DICK MANN v. MUSA PYAM
(2019)LCN/13232(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/J/436/M/18(R)
APPEAL: REQUIREMENTS TO APPEAL ON FACTS AND MIXED FACTS AND LAW ON LEAVE
Here let me first make the point that the instant application is not just seeking extension of appeal to appeal but also leave of this Court pursuant to Section 242 (1) of the 1999 Constitution of the Federal Republic of Nigeria to allow applicant appeal on facts and mixed facts and law against the decision of the High Court of Plateau State in exercise of its appellate jurisdiction. To that extent the applicants burden goes beyond simply satisfying the twin grounds of good reasons for his failure to appeal within the statutory time set by Section 24 of the Court of Appeal Act 2004 and substantial grounds for appeal as stated in C.P.D. Co. Ltd v. Adegboruwa (2011) 3 NWLR (PT 1234) 239 @ 246-247 para G-E cited by Mr. Yuwa for applicant. The most important prayer in his application in my opinion is rather his prayer 3 for this Court to grant him leave to appeal. In other words, he does not have a right of appeal as was mistakenly argued by his counsel; rather, he can only appeal with the leave/permission of this Court. That leave, it is settled, is not granted for the asking. Leave will only be granted to appeal when this Court is satisfied that the appeal involves substantial issues of law that merit their consideration by this Court. This point has been established in a number of cases by the Supreme Court. In Ojemen & Ors v. Momodu & Ors (1983) NSCC 135 @ 145 the apex Court (Obaseki, J.S.C. in lead judgment) confirmed this, saying that:
?The Federal Court of Appeal and the Supreme Court are given the power to grant permission to aggrieved persons to appeal in the class of cases falling within those which are within Section 213(2)(a) of the Constitution. PER BOLOUKUROMO MOSES UGO, J.C.A.
APPEAL: THE DUTY OF THE APPEAL COURT IN REVIEWING THE JUDGMENT OF THE LOWER COURT
That is trite and needs no citation of authorities to confirm. If one is needed, however, see Atolagbe v. Shorun (1985) 1 NWLR (PT 2) 360 @ 367 where the apex Court (Oputa, J.S.C.) said:
An appellate Court can and in fact has a duty to examine the grounds on which the conclusions and inferences of the Court below were based and if convinced that these were erroneous, an appellate Court will be justified in re-evaluating the evidence and taking a different view:Fatoyinbo v. Williams (1956) 1 FSC 87 @ 89; Lawal v. Dawodu (1972) 1 ALL NLR 270 276 (PT 2).PER BOLOUKUROMO MOSES UGO, J.C.A.
NATIVE COURT: WHAT DOES IT ENTAIL?
From all cardinal principles of our jurisprudence that the term native Court is used to encompass customary Courts regardless of whether they are presided over by lawyers. See Garuba v. Yahaya (2007) 5 S.C (Pt 11) 262.PER BOLOUKUROMO MOSES UGO, J.C.A.
PLEDGE: WHETHER UNDER CUSTOMARY LAW, THE PLEDGER RETAINS THE TITLE OR NOT
In customary law, the pledger retains the radical title. It is not extinguished by the pledge. The pledger has the right of redemption and it does not matter for how long the land had been pledged. See Onobruchere Vs. Esegine (1986) NSCQR 198.PER BOLOUKUROMO MOSES UGO, J.C.A.
APPEAL: APPLICATION FOR EXTENSION OF TIME IS NOT GRANTED AS A MATTER OF COURSE AS RULES HAVE TO BE FOLLOWED
It is settled law that an application for extension of time within which to take procedural steps is not granted as a matter of course. This is because rules of Court or provisions of statute giving time frames for taking procedural steps must be obeyed. Therefore, where a party has been out of time in doing an act, he must furnish the Court with substantial reasons in his affidavit explaining the delay in doing the act and where he fails to do so, the Court would be justified in refusing to overlook the delay. If no cogent reason or excuse is offered no indulgence should be granted Williams Vs Hope Rising Voluntary Funds Society (1982) 2 SC 145, Odutola Vs Lawal (2002) 1 NWLR (Pt 749) 633, Isiaka Vs Ogundimu (2006) 13 NWLR (Pt 997) 40, Ejorkele Vs Nwafor (2008) 15 NWLR (Pt 1110) 418, Okwute Vs Nwadike (2009) 5 NWLR (Pt 1134) 360, Olatubosun Vs Texaco (Nig) Pic (2012) 14 NWLR (Pt 1319) 200. PER HABEEB ADEWALE OLUMUYIWA ABIRUJCA
APPEAL: EXTENSION OF TIME IS GRANTED AT THE DISCRETION OF THE JUDGE
It is elementary that a prayer for extension of time to do an act is an appeal to the discretionary jurisdiction of the Court. It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations ? First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt 1018) 276, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt 1324) 505. PER HABEEB ADEWALE OLUMUYIWA ABIRUJCA
DISCRETION: THE COURT HAS TO CONSIDER THE FACTS BEFORE IT WHEN GRANTING ANYTHING ON DISCRETION
Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it ? Bello Vs Yakubu (2008) 14 NWLR (Pt 1106) 104. A Court must always exercise its discrction only on the basis of the materials placed before it and on no extraneous considerations CFAO (Nig) Pic Vs Sanu (2008) 15 NWLR (Pt 1109)PER HABEEB ADEWALE OLUMUYIWA ABIRUJCA
DISCRETION: WHAT A PARTY SEEKING DISCRETION MUST DO
Thus, the Courts have consistently held that an applicant who seeks the exercise of a Court?s discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court?s discretion ? Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1, In re: NDIC (Liquidator of Alpha Merchant Bank Pic); Adesanya Vs Lawal (2007) 7 NWLR (Pt 1032) 54 and SCOA (Nig) Pic Vs Omatshola (2009) 11 NWLR (Pt 1151)106. The applicant has the duty to support his application with all necessary evidence and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regards. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favor Solanke Vs Somefun (1974) 1 SC 141, University of Lagos Vs Aigoro (1985) 1 NWLR (Pt 1)143, All Pindar Kwajafa Garage Ltd Vs Borno State Water Corporation (2009) 17 NWLR (Pt 1171) 429.PER HABEEB ADEWALE OLUMUYIWA ABIRU JCA
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
DICK MANN Appellant(s)
AND
MUSA PYAM Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Lead Ruling): This is an application for:
1. An order of this Court extending within which the applicant may seek leave to appeal against the decision of the High Court of Plateau State delivered on the 24th day of May 2017 in Appeal No. PLD/J12A/2016.
2. Extension of time to appeal against the same decision.
3. Leave to appeal.
Because the proposed appeal is a double appeal (as such appeals are loosely called) and the two grounds on which applicant is hinging it are about findings of fact of that Court, it became expedient for him to first get the leave (otherwise called permission) of the High Court of Plateau State or this Court to appeal as required by Section 242 of the 1999 Constitution of this country. By Order 6 Rule 5 of the Court of Appeal Rules 2016, he has to get that leave and also file his appeal within the three months? stipulated by Section 24(2) (a) of the Court of Appeal Act for filing appeals to this Court from final decisions of the High Court. Exhibit 2 attached to his further affidavit shows that he took that step by filing an application in the
1
High Court of Plateau State on 10/08/2017 for the necessary leave to appeal but his application could not be heard till the time lapsed because, according to him, P.L. Lot, J., who presided over the two-man panel of the Plateau State High Court that heard the appeal retired shortly after the judgment and he, applicant, waited to no avail for another panel to be assigned to hear it until the three months period lapsed. When the time for appeal so lapsed, he said, he kept waiting for hearing notice to withdraw his application for leave to appeal but again to no avail as all the responses he was getting from the Registry of the High Court were that his file had not been assigned. Finally, he swore, he instructed his counsel to file an application for discontinuance of his application to enable him come to this Court to exercise his right of appeal.
?
He annexed to the affidavit in support of his application copies of his Proposed Two-Ground Notice of Appeal, the judgment of the High Court of Plateau State that is the subject of his appeal and also his Notice of Discontinuance and marked them Exhibits A, B and C respectively. His proposed grounds of appeal
2
read thus:
GROUND ONE
The decision is unreasonable unwarranted and cannot be supported having regard to the weight of evidence.
GROUND TWO
The learned judges of Court below erred in law when they allowed the appeal of the Respondent even when appeal was without merit.
PARTICULARS OF ERRORS
a. The case of the respondent before the trial Court which formed the basis of the appeal at the Court below was that he mortgaged his land to the appellant.
b. Throughout the trial at the Court of first instance, the respondent did not establish a case of mortgage as he brought witnesses who gave contradictory account of the transaction claimed by the respondent.
c. However, contrary to the case of the Respondent at the trial Court, the Court below made a different case for the Respondent as the claim of mortgage put forward by the Respondent in the trial Court was substituted by the Court below for the case of pledge.
d. The Respondent neither established the case of mortgage put forward by him in trial Court nor the case of pledge substituted for him by the Court below.
e. An examination of the Respondent?s claim
3
before the trial Court below held the trial was not contention of the parties which act occasioned a miscarriage of Justice to the appellant.
f. The Respondent failed to establish title at the trial Court but the Court below awarded title to him even when there was no evidence to support his claims put forward at the trial Court.
g. The decision of the Court below as complained above bleed injustice to appellant.
The respondent filed a 6-paragraph affidavit in opposition to the application. The main grounds of his opposition are that:
1. The applicant has accepted the judgment of the High Court he is appealing against and has even collected a hoe returned to him by the respondent that constituted the pledge for the land in issue, as ordered by the lower Court.
2. That as a result, the applicant has even vacated the pledged land in issue that is the subject of his appeal and he, respondent, has been farming it.
3. That the appeal is not arguable.
?
In response, applicant caused a Further and Better Affidavit to be sworn and served on his behalf. There he stated that he has not collected any hoe from respondent nor is it true
4
that he has accepted the judgment he is appealing against.
Parties were ordered by this Court to file written addresses. Applicant filed his address on 6th February 2019 while the respondent filed his on 26th February 2019 and both addresses were adopted by counsel on their behalf on 07/03/2019.
In his written address in support of the application, Mr. Y. M. Yuwa for the applicant submitted that the issue before the Court is whether it is in the interest of justice to grant the application. Counsel answered that question in the affirmative and argued that what applicant seeks to achieve with this application is to exercise his right of appeal, a right he submitted is constitutionally bestowed on him like every other Nigerian. Counsel was however quick to concede that the exercise of that right in the circumstances is subject to the discretion of this Court, which he submitted this Court has to exercise judicially and judiciously. Relying on the decision of this Court (Saulawa, J.C.A.) in C.P.D. Co. Ltd v. Adegboruwa (2011) 3 NWLR (PT 1234) 239 @ 246-247 Para G-E, counsel submitted that fo
