ATOSHI & ORS v. ESTATE OF LATE SIMAN DANLADI & ORS (2022)

ATOSHI & ORS v. ESTATE OF LATE SIMAN DANLADI & ORS

(2022)LCN/16287(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, June 08, 2022

CA/YL/154/2021(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. ANU MUSA ATOSHI 2. AMOS AMU WUNUJI 3. DANLAMI ANGYEZE 4. DANJUMA BAKO 5. AWUDU AGBU 6. AGYO AGBU PASSA 7. DANJI AGYOJI 8. YOHANNA WAKUNDE MUNUMI 9. NAVYOKHI ABE 10. BALA ABE 11. CHRISTOPHER AGBU 12. WUKARI TRADITIONAL COUNCIL APPELANT(S)

And

1. THE ESTATE OF LATE SIMAN DANLADI 2. JOSHUA AGBU (Suing By His Next Friend Danladi Agbu) 3. ASHU FAITH AGBU (Suing By His Next Friend Danladi Agbu) 4. AGBU I. AGBU 5. MARY ISHAYA 6. ZIPPORAH DANLADI 7. EMMANUEL AGYO RESPONDENT(S)

RATIO

THE POSITION OF LAW ON COMPILING AND TRANSMITING THE RECORD OF APPEAL

By Order 8 Rule 1 of the Rules of this Court 2021, the Registrar of the lower Court had 60 days from the filing of the Notice of appeal by the Appellants to compile and transmit the record of appeal failing which becomes mandatory for the Appellant to compile and transmit the record of appeal within 30 days after the failure of the Registrar to so transmit. PER TUKUR, J.C.A.

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgement): By a motion filed on 28th February, 2021, learned counsel for the Appellants/Applicants seek the following reliefs:
1. EXTENSION OF TIME to the Applicants/Appellants to compile and transmit the record of proceedings in Appeal No. CA/YL/154/2021 between Anu Musa Atoshi & 10 Ors vs. The Estate of Late Siman Danladi Agbu & 6 Ors out of time.
2. AN ORDER deeming the said record of proceedings in the said Appeal No. CA/YL/154/2021 between Anu Musa Atoshi & 10 Ors vs. The Estate of Late Siman Danladi & 6 Ors as having been properly compiled and transmitted from the date of grant of this application.
3. AND FOR SUCH FURTHER ORDER(S) as this Hon. Court may deem fit to make in the circumstance.

The grounds upon which the application rested is stated thus:
i. That the applicants/Appellants were the Defendants in Suit No. TRSJ/9/2009 wherein judgment was entered in favour of the Respondents as Plaintiffs at the lower Court on the 9th day of September, 2020.
ii. That the Applicants/Appellants having been dissatisfied with the judgment of the trial Court filed their notice of Appeal on the 7th day of December, 2020 against the decision of the trial Court.
iii. That the Applicants/Appellants could not compile and transmit the record of proceedings of the trial Court to the Court of Appeal within the stipulated period allowed by law due to the serious ill-health of their counsel, S.M. Wakili, Esq., to whom they have given all the necessary logistics to compile and transmit the record to the Court of Appeal.
iv. That after about a whole year before the counsel to the Applicants/Appellants recovered from his illness the period allowed for compilation and transmission of the record to the Court of Appeal has elapsed hence this application for extension of time to compile and transmit the record out of time.

The motion is supported by an affidavit of eleven paragraphs deposed to by one Shanwilu Musa Jiru, a litigation Secretary in the law firm of learned counsel for the Applicants. In line with the Rules of this Court 2021, a written address was filed and later adopted by learned counsel.

In opposition to the application, the Respondents filed a counter affidavit of seventeen paragraphs and annexed one exhibit marked as exhibit K.

In line with the Rules of this Court 2021, learned counsel for the Respondent filed a written address which was later adopted as arguments opposing the application. The counter-affidavit and written address were filed on 3rd March, 2022.

In the written address in support of the application, learned counsel for the applicants distilled a lone issue for determination thus:
Whether the applicants’ application is meritorious in law.

Arguing the issue, learned counsel submitted that by Order 6 Rules 1 and 9 of the Court of Appeal Rules 2021, an applicant is at liberty to approach the Court for an order extending the time to compile and transmit the record of appeal upon sufficient reasons explaining the failure by the applicants to compile and transmit the record within the time allowed by the rules of this Court.

Learned counsel urged upon the Court to consider the averments in the affidavit in support of the application and grant the said application in the interest of justice.

Learned counsel cited the following cases Omodele Oloro v. Ekiti State Government & 4 Ors (2007) All FWLR (Pt. 387) page 95, Ratio 4; Nigerian Laboratory Cooperation V. PMB Ltd (2012) 15 NWLR Page 505.

On his part, learned counsel for the Respondents also distilled a sole issue for determination thus:
Whether there are competent parties in this application and whether granting the application without more will not tantamount to abuse of the Court’s sanctity in Nigeria.

A summary of the argument of the Respondents herein was that the Appellants/Applicants are contemnors of the judgment of the trial Court. Learned counsel further argued that a party who is in flagrant disobedience to a Court order should not be accommodated by the Court.

Learned counsel relied on the following cases – A.G. Fed. V. Kashamu No. 2 (2020) 3 NWLR (Pt. 1711) 281; Umeakuana v. Umaekuana (2019) 14 NWLR (Part 1691) 61; Ngere v. Okuruket Xiv (2014) 11 NWLR (Pt. 1417) 147. Learned counsel urge us to refuse the application and dismiss same.

By Order 8 Rule 1 of the Rules of this Court 2021, the Registrar of the lower Court had 60 days from the filing of the Notice of appeal by the Appellants to compile and transmit the record of appeal failing which becomes mandatory for the Appellant to compile and transmit the record of appeal within 30 days after the failure of the Registrar to so transmit.

In the instant case, the Appellant failed to compile and transmit the record within the 30 days window allowed by the rules of this Court and thus necessitated the instant application for extension of time within which to compile and transmit the record of appeal.
As rightly pointed out by learned counsel for the Appellants/Applicants, this Court has the discretion to grant the application where we are satisfied with the reasons given for the delay in the failure to compile and transmit the record within the time allowed by the Rules of this Court 2021.
See Order 6 Rule 9 of the Rules of this Court 2021. In the supporting affidavit specifically at paragraphs 3-7 the circumstance evidencing the reasons for the failure of the Appellants to compile and transmit the record were clearly stated. For ease of reference the relevant paragraphs are reproduced thus: “3. That I know as of fact that the Respondents as Plaintiffs at the trial Court took out a Writ of Summons against the Applicants as Defendants for declaration of title over parcel of land wherein judgment was entered in favour of the Respondents as Plaintiffs on the 9th day of September, 2020.
4. The Applicants as Defendants having been dissatisfied with the judgment of the trial Court filed a notice of Appeal against the judgment of the trial Court on the 7th day of December, 2020.
5. That the Applicants/Appellants Counsel, S.M. Wakili, Esq., subsequently became very ill and could not facilitate the compilation and transmission of the record of appeal to the Court of Appeal within stipulated period allowed by law.
6. That when the said S.M. Wakili, Esq., recovered from his illness and facilitated the compilation and the transmission of the record of proceedings to the Court of Appeal the statutory period allowed by law for compilation and transmission had elapsed.
7. That the record of proceedings was finally transmitted to the Court of Appeal on the 15th day of November, 2021 without the leave of this Honourable Court being sought and obtained hence the present application for extension of time to regularize the transmission of the record of appeal to this Honourable Court. The failure was traceable to the ill health of learned counsel for the Appellants/Applicants. I have perused meticulously the counter affidavit filed by the Respondents in opposition to the Application and there is nothing in the averments therein that even remotely challenges the supporting affidavit. The counter affidavit relied upon by the Respondents was not a response to the supporting affidavit rather the Respondents raised issues that in my view go to the substance of the appeal before the Court. In the absence of any material before me challenging the averments in the affidavit in support of the application and being satisfied with the reasons given for the failure to compile and transmit the record of appeal by the Appellants within the time prescribed by the Rules of this Court 2021, I am minded to grant the application and it is hereby granted as prayed.

Time is hereby extended to today for the Appellants/Applicants to compile and transmit the record of Appeal in appeal No. CA/YL/154/2021 between Anu Musa Atoshi & 11 Ors V. The Estate of Late Siman Danladi Agbu & 6 Ors.

The Record of appeal in Appeal No. CA/YL/154/2021 between Anu Musa Atoshi & 11 Ors v. The Estate of Late Siman Danladi Agbu & 6 Ors transmitted to the Court on 18th April, 2021 is hereby deemed properly compiled and transmitted today.
There is no Order as to costs.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft the lead Ruling of my learned brother, Jamilu Yammama Tukur JCA, where he granted the application of the Appellants
I am in agreement with the reasoning and conclusion therein, and adopt the Ruling as mine. I have nothing extra to add.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I read in draft the Ruling just delivered by my learned brother, Jamilu Yammama Tukur, JCA. I entirely agree with his deeming and adopted as mine.
I have nothing to add.