DANLADI MAI SHANU ZODI v. ABDULLAHI ANNASARA
(2018)LCN/12148(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of November, 2018
CA/S/38M/2018(R)
RATIO
APPEAL: TO SEEK LEAVE OF APPEAL
“It is not grantable in the absence of a prayer seeking for leave to appeal as provided under Order 6 Rule 7 of the Rules stating thus: ‘The application for leave to appeal from a decision of a lower Court shall contain copies of the following items, namely: – (a) notice of motion for leave to appeal (Form 5); (b) a certified true copy of the decision of the Court below sought to be appealed against; (c) a copy of the proposed grounds of appeal; and (d) where leave has been refused by the lower Court, a copy of the order refusing leave.'” PER HUSSEIN MUKHTAR, J.C.A.
APPEAL: TO SEEK LEAVE OF COURT
“He must seek the following prayers: (1) seek extension of time to seek leave, (2) leave to appeal and (3) extension of time to the appeal. An application that does not contain any of those prayers is pertinently incompetent because all the 3 prayers are necessary for the grant of the prayer. See BRAITHWAITE & ORS V DALHATU (2016) LPELR 4030 1 (SC) ADELEKAN V. ECU ? LINE NO (2006) 12 NWLR (Pt 993) 33. The NIGERIAN AIRFORCE V COMMANDER T.L.S SHEKETE (2002)18 NWLR (Pt 798) 129.” PER AMINA AUDI WAMBAI J.C.A
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
DANLADI MAI SHANU ZODI – Appellant(s)
AND
ABDULLAHI ANNASARA – Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Lead Ruling):
By this application, the applicant has sought for the following reliefs:
1. An order of the Honourable Court granting the Applicant extension of time to seek leave to appeal against the decision of the Kebbi State High Court of Justice delivered on the 30th day of March 2017 in Appeal No. KB/HC/83A/2016.
2. An order of the Honourable Court granting the Applicant extension of time within which to appeal against the decision of the Kebbi State High Court of Justice delivered on the 30th day of March 2017 in Appeal No. KB/HC/83A/2016.
3. An order of the Honourable Court granting the Applicant extension of time within which to file an appeal against the decision of the Kebbi State High Court of Justice delivered on the 30th day of March 2017 in Appeal No. KB/HC/83A/2016.
4. And for such order or further orders this Honourable Court may deem fit to make in the circumstances.
The grounds of the application were not stated on the face of the application but rather mentioned in the written address. It is an elementary procedural law that grounds supporting an application must be articulated on the face of the application to make it comprehensive enough to meet the requirements of the Court of Appeal Rules 2016.
In his written address adopted at the hearing of the application, the learned counsel for the applicant A. A. Fingilla, Esq argued that the applicant has satisfied the twin requirements of the law as enunciated under Order 6 Rule 9(2) of the Rules. He relied on the depositions in the following paragraphs of the supporting affidavit:
7. That miffed by the said decision, the Applicant appealed to the Kebbi State High Court of Justice and after hearing the appeal, on the 30th day of March 2017, the High Court dismissed the appeal and affirmed the Judgment of the trial Court. Certified True Copy of the judgment of the lower Court is hereto annexed and marked exhibit ‘A’.
8. That still aggrieved, the Applicant further instructed Mr. Sulaiman Bello Ka’oje a counsel in the chambers who handled the matter before the lower Court to further appeal to this Honourable Court.
9. That due to the fact that the Applicant will incur so much expenses in filing the appeal such as payment for the filing of the Notice and Grounds of Appeal, the Compilation and transmission of the Records of Appeal and Mr. Ka’oje’s professional fee, etc, Mr. Ka’ oje was unable to apply for leave to appeal within the stipulated period as provided for by the Rules of this Honourable Court either at the Court below or before this Honourable Court.
10. That also among the reasons why the application was not made timeously was that the Applicant, who is now a taxi driver and depend solely on that business to cater for himself and his family, was unable to raise the funds because he has so many matrimonial responsibilities such as payment of school fees for his two children in the Usmanu Dan Fodio University, Sokoto, school fees for his two children (a boy and a girl) in the Waziri Umaru Federal Polytechnic, Birnin Kebbi and other younger ones in secondary and primary schools, in Zuru.
11. That sometime towards the end of 2011, the Applicant, on his way to Zuru had a ghastly auto crash (accident) but he survived with a fracture on his right leg, thus, he was taken the hospital in Zuru from there he was transferred to the Federal Medical Centre, Birnin Kebbi and later to Orthopedic Hospital, Kano where he was fully treated and on the advice of his Doctor he use to go for medical checkup after each two months, which is another serious and challenging expenses/burden on the Applicant and is one of the grounds why he was unable to raise money to sponsor the appeal to this Honourable Court.
12. That the Applicant later decided to approach our principal in chambers in person of Mr. A. A. Fingilla for assistance and he (Mr. Fingilla) compassionately promised to assist the Applicant and asked him to raise money for the filing of the Notice of Appeal and the compilation and transmission of the Records of Appeal.
13. That because Mr. Fingilla was not the person who prosecuted the appeal before the lower Court, thus, not conversant with the facts and circumstances of the suit, he applied for the judgment of the lower Court and the records to enable him get acquainted with the facts, but same were not made available to him within time.
14. That presently the time within which he shall file the appeal had already elapsed and it was not deliberate either on the part of the Applicant or that of Mr. Fingilla.
15. That a similar Application was filed before this Honourable Court on the 4th day of October 2017 with Motion No. CA/S/138M/2017, but was withdrawn and struck out on the 1st day of February 2018 due to the fact that the affidavit in support was not detailed enough on the reasons why the appeal could not be filed on time.
The learned counsel for the applicant submitted that the foregoing depositions have established good and substantial reasons for the delay in filing the Notice of Appeal and the grounds of appeal are strong enough to show reason why the appeal. He urged the Court to allow the application.
To the contrary, the learned counsel for the respondent submitted, in his written address, that the reasons stated in the supporting affidavit are not good and substantial enough as envisaged under Order 6 Rule 9(2) of the Rules of this Court. Moreover, the respondent has debunked the applicant’s depositions in two concise paragraphs of the counter affidavit, which are reproduced thus:
6. The respondent further denied paragraphs 12, 13 and 14 of the applicant’s affidavit, that the applicant never briefed A.A. Fingilla for assistance and the judgment of the lower Court was very much ready before the expiration of the time to appeal. The applicant and his counsel deliberately refused to appeal within time.
7. The respondent admits paragraphs 15 and 16 of the applicant’s affidavit and denied paragraphs 17, 18, 19 and 20 that the proposed notice/grounds of appeal do not contain good grounds of appeal and rights of the parties has been determined on merit, the applicant refusal to appeal within time was deliberate and granting the application will be prejudicial to the respondent.
However, the applicant, in a further and better affidavit confirmed the deposition in paragraph 6 of the counter affidavit above by admitting the availability of copy of the lower Court’s judgment within the stipulated time frame. For the avoidance of doubt, paragraph 8 of the further affidavit states thus:
8. That as regards to paragraph 6 of the Counter Affidavit, even if the judgment was ready before the time of appeal elapsed, the judgment alone does not suffice for Mr. Fingilla to draft the notice of appeal without knowing what really transpired before the lower Court and it is the practice of the lower Court that appeals are argued orally.
It is pertinent to observe that grounds of appeal are deduced from the decision of the Court below and not from arguments canvassed.
Moreover, the application itself apart from not stating the conditions upon which it is predicated, has also failed to seek for leave to appeal against the judgment of the Court below sitting in appellate jurisdiction. An applicant saddled with the responsibility of seeking for both leave and extension of time to appeal must do so by trinity prayers. In other words, the applicant must ask for three reliefs thus:
1. Extension of time to seek leave to appeal.
2. Leave to appeal and
3. Extension of time to appeal.
In the instant application, the second relief for leave to appeal is conspicuously missing. It is also a well settled position of the law that a Court does not grant any relief not asked for by the applicant. See the case of J. BAERTHLE AND CO LTD. V LIMA SERVICES LIMITED [1992] 1 NWLR (Pt. 217) 273 where this Court per Okunola, JCA (of blessed memory) aptly observed thus:
“it is clear that by granting a relief not sought, the learned judge has exceeded his jurisdiction. He has committed yet another error in law. In sum by committing the two errors highlighted above, the learned judge has occasioned a miscarriage of justice ‘his ruling’ is accordingly set aside.”
This Court, and any other Court for that matter, cannot grant a relief that has not been asked for. Where leave is required, the Court cannot in the absence of a relief properly sought to that effect, grant the applicant’s prayers for extension of time to appeal. It is not grantable in the absence of a prayer seeking for leave to appeal as provided under Order 6 Rule 7 of the Rules stating thus:
“The application for leave to appeal from a decision of a lower Court shall contain copies of the following items, namely: –
(a) notice of motion for leave to appeal (Form 5);
(b) a certified true copy of the decision of the Court below sought to be appealed against;
(c) a copy of the proposed grounds of appeal; and
(d) where leave has been refused by the lower Court, a copy of the order refusing leave.”
Each of the three reliefs, in an application for trinity prayers, is of critical importance. In other words, the three reliefs are complimentary to one another and as such not severable. Thus, the omission of an essential relief seeking for leave to appeal, has effectively crippled the other two reliefs and renders the entire application incomprehensible and certainly not granted.
In the circumstance, the application cannot but be out rightly refused and it is so ordered. The unsuccessful application is, without more ado, hereby dismissed. The parties shall bear their respective costs.
The respondent was served motion papers and hearing notice on 13/05/2018 and 23/09/2018 respectively
AMINA AUDI WAMBAI, J.C.A.: My learned brother, Hussein Mukhtar, JCA, obliged me a draft copy of the ruling just delivered. He has adequately addressed the sole issue of the incurably defective and incompetent nature of the main prayer on the motion. An applicant who requires leave to appeal and is out of time to file the notice of appeal, must in his prayer ask for whereas now commonly called the ‘trinity prayers’.
He must seek the following prayers: (1) seek extension of time to seek leave, (2) leave to appeal and (3) extension of time to the appeal. An application that does not contain any of those prayers is pertinently incompetent because all the 3 prayers are necessary for the grant of the prayer. See BRAITHWAITE & ORS V DALHATU (2016) LPELR 4030 1 (SC) ADELEKAN V. ECU ? LINE NO (2006) 12 NWLR (Pt 993) 33. The NIGERIAN AIRFORCE V COMMANDER T.L.S SHEKETE (2002)18 NWLR (Pt 798) 129.
The Appellant/Applicant herein having conspiciously omitted the most important prayer ‘leave to appeal’, the application cannot fly.
I must therefore agree with my learned brother that the application must be refused.
I too refuse the application and dismiss same.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance the draft copy of the Judgment delivered by my learned Brother Justice Hussein Mukhtar and I agree that the application cannot be granted. It is accordingly dismissed. I abide by the consequential order to cost.
Appearances:
A.A. Fingilla, Esq. with him, A.S. Sadiq, Esq. and T.O Oluwatayo, Esq.For Appellant(s)
Respondent was not representedFor Respondent(s)
