BAHAGO v. DANIEL
(2022)LCN/16032(CA)
In the Court of Appeal
(GOMBE JUDICIAL DIVISION)
On Thursday, March 31, 2022
CA/G/47M/2021(R)
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
NITA BAHAGO APPELANT(S)
And
ISA DANIEL RESPONDENT(S)
RATIO:
WHAT AN APPLICANT SEEKING LEAVE TO APPEAL OUT OF THE PRESCRIBED PERIOD NEEDS TO DO
It must be noted that, what an applicant seeking for leave to appeal out of the prescribed period needs to do is to seek for the trinity prayers as enunciated in the case of DEEN MARK CONSTRUCTION CO. LTD VS ABIOLA (2002) 3 NWLR (PT 754) P. 418 at 437. That:
“the three prayers for “extension of time within which to apply for leave to appeal”, “leave to appeal” and extension of time within which to appeal” required by law are relevant where an applicant needs leave to appeal within time but failed to obtain leave before the expiration of the time prescribed for appealing and brings an application for extension of time to appeal. Thus, there is the need to have the three reliefs incorporated in one motion where the appeal sought to be filed is on grounds of facts or mixed law and facts and in a situation where the period for appealing had expired.”
“Every application for an 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. When time is so enlarged, a copy of the Order granting such enlargement shall be annexed to the notice of appeal.” -PER IBRAHIM SHATA BDLIYA, J.C.A.
WHAT MUST BE ESTABLISHED FOR AN APPLICATION FOR LEAVE TO APPEAL CAN BE GRANTED
For the application for extension of time for leave to appeal to succeed, an applicant must place or provide sufficient materials before the Court. See CBN VS. S. H. AHMED & 2 ORS (2001) 11 NWLR (PT 724) P. 369 at 392 wherein EJIWUNMI J.SC (of blessed memory) held that:
“Before an application for extension of time for leave to appeal can succeed, the applicant must satisfy the Court that there are good and satisfactory reasons for not filing the application timeously. It must also be shown that the applicant has good, substantial and arguable grounds of appeal. And for the Court to exercise its discretionary power, an application of such nature must be supported by an affidavit which must give sufficient reasons to explain the delay, the judgment or ruling of the Court against which an applicant is seeking to appeal and the proposed grounds of appeal against the said judgment or ruling. In the instant case, the appellant has shown good and sufficient reasons for the delay in filing its application.” –PER IBRAHIM SHATA BDLIYA, J.C.A.
The second requirement which must be satisfied in order for an applicant to be entitled to an order extending time within which to appeal is that the proposed grounds of appeal must show good cause why the appeal should be heard. See J. C AN VS UNEGBY (2012) 2 NWLR (PT 1284) P. 216 at 230 wherein it was enunciated that it is not the duty of the Court at this stage to consider whether the appeal will succeed. It is enough that the grounds of appeal are arguable. As to whether the appeal will succeed, that is left for consideration at the hearing of the appeal. See C.C.A (NIG) LTD V. OGWURU (1993) 3 NWLR (PT. 284) 63, In Re. Adewumi (1988) 3 NWLR pt. 83 483; Ibodo vs. Enarofia (1980) 5-7 SC 42; Ogbu vs Urum (1981) 4 SC 145, Ukwu vs. Bunge (1997) 8 NWLR (PT 518) P. 577. –PER IBRAHIM SHATA BDLIYA, J.C.A.
CIRCUMSTANCES WHERE THE COURT CANNOT GRANT LEAVE TO APPEAL
Where no good and cogent reason has been given by an applicant in an application for extension of time to seek leave to appeal, leave to appeal and filing of notice of appeal, a Court of law can not exercise its judicial discretion in favour of the applicant to grant the application. This principles of law has been reinforced by the Apex Court in the case of Ukwu vs. Bunge (1991) 3 NWLR PT. 82 p. 677 and Solanke Vs Somefun (1974) I. S. C 143.-PER IBRAHIM SHATA BDLIYA, J.C.A.
THE PROPOSED GROUNDS OF APPEAL
It must be pointed out that the applicant need not show the proposed grounds of appeal will succeed. Rather, what is required of the applicant is only to show that a prima-facie case has been shown by the proposed grounds of appeal. See Ukwu vs Bunge (1997) 8 NWLR (PT 518) P. 577 and IKENTA BEST (NIG) LTD VS. A.G. RIVERS STATE (2008) 6 NWLR (PT 1084) P. 612.
The proposed grounds of appeal, without their particulars are thus:
GROUNDS OF APPEAL
GROUND ONE: The lower Court erred in law when it affirmed the judgment of the trial Court, Area Court Filiya, which conferred ownership of the land in dispute on the respondent despite the failure of the respondent to establish his claim.
GROUND TWO: The lower Court erred in law as it affirmed the judgment of the trial Court that was fraught with material contradictions.
GROUND THREE: the judgment of the lower Court is perverse. –PER IBRAHIM SHATA BDLIYA, J.C.A.
The proposed grounds of appeal, if taken as a whole with the particulars thereto, have established a prima facie case why the appeal must be heard in view of the issues raised therein which require the appellate Court to resolve same on appeal in the overall interest of justice to both parties, that is, the applicant and respondents. It is in view of the foregoing that I am of the firm view that the prayers/orders sought by the applicant ought to be granted.– PER IBRAHIM SHATA BDLIYA, J.C.A.
WHAT MUST BE SATISFIED FOR THE COURT TO GRANT LEAVE TO APPEAL WHEN NOT EXERCISED WITHIN THE TIME FRAME
The law will not deprive a person the right simply because the right was not exercised within the time frame. When for whatever reason, the Applicant did not exercise the right of appeal within the time frame, the law allows him to bring a motion to appeal out of time. See Order 6 Rule 6 of the Court of Appeal Rules, 2021, Agbaso vs Iwunze & Ors (2019) LPELR-48906 (SC); Optimum Construction & Properties (Dev) Ltd vs Ake Shareholdings Ltd (2021) LPELR-56229(SC); FBN Plc vs Chief Isaac Osaro Agbara & Ors (2020) LPELR-50632 (SC).
For an application of this nature, the two conditions that need to be satisfied before granting same are:
1. The affidavit evidence must state the reasons why the appeal was not filed within time and in doing so must explain the lapse in the period of the delay. While the law does not anticipate a per minute, hour or daily explanation for the delay, however, there must be reasonable explanation explaining why the appeal was not filed within the period.
2. The Applicant must show that there are substantial grounds of appeal, this means that the grounds of appeal are not frivolous but rather there are triable issues disclosed in the grounds of appeal.
See Virgin Atlantic Airways vs Amaran (2021) 12 NWLR (pt 1789) 91; L.F.S. Ltd vs Alj. J.A (2012) 1 NWLR (pt 1281) 371; Okereke vs James (2012) 16 NWLR (pt 1326) 339. -PER EBIOWEI TOBI, J.C.A
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgement): The applicant’s application dated 18th and filed on the 30th of March 2021, prayed the Court for the following orders:
1. An Order of this honourable Court for EXTENSION OF TIME within which the applicant will seek leave to appeal against the decision of the High Court of Gombe State sitting in its appellate jurisdiction, delivered by Hon. Justice B. L Iliya (PJ) and Hon. Justice Fati Musa (J) on the 26th July, 2016 in Appeal No: GM/107A/2017 between NITA BAHAGO AND ISA DANIEL.
2. AN ORDER of this honourable Court granting LEAVE to the applicant to appeal against the decision of the High Court of Gombe State in appeal No: GM/107A/2017 between NITA BAHAGO AND ISA DANIEL, delivered by Hon. Justice B. L Iliya (PJ) and Hon. Justice Fati Musa (J) on the 26th July, 2019
3. AN ORDER of this honourable Court for EXTENSION OF TIME within which applicant is required to file notice of Grounds of appeal against decision of the High Court of Gombe State sitting in its appellate jurisdiction in appeal No: GM/107A/2017 between NITA BAHAGO AND ISA DANIEL, delivered by Hon. Justice B. L Iliya (pj) and Hon. Justice Fati Musa (J) on the 26th July, 2019.
GROUNDS FOR THE APPLICATION
TAKE FURTHER NOTICE that the grounds upon which this application is brought are:
a. The appeal was initially fixed against the 5th day of June, 2019, on which date, judgment in appeal No. GM/107A/2017 was not ready, hence the matter was adjourned sine die, date to be communicated.
b. That the judgment of the High Court of Justice Gombe was delivered on the 26th July, 2019 during which the applicant was sick and could not be communicated but her counsel in the person of A. Y. Galadima Esq was informed via Test message.
c. That although counsel to the applicant, A. Y. Galadima Esq informed the husband of the applicant of the outcome of the judgment in appeal no. GM/197A/2017, the applicant had no personal knowledge of the fact that judgment was delivered as her husband who had no interest in the subject matter did not pass the same information given to him by A. Y Galadima Esq to her.
d. That the applicant is desirous of challenging the decision of the lower Court in appeal No. GM/107A/2017 and to prosecute same to its logical conclusion.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
i. That the records of proceedings of appeal No. GM/107A/2017 has been compiled and is awaiting transmission.
f. That this Court has the powers to grant this application.
DOCUMENTS EXHIBITED
i. Letter of demand from counsel to the respondent, as Exhibit A.
ii. Certified true copy of the judgment of the High Court of Justice Gombe State in Appeal No: GM/107A/2017 as Exhibit B.
iii. The applicant’s notice and grounds of appeal, as Exhibit C.
The application is supported by an affidavit and further affidavit. The respondent filed counter – affidavit opposing the granting of the orders sought by the applicant. Written addresses were filed by the parties, same being contentions, in view of the depositions contained in the affidavit further affidavit of the applicant and the Courter-affidavit of the respondent. The applicant’s written address was filed on the 16th of February 2022, on page 2 thereof a sole issue for determination has been formulated as follows:
“whether the applicant has shown in the affidavits in support of the application, good and substantial reasons for failure to appeal within the prescribed period, and the proposed grounds of appeal, prima facie, show good cause why the appeal should be heard to warrant the exercise of this Court’s discretion in favour of the applicant.”
The respondent on page 7 paragraph 2.1 formulated a sole issue to be resolved in the determination of the application, which is thus:
“whether the applicant has satisfied the requirement of law to warrant the Court to grant the application.”
The issues formulated in the written addresses of the applicant and the respondent, are hereunder compressed into a sole issue, which if resolved, would determine the application: it is this:
“Whether, on the depositions contained in the affidavit, further affidavit and the counter affidavit, taken together with the written addresses of the parties the Court can grant the orders sought by the applicant.”
Learned Counsel to the applicant, made submissions in paragraph 4:00 to 5:02 of the Written address, citing and relying on principles of law propounded in several decided cases by the superior Courts and urged the count to apply same in the determination of the application.
He concluded his submission on page 4 in paragraphs 5.01 to 5.02 of the written Address as follows:
“The applicant having deposed to facts and circumstances reasonable explaining why he could not appeal within time and the fact that Exhibit C disclosing strong and arguable grounds of appeal, it will be in the interest of justice that the application be granted so that the matter can be decided on its merit.”
The respondent in his written address in paragraph 3.01 on pages 7 to 9 thereof, made submissions citing and relying on a plethora of decisions of the superior Courts, to buttress his contentions that the applicant failed to place sufficient materials before the Court, to warrant the granting of the orders sought in the motion on notice filed on the 30th of February, 2022. In paragraph 4.0, thereof learned counsel concluded his submission thus:
“Finally My Lords, we respectfully urge this Honourable Court to dismiss the application with cost for the applicant has failed to establish reason why she didn’t appeal within time stipulated by law.”
Section 24(1) and (2) of the Court of Appeal Act (2010) (Amended) provides thus:
“24(1) where a person desires to appeal to the Court of appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of subsection of this section that is applicable.
(2) the period for the giving of notice of appeal or notice of application for leave to appeal are:-
a. in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
b. in all appeal in a criminal cause or matter, ninety days from the date of the decision appealed against …
(3) The Court of Appeal may extend the period prescribed in subsections (2) and (3) of this section.
It must be noted that, what an applicant seeking for leave to appeal out of the prescribed period needs to do is to seek for the trinity prayers as enunciated in the case of DEEN MARK CONSTRUCTION CO. LTD VS ABIOLA (2002) 3 NWLR (PT 754) P. 418 at 437. That:
“the three prayers for “extension of time within which to apply for leave to appeal”, “leave to appeal” and extension of time within which to appeal” required by law are relevant where an applicant needs leave to appeal within time but failed to obtain leave before the expiration of the time prescribed for appealing and brings an application for extension of time to appeal. Thus, there is the need to have the three reliefs incorporated in one motion where the appeal sought to be filed is on grounds of facts or mixed law and facts and in a situation where the period for appealing had expired.”
“Every application for an 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. When time is so enlarged, a copy of the Order granting such enlargement shall be annexed to the notice of appeal.”
An applicant applying for extension of time within which to appeal and who wishes that the discretion of the Court of Appeal under the Court of Appeal Rules be exercised in his favour must satisfy the two conditions prescribed under the rules. It is not enough to satisfy just one of the two conditions. In other words, to warrant the exercise of the Court’s discretion in favour of the applicant, both conditions must be satisfied concurrently.
In order for an application for extension of time within which to appeal to be granted, the Court must carefully scrutinize the affidavit in support of the application and the proposed ground(s) of appeal annexed to the affidavit in support so as to determine whether the conditions stipulated in the rules have been fulfilled or complied with.
For the application for extension of time for leave to appeal to succeed, an applicant must place or provide sufficient materials before the Court. See CBN VS. S. H. AHMED & 2 ORS (2001) 11 NWLR (PT 724) P. 369 at 392 wherein EJIWUNMI J.SC (of blessed memory) held that:
“Before an application for extension of time for leave to appeal can succeed, the applicant must satisfy the Court that there are good and satisfactory reasons for not filing the application timeously. It must also be shown that the applicant has good, substantial and arguable grounds of appeal. And for the Court to exercise its discretionary power, an application of such nature must be supported by an affidavit which must give sufficient reasons to explain the delay, the judgment or ruling of the Court against which an applicant is seeking to appeal and the proposed grounds of appeal against the said judgment or ruling. In the instant case, the appellant has shown good and sufficient reasons for the delay in filing its application.”
The applicant filed a twenty (20) paragraphed affidavit in support of the motion on notice filed on the 30th March 2021. Paragraphs 2 to 18 thereof are germane to the granting of the orders sought.
Where no good and cogent reason has been given by an applicant in an application for extension of time to seek leave to appeal, leave to appeal and filing of notice of appeal, a Court of law can not exercise its judicial discretion in favour of the applicant to grant the application. This principles of law has been reinforced by the Apex Court in the case of Ukwu vs. Bunge (1991) 3 NWLR PT. 82 p. 677 and Solanke Vs Somefun (1974) I. S. C 143.
The respondent filed an 8 paragraphed counter affidavit opposing the granting of the application of the applicant. Paragraphs 2 to 8 thereof are germane in the consideration of whether to grant the orders sought by the applicant or not. A 15 paragraphed further affidavit was filed in response to the depositions contained in the counter affidavit opposing the granting of the orders sought by the applicant. The expositions in the paragraphs of the further affidavit are also germane to the determination of the application by the Court.
I have had dispassionately considered the depositions contained in the affidavits of the applicant and the counter affidavit of the respondent. The applicant, on the whole, have given satisfactory reasons why the appeal has not been filed within the prescribed period. The depositions contained in the affidavit and the further and better affidavit have also explained the reasons for not bringing the application within a reasonable period since the delivery of the ruling by the lower Court.
The second requirement which must be satisfied in order for an applicant to be entitled to an order extending time within which to appeal is that the proposed grounds of appeal must show good cause why the appeal should be heard. See J. C AN VS UNEGBY (2012) 2 NWLR (PT 1284) P. 216 at 230 wherein it was enunciated that it is not the duty of the Court at this stage to consider whether the appeal will succeed. It is enough that the grounds of appeal are arguable. As to whether the appeal will succeed, that is left for consideration at the hearing of the appeal. See C.C.A (NIG) LTD V. OGWURU (1993) 3 NWLR (PT. 284) 63, In Re. Adewumi (1988) 3 NWLR pt. 83 483; Ibodo vs. Enarofia (1980) 5-7 SC 42; Ogbu vs Urum (1981) 4 SC 145, Ukwu vs. Bunge (1997) 8 NWLR (PT 518) P. 577.
It must be pointed out that the applicant need not show the proposed grounds of appeal will succeed. Rather, what is required of the applicant is only to show that a prima-facie case has been shown by the proposed grounds of appeal. See Ukwu vs Bunge (1997) 8 NWLR (PT 518) P. 577 and IKENTA BEST (NIG) LTD VS. A.G. RIVERS STATE (2008) 6 NWLR (PT 1084) P. 612.
The proposed grounds of appeal, without their particulars are thus:
GROUNDS OF APPEAL
GROUND ONE: The lower Court erred in law when it affirmed the judgment of the trial Court, Area Court Filiya, which conferred ownership of the land in dispute on the respondent despite the failure of the respondent to establish his claim.
GROUND TWO: The lower Court erred in law as it affirmed the judgment of the trial Court that was fraught with material contradictions.
GROUND THREE: the judgment of the lower Court is perverse.
The proposed grounds of appeal, if taken as a whole with the particulars thereto, have established a prima facie case why the appeal must be heard in view of the issues raised therein which require the appellate Court to resolve same on appeal in the overall interest of justice to both parties, that is, the applicant and respondents. It is in view of the foregoing that I am of the firm view that the prayers/orders sought by the applicant ought to be granted.
According, I make an order granting all the prayers sought by the appellant/applicant. The applicant is to file his notice of appeal at the lower Court within 14 days from the date he is served with a drawn-up order of the Court. No order as to costs.
JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in draft the lead Judgment of my learned brother, Ibrahim Shata Bdliya, J.C.A.
My lord has adroitly set out the law and conditions for the grant of an application seeking the trinity prayers for an extension of time for leave to appeal against the decision of the High Court of Gombe State sitting in its appellate jurisdiction, delivered on 26th July, 2016.
In summary, the two conditions which must be fulfilled to warrant the grant of such an application for extension of time for leave to appeal stipulated in Order 6 Rule 9(1) of the Court of Appeal Rules, 2021, are good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. These conditions must be met conjunctively. See Elias V Eco Bank Nig. Plc (2019) LPELR-46527(SC) 6-8, E-C, per Ariwoola, JSC; County & City Bricks Dev. Co. Ltd V Hon. Minister of Environment Housing & Urban Dev. (2019) LPELR-46548(SC) 44, E-G, per Aka’ahs, JSC; GTB Plc V Est Master Construction Ltd (2018) LPELR-Suit No. SC. 744/2015(R) 13-26, per Augie, JSC; Alison Idris (Nig) Ltd V Pinash Inv. Services Ltd (2016) LPELR-40777(CA) 9-13, E-A, per Sankey, JCA.
From an examination of the 20-paragraph supporting affidavit, as well as the 15-paragraph Further affidavit of the Applicant, good and substantial reasons have been proffered for the failure of the Applicant to appeal within the time prescribed in Section 24(1) and (2) of the Court of Appeal Act. In addition, the proposed Grounds of Appeal disclose prima facie good cause why the appeal should be heard. In the circumstance, the Applicant has met the conditions for the grant of the application.
I therefore also grant the application as prayed. I endorse the consequential order in the lead Ruling.
EBIOWEI TOBI, J.C.A.: I have read in draft the ruling just delivered by my learned brother, I. S. BDLIYA, JCA. I agree with the reasoning and conclusion reached therein. The Respondent is opposing the trinity prayers for extension of time seeking leave to appeal. This motion implies that the Appellant, who had a time frame within which to file an Appeal, did not do so within the time frame. Parties in an action have the constitutional right to appeal and in doing so, it must comply with the procedure and the time frame within which that should be done.
The law will not deprive a person the right simply because the right was not exercised within the time frame. When for whatever reason, the Applicant did not exercise the right of appeal within the time frame, the law allows him to bring a motion to appeal out of time. See Order 6 Rule 6 of the Court of Appeal Rules, 2021, Agbaso vs Iwunze & Ors (2019) LPELR-48906 (SC); Optimum Construction & Properties (Dev) Ltd vs Ake Shareholdings Ltd (2021) LPELR-56229(SC); FBN Plc vs Chief Isaac Osaro Agbara & Ors (2020) LPELR-50632 (SC).
For an application of this nature, the two conditions that need to be satisfied before granting same are:
1. The affidavit evidence must state the reasons why the appeal was not filed within time and in doing so must explain the lapse in the period of the delay. While the law does not anticipate a per minute, hour or daily explanation for the delay, however, there must be reasonable explanation explaining why the appeal was not filed within the period.
2. The Applicant must show that there are substantial grounds of appeal, this means that the grounds of appeal are not frivolous but rather there are triable issues disclosed in the grounds of appeal.
See Virgin Atlantic Airways vs Amaran (2021) 12 NWLR (pt 1789) 91; L.F.S. Ltd vs Alj. J.A (2012) 1 NWLR (pt 1281) 371; Okereke vs James (2012) 16 NWLR (pt 1326) 339.
The issue now is, did the Applicant meet the conditions? The Applicant has stated that it did. The Respondent said it did not. I agree with my lord as the Applicant has stated reasons for the delay and there are good grounds of appeal. I am satisfied that by the affidavit evidence, the Applicant has satisfied the conditions stated above.
I agree the reasons are satisfactory and the application succeeds.
I abide by the consequential order of my learned brother in the lead ruling delivered by my learned brother, I. S. Bdliya, JCA.
Appearances:
IBRAHIM AMBORE NUHU, ESQ., with him, AYUBA ADAMU, ESQ. and ABEL C. UBALA, ESQ. For Appellant(s)
A. AHMED, ESQ. HOLDING THE BRIEF OF A. Y. GALADIMA, ESQ. For Respondent(s)