FARUKU HAKIMI & ANOR v. ALH. TUKUR DALIJAN & ANOR (2013)

FARUKU HAKIMI & ANOR v. ALH. TUKUR DALIJAN & ANOR

(2013)LCN/6522(CA)

In The Court of Appeal of Nigeria

On Thursday, the 21st day of November, 2013

CA/S/55S/2011

RATIO

WHETHER INABILITY TO OBTAIN RULING IS A GOOD REASON FOR AN EXTENSION OF TIME TO APPEAL

JUSTICES

JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

FARUKU HAKIMI & ANR Appellant(s)

AND

ALH. TUKUR DALIJAN & ANR Respondent(s)

TUNDE O. AWOTOYE, J.C.A. (Delivering the Lead Ruling): This is the ruling on the motion on notice brought pursuant to section 244 (1) & (2) of the constitution and Order 7 Rule 1, 6, 7 and 10 of the Court of Appeal Rule 2011 praying for;

1. “An Order extending time to the applicants to seek leave of this Honourable Court to apply for leave to appeal against the decision of Kebbi State Sharia Court of Appeal in Suit No.SCA/KBS/KB/69/2010 delivered on the 22/12/2010 as interested parties.

2. An Order of this Honourable Court granting leave to the Applicants to file a notice of appeal against the decision of Kebbi State Sharia Court of Appeal in Suit No/SCA/KBS/KB/6/2010 delivered on the 22nd day of December 2010 as interested parties.

3. An Order extending time within which the Applicants may appeal against the decision of Kebbi State Sharia Court of Appeal in Suit No/ SCA/KBS/KB/6/2010 delivered on the 22nd day of December 2010 as interested parties.

4. An Order deeming the proposed notice of appeal attached as Exhibit “A” as having been duly filed and served on the Respondent.

5. For such further order/orders as this Honourable Court may deem fit to make in the circumstances.”

The grounds upon which the application is based are:

“1. The time within which the Applicants/Interested Parties may file their Application for leave to appeal as interested parties and consequent Notice of Appeal against the judgment of State Sharia Court of Appeal in Suit No/ SCA/KBS/KB/6/2010 delivered on the 22nd day of December 2010 has already elapsed.

2. The Applicants interested were affected by the decision of State Sharia Court of Appeal in Suit No/ SCA/KBS/KB/6/2010 delivered on the 22nd day of December 2010, despite the fact that they are not party to the original suit.

3. The statutory regulated time to appeal had already elapsed and the applicants seek leave to appeal as interested parties.”

The applicants annexed the proposed notice of appeal and the judgment of the lower court as exhibits in the affidavit.
The applicants also filed a written address.

The Respondents on the other hand filed counter-affidavits to oppose the application. The 1st Respondent in addition filed written address in opposition.
In his written address, the applicants formulated one issue for determination to wit; whether the grant of this application is at the discretion of this court that must be exercised judicially and judiciously.

The applicants counsel M. A. Sambo submitted that this court had the power to grant this application. He referred the court to ALHAJI ABDULLAHI ATANDA KOLAWOLE V SALAMI ADISA OLOR, IFELODUN LOCAL GOVERNMENT [2007] 11 WRN 63 at 65.
He submitted that the applicants were interested persons and that the refusal of this application would amount to denying the appellants/applicants constitutional right.
He further urged the court to grant extension of time as per prayer 3 on the motion paper. He relied on ITEX LIMITED v. INLAND BANK NIGERIA PLS [2007] 16 WRN 170. He referred the court to paragraphs 3a – k of the supporting affidavit and submitted that sufficient reasons for the delay were given in the affidavit.
He finally urged the court to grant the application.

In the 1st Respondents written address filed by B. B Orpin learned counsel conceded that the applicants by paragraph 2(a)(k) of their supporting affidavit had shown that they had sufficient interest in the subject matter of the judgment.
He however submitted that the two conditions as laid down in Order 7 Rule 10 of the Court of Appeal Rule and the case of F.H.A V. ABOSHADE (1988) I SCNJ 133 at 138 were not met by the applicants. He submitted that an application which satisfied only one of these conditions was not meritorious and ought to be dismissed he relied on I.B.N LTD V. ATTORNEY GENERAL RIVERS STATE (2008) ALL FWLR (Pt.41) 1 at 26.
He submitted further that even though the appellants counsel was briefed immediately after judgments, the application was filed more than 6 months after. He added that failure to obtain a copy of a judgment was not a good reason for failure to appeal within the prescribed period.
He urged this court to dismiss the application.

I have carefully considered the submissions of learned counsel on both sides as well as the averments in the affidavits filed.
Having regard to the concession by 1st Respondent’s counsel in his written address that the applicants were interested parties what remains to be considered is whether or not the applicants have given adequate and sufficient reasons to justify being granted an extension of time to appeal is this application in line with Order 7 Rule 10 (2) of the Court of Appeal Rules 2011.

Order 7 Rule 10 (2) of the Rules read thus;

“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 enlarge a copy of the order granting such enlargement shall be annexed to the notice of appeal”.

Have the applicants set forth good and substantial reasons for failure to appeal within the prescribed period? The reasons adduced by the applicants for their failure to appeal within time are set out in paragraph 3(h-m) of the supporting affidavit, in my respectful view. The paragraphs read;

a. That they only heard about this case when it was first decided by the Lower Sharia Court (trial court) Dalijan.

b. That all effort to see that they were joined did not succeed at the Upper Shariah Court and the Sharia Court of Appeal Birnin Kebbi.

c. That they twice appeared before the Upper Shariah Court II Birnin Kebbi and asked to be joined in the suit, the judges told them that they were not the one sued and they were late.

d. That they were told the same thing when they asked to be joined at the lower court.

e. That immediately after the decision of the Shariah Court of Appeal, Birnin Kebbi in SCA/KBS/BK/69/2010, they brief our principal about the matter.

f. That because of the need to gather and translate the decision of the trial courts, the counsel delayed in filing the application.”

It is clear from the paragraphs 3(l) of the supporting affidavit that the applicants briefed their counsel about the matter immediately after the decision of the lower court. It is also clear that it was the counsel, from paragraph 3 (m) that delayed in filing the application because of the need to gather and translate the decisions of the trial court.
To delay the filing of an appeal because of the need to translate and gather the decisions is clearly an unacceptable and insufficient reason and cannot be used to justify a delay in an application for extension of time.

It has been held in several cases that if no reasons are given for the delay no indulgence should be granted. See S. O MADUABUCHUKWU V MADUABUCHUKWU (2006) 10 NWLR (Pt. 989) 475 at 482, UKWU V BUNGE (1997) 8 NWLR (PART 518) 527 at 541, IBODO & ORS V ENAROFIA & ORS (1980) 12 NSCC 195.
Inability to obtain a ruling is not a good reason to seek for an extension of time to appeal. See FHA V. ABOSHADE (1998) 2 NWLR (Pt. 537) 177.
It seems clear from the averments of the applicants that their counsel erroneously delayed the filing of the notice of appeal even though he was promptly briefed immediately after the judgment of the lower court. Mistake of counsel should not be visited on the parties see OGUNBIYI V. MUSTAPHA (1996) 4 NWLR (Pt. 442) 337, IYALABANI CO. LTD V. BANK OF BAROOLA (1995) 4 NWLR (Pt. 387) 20, BOWAJE V. ADEDIWURA (1976) 6 SC 143 and INAKOJU V. ADELEKE (2009) 4 NWLR (Pt. 1025) 423 at 620.
To my mind, to refuse this application based on the delay caused by the error of counsel as deposed to in paragraph 3 of the supporting affidavit is to visit the sin of counsel on the applicant.
I have looked at the proposed grounds of appeal some of which raised issues of jurisdiction. I am convinced they are arguable.
I see no reason to refuse this application.
In the circumstance this application is granted Orders as prayed.
Prayers 1 – 4 as per the motion paper are granted.
Parties shall bear their respective costs.

JA’AFARU MIKA’ILU, J.C.A.: The facts are clear as in the lead ruling of my learned brother Hon. Justice Tunde O. Awotoye, JCA. I agree with the reasons given in said ruling as well as the conclusion reached thereof.
Consequently I hereby grant the application as per prayers 1 – 4.
Parties to bear their costs.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance in draft the lead ruling of my learned brother Tunde O. Awotoye, JCA. Applicants’ counsel delayed in filing the Applicants’ appeal because he wanted to collect and translate decision of the trial court. This is no good reason for granting extension of time within which to appeal. However sin of counsel should not be visited on the Applicants.
For this reason and others contained in the lead ruling I am of the view too that the application should be granted. It is accordingly granted. Prayers 1 – 4 of the motion paper are granted as prayed.
I abide by the order as to costs.

Appearances

For Appellant

AND

For Respondent