AMUDALATU AKANKE & ANOR V. JAMIU ALAO
(2005)LCN/1698(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of March, 2005
CA/IL/SH/1/2004
RATIO
There is no reason why this application should not have been filed first before the lower court. An applicant cannot jump to conclusion and file this type of application in this court. He is supposed first to file it in the lower court unless and until it is not humanly possible before it can be filed first before this court. See Order 3 rule 3(3) and (4) which provides: “Where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the refusal. (4) Wherever under these rules an application may be made either to the court below or to the court it shall not be made in the first instance to the court except where there are special circumstances which make it impossible or impracticable to apply to the court below”. I have looked again and cannot lay my hands on any special circumstances which will prevent the applicant from first approaching the lower court for leave to appeal. There is nothing making the filing of the leave to appeal at the lower court impracticable. In the case of CCB (Nig.) Ltd. v. Ogwuru supra (1993) 3 NWLR (Pt.284) 630, (1993) 1 NSCC at P. 356 lines 1-8 Wali, J.S.C. stated thus: “It is pertinent to state that Order 3 rule 4 (2) of the Court of Appeal Rules, 1981 is in pari materia with Order 7 rule 4(2) of the Supreme Court Rules, 1977. This provision was interpreted by this court in Ukpe Ibodo Ors. v. Enarofia & Ors. (1980) 5-7 SC. 42”. PER MUNTAKA-COOMASSIE, J.C.A.
It is trite law that the fact that the applicant is impecunious does not form a special circumstance for not appealing within a statutory period. PER MUNTAKA-COOMASSIE, J.C.A.
JUSTICES
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria
ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
- AMUDALATU AKANKE
2. IBRAHIM AKANBI Appellant(s)
AND
JAMIU ALAO Respondent(s)
MUNTAKA-COOMASSIE, J.C.A. (Delivering the Lead Ruling): This is an application by the appellants/applicants herein for leave of this court for an extension of time to apply for leave to appeal out of time. And for leave for an extension of time within which to file the notice and grounds of appeal and to appeal and the deeming Order. Lastly, the applicants sought leave to raise the following issue for the 1st time on appeal, namely:
“that the learned trial court Judge erred in law when he ordered the 1st appellant to make the child available for naming her immediately by the respondent (within 3 days)”.
Grounds for the Application
1. The judgment in respect of which the appellant/applicants seek to appeal against was delivered on 2/10/2002.
2. The appellants/applicants have only 3 months to appeal from the date of the judgment.
3. The 3 months have since expired.
4. The appellants/applicants have not been financially buoyant to pursue this appeal.
5. The appellants/applicants are desirous and ready to pursue this appeal to a logical conclusion.
The application was seriously resisted and opposed. In so doing the respondents herein filed a counter-affidavit dated 22/10/2004. After denying paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 17 and 18 of the affidavit in support of the motion the respondent averred that this application is a ploy to deny the respondent the enjoyment of the judgment in his favour. That the appellant took advantage of the wrong procedure adopted by the respondent initially for enforcement proceedings against the appellant. That is why the appellant refused to file at least a notice of appeal against the judgment delivered since 2/10/02. Now that the respondent correctly filed proper enforcement procedure in December, 2003, the appellant would not allow that motion to be heard. This explained away why this motion for leave to appeal out of time was filed by the appellant which is a calculated attempt to further frustrate the respondent from enjoying the fruits of his judgment. The respondent then averred that there is no assurance from the appellants’ claim that if their prayers are granted they will prosecute the appeal diligently. He urged this court to refuse the application.
Learned counsel for the parties complied with the order of this court made on the 14/12/04 for filing written briefs in respect of the motion.
The appellants/applicants filed their written address on 29/10/04 and submitted a single issue for the consideration of this application as follows:-
“1. Whether this application is competent in law and whether it has met the requirements of the law as to “warrant the, grant of same?”
In arguing the issue learned counsel for the applicant, Imam, Esq. argued that what an applicant, in an application for extension of time within which to appeal, must show is as provided in Order 3 rule 4(2) Court of Appeal Rules, 1981. Thus: Order 3 rule 4(2) says:
“Every application for an enlargement of time in 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 …”
According to the applicant’s counsel, the above Order and rules were judicially interpreted in the case of Co-operative & Commerce Bank (Nigeria) Limited v. Emeka Ogwuru (1993) 3 NWLR (Pt.284) 630, (1993) 3 S.C.N.J. 54 at 55.
Going by the above decision there are two conditions to be met under Order 3 rule 4(2) thus:
(a) There must be an affidavit setting good and substantial reasons for failure to appeal within the prescribed time; and
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard.
Learned counsel for the applicant in his written address, referred to their affidavit and exhibit A thereto and submits that their failure to appeal within time was not deliberate or intentional but an “Act of God” which is beyond the control of any human being and urged us to so hold. He also maintained that none of his averments was controverted. There was a semblance of denial in paragraph 4 of the counter-affidavit, he admitted, but then that denial was not sufficient. He then urged this court to discountenance the denial. He referred to A.-G., Ondo State v. A.-G., Ekiti State (2001) 17 NWLR (Pt.743) 706, (2001) 9 – 10 S.C. 116 at 235 – 236.
Learned counsel again contended that the respondent’s counsel did not discharge the burden of supplying the court with facts in contradiction of what the applicant deposed to since these facts are within the knowledge of the respondent. Failure to do so means that the respondent failed. He cited the case of Commissioner of Police ‘D’ Department v. Jimoh Oguntayo (1993) 6 NWLR (Pt.299) 259, (1993) SCNJ 66-68.
The respondent submits that the application is not properly filed for the court to hear and determine. The applicant has two options. Either to file it before the lower court or to file it before this court. The rules however requested the applicant in such application to file it first before the lower court. He cannot, without any cogent reason, file it first before this court. Order 3 rule 3(3) of the Court of Appeal Rules. The application must therefore be declared incompetent. The applicants according to the respondent did not attach the judgment of the lower court sought to appeal against as provided by Order 3 rule 7.
I do appreciate the religious belief of the applicants in their affidavit that their pecuniary position which makes them not to file their appeal in time is an act of God. However, the circumstances of the appeal and other relevant issues must also have to be considered.
I have looked into the history of the case, the date judgment was delivered and the averments in both affidavits. I have considered the rules of this court which were meant to be obeyed. I finally analysed the written addresses filed by both counsel in the matter and I hold thus:
(1) There is no reason why this application should not have been filed first before the lower court. An applicant cannot jump to conclusion and file this type of application in this court. He is supposed first to file it in the lower court unless and until it is not humanly possible before it can be filed first before this court. See Order 3 rule 3(3) and (4) which provides:
“Where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the refusal.
(4) Wherever under these rules an application may be made either to the court below or to the court it shall not be made in the first instance to the court except where there are special circumstances which make it impossible or impracticable to apply to the court below”.
I have looked again and cannot lay my hands on any special circumstances which will prevent the applicant from first approaching the lower court for leave to appeal. There is nothing making the filing of the leave to appeal at the lower court impracticable. In the case of CCB (Nig.) Ltd. v. Ogwuru supra (1993) 3 NWLR (Pt.284) 630, (1993) 1 NSCC at P. 356 lines 1-8 Wali, J.S.C. stated thus:
“It is pertinent to state that Order 3 rule 4 (2) of the Court of Appeal Rules, 1981 is in pari materia with Order 7 rule 4(2) of the Supreme Court Rules, 1977. This provision was interpreted by this court in Ukpe Ibodo Ors. v. Enarofia & Ors. (1980) 5-7 SC. 42”.
In this application the affidavit only succeeded in setting out inadequate and vague reasons for failure to appeal within the prescribed time.
I have also closely perused all the relevant processes and documents before us but could not find where the decision of the lower court was attached. Supposed the applicants followed proper procedure as above then automatically they will find themselves complying with Order 3 (3) (7) (d) of the Court of Appeal Rules 2002 i.e., where leave has been refused by the lower court, a copy of the order refusing leave, must accompany the leave to appeal. There is good wisdom in complying with the rules of this court. Because had the applicants done the correct things, this court would have an opportunity to see the reasons adduced by the learned Kadi or Kadis of the lower court.
It is trite law that the fact that the applicant is impecunious does not form a special circumstance for not appealing within a statutory period.
My Lords, even though the matter emanated from the Sharia Court of Appeal which has somehow different set of law and rules parties must comply with the fundamental rules of this court. This is because the rules of this court are meant to serve as guidance in all these types of rudimentary issues.There are a lot of lapses in both the affidavit in support and grounds of appeal. There are no good grounds of appeal which prima facie show good cause why the appeal should be heard. The main affidavit did not make any reasonable effort to explain clearly the delay.
Where an application may be made either to the High Court or to the Court of Appeal, it is a simple logic that it shall not be made in the first instance to this court until and unless where there are special circumstances which make it impossible or impracticable to apply to the lower court. In the instant case, since there is no iota of evidence that the Sharia Court of Appeal was approached at all. It cannot be meaningfully argued that it was not practicable or impossible to apply to the Sharia Court of Appeal. In the Star Paints Ind. Ltd. v. Ogunlela (2000) 2 NWLR (Pt. 643) 103 at p. 112 paras C – D my learned brother Oguntade, J.C.A. as he then was granted the direct application to the lower court first in view of the directive given by the lower court. Ordinarily under Order 3 rule 3(3) and (4) of our rules this type of application should be lodged first in the Sharia Court of Appeal, i.e., lower court, if refused then the applicant can file similar request to the Court of Appeal within 15 days after the date of the refusal. If such application was taken first to this court without any reason of impossibility or impracticability the application will not be granted. In the instant case, the application or the applicants have not shown that there are special circumstances that made it impossible or impracticable to take steps to apply first to the Sharia Court of Appeal to justify the exercise of the Court of Appeal’s discretion in favour of the applicants. See N.S. Eng. Co. Ltd. v. O.S.M. Ltd. (2000) 3 NWLR (Pt. 649) 403 at 413-414.
In the instant case, there is no ruling of the Sharia Court of Appeal attached refusing the application therefore the application directly to this court must be, and it is declared incompetent. This court cannot therefore have jurisdiction to entertain an incompetent appeal. Same is hereby struck out- A.-G., Fed. v. ANPP (2003) 15 NWLR (Pt. 844) 600 at 675 Paras D – E; and Tukur v. Gov. of Gongola State (1989) 4 NWLR (Pt. 117) 517. The Supreme Court in the case of Iweka v. S.C.O.A. (Nig.) Ltd. (2000) 7 NWLR (Pt. 664) p. 325 at 340 paras. E-F per Ogundare, J.S.C. of blessed memory. In this particular application, I have to stress, even if I may be repeating myself thereby, that the applicant did not file similar application which were refused by the lower court. That makes it incompetent and liable of striking out. I think the locus classicus on this type of application started since 1980 in the case of Ihodo v. Enarofia (1980) 5-7 S.C. p. 42 where the Supreme Court held that Order 3 rule 4(2) of the Court of Appeal Rules, 1981 is inpari material with Order 7 rule 4(2) of Supreme Court Rules 1977.
It could have been an interesting appeal to be thrashed out one way or the other since the learned Kadi of the lower court made an in-depth research and dug out the Islamic law position vis-a-vis the issues of divorce, Iddah (period of waiting after a divorce), the position and importance of naming a child under Islamic law and issue of paternity and child custody (or Halana). This court regrettably was denied the opportunity of agreeing or disagreeing with the learned exposition of Islamic law by the lower court. However, case comes, case goes. One day similar issues may find their way to this court for our consideration.
The appeal cannot be properly brought before us because of its incompetence. That being the case, application being incompetent it cannot be granted. Same is hereby refused. I make no order as to costs.
IKONGBEH, J.C.A.: I had a preview of the ruling just delivered by my learned brother, Muntaka-Coomassie, J.C.A. I agree with him that the application should be dismissed because no special circumstances for the grant of the prayers sought have been shown.
I too dismiss the application and abide by all the consequential orders.
ABDULLAHI, J.C.A.: I have had a preview of the ruling just delivered by my learned brother Muntaka-Coomassie, J.C.A. My learned brother, as usual has admirably treated all the issues raised in the application.
I agree with his reasoning and conclusions that the application has no merit and I too dismiss it and abide by the no cost order in the lead ruling of my learned brother.
Application dismissed.
Appearances
Y.O. Abdulhamid, Esq.For Appellant
AND
A.H. Folorunsho, Esq.For Respondent
