rulings of the High Court of Kaduna State sitting at Zaria (hereinafter referred to as the lower Court), delivered on the 10th day of July, 2013 and the 28th day of April, 2016 (hereinafter referred to as the rulings.) Thus, this ruling is mainly in respect of the applicant?s motion on notice, and in this regard any argument that borders on the issue(s) to be considered in the substantive appeal would be discountenanced.
An application seeking for extension of time to appeal or take a step to do an act in this Court, is not granted as a matter of course or regarded as an automatic prayer which is to be granted merely at the asking. Indeed, an applicant who deserves the favourable exercise of this Court’s discretion in granting the said application for extension of time, is required to conjunctively satisfy the following conditions:
i. Set forth in his supporting affidavit good and sufficient/substantial reasons for the failure to appeal or take the required step(s) within the time permitted or specified by the law or rules of Court.
ii. Show or raise ground(s) of appeal which prima facie shows good cause why the appeal should be heard.
See Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016, and the cases of UNIVERSITY OF JOS VS. YEMTET (2016 LPELR 40434 (CA); YOLA & ORS. VS. REGISTERED TRUSTEE OF IPMAN & ORS. (2017) LPELR 43153 (CA) and KAWUWA & ANOR. VS. P. D. P. & ORS. (2016) LPELR 40344 (CA).
The next question for consideration is: Whether the applicant has met the above stated requirements of the law by the facts deposed to in his supporting affidavit and exhibits attached thereto? To satisfy the first requirement, the applicant’s counsel deposed to an affidavit stating as follows:
3. That the applicant through a writ of summons sued the respondents at High Court 1, Zaria, Kaduna State for malicious prosecution and I was consulted to represent the applicant in the said suit.
4. That when the matter came up for mention and for the first time on the 10th day of July, 2013, I was held in a traffic jam and could not go to Court on time, the matter was dismissed instead of being struck out. A certified true copy of the said order of dismissal is herein annexed and marked Exhibit A.
5. That consequently, I reasoned that the dismissal in the circumstance had the effect of striking out and therefore chose to file a fresh suit No. KDH/Z/109/14 which was assigned to High Court 2, Zaria, but when the matter reached a particular level in 2015, the respondents? counsel raised a preliminary objection to the suit on the ground that the matter was res-judicata because it was previously dismissed by Hon. Justice Binta Fatima Zubairu when it came up before her for mention.
6. That as a result of the said objection, I withdrew the suit and subsequently filed a motion to set aside the order of dismissal of suit No. KDH/Z/89/2013 which was done instead of being struck out.
7. That when the motion to set aside the order for dismissal was to be heard on the 28th day of April, 2016, the trial Court dismissed the application on the ground that such application amounts to an abuse of Court process. A certified true copy of the order dismissing the application is herein annexed and marked Exhibit B.
8. That the applicant being dissatisfied with the rulings of 10th day of July, 2013 and that of 28th day of April, 2016 wishes to appeal to this honourable Court but, the applicant is out of time within which to appeal and also needs to seek leave to appeal. A copy of the proposed notice of appeal disclosing reasonable grounds is herein annexed and marked Exhibit C.
From the deposed facts reproduced above, I am of the firm viewpoint that the applicant has failed to put forward good and sufficient reason why he could not appeal against the rulings within time. It is important to point out, that an application for leave is required by law to be made to the lower Court first, and it is only when the application has been refused by the lower Court and/or when the applicant failed in applying for the leave of the lower Court timeously and the time specified for seeking the said leave has elapsed, before the applicant can competently apply to the appellate Court vide the ‘trinity prayers’. See Order 6 Rule 4 of the Rules of this Court and the case of UNIVERSITY OF JOS VS. YEMTET (SUPRA).
In the instant application, the learned counsel for the applicant has failed to adduce any valid reason why he delayed or failed to file this application at the lower Court, or within reasonable time before us; not to talk of giving good and sufficient reasons why this Court should exercise its discretion in favour of the applicant by granting the prayers sought in the application.
Let me quickly observe, that the bulk of the applicant’s and respondents’ arguments in their respective written addresses bordered on the substance or merit of the main appeal and were not tailored towards the application at hand. For whatever it is worth, those arguments have only shown that the applicant’s grounds of appeal are somewhat arguable and disclosed sufficient cause. However, the applicant having failed to show good and sufficient cause why he delayed in bringing this application either to the lower Court or this Court, his application thereby lacks merit and it is accordingly refused and or dismissed. Therefore, I am of the firm viewpoint, that the motion on notice filed by the applicant on the 24th day of August, 2016 which forms the subject matter of this ruling is lacking in merit and it is accordingly dismissed.
PRONOUNCEMENT.
ABBA AJI, JCA (as she then was) presided at the hearing of this appeal on the 30th day of October, 2018 and participated at the conference which was held thereafter and in respect thereof. However, she was subsequently elevated/appointed and sworn in as a honourable Justice of the Supreme Court of Nigeria on the 8th day of January, 2019.
IBRAHIM SHATA BDILIYA, J.C.A. : I agree.
Appearances:
Daniel Peter, Esq.For Appellant(s)
Tajudeen Abdullahi, Esq.For Respondent(s)
