ALH. ZANNA YERIMA HAMMA WABI v. ALH. MUKADDAS ZANGINA
(2019)LCN/13690(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of July, 2019
CA/J/52/M/2019(R)
RATIO
THE EFFECT OF BRINGING AN APPLICATION UNDER THE WRONG LAW
Let me say right away that bringing an application under the wrong provision of a law or even the wrong law itself is of no moment provided the remedy sought is provided under a law: see Falobi v. Falobi (1976) 6 S.C. 1 @11; Uchendu v. Ogboni & Ors (1999) 5 NWLR (PT 603) 337 (S.C); Yabugbe v. C.O.P. (1992) 4 NWLR (PT 234) 152 (S.C). PER BOLOUKUROMO MOSES UGO, J.C.A.
WHETHER RULES OF COURT CAN CONFER JURISDICTION ON A COURT
This is just as it is the correct position of the law too that Rules of Court do not also confer jurisdiction on Court (Dada v. Ogunremi (1962) 2 SCNLR 417, 422; Clement v. Iwuanyanwu (1989) 3 NWLR (PT 107) 39 @ 50) and so cannot also deny it of jurisdiction. PER BOLOUKUROMO MOSES UGO, J.C.A.
AN APPLICATION THAT IS MERELY STRUCK OUT AND NOT DISMISSED CAN BE REFILLED OVER AND OVER AGAIN
It has to be pointed out, too, that an application that is merely struck out and not dismissed can be properly refilled over and over again: see FBN Ltd v. T.S.A. Industries Ltd (2012) ALL FWLR (PT 657) 614 @ 626 (S.C). PER BOLOUKUROMO MOSES UGO, J.C.A.
APPEAL: DELAY IN FILING AN APPEAL: THERE HAS TO BE GOOD AND SUBSTANTIAL REASONS
In any event, the relevant factor is not necessarily the length of delay in filing the appeal but whether good and substantial reasons have been given for the delay: see Jimoh v. Hon. Minister Federal Capital Territory & Ors (2018) LPELR-46329 (SC) p. 20, 40. PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES
HABEEB ADEWALE OLUMUYIWA ABIRU 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
ALH. ZANNA YERIMA HAMMA WABI – Appellant(s)
AND
ALH. MUKADDAS ZANGINA – Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Lead Ruling): By this application filed in this Court on 07/02/2019, the applicant seeks the following orders:
1. Extension of time to seek leave to appeal against the Ruling of the Borno State High Court of 23/02/2017 in Suit No. BOHC/MG/CV/028.
2. Leave to appeal the same Ruling.
3. Extension of time to file Notice of appeal against the said ruling.
4. An order staying execution of that same judgment pending the determination of his appeal.
The said Ruling of the Borno State High Court of 23/02/2017 entering judgment against him was made on the very first day of pretrial conference on account of his absence and non-representation.
In his 20-paragraph affidavit in support of the application, applicant swore that he was not aware that the case was fixed for the 23rd of February 2017 when the trial Court proceeded to enter judgment against him on account of his absence and the fact that he was not also unrepresented. He swore he only became aware of the Ruling of the lower Court on 22/09/2018 when the Deputy Sheriff of that Court came to his house and pasted
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Writs of Attachment and Sale on his three cars as well as a Volkswagen Golf Saloon car belonging to his friend. He swore he thereafter immediately briefed counsel and filed Appeal No. CA/J/388/18 before this Court along with a motion; that despite the pendency of that motion, the respondent mobilized the same Deputy Sheriff of the High Court of Borno State to his premises and towed all his said vehicles to the Borno State High Court; that his motion in Appeal No. CA/J/388/18, for which addresses were filed, came up before this Court on 19th of November 2018 but was adjourned to 06/02/2019, on which date it was withdrawn and struck out because it was found to be defective. He stated that unless this application is granted there would be no return to status quo. He attached to his Affidavit and marked as Exhibits A, B, C and D respectively (1) his Proposed Grounds of Appeal, (2) the impugned proceedings of the lower Court (3) Ruling of the lower Court of 23/02/2017, and (4) the Respondent?s Writ of summons.
In opposition, the respondent filed a 20-paragraph affidavit to say that applicant was aware of the 23/02/2017 pretrial conference but simply
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chose to stay away; that applicant was even represented by his counsel, A.A. Sani Esq., on 07/02/2017 when the case was adjourned to the 23rd of February 2017, which date he further claims was agreed to by both counsel; that applicant?s said counsel was even further served Hearing Notice of the 23/02/2017 pretrial hearing but deliberately chose to stay away; that applicant also deliberately failed to find out the outcome of the lower Court?s proceedings until July 2018 when it was enforced; that applicant?s motion in Appeal No. CA/J/388/2018 was withdrawn by applicant and struck out on the advice of the Presiding Justice of this Court; that applicant has not given any good reason for his absence in the lower Court for the pretrial and the delay in appealing. He attached to his counter affidavit and marked as exhibits A, B and C respectively uncertified Hearing Notice purportedly issued for service on Aminu Sani & Co. Chambers of applicant?s solicitors in respect of the 23/02/2017 proceedings of the lower Court, which Notice is incidentally issued on 21/11/2016 and gives notice of a pretrial hearing fixed for 13th December 2016; an
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uncertified two-page handwritten sheet of paper; and an equally uncertified writ of attachment.
Applicant responded to that Counter affidavit with a 5-paragraph Further Affidavit where he deposed that he was informed by his counsel A.A. Sani Esq and he verily believed him that there was never any agreement between respondent and his counsel on 07/22017 nor was he served Hearing Notice for pretrial Conference against 23/02/2017; that the High Court of Borno State Rules provide for a maximum period of three months for pretrial conference; that the judgment of the lower Court has not been executed and his cars that were attached are still parked at the premises of the High Court of Borno State.
Parties on the orders of this Court exchanged written submissions and adopted them in Court. in his address for applicant, Mr. A. A. Sani submitted that the application was brought pursuant to Order 6, Rule 9 (1) and (2) of the Rules of this Court and calls for the exercise of the discretion of this Court, which he further submitted ought to be exercised in favor of the applicant he having met, according to counsel, the twin requirements of the
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said Order 6 Rule 9 (1) and (2) of our Rules. He submitted that respondent failed to fault applicants assertion that neither he nor his counsel was aware of the 23/02/2017 adjournment of the lower Court that resulted in the judgment against him and they were not served hearing notice of it. He argued that since it is the respondent that is asserting that they were aware of that date and same is denied by him, the onus is on respondent to prove it and that proper is by an affidavit of service as required by Order 9 Rule 13 (1) of the Rules of the High Court of Borno State. He referred us to relevant paragraphs of applicant’s affidavit concerning the steps he took to appeal the Ruling of the lower Court since becoming aware of it as well as his proposed grounds of appeal, and submitted that he has satisfied the requirements of the rules of this Court for us to exercise our discretion in his favour.
Mr. M.S. Abubakar for respondent in reply in his written submissions first referred us to the twin requirements of Order 9 R. 2 of the Rules of this Court for the grant of this application, namely good and substantial reasons for failure to appeal within time and
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proposed grounds of appeal which must show good cause why the appeal should be heard. Counsel submitted that those two conditions must be met conjunctively. He submitted that applicant has failed to meet them. Learned counsel like his colleague for applicant also took us through the steps applicant took from the time of the delivery of the lower Court’s judgment on 23/2/2017 to the filing of the present application on 7/2/2019 and submitted that it took applicant twenty-four months to file the present application; that he has not explained the reason for his delay in appealing. Counsel submitted that Exhibit C attached to the application even shows that applicant and his counsel were aware of the 23/02/2017 pretrial date of the lower Court but chose to stay away. He argued, too, that the application was in any event brought under a wrong of rule of Court and that also robbed this Court of jurisdiction to grant it. He submitted that since the application is asking for trite prayers, it ought to have been brought pursuant to Rules 7 and 9 of Order 6 and not Rule 5 under which it was brought. Rules of Court are not made for fun but meant to be obeyed, that
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failure to comply with them denies the Court of jurisdiction, he submitted, citing Akinbobola v. Plisson Fisko Nig. Ltd (1991) 1 NWLR (PT 167) 270 (S.C) as well as good old Madukolu v. Nkemdilim (1962) 2 SCNLR 34 and urged us to refuse the application for lacking in merit.
Let me say right away that bringing an application under the wrong provision of a law or even the wrong law itself is of no moment provided the remedy sought is provided under a law: see Falobi v. Falobi (1976) 6 S.C. 1 @11; Uchendu v. Ogboni & Ors (1999) 5 NWLR (PT 603) 337 (S.C); Yabugbe v. C.O.P. (1992) 4 NWLR (PT 234) 152 (S.C). This is just as it is the correct position of the law too that Rules of Court do not also confer jurisdiction on Court (Dada v. Ogunremi (1962) 2 SCNLR 417, 422; Clement v. Iwuanyanwu (1989) 3 NWLR (PT 107) 39 @ 50) and so cannot also deny it of jurisdiction.
I shall point out, too, that the Ruling of the lower Court entering judgment for the Respondent determined the rights of the parties in the litigation finally, leaving them with no recourse to that Court, so to all intents and purposes it is a final decision of that Court, for which appeal lies
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as of right to this Court under Section 241(1) (a) of the 1999 Constitution of this country. See the cases of Ebokam v. Ekwenibe (1997) 7 SCNJ 77 @ 93 & 93; Igunbor v. Afolabi (2001) 11 NWLR (PT 723) 148 (S.C.); N.A.O.C. Ltd v. Nkweke (2016) 7 NWLR (PT 1512) 588 @ 607-608 (S.C.); Odutola v. Oderinde (2004) 12 NWLR (PT 888) 574 @ 577 (S.C.); Ikweki and Ors v. Ebele & Anor (2005) 11 NWLR (PT 936) 399 @ 422-425, Aqua Ltd. v. Ondo state Sports Council (1988) 4 NWLR (PT 91) 622. In other words, the tripartite prayers sought by appellant, are not unnecessary. All applicant needs is a straight forward application to appeal out of time. In that regard, Rule 9, not 5, of Order 6 of the Rules of the Court of Appeal 2016, which is the appropriate rule of Court for this application, provides that:
?Every application for enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard.?
In other words, for this Court to exercise its discretion in
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favour of applicant he has to show good and substantial reasons for his failure to appeal within time and that his grounds of appeal are arguable and not necessarily that they will succeed: Jimoh v. Hon. Minister Federal Capital Territory & Ors (2018) LPELR-46329 (SC) p.18-20. That is without forgetting that applicant has a fourth prayer for stay of execution, which prayer is governed by different provisions and considerations.
And reverting to the prayer for extension of time to appeal and its twin requirements, I am inclined to agree with applicant that the steps he has taken since the delivery of the judgment of the lower Court on 23/02/2017 suggests that he has not been lethargic in any way in expressing his desire to appeal the said ruling/Judgment. For example, he swore, and it has not been disputed by the respondent, that he only became aware of the judgment of the lower Court when the Deputy Sheriff of the Borno State High Court came to his premises on 22/09/2018 to paste writs of attachment on his properties; that he thereafter quickly briefed counsel and filed a motion before this Court on 27/9/2018 in Appeal No. CA/J/388/18. He deposed,
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too, that that application came up before this Court this same year on 06/02/2019 but was withdrawn and struck out because it was found to be defective. That was again confirmed by the Respondent who in his counter affidavit even further explained that the said motion was withdrawn by applicant because the Presiding Justice of this Court so advised. The present application was filed on 07/2/2019, just a day after that application. It is therefore not correct as asserted by respondent that it took applicant twenty-four months after the judgment impugned to file it. In so far as all the steps applicant took were directed towards exercising his right of appeal, they form one single transaction.
It has to be pointed out, too, that an application that is merely struck out and not dismissed can be properly refilled over and over again: see FBN Ltd v. T.S.A. Industries Ltd (2012) ALL FWLR (PT 657) 614 @ 626 (S.C).
In any event, the relevant factor is not necessarily the length of delay in filing the appeal but whether good and substantial reasons have been given for the delay: see Jimoh v. Hon. Minister Federal Capital Territory & Ors (2018)
10
LPELR-46329 (SC) p. 20, 40.
And coming to the proposed grounds, it also appears to me that applicant?s complaint of denial of fair hearing to him and miscarriage of justice in the manner the lower Court entered judgment against him on a day he was not informed of its sitting seem to me arguable. At this point this Court cannot go into any depth on the merits of the argument of parties as to whether applicant was not actually served Hearing Notice as he claims, save to observe, and just observe alone, that the proceedings of the lower Court of 7/2/2017 on which date Respondent claims appellant was represented by his counsel and he agreed to adjournment to 23/2/2017 (which assertion is denied applicant) was not produced by respondent, just as uncertified Exhibits A and B attached to his counter affidavit purporting to be Hearing Notices do not also seem to help in any way in resolving that riddle, thus making it more imperative that this application be granted so that the appeal can be heard on its merits and all relevant issues considered on the records.
?What is more, the claim of Respondent in the action was for:
a. An order directing the
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defendant to collect the half of the total value of the cost price of the said four (4) stores with one office i.e. the sum of ?2,216, 502.00 so that the claimant shall become the sole owner of the said (4) four stores situate at Bolori store. In the Alternative an order directing the defendant to pay the sum of ?4, 430, 040.00 to the claimant being money for the value of the said four (sic) with the office.
b. Cost of this suit.
In its ruling of 23/02/2017 the lower Court simply went ahead to enter judgment for this main and alternative claim in their entirety, saying:
Court: In view of submission of the claimant?s learned counsel, and vis a vis considering Order 25 of the Rules of this Court 2012, I have no option than to invoke the said Order. I therefore hereby enter judgment as per the claimant?s writ of summons and statement of claims paragraph 15(a).
The question that arises follows naturally is, if the execution of this Judgment is to proceed, will the sale of applicant?s vehicles be carried out to satisfy a judgment debt of the smaller sum of ?2,216, 502.00 in the main relief or the
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bigger sum of ?4, 430, 040.00 which was only claimed as an alternative or even a total of both amounts? That in itself seems to me an exceptional circumstance for the grant of applicant?s 4th prayer for stay of execution pending the hearing of his appeal, albeit conditional upon his filing his notice of appeal.
For all the foregoing reasons, I am of the opinion that there is merit in the application as regards its prayers 3 and 4 for extension of time to appeal and for stay of execution of the ruling/judgment pending the determination of the appeal. In the event I hereby grant the application in the following terms:
1. Time is extended for the applicant to file his Notice and Grounds of Appeal against the Ruling/Judgment of the High Court of Borno State of 23/02/2017 in Suit No BOHC/MG/CV/028/16 between Alh. Mukaddas Zangina v. Alh. Zanna Yerima Hamma Wabi.
2. Applicant shall file His Notice and Grounds of Appeal not later than seven (7) days from today.
3. An order staying further execution of the said judgment pending the determination of the appeal is also here granted, but only, and only, upon the filing by applicant of his
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Notice and Grounds of appeal within the time aforementioned.
Prayers 1 and 2 of the application being unnecessary for reasons earlier highlighted are here struck out.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead Ruling delivered by my learned brother, Boloukuromo Moses Ugo, His Lordship has ably considered and resolved all the issues in contention on the application dated 6th of February, 2019 and filed on the 7th of February, 2019 by Applicant seeking for trinity prayers to appeal against the Ruling of the High Court of Borno State delivered in Suit NO BOHC/MG/CV/028/2016 on the 23rd of February, 2017 and for Stay of execution of the judgment entered in that suit by the said Ruling. I agree that the application has merit and worthy of the exercise of the discretion of this Court in its favour. I abide the reasoning and the conclusions reached in the lead Ruling. I have nothing more to add.
TANI YUSUF HASSAN, J.C.A.: I agree.
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Appearances:
M.A. Adam Esq.For Appellant(s)
A.A. Mohammed Esq. for M.S. Abubakar Esq.For Respondent(s)
Appearances
M.A. Adam Esq.For Appellant
AND
A.A. Mohammed Esq. for M.S. Abubakar Esq.For Respondent
