MU’AZU BAKO v. GWAMEM DONJAP (2019)

MU’AZU BAKO v. GWAMEM DONJAP

(2019)LCN/13039(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of April, 2019

CA/J/408M/2018(R)

RATIO

APPLICATIONS: APPLICATION FOR EXTENSION OF TIME TO APPEAL MUST MEET CERTAIN CONDITIONS

The law is settled that an application for extension of time to appeal, the application must satisfy the following conditions:
(i)That there are good and cogent reasons for failing to appeal within the time stipulated.
(ii)That the proposed grounds of appeal prima facie show good cause why the appeal should be heard.
These two conditions must co-exist before the Court can exercise its discretion in favour of the application. See Chief U.D. Ngere & Anor Vs Chief J. W. Okuruket XIV & 3 Ors (2014) 11 NWLR (Pt. 1417) 147 and Yesufu Vs Co-operative Bank Ltd (1989) 3 NWLR (Pt. 110) 483.

The applicant has the duty to explain in details the reason for the delay ? Ngere Vs Okuruket XII (supra). And the law is quite clear on the matter that every application for extension of time will be determined on its merits, peculiar facts and circumstance Ngere Vs Okuruket (supra) and Co-operative & Commerce Bank (Nig.)Ltd Vs Ogwuru (1993) 3 NWLR (Pt. 284) 630.PER TANI YUSUF HASSAN, J.C.A.

JURISDICTION: THE COURT CAN RAISE THE ISSUE SUO MOTU IF NOT RAISED MY PARTIES

However for what it is worth, the issue of the competence of the Court was not raised at the trial stage but was only raised on appeal before the Court below. The Supreme Court held that when there are sufficient facts establishing want of competence or jurisdiction in the Court, it is the duty of the judge or justice to raise the issue suomotu if the parties fail to draw the Courts attention to it. See Odiase Vs Agho (1972) 1 ALL NLR (Pt. 10 170; Prof. Olutola Vs University of Ilorin (2004) 9-12 SCM (Pt. 2 169; (2004) 18 NWLR (Pt. 904) 416. This is because issue of jurisdiction is fundamental to adjudication.PER TANI YUSUF HASSAN, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

MU’AZU BAKO Appellant(s)

AND

GWAMEM DONJAP Respondent(s)

TANI YUSUF HASSAN, J.C.A.(Delivering the Lead Ruling): By a Motion on Notice dated and filed on the 24th day of October, 2018, the Appellant/Applicant is seeking the following reliefs:
1. An Order extending time within which the Appellant/Applicant may seek leave to appeal to the Court of Appeal, against the judgment of the Customary Court of Appeal, Jos delivered on the 9th day of October, 2013 in Appeal No. CCA/12A/2013.
2. An Order granting the Appellant/Applicant leave to appeal to the Court of Appeal against the judgment of the Customary Court of Appeal, Jos delivered on the 9th of October, 2013 upon grounds of jurisdiction.
3. An Order extending time to appeal against the judgment of the Customary Court of Appeal, Jos delivered on the 9th October, 2013 by filing his Notice of Appeal.
4. And for such further Order(s) as the Honourable Court may deem fit in the circumstance(s)

The application is premised on the following grounds:
(i) The trial Court on the 4th day of August, 2011 entered Judgment in the action filed by the Appellant as Plaintiff against the Respondent as Defendant.

?(ii) On appeal to the Customary Court of Appeal, Jos, the Customary Court of Appeal on the 9th October, 2013 in a unanimous decision allowed the appeal of the Defendant and declared the judgment of the trial Court as incompetent for want of proper parties.
(iii) The finding of the Customary Court was based on an issue not canvassed before the trial Court.
(iv) The parties or their Counsel were not invited to address the customary Court of Appeal on the issue concerning the capacities of the parties.
(v) The Customary Court of Appeal made a finding on an issue which does not raise any question of Customary law despite finding that the appeal before it is incompetent
(vi) On the 6th day of August, 2015, the cousin of the Respondent Peter Donjap commenced a criminal action for trespass against the Applicant, who was convicted and sentenced to six months imprisonment, with N5,000.00 option of fine in a judgment dated the 18th February, 2016.
(vii) On 8th day of January, 2018 a cousin of the Respondent Sabastine Donjap filed a suit seeking declaration of the title against the Applicant which is ongoing.
(viii) The Respondent and all his cousins who appeared with

him throughout the trial live in the same house and never objected nor indicated interest separate from the cousins in order to be joined as parties at the trial Court.
(ix) The Counsel to the Applicant did not explain to him that he has a right to appeal to Court of Appeal against the judgment of the Customary Court of Appeal Jos.
(x)It is only recently that A.S. Abdullahi Esq. of Counsel who handled this appeal against a conviction on criminal trespass at the High Court, Jos explained to him to appeal against the judgment.
(xi)And, the ground in (x) above is compounded with the condition of his health since the year 2013 when he had an accident on a motor bike and broke his legs which made it difficult to walk and almost impossible to access and cultivate his farmland.

The following questions are called for determination of by this Court:
(a)The application is worthy of consideration.
(b)The application is caught up by undue delay.
(c)The application has explained the cause of delay.
(d)The delay is attributable to the Applicant.
(e)The grounds of appeal are prima facie arguable.

The motion is supported by an affidavit of six paragraphs and two annexures A1 and A2 i.e. the judgment of the Customary Court of Appeal and the Proposed Notice of Appeal respectively. The Respondent filed a Counter affidavit of eight paragraphs attached with Exhibits ?R2, R3 and R4? on the 11th of January, 2019.

The parties were ordered to file and exchange written addresses in respect of this motion. The Appellant/Applicant filed a written address on the 22nd of January, 2019 and reply on points of law dated and filed on the 26th of February, 2019, while the Respondent?s written address was filed on the 21st of February, 2019.

On the 13th of March, 2019, learned Counsel for the Appellant/Applicant adopted the aforementioned processes and urged the Court to grant the application. Learned Counsel for the Respondent opposed the application and adopted the Respondent?s processes and urged the Court to refuse the application and dismiss same.

Learned Counsel for the Applicant submitted a sole issue for determination and it is:
?Whether the Applicant has made out a case to be entitled to the grant of the relief sought.?

He adopted his address and urged the Court to grant the Application.

On behalf of the Respondent, learned Counsel identified two issues for determination, namely:
1.?Whether the Appellant/Applicant is entitled to the relief sought.?
2.?Whether based on the rules of this Court the Applicant?s application is competent.?

Counsel adopted his written address and urged us to refuse the application and dismiss same.

The sole issue framed by the Applicant is the same as the issue one of the Respondent, couched differently. I adopt the Respondent?s issues with modification of issue one as follows:
?Whether the Applicant?s motion dated and filed on 24th of October, 2018 can be granted.?
I shall take the issue two first, before coming to issue one.

ISSUE TWO
?Whether based on the rules of this Court the Applicant?s application is competent.?
Learned Counsel for the Respondent referred to Order 6 Rule 1 of the Court of Appeal Rules and submitted that the requirement therein is that the application shall be on notice supported by an affidavit, the rule under which

it is brought and grounds for the reliefs sought. That the Applicant only placed a motion on notice before the Court without more and urged the Court to dismiss the application, for offensive of the rules, being incompetent.

In response the Applicant?s Counsel submitted that the Respondent has a misconception of Order 6 Rule 1 of the Court of Appeal Rules. That failure to state the Rule under which the application was brought or stating a wrong rule of law does not render the application incompetent. That it can at best be treated as an irregularity. He referred to Order 6 Rule 9(2) of the Court of Appeal Rules, 2016 as having been amply complied with. He relied on Mudashiru Vs Persons Unknown (2006) 8 NWLR (Pt. 982) 267 at 280 paras. F-H and Famfa Oil Ltd. Vs Attorney Gen. Fed. (2003) 18 NWLR (Pt. 852) 453 at 476.

Order 6 Rule 1 of the Court of Appeal Rules, 2016 provides:
Every application of the Court shall be by notice supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.
Rule 7 of the said Order 6 reads:
The application for leave to appeal from a

decision of the lower Court shall contain copies of the following items, namely:
(a) Notice of motion for leave to appeal.
(b) A certified true copy of the decision of the Court below sought to be appealed against.
(c) A copy of the proposed grounds of appeal, and
(d) Where leave has been refused by the lower Court, a copy of the order refusing leave.
The Applicants application complied with the above Rule except indicating the rule under which the application was brought. It is therefore incorrect to say that the Applicant placed the motion without more. Therefore the non-indication of the rule under which the application was brought is not enough to render the motion incompetent, having complied substantially with the requirements for filing of the application. The non-compliance with the rules indicating under which rule the motion was brought is an irregularity and not a ground for incompetency, as the Respondent has not shown the miscarriage of justice occasioned by failure to indicate the rule. The objection to the competence of the motion is overruled.

ISSUE ONE
Whether the Applicants motion dated and

filed on 24th of October, 2018 can be granted.

In their argument, learned Counsel for the Applicant referred to Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 25(2) for the period of giving notice of application for leave to appeal and submitted that by the above provisions the application is grantable. Counsel also referred to Oloko Vs Awoko (2001) FWLR (Pt. 51) 1956 at 1964 and Ika LGA Vs M.B.A (2007) NWLR (Pt. 1049) 767 at 700 para. H and 701-702 paras. H- A, and submitted that this Court has the inherent and unfettered powers to enlarge time as justice of the case may require that the Applicant has stated in the affidavit accompanying this application the inability to appeal within time was not deliberate but due to inadvertence of his Counsel at the Customary Court of Appeal, who failed to tell him that he has a right of appeal against the decision of the Customary Court of Appeal.

It is also submitted that the grounds of appeal are substantial and arguable which shall incline the Honourable Court to look at it more favourably on the reasons for the delay, as the Respondent will not be

prejudiced by the grant of the application. Relying on the case ofAbana Vs Obi (2005) 6 NWLR (Pt. 920) 183 at 204 paras. B-H, Counsel said parties must be given ample and equal opportunity of presenting their grievances without let or hindrance in compliance with the time old tested principles of ?audi alteram patem? rule which has been constitutionally provided and guaranteed. It is finally submitted that Court is empowered to grant the application based on the reasons explained for the delay. The Court is urged to exercise its discretion in favour of the Applicant.

Learned Counsel for the Respondent responded that the facts deposed in the affidavit in support of the application are insufficient to warrant the exercise of discretion and grant the application for leave to appeal this matter. That the reasons adduced on ill health of the Appellant are not sufficient based on Exhibits ?R2, R3 and R4? which show the presence of the Appellant in all the Court sittings in those cases. Also that it is not true that the Appellant?s sickness was the cause of his inability to pursue the appeal.

It is submitted that the Appellants argument that the present Counsel was not the Counsel that handled the matter at the lower Court is not enough to grant the application. That the application is intended to waste the time of this Court and the time of the Respondent. We are urged to refuse the application.

I have examined this application including the affidavit and exhibits in support thereof and the Respondent?s counter affidavit with the attached exhibits. I have also read the written arguments of the learned Counsel to both parties including the legal authorities relied on by the Applicant.

The applicant has the duty to explain in details the reason for the delay ? Ngere Vs Okuruket XII (supra). And the law is quite clear on the matter that every application for extension of time will be determined on its merits, peculiar facts and circumstance ? Ngere Vs Okuruket (supra) and Co-operative & Commerce Bank (Nig.)Ltd Vs Ogwuru (1993) 3 NWLR (Pt. 284) 630.

In the instant case the application for leave to appeal is against a judgment of the Customary Court of Appeal delivered on the 9th day of October, 2013. The Appellant in paragraph 4(a) of the affidavit in support of the application deposed his desire to appeal against the judgment but had an accident on 2nd November, 2013 which incapacitated his legs and made it impossible for him to access to his farm. In paragraph 4(e) he averred on the multiplicity of actions between him and the Respondent?s family. Apart from the accident claimed for his inability to appeal against the judgment of the Customary Court of Appeal, the Applicant in his submission before the Court also alleged inadvert of his Counsel at the Customary Court of Appeal who

failed to notify him of his right of appeal to the decision made against him.

In disagreeing with the Applicant, learned Counsel for the Respondent submitted that by Exhibits ?R2, R3 and R4″ attached to the Respondent?s Counter affidavit, the Applicant appeared in all the proceedings in the suits therein. Exhibit ?R2? is a Notice of Appeal dated 11th March, 2016 filed by the Appellant/Applicant before the Plateau State High Court, Shendam Division against the decision of Upper Area Court Shendam that sentenced him to six months imprisonment for trespass or a fine of N5,000.00. Exhibit ?R3? is the judgment of the Plateau State High Court in respect of the appeal instituted by the Appellant delivered on 3rd February, 2017. Exhibit ?R4? is a Civil Summons dated 27th July, 2017 instituted by one Sabastine Donjap against the Appellant/Applicant. The submission of the Respondent is that in all the above processes filed, the Applicant appeared in the proceedings and therefore cannot hide under ill health for his inability to bring this application for extension of time to appeal over five years of delivery of the

decision. The Applicant alleged that he was involved in accident in November, 2013 and incapacitated, hence his inability to file the appeal. No medical evidence was before the Court to confirm this assertion of the Applicant. By the Notice of Appeal filed by Appellant i.e. Exhibit ?R2? dated 11th March, 2016 goes to show that the Applicant was not incapacitated to access himself to Court to file a Notice of Appeal against the decision of 9th October, 2013 made against him. This is because if the Applicant could file an appeal in March, 2016 in respect of another decision made against him, it follows that he was possessed of good health to have earlier on applied for extension of time to file the appeal in question, but he went to slumber. Also the Respondent?s submission that the Applicant appeared in the proceedings in Exhibits ?R2, R3, and R4? was not denied by the Applicant which is deemed admitted. It means he was fit to attend Court.

?The Appellant/Applicant also stated that failure to file his appeal within time was because his Counsel did not notify him of his right of appeal. The law is settled that the genuine

inadvertence, mistake or omission of Counsel can be a valid ground for granting an application for extension of time. However, for a mistake for Counsel to suffice as a ground for granting an application for extension of time to appeal, the facts must clearly show that it was indeed a mistake of Counsel. Mere bare assertion of negligence of Counsel without adequate and convincing particulars will not sway the Court to exercise its discretion in favour of an Applicant. The Applicant?s claim of inadvertence of Counsel has unexplained and unacceptable gaps. All I am saying is that the facts supplied by the Applicant have not satisfactorily explained the delay in not appealing against the decision of the Customary Court of Appeal delivered on the 9th of October, 2013.
?The claim of inadvertence of Counsel is nothing but an afterthought. The Applicant having failed to file an appeal against a judgment delivered on 9th October, 2013 in Appeal No. CCA/12A/2013, I find it unnecessary to consider the proposed notice of appeal to determine whether the grounds therein prima facie show good cause why the Applicant?s proposed appeal should be heard.

This point was clearly made by Kayode Eso JCA (as he then was) in Akano vs Adeniran (1975) NMLR (Vol. I) 391 at 393, when in an application of this nature His Lordship stated that:
?The applicant has not indicated when he briefed a solicitor to file an appeal against the decision of 25th February, 1974. He did not say when the solicitor gave the advise he disposed to in paragraph 9 of his affidavit. There is nothing to show why he took no action between 25th February, 1974 and 30th April, 1974 when he applied for the certified true copies of the judgment on 29th July 1974 but he did nothing until 2nd September, 1974. His only excuse was that he was sick due to old age. We are not satisfied that the Applicant has given good and substantial reasons for the delay. We are not impressed by his reasons and we have no explanation for the delay of at least over two months.
As we have said earlier, the Applicant must show both good and substantial reasons for the delay and grounds of appeal which prima facie show good cause why the appeal should be heard. As he has failed to show one of these two, that is good and substantial reasons for failure to appeal within

time, we do not consider it necessary to examine the grounds of appeal.?

However for what it is worth, the issue of the competence of the Court was not raised at the trial stage but was only raised on appeal before the Court below. The Supreme Court held that when there are sufficient facts establishing want of competence or jurisdiction in the Court, it is the duty of the judge or justice to raise the issue suomotu if the parties fail to draw the Court?s attention to it. See Odiase Vs Agho (1972) 1 ALL NLR (Pt. 10 170; Prof. Olutola Vs University of Ilorin (2004) 9-12 SCM (Pt. 2 169; (2004) 18 NWLR (Pt. 904) 416. This is because issue of jurisdiction is fundamental to adjudication.

There is no doubt, in the instant case, the Appellant?s Counsel did not advert his mind to the provisions of Section 282(1) of the Constitution of Nigeria 1999 (as amended) which governs the procedure the Customary Court of Appeal is empowered to employ in determining appeals to it from the Sharia Court. For clarity Section 282(1) reads:
?A Customary Court of Appeal of a State shall exercise appellate and supervising jurisdiction in civil

proceedings involving questions of customary law.?
Unless the subject of appeal involves question of customary law, the Customary Court of Appeal will have no jurisdiction to entertain it. See Joseph Ohai Vs Samuel (1999) 1 NWLR (Pt. 588) 521.

Without more, it is my view that the application lacks merit and it is hereby refused and dismissed accordingly. N50,000.00 costs is awarded for the Respondent against the Appellant.

ADZIRA GANA MSHELIA, J.C.A.: I had the opportunity of reading in draft the lead Ruling of my learned brother, Hassan J.C.A just delivered. I completely agree that the application lacks merit and should be dismissed. I too dismiss the application and abide by the consequential orders contained in the lead Ruling, costs inclusive.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead ruling of my learned brother TANI YUSUF HASSAN, J.C.A., and I am in complete agreement with his reasoning and conclusion. I have nothing to add and hereby also dismiss the application. I abide the order as to costs as contained in the lead judgment.

Appearances:

A.S. Abdullahi, Esq.
For Appellant(s)

Mrs. P. I. Mangs (holding the brief of A.S. Umar, Esq.)For Respondent(s)

Appearances

A.S. Abdullahi, Esq.For Appellant

AND

Mrs. P. I. Mangs (holding the brief of A.S. Umar, Esq.)For Respondent