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BARAKA v. GUSAU (2020)

BARAKA v. GUSAU

(2020)LCN/14341(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, June 25, 2020

CA/S/2M/2020(R)

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

ALH. MALAMI DAN BARAKA APPELANT(S)

And

GARBA GUSAU RESPONDENT(S)

 RATIO

FACTOR TO ESTABLISH FOR AN APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH AN APPELLANT MUST TAKE CERTAIN PROCEDURAL STEPS

The general principle is that for an application for enlargement of time within which an appellant must take certain procedural steps to succeed, all the applicant is required to do is to establish good substantial or exceptional reasons or circumstance to explain satisfactorily the delay in taking the steps in the issue, required to justify the grant of the enlargement of time applied for. Therefore, whatever decision a Court arrives at in such application entirely depends on the exercise of its discretion, taking into consideration the general principles of law governing the exercise of discretionary powers by the Court and guided by the consideration of doing Justice to all the parties to the dispute. Equally, where there is an application for enlargement of time within which to do certain things, or take certain procedural steps prescribed by the rules of Court, the Court must always bear in mind that the rules of Court must prima facie be obeyed, and that to justify the exercise of its discretion, there must be some concrete materials upon which to base such exercise of discretion. PER TALBA, J.C.A.

WHETHER OR NOT A COURT MUST WEIGH THE BALANCE OF JUSTICE BETWEEN THE PARTIES WHEN CALLED UPON TO EXERCISE A DISCRETION

When a Court is called upon to exercise a discretion the Court must necessarily weigh the balance of Justice between the parties, bearing in mind the right of the parties. See SAM FAM FINANCIERS LTD VS AINA (2004) 2 NWLR (PT. 857) 297. The question to ask at this stage is whether it will be fair, just and equitable to grant this application when a third party has acquired an interest in the property in dispute at a time when there was no pending litigation hence judgment was delivered over 5 years and six months. In my humble view the answer is negative. Having failed to proffer good and substantial reasons for the failure to file an appeal within time, it is needless for the Court to consider whether the proposed grounds of appeal prima facie show good cause why the appeal should be heard. See PORTS AND MARINE SERVICES LTD VS UMARCO (NIG) LTD (2017) ALL FWLR (PT. 894). ​But however, a careful perusal of the proposed grounds of appeal reveals that in Ground two, three and four the applicant raised the issue of jurisdiction. It is settled law that it is not every Ground of Appeal that raises the issue of jurisdiction that will be regarded as one. The particulars supporting the ground must be thoroughly examined in order to convince a Court that there exists a breach complained of. See F. H. A. & ANOR VS Mr. A. A. KALEJAIYE (2010) 12 SC (PT. 111) 1. PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): On 13th day of April, 2020 the Respondent as plaintiff initiated Suit No: SS/25/2010 against the Applicant as defendant, before the High Court of Justice Sokoto, wherein the Respondent claimed the following Reliefs;
(a) A declaration that the plaintiff is the holder and or the person entitled to the statutory right of occupancy in respect of all that piece or parcel of land situate, lying and being at Mabera Zabbi Area of Sokoto, Sokoto Sate more particularly described as plot of land NO: 118 on plan/drawing No LP 196PH II and demarcated by property beacon numbers SKA 9694, SKA 9891, SKA 9890 and SKA 407 and covered by Sokoto State Government right of occupancy NO: SOK/G/3163.
(b) A declaration that since the plaintiff has not alienated his right of occupancy in respect of the said property or any part thereof in favour of the defendant or in favour of any person whatsoever since the period of grant till date, the defendant is a trespasser on the said property.
​(c) An order of perpetual injunction restraining the defendant his servants, agent and or privies (however

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called) from committing further acts of trespass on the said property of the plaintiff.
(d) An order awarding the sum of One Million Naira general damages against the defendant in favour of the plaintiff for the fort of trespass committed by the defendant on the said property of the plaintiff.
(e) The cost of this action.

The case was heard and determined on its merit. Judgment was delivered on the 12th day of June, 2014 in favour of the Respondent. Relief (a) and (b) were granted against the Applicant. Since the 12th day of June, 2014 when judgment was delivered the Applicant did not file a notice of appeal or in anyway challenge the decision of the High Court of Justice Sokoto, until the 3rd day of January, 2020 when the Applicant filed a motion on notice praying this Court for an enlargement of time within which to file an appeal to challenge the said decision of the trial High Court of Justice Sokoto.

On the 28th day of January, 2020 the Court ordered parties to file their written address within 14 days each. At the hearing of the Application on the 9th day of June, 2020, the Applicants counsel moved the motion on notice filed on

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3rd January, 2020 and he adopted his written address filed on the 6th February, 2020. He equally adopted his reply address filed on 27th February, 2020. He urged the Court to grant the prayers.

The respondent counsel adopted his written address filed on 25th February, 2020 in opposition to the application. He urged the Court to refuse the application.

The Application is bought pursuant to Order 6 Rules 9(1) of the Court of Appeal Rules 2016 and Section 15 of the Court of Appeal Act Cap C36 LFN 2004. The applicant is seeking for on order of Court granting an enlargement of time by 7 days within which the applicant may appeal to this Honourable Court against the decision of the High Court of Justice Sokoto delivered on the 12th day of June, 2014 in suit No: SS/25/2010. There are three grounds in support and a four paragraph affidavit with two annextures marked as Exhibits A & B. There is also a further and better affidavit of four paragraphs with two annextures marked as Exhibits C & D.

​The Respondent filed a 39 paragraph counter affidavit with one annexture marked as Exhibit GG1. The crux of this application is as contained in

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Paragraph 3(a) – (p) of the affidavit in support deposed to by Maryam Muhammad a litigation secretary in the law firm of Messus Ibrahim Abdullahi & Co, Solicitors to the Applicants.

The paragraph reads:
3 (a). That Alh. Malami Danbaraka is the applicant herein.
(b). That on the 13th of April, 2010, the Respondent Commenced Suit No: SS/25/2010 against the Applicant before the High Court of Justice Sokoto.
(c). That on the 12th of June, 2014 the High Court of Justice Sokoto delivered its judgment in favour of the Respondent. A copy of the said judgment is herewith annexed and marked as Exhibit A.
(d). That when the said Judgment was delivered it was one Aminu Alhassan Esq. that appeared in court for the applicant who was the defendant in Suit No: SS/25/2010.
(e). That after the delivery of the judgment in favour of the Respondent against the applicant, the implication of which was explained after the judgment, the shock of the judgment in making a declaration of title in favour of the respondent triggered the malady of the applicant, who at all material times to the institution of the case at the court below and till

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date is a chronic diabetic and hypertensive patient.
(f). That the crisis suffered by the Applicant arising from his sickness prevent any further communication from the applicant as to consent to file an appeal against the said decision.
(g). That the state of the health of the Applicant prevented him from giving real consent to his solicitors in filing of any appeal.
(h). That the family members of the applicant could not do so on behalf of the applicant but advised that they would communicate the decision for the filing of the appeal when the applicant recovers from his malady occasioned from his diabetic and hypertensive conditions.
(f). That owning to the nature of the case of the applicant he offered to do the appeal of the applicant on a probono basic save for the payments of monies for the transmission of the records.
(j). That unknowingly to him (Ibrahim Abdullahi Esq), one of the family members by name Wadata Malami had in July, 2014 (within the time limited for filing of an appeal) intimated parole to Shamsu A. Dauda Esq. an Attorney in the law firm of Ibrahim Abdullahi & Co. of the decision to appeal against the said

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decision, but the said Shamsu A. Dauda Esq. out of inadvertence forgot to relay the said information to him (Ibrahim Abdullahi Esq), who personally prepares notices of appeal and briefs in the chambers.
(k). That all along the said Ibrahim Abdullahi Esq. had been waiting for the family members to communicate the said decision to appeal or not while at the same time the applicant was contended that he (Ibrahim Abdullahi Esq) had acted on the information relayed to Shamsu A. Dauda Esq.
(l). That it was only of recent that the Applicant discovered that the Respondent has taken steps to start working on the disputed land that the Applicant on the 30th of December, 2019 was able to trace the new law firm of Ibrahim Abdullahi & Co. having relocated from the old address known to the applicant (i.e. No: 52 Aliyu Jobi Road sokoto) to Ibrahim Abdullahi & Co. Behind Umaru Ali Polytechnic Sokoto and enquired whether judgment was delivered against him by the court of Appeal.
(m). That it was after the narration of the Applicant and hearing from Shamsu A. Dauda Esq. that he got to discover that there was a communication gap between the information

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relayed to Shamsu A. Dauda Esq. and the act of God (relating to the forgetfulness) of Shamsu A. Dauda Esq. to communicate same to him (Ibrahim Abdullahi Esq.)
(n). That from the narrations of the Applicant given to him on the 30th of December, 2019 at about 10:00 am, at law firm of Ibrahim Abdullahi & Co. and which information he verily believed to be true, the Applicant had been on and off his chronic malady and had been on both orthodox and unorthodox medications.
(o). That the Applicant had signified his intention to appeal against the said judgment but for the communication gap as highlighted.
(p). That when the above discoveries were made the time within which the applicant could have filed a competent appeal had lapsed.

In his written address the applicants counsel raised a sole issue for determination thus;
“Whether the applicant is entitled to the grant of the relief sought.”

​Equally the Respondent counsel raised a sole issue for determination thus;
“Whether this is a proper application for this Honourable Court to exercise its equitable jurisdiction to grant in favour of the applicant

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regard being had to the facts and circumstances of this case.”

Though the two issues are the same but that of the Applicant is direct to the point and I adopt same. Section 241 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), guarantees the right of a litigant who is aggrieved by a decision of the High Court of Justice of a State sitting as a Court of first instance to appeal to this Court. The exercise of such a right of appeal is regulated by Section 14 (1) (a) of the Court of Appeal Act, 2004 which provides that an appeal must be filed within three months from the date of the judgment complained of where the appeal is against the final decision of the High Court in a civil matter. However, where a litigant has defaulted in filing a notice of appeal within the time stipulated by Section 24 of the Court of Appeal Act, 2004, Order 6 Rule 9 of the Court of Appeal Rules, 2016 provides that an Application for an enlargement of time within which to appeal maybe granted on the satisfaction of two conditions viz:
(a). Good and substantial reasons for failure to appeal within the prescribed period and

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(b) Grounds of appeal which prima facie show good cause why the appeal should be heard.
Order 6 Rule 9 of the Court of Appeal Rules 2016 has been expounded by Judicial pronouncements in a litany of cases.
In the exercise of its equitable jurisdiction the Court has to take into consideration the following essential factors viz;
1. That the Applicant has a right of appeal under the constitution.
2. That the affidavit in support of the application must give cogent, good and substantial reasons for the failure to appeal within the period statutorily prescribed.
3. That the (proposed) grounds of appeal must, prima facie show good Cause why the appeal should be heard.
4. That by and large, the Justice of the case demands that the appeal should be heard.
​See the cases of
IBODO VS ENAROFIA (1980) 5-7 SC 42.
OGBU VS URUM (1981) 4 SC 1.
WILLIAMS VS HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 ALL NLR (PT.1).
ALAGBE VS ABIMBOLA (1978) 2 SC 39.
OJORA VS BAKARE(1976) 1 SC 47.
HOLMAN BROS (NIG) LTD VS KIGO (NIG) LTD (1980) 8-11 SC 43.
IKENTA BEST LTD VS A.G RIVERS STATE (2008) 6 NWLR (PT. 1084) 612.

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KATOL INV LTD VS UACN PD & CO PLC (2011) 16 NWLR (PT. 1273) 211 @ 224.
​The general principle is that for an application for enlargement of time within which an appellant must take certain procedural steps to succeed, all the applicant is required to do is to establish good substantial or exceptional reasons or circumstance to explain satisfactorily the delay in taking the steps in the issue, required to justify the grant of the enlargement of time applied for. Therefore, whatever decision a Court arrives at in such application entirely depends on the exercise of its discretion, taking into consideration the general principles of law governing the exercise of discretionary powers by the Court and guided by the consideration of doing Justice to all the parties to the dispute. Equally, where there is an application for enlargement of time within which to do certain things, or take certain procedural steps prescribed by the rules of Court, the Court must always bear in mind that the rules of Court must prima facie be obeyed, and that to justify the exercise of its discretion, there must be some concrete materials upon which to base such exercise of discretion.

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Deposition in applicants affidavit in support of the application stated circumstances that bought about the delay and inability on his part to have appealed within time. He attributed the causes for the delay to two factors. One is that he was sick, and as such he could not communicate with his solicitor to give his consent to file an appeal within time. And secondly, that unknown to Ibrahim Abdullahi Esq. one of the family members by name Wadata Malami had in July, 2014 (within the time limited for the filing of an appeal) informed Shamsu A. Dauda Esq. an attorney in the law firm of Ibrahim Abdullahi & Co. of the decision to appeal against the said decision. But the said Shamsu A. Dauda Esq. out of inadvertence forgot to relay the information to Ibrahim Abdullahi Esq. And while Ibrahim Abdullahi Esq. was waiting for the family members to communicate the decision to appeal or not, the applicant was contended that Ibrahim Abdullahi Esq. had acted on the information relayed to Shamsu A. Dauda Esq. These are two inconsistent statements of fact. In one breath the applicant is saying that because of his sickness he could not communicate

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with his solicitor to give his consent to file an appeal within time and in another breath the applicant is saying that his family member had given instructions to one Shamsu A. Dauda Esq, within the time limited, to file an appeal, But Shamsu A. Dauda Esq. forgot to relay the information to Ibrahim Abdullahi Esq. Where a litigant makes two inconsistent statements the Court is entitled to disbelieve the two statements some excuses for delay in taking steps within the time statutorily stipulated are genuine while some are trumped-up for purposes of taking advantage of the provision of the rules. It is for the Court to decide on whether the applicants excuse is substantial and tenable. I must observe that the exercise of judicial discretion should not be arbitrary. It must be exercised according to rules of law, practice, procedure and rules of reason, fairness and Justice. The Court must exercise its discretionary powers judicially and judiciously, within the bound of reason and acceptable limits and without evoking sentiment or emotion in favour of either of the parties. Thus, in an application of this nature, each case must be determined on its own peculiar

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facts and circumstances. The deposition in the applicant affidavit in support accounted for a period of five years and six months.
The judgment was delivered on the 12th day of June, 2014 and this application was filed on the 3rd day of January, 2020. Even if the Court decides to give the applicant benefit of the doubt regarding the veracity of his two inconsistent statements of facts, it is not in doubt that the extent or duration of delay has been unduly long somewhat inordinate. Timeous and timely action aid the vigilant. in other words, equity aids the vigilant and not the indolent.
​The truth about this case is that the applicant decided to make this application, when he discovered that there was a construction work on the land in dispute. For a better appreciation see paragraph 3 (L) of the affidavit in support which reads:
3 (L) “That it was only of recent that the applicant discovered that the Respondent has taken steps to start working on the disputed land that the Applicant on the 30th of December, 2019 was able to trace the new firm of Ibrahim Abdullahi & Co. having relocated from the old address known to the Applicant

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(i.e. No 52, Aliyu Jodi Road Sokoto), Ibrahim Abdullahi & Co.
Behind Umaru Ali Polytechnic Sokoto and enquired whether judgment was delivered against him by the Court of Appeal.”
Equally, in paragraphs 16 to 23 of the counter affidavit, the Respondent deposed to the fact that since 12th June, 2014 when Judgment was delivered in favour of the Respondent, the applicant never entered upon the said parcel of land till date. But in August 2019, the Respondent gave instruction for the sale of the land to interested buyer, hence there was no pending appeal against the judgment and no order for stay of execution of the judgment. On the 25th August, 2019 the land was sold to Abdulkadir Abdullahi who took possession and he commenced the development of the land by first erecting a perimeter fence. It was when the applicant noticed the development, then he decided to rush to this Court to file this instant application.
​It is crystal clear that the applicant who wakes up from his slumber after 5 years and six months because he saw a development, on the land cannot qualify for discretion of the Court in his favour.

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When a Court is called upon to exercise a discretion the Court must necessarily weigh the balance of Justice between the parties, bearing in mind the right of the parties. See SAM FAM FINANCIERS LTD VS AINA (2004) 2 NWLR (PT. 857) 297. The question to ask at this stage is whether it will be fair, just and equitable to grant this application when a third party has acquired an interest in the property in dispute at a time when there was no pending litigation hence judgment was delivered over 5 years and six months. In my humble view the answer is negative. Having failed to proffer good and substantial reasons for the failure to file an appeal within time, it is needless for the Court to consider whether the proposed grounds of appeal prima facie show good cause why the appeal should be heard. See PORTS AND MARINE SERVICES LTD VS UMARCO (NIG) LTD (2017) ALL FWLR (PT. 894). ​But however, a careful perusal of the proposed grounds of appeal reveals that in Ground two, three and four the applicant raised the issue of jurisdiction. It is settled law that it is not every Ground of Appeal that raises the issue of jurisdiction that will be regarded as one. The particulars supporting

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the ground must be thoroughly examined in order to convince a Court that there exists a breach complained of. See F. H. A. & ANOR VS Mr. A. A. KALEJAIYE (2010) 12 SC (PT. 111) 1.
A critical examination of the particulars of grounds two, three and four reveals that the issue relates to evaluation of evidence by the trial Court rather that the issue of jurisdiction.
In summary and conclusion, the sole issue is resolved against the applicant. The Application is refused, cost of ₦100,000 is awarded against the applicant in favour of the Respondent

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of a preview of the ruling just delivered by my learned brother, Talba, JCA. I agree with his reasonings and conclusion that the application is devoid of any merit and ought not to be granted.

​FREDERICK OZIAKPONO OHO J.C.A.: I read the draft of the Ruling of my learned Brother, ABUBAKAR M. TALBA-JCA just delivered and I am in agreement with the reasoning and conclusions refusing to grant the Application as completely devoid of merit. I subscribe to all consequential orders made thereto, including the one as to costs.

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Appearances:

Ibrahim Abdullahi, Esq. For Appellant(s)

A. Ochindi, Esq. For Respondent(s)