AMALAI & ORS v. GOVT OF ADAMAWA STATE & ORS (2022)

AMALAI & ORS v. GOVT OF ADAMAWA STATE & ORS

(2022)LCN/16206(CA)

In the Court of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/YL/33M/2020(R)

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

1. BABA GASHEMURU G. AMALAI 2. AZANIYA ALJANGI 3. THOMAS GUNDO MUSA 4. SHEBA K. MALWA DELO 5. AJINE KUPAHAI K. DELO 6. MUSA J. GREMA 7. ALHASSAN GREMA 8. ANDREW KONDENI GABAUTI (Suing For Themselves And On Behalf Of The Bongkumbebe Ruling Clan Of Guyuk Local Government Area Of Adamawa State.) APPELANT(S)

And

1. THE GOVERNMENT OF ADAMAWA STATE 2. THE ATTORNEY GENERAL OF ADAMAWA STATE 3. THE LUNDUDA TRADITIONAL COUNCIL 4. HON. MRS. WILBINA JACKSON 5. KURUHAYE DISHON DANSANDA (Appointed Kwandi Nunguraya) 6. MR. ANDORI GEOFREY KALLARA 7. MR. AUGUSTINE WIYAPONDI KIMDE (Head Of Bonsibe Ruling Clan) RESPONDENT(S)

RATIO

THE CONSTITUTIONAL RIGHT TO APPEAL

It is beyond argument that the right of appeal is a Constitutional issue available to the party aggrieved by the judgment or other decision of the lower Court. See Section 242(1) of the Constitution as amended which stipulates that:
Section 242(1):- “Subject to the provision of Section 241 of the Constitution, an appeal shall lie from the decisions of the Federal High Court or High Court to the Court of Appeal with leave of the Federal High Court or the High Court or the Court of Appeal”.

Now, this type of application is not granted, just as a matter of course.
The Rules of this Court lays down the conditions to be satisfied by an Applicant in order to succeed in the application such as this one. See Order 6, Rules 1(A), 2 and 9(1) and (2) of the Rules of this Court 2021. PER ABUBAKAR, J.C.A.

THE CONDITIONS THAT MUST BE PRESENT FOR AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL TO SUCCEED

It is trite law that for application for extension of time within which to appeal to succeed the following conditions must co-exist:-
(a) Good and substantial reasons for failure to appeal within the prescribed period by the appropriate Rule of Court and
(b) Grounds of appeal which prima facie show good cause why the appeal must be heard.
See GANI TARZAN LTD Vs. V.C.R & INVESTMENT (2012) All FWLR 399 UKWU Vs. BUNGE (1991) (Pt. 82) 3 NWLR 646–772, MOBIL OIL (NIG) LTD Vs. AGADAIGHO (1988) 2 NWLR (Pt. 77) 303, UNIVERSITY OF LAGOS Vs. OLANIYAN (1985) 1 NWLR (Pt. 1) 156, I.B.N. LTD. Vs. A. G. RIVERS STATE (2008) All FWLR. PER ABUBAKAR, J.C.A.

THE DUTY OF THE COURT IN CONSIDERING THE ISSUE OF LEAVE TO LEAVE TO APPEAL

The Supreme Court and this Court have held on number of occasions that in considering the issue of leave to appeal, the Court must be satisfied that the exercise of appealing at a late stage is worthwhile by reference to the grounds of appeal. See UKWU Vs. BUNGE (Supra) Ratio 12, 13 and 15, LAMAI Vs. ORBIH (1980) 5 -7 S. C. 28.
There is no doubt that in considering an application of this nature, which calls for the exercise of judicial discretion, the Court must satisfied itself that the reasons given by an Applicant are good and substantial and that on clear facts placed before the Court, the Applicant deserves to be granted the indulgence being sought. See UKWU Vs. BUNGE (Supra). PER ABUBAKAR, J.C.A.

THE MEANING OF “A GROUND OF APPEAL SHOWING GOOD CAUSE WHY APPEAL SHOULD BE HEARD”

It is the law that Ground of Appeal showing good cause why appeal should be heard means Grounds of Appeal which raises substance of issues of fact and law for the consideration of the Appellate Court. See OBIKOYA Vs. WEMA BANK LTD (1989) 1 NWLR (Pt. 96) 157 at 178 where OBASEKI, JSC (as he then was) said:-
“A Ground of Appeal showing good cause why an appeal should be heard is a ground which raises substantial issues of fact and law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of the hand or totally lacking in substance. It is a ground which tasks the intellect and reasoning faculties of the appeal Judges. It is a ground which is not frivolous” PER ABUBAKAR, J.C.A.

THE MEANING OF “ABUSE OF COURT PROCESS”
It is trite that an abuse of Court process generally means that a party in a litigation takes a most irregular, unusual and precipitated action in the judicial process for the sake of action, quasi action with the aim of wasting valuable litigation time. It is an action which could be one or more too many. It is an action which could be avoided. See MANSON Vs. HALLIBURTON ENERGY SERVICES LTD (2007) 2 NWLR (Pt. 1018) P. 211, NIC V. F. C. I. CO LTD (2007) 2 NWLR (Pt. 1019) P. 610 Pp. 630, SARAKI Vs. KOTOYE (1992) 9 NWLR (Pt. 264) 156 at 188. PER ABUBAKAR, J.C.A.

MOHAMMED LAWAL ABUBAKAR, J.C.A. (Delivering the Leading Judgement): The ruling is predicated upon a Motion on Notice brought pursuant to Section 242(1) of the 1999 Constitution (as amended), Order 6 Rules 1 (A), 2 and 9 of the Rules of this Court 2021 and the inherent powers of this Court. Therein the Appellants/applicants seeks for the following reliefs:-
(1) An order of the Honourable Court extending time within which the Applicants shall seek leave to appeal against the ruling of the High Court of Justice Yola delivered by his lordship Honourable Justice Nathan Musa (Chief Judge) in Suit No. ADSY/152/2019 on the 25/3/2021 between BABA GASHEMURU G. AMALAI AND 7 OTHERS Vs. THE GOVERNMENT OF ADAMAWA STATE AND 6 OTHERS.
(2) An Order of the Honourable Court granting the Applicants leave to appeal against the ruling of the High Court of Justice Yola delivered by his lordship Honourable Justice Nathan Musa (Chief Judge) in Suit Number ADSY/152/2019 between BABA GASHEMURU G. AMALAI AND 7 OTHERS VS. THE GOVERNMENT OF ADAMAWA STATE AND 6 OTHERS delivered on 25/3/2019.
(3) An Order of The Honourable Court extending or enlarging time within which the Applicants shall file their Notice of Appeal against the ruling of the High Court of Justice Yola delivered on 25/3/2021 between BABA GASHEMURU G. AMALAI AND 7 OTHERS VS. THE GOVERNMENT OF ADAMAWA STATE AND 6 OTHERS in suit No: ADSY/152/2019.
(4) An Order of The Honourable Court granting the Applicants leave to appeal against the interlocutory decision of the High Court of Justice delivered by his lordship Honourable Justice Nathan Musa (Chief Judge) in suit No: ADSY/152/2019 on the 25/3/2021 between BABA GASHEMURU G. AMALAI AND 7 OTHERS VS THE GOVERNMENT OF ADAMAWA STATE AND 6 OTHERS.
(5) An Order of The Honourable Court granting the Applicants leave to appeal on grounds other than grounds of law against the interlocutory decision of the High Court of Justice Yola delivered by his lordship Honourable Justice Nathan Musa (Chief Judge) in suit No. ADSY/152/2019 on the 25/3/2019 between BABA GASHEMURU G. AMALAI AND 7 OTHERS VS THE GOVERNMENT OF ADAMAWA STATE AND 6 OTHERS.

GROUNDS UPON WHICH THE APPLICATION IS PREDICATED
(1) The applicants had applied for leave to amend their statement of claim, and other accompanying processes as well as file additional list of witnesses and written deposition on oath of the said witnesses which application was refused and dismissed.
(2) The Applicants had earlier filed an application for leave to appeal the ruling delivered on the 25/3/2021 at the High Court of Justice Yola but time within which the application ought to have been taken before the trial Court had elapsed due to the JUSUN strike and same was withdrawn and struck out upon an application by Counsel to the Applicants.
(3) The time allowed by law for the Applicants to appeal against the trial Court’s ruling has since elapsed hence this application.
(4) The applicants had equally filed a similar application before the Court of Appeal dated 9/7/2021 and filed on 12/7/2021 but same was struck out on the ground of incompetency on the 8/2/2022.
(5) The Applicants are desirous of appealing against the ruling of the trial Court by way of filing their Notice of Appeal but time allowed them by the Rules of the Honourable Court has elapsed.

In support of the application is a seven (7) paragraphs Affidavit deposed to by one Ajine K. Delo. Attached are Exhibits A – F which are applications, rulings and proposed Notice of Appeal.

In opposition to the application, the 3rd, 4th, 5th and 6th Respondents filed a 15 paragraphs Counter-Affidavit deposed to by one Mr. Wilberforce Dathini. The 7th Respondent also filed 6 paragraphs Counter Affidavit deposed to by one Hande Samuel. The first and second Respondents did not file any Counter-Affidavit meaning they have no opposition of this application.

In obedience to the Order of this Court, the learned Counsels filed and exchanged written addresses. The Applicants’ written address was filed on 1/3/2022. The 3rd, 4th, 5th and 6th Respondents filed theirs on 15/3/2022, while the 7th Respondent filed his own on 25/3/2022. It should be noted that the Counsel to the 1st and 2nd Respondents did not file any written address but submit orally on the hearing date that this Court should do justice in the circumstances. The written addresses were adopted by the parties on 5/4/2022 when this application was heard.

Now, arguing in support of the application, the learned Counsel to the Applicant contended that the sole issue for determination is as follows:-
“Whether from the Affidavit in support of the application, the Applicants have met the requirement of the law to warrant grant of same.

It is submitted that this issue is to be answered in the affirmative, as Order 6 Rules 1(a), 2, and 9(1) and (2) of the Rules of this Court provide for the grant of this application. The learned Counsel also referred to paragraphs 3–7 of their supporting affidavit and the Exhibits attached and argued that they are in compliance with Section 242(1) of the Constitution. He cited the case of OGUNDIMU Vs. KASUNMU (2006) All FWLR (Pt. 326) Pg. 207 at 216 Paras. B–D Ratio 2 and ASOGWU Vs. PEOPLES DEMOCRATIC PARTY & ORS. (2013) All FWLR (Pt. 685) Pg. 214. The Counsel urged this Court to resolve the issue raised in their favour and grant this application.

In reply, the learned Counsel to the 3rd, 4th, 5th and 6th Respondents also raised a sole issue for determination i.e.
“Whether from the grounds of Appeal, there are triable legal issues, to warrant the granting leave to the Applicants to appeal against the ruling of 25th March, 2022”.

The Counsel submit that the Applicants from their supporting Affidavit and Grounds of Appeal have failed to disclose triable legal issues which is fatal to this application. He cited the case of ADIGWE Vs. FRN (2015) All FWLR (Pt. 805), 76 at 90 Paras. B–G, GANI TARZAN LTD Vs. V. C. R. & INVESTMENT LTD (2012) All FWLR 399.

The learned Counsel further submit that this application should be dismissed as it is an abuse of Court process. It is trite that there is an abuse of Court process where there is improper use of the judicial process. See BEST WESTERN COMPANY LTD Vs. UDOMISOR (2002) FWLR 745, at 763 Paras. G–A.

The Counsel referred to paragraph 12 of their Counter-Affidavit and argued that the Applicants on 1/9/2021 at the lower Court agreed that the averments in their proposed reply to the Respondents statement of Defence challenging the qualification of the 5th Respondent to vie for or contest the throne of Kwandi Nunguraya amounted to introducing a new cause of action, and for this reason, the said averments were struck out from the Reply.

The Counsel added that the latter application seeking to amend Applicant’s statement of claim relating to the same qualification of the 5th Respondent, which was dismissed in the ruling dated 25/3/2021, and on which the Applicants now seek the leave of this Court to appeal, is an abuse of Court process. A party cannot be allowed to tread on a path riddled with inconsistencies. See AKANINWO Vs. NSIRIM (2008) All FWLR (Pt. 40), 610 Ratio 7. Based on the above submissions the counsel urged this Court to dismiss this application.

On the other hand, the Counsel to the 7th Respondent also raised a sole issue for determination thus:-
“Whether the Applicant’s application for leave to appeal against the ruling of the trial Court dated 25/3/2021 is not an abuse of Court process”.

It is submitted that an abuse of Court process is the improper use of the judicial process by a party in litigation to interfere with the efficient and effective administration of justice to the irritation and annoyance of his opponent. An abuse of Court process does not lie in the right to use a judicial process but rather in the manner of the exercise of right. See ALIYU Vs. INTERCONTINENTAL BANK PLC (2013) All FWLR (Pt. 702) 1810 at 1820, OFFOR Vs. LEADERS OF COMPANY LTD & ANOR (2006) LPELR 6117.

The Counsel gave a historical background of the facts from the trial Court to this Court in paragraphs 3.01 – 3.07 of his written address and urge this Court to dismiss this application for the following reasons:-
(1) The amendments sought to the statement of claim constitute a departure from the original statement of claim by setting up an entirely new cause of action and as such, an abuse of Court process.
(2) The attempts by the Applicants to re-introduce the averments as to qualification of the 5th Respondent to contest for the stool of Kwandi Nunguraya is an abuse of Court process, same having being earlier struck out by the trial Court from the Applicant’s reply to the 3rd–6th Respondents’ statement of Defence and Reply to the 7th Respondent’s statement of Defence, following the objection to the inclusion of such new cause of action in the said Replies and the concession of the Applicants is an attempt to use the processes of this Court in an irregular manner.

In the light of the above submissions the Counsel urged this Court to dismiss the application.

RESOLUTION
The matter will be resolved under the following issue, thus:-
“Whether the instant application has merit or not”.

From the face of the instant application, the Applicants/Appellants are seeking enlargement of time within which to seek leave to appeal, time to file Notice of Appeal, leave to appeal against the interlocutory decision and leave to appeal on grounds other than grounds of law against the ruling in Suit No: ADSY/152/2019.

It is beyond argument that the right of appeal is a Constitutional issue available to the party aggrieved by the judgment or other decision of the lower Court. See Section 242(1) of the Constitution as amended which stipulates that:
Section 242(1):- “Subject to the provision of Section 241 of the Constitution, an appeal shall lie from the decisions of the Federal High Court or High Court to the Court of Appeal with leave of the Federal High Court or the High Court or the Court of Appeal”.

Now, this type of application is not granted, just as a matter of course.
The Rules of this Court lays down the conditions to be satisfied by an Applicant in order to succeed in the application such as this one. See Order 6, Rules 1(A), 2 and 9(1) and (2) of the Rules of this Court 2021.
It is trite law that for application for extension of time within which to appeal to succeed the following conditions must co-exist:-
(a) Good and substantial reasons for failure to appeal within the prescribed period by the appropriate Rule of Court and
(b) Grounds of appeal which prima facie show good cause why the appeal must be heard.
See GANI TARZAN LTD Vs. V.C.R & INVESTMENT (2012) All FWLR 399 UKWU Vs. BUNGE (1991) (Pt. 82) 3 NWLR 646–772, MOBIL OIL (NIG) LTD Vs. AGADAIGHO (1988) 2 NWLR (Pt. 77) 303, UNIVERSITY OF LAGOS Vs. OLANIYAN (1985) 1 NWLR (Pt. 1) 156, I.B.N. LTD. Vs. A. G. RIVERS STATE (2008) All FWLR.

The Supreme Court and this Court have held on number of occasions that in considering the issue of leave to appeal, the Court must be satisfied that the exercise of appealing at a late stage is worthwhile by reference to the grounds of appeal. See UKWU Vs. BUNGE (Supra) Ratio 12, 13 and 15, LAMAI Vs. ORBIH (1980) 5 -7 S. C. 28.
There is no doubt that in considering an application of this nature, which calls for the exercise of judicial discretion, the Court must satisfied itself that the reasons given by an Applicant are good and substantial and that on clear facts placed before the Court, the Applicant deserves to be granted the indulgence being sought. See UKWU Vs. BUNGE (Supra).

It is the law that Ground of Appeal showing good cause why appeal should be heard means Grounds of Appeal which raises substance of issues of fact and law for the consideration of the Appellate Court. See OBIKOYA Vs. WEMA BANK LTD (1989) 1 NWLR (Pt. 96) 157 at 178 where OBASEKI, JSC (as he then was) said:-
“A Ground of Appeal showing good cause why an appeal should be heard is a ground which raises substantial issues of fact and law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of the hand or totally lacking in substance. It is a ground which tasks the intellect and reasoning faculties of the appeal Judges. It is a ground which is not frivolous”

In the light of the above authorities, I have carefully considered this application particularly Exhibit ‘F’ attached to the Affidavit in support of this application which is the proposed Notice of Appeal and found that there is no prima facie good cause why the appeal must be heard. In other words, the Applicants have failed to advance good and substantial reasons before this Court. I agree with the submissions of the 3rd–6th and 7th Respondents’ Counsel that the Applicants are only trying to introduce a new cause of action which application the lower Court earlier dismissed, giving raise to this application see Exhibit ‘D’ attached to the affidavit in support of this application i.e. Ruling of the lower Court delivered on 25/3/2021.

I also agree that this application is an abuse of Court processes because the Applicants attempted unsuccessfully to re-introduce the qualification of the 5th Respondent in their motion to amend their statement of claim which the lower Court refused to grant in the ruling of 25/3/2021, the subject matter of this interlocutory appeal. In other words, it amounts to an abuse of Court process for the Applicants to now seek to achieve the same effect by the instant application seeking leave of this Court to appeal against the lower Court ruling refusing the Applicants leave to amend their statement of claim so as to re-introduce a new cause of action on the question of qualification of the 5th Defendant as a member of Bongkumbebe Ruling clans, averments that were earlier struck out from the Reply to statement of Defence by their own concession.

It is trite that an abuse of Court process generally means that a party in a litigation takes a most irregular, unusual and precipitated action in the judicial process for the sake of action, quasi action with the aim of wasting valuable litigation time. It is an action which could be one or more too many. It is an action which could be avoided. See MANSON Vs. HALLIBURTON ENERGY SERVICES LTD (2007) 2 NWLR (Pt. 1018) P. 211, NIC V. F. C. I. CO LTD (2007) 2 NWLR (Pt. 1019) P. 610 Pp. 630, SARAKI Vs. KOTOYE (1992) 9 NWLR (Pt. 264) 156 at 188.

Finally, it is clear from the face of this instant application, the Applicants as per their reliefs sought are planning to appeal against the interlocutory decision of the High Court of Justice Yola delivered on 25/3/2021 in Suit No: ADSY/152/2019.

Generally speaking, the Supreme Court and this Court have frown at the practice of filing interlocutory appeals while the main suit is placed in limbo if the point can conveniently to taken and argued at the end of the case. See UKWU Vs. BUNGE (Supra) Ratio 5.

In view of the above-mentioned Supreme Court authority, I am of the firm view that granting of this application at this stage will occasion great injustice, delay and unnecessary expenses to both parties. The Applicants are advised to wait till after the conclusion of the main suit at the lower Court so that any party not satisfied can file a comprehensive appeal before this Court.

This application lacks merit and is hereby refused. The Appeal No: CA/YL/33M/2020 is hereby dismissed. The cost of N100,000.00 (One Hundred Thousand Naira) is awarded against the Appellant in favour of the 3rd–7th Respondents.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft, the ruling just delivered by my learned brother, MOHAMMED LAWAL ABUBAKAR, JCA, where Appellant/Applicant’s application was refused.

I am in agreement with the reasoning and conclusion in the ruling, and adopt the ruling as mine. I have nothing extra to add.

JAMILU YAMMAMA TUKUR, J.C.A.: I read the draft copy of the lead ruling just delivered by my learned brother MOHAMMED LAWAL ABUBAKAR, JCA. I agree with the reasoning and conclusion arrived at by my learned brother in the ruling with nothing further to add.