GIDADO v. DANKEMBU
(2021)LCN/15112(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, March 31, 2021
CA/YL/121M/2020(R)
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
ABDULRASAK GIDADO APPELANT(S)
And
AUDU DANKEMBU RESPONDENT(S)
RATIO
CONDITIONS TO BE MET BEFORE AN APPLICATION SEEKING FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL A DECISION OF THE HIGH COURT CAN BE GRANTED
In order to secure or obtain such discretionary indulgence from the Court, an application must meet certain conditions. The discretion of the Court is also required to be exercised judicially. The right to appeal is constitutionally guaranteed and an aggrieved party cannot be denied of such right. On the other hand, the same Constitution prescribed the time within which an aggrieved party may appeal. The Court must be satisfied that the justice of the case demands the Court’s indulgence in favour of an applicant. To grant an indulgence in extending within which to appeal a decision of the high Court for instance to this Court, (i) The application must set forth good and substantial reasons for the failure to appeal within the prescribed time and (ii) The proposed Notice of Appeal must contain grounds of appeal which, prima facie, show good cause why the appeal should be heard. See, R. LAUWERS IMPORT – EXPORT vs. JOZEBSON INDUSTRIES CO. LTD. (1988) LPELR – 2934 (SC); ELIAS & ANOR vs. ECOBANK (2019) LPELR – 46527 (SC) and (DR.) OLISA IMEGWU vs. MR. EUGENE UCHE OKOLOCHA & 2 ORS (2013) 9 NWLR (PT. 1359) 347; (2013) ALL FWLR (PT. 672) 1632. The two conditions must co-exist. In each case or circumstance, the depositions in the affidavit in support of the application would be examined to determine whether the explanation or reason for the delay is satisfactory enough to work on the mind of the Court to exercise its discretion in favour of the applicant. There must be good and special circumstances for the application to be granted. See, AKINPELU vs. ADEGBORE (2008) LPELR – 354 (SC) and OSINUPEBI vs. SHAIBU (1982) 7 SC 104. PER CHIDI NWAOMA UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): In the application filed on 11/11/2020 the applicant pursuant to Order 6, Rules 1 and 7 of the Court of Appeal Rules, 2016 and under the inherent jurisdiction of this Court sought the following reliefs:
1. “AN ORDER OF THIS HONOURABLE COURT enlarging time for the Applicant to appeal against the decision of the High Court of Justice, Adamawa State contained in the judgment of Hon. Justice Ambrose D. Mamadi delivered on the 19th of October, 2017 in the case of Abdulrazaq Gidado v. Audu Dankembu with Suit No. ADSY/69/2010.
2. Any order or orders as the Honourable Court may deem fit to make in the circumstances.”
The grounds upon which the application was brought were as follows:
1. “The judgment of the trial Court was delivered on the 19th of October, 2017 in the case of Abdulrazaq Gidado v. Audu Dankembu with Suit No. ADSY/69/2010.
2. The Applicant could not file his notice of appeal against the judgment within the time prescribed by the law.
3. The Applicant being dissatisfied with the judgment of the lower Court instructed his solicitors to file appeal
1
against same immediately.
4. On the 23rd of November, 2017, the Applicant’s solicitors filed a Notice of Appeal against the judgment as instructed.
5. The record of proceedings of the lower Court was compiled and transmitted to this Court by the registry of the lower Court with all the necessary documents in respect of the appeal.
6. On the 26th of June, 2018, when the appeal came up for hearing of the motion, it was discovered by this Court that the date on the judgment appealed against as indicated in the judgment was on the 19th of October, 2017.
7. The date indicated in the Appellant’s notice of appeal that the judgment was delivered is 18th of June, 2017 instead of 19th June, 2018.
8. Based on this discrepancy, the Applicant’s notice of appeal in Appeal No. CA/YL/18/2018 against the judgment of the lower Court was struck out for being incompetent.
9. The error in stating the correct date on the notice of appeal was that of Applicant’s counsel who inadvertently stated 18th of October, 2017 instead of 19th of October, 2017.
10. The time allowed by law within which the Applicant is allowed to file
2
his notice of appeal has since elapsed. It is imperative for the Applicant to seek for extension of time within which to appeal against the judgment.”
The application was supported by a seven (7) paragraph affidavit deposed to by one Jerry Moses, a litigation secretary in the law firm of Desmond S. Adebole & Co. Looking at the affidavit in support it was deposed that the judgment sought to be appealed against was delivered on 19th October, 2017 in the case of Abdulrasaq Gidado vs. Audu Dankembu, Suit No. ADSY/69/2010. The Certified True Copy of the judgment of the lower Court was attached to the affidavit and marked Exhibit ‘A’. An initial Notice of Appeal was filed on 23/11/17, the Notice of Appeal was struck out on 26th June, 2018 when the motion came up for hearing because the date of the delivery of the judgment in the Notice of Appeal was different from the date of the judgment of the lower Court. The learned counsel filed another motion on 5th June, 2020 for enlargement time within which to appeal against the judgment of the lower Court, the said motion was struck out on 9th November, 2020 for being incompetent (the
3
particulars of the case sought to be appealed against was not reflected on the face of the motion papers). The learned counsel once again filed the present application on 11/11/2020 seeking extension of time to appeal and exhibited the proposed Notice of Appeal, Exhibit ‘B’ attached to the motion papers. It was deposed that failure of the applicant to appeal against the judgment (Exhibit ‘A’) was not deliberate but, due to counsel’s mistake and that the application will not prejudice the Respondent in any way. The learned counsel to the Applicant submitted the following authority in support of his application, TERVER KAKIH VS. PEOPLES DEMOCRATIC PARTY (PDP) (2014) NWLR (PT 1430), P. 213, 434.
In opposing the application, the learned counsel to the Respondent filed a ten paragraph counter affidavit deposed to by one Alhaji Audu Dankembu, the Respondent in the present application. Further, that the applicant had filed an appeal against the judgment of the lower Court and that the appeal was struck out on 26th June, 2018. It was deposed that from that date nothing was filed by the Applicant for about two years when another
4
application was filed about two years later on 5/6/2020 for enlargement of time to appeal which was struck out before the present application filed on 11/11/2020. Further, that after one year of striking out of the appeal, no attempt was made to relist same following which the Respondent felt that the Applicant was no longer interested in appealing against the judgment, the Respondent partitioned the land in plots and sold to several purchasers, up to twenty (20) in number, four named in paragraph seven of his counter affidavit, the use made of the purchasers of the portions sold to them by the Respondent such as erecting buildings, block industry, bakery business amongst other usages were enumerated. The Respondent named others he sold portions of the land to and exhibited some of the sale Agreements, marked and attached to the counter affidavit as Exhibits 1, 2 and 3 respectively. Learned counsel to the Respondent in support of her argument filed the following authorities: IBN LIMITED vs. ATTORNEY GENERAL OF RIVERS STATE (2008) ALL FWLR (PT 417) 1 at PAGE 46, PARAS. C-D, PAGE 47, PARAS. C-E, OGUNDIMU vs. KASUMU (2006) ALL FWLR (PT 326) PAGE 207 at 215
5
– 216, PARAS. A – D, F.H.A. vs. ABOSEDE (1998) 1 SCNJ 133 at 138 and C. C. B. N. vs. OGWURU (1993) 3 SCNJ 54 at 58.
It was argued that the Applicant must give good and substantial reasons for the delay in appealing and the Notice of Appeal must contain good grounds of appeal. It was submitted that while the judgment sought to be appealed against was delivered on 19th October, 2017, the Notice of Appeal gave the date of the judgment as 18th October, 2017, therefore not relevant to the appeal in question.
I have gone through the motion papers, the affidavit in support and the Exhibits attached as well as the counter affidavit and the Exhibits also attached.
The relief sought by the applicant is discretionary but, it is also not granted as a matter of course. In order to secure or obtain such discretionary indulgence from the Court, an application must meet certain conditions. The discretion of the Court is also required to be exercised judicially. The right to appeal is constitutionally guaranteed and an aggrieved party cannot be denied of such right. On the other hand, the same Constitution prescribed the time within which an
6
aggrieved party may appeal. The Court must be satisfied that the justice of the case demands the Court’s indulgence in favour of an applicant. To grant an indulgence in extending within which to appeal a decision of the high Court for instance to this Court,
(i) The application must set forth good and substantial reasons for the failure to appeal within the prescribed time and
(ii) The proposed Notice of Appeal must contain grounds of appeal which, prima facie, show good cause why the appeal should be heard.
See, R. LAUWERS IMPORT – EXPORT vs. JOZEBSON INDUSTRIES CO. LTD. (1988) LPELR – 2934 (SC); ELIAS & ANOR vs. ECOBANK (2019) LPELR – 46527 (SC) and (DR.) OLISA IMEGWU vs. MR. EUGENE UCHE OKOLOCHA & 2 ORS (2013) 9 NWLR (PT. 1359) 347; (2013) ALL FWLR (PT. 672) 1632. The two conditions must co-exist. In each case or circumstance, the depositions in the affidavit in support of the application would be examined to determine whether the explanation or reason for the delay is satisfactory enough to work on the mind of the Court to exercise its discretion in favour of the applicant. There must be good and special
7
circumstances for the application to be granted. See, AKINPELU vs. ADEGBORE (2008) LPELR – 354 (SC) and OSINUPEBI vs. SHAIBU (1982) 7 SC 104.
The learned counsel to the applicant has attributed the delay in appealing against the judgment of the lower Court within time to his inadvertence because he gave the date of the judgment in the Original Notice of Appeal as 18th October, 2017 instead of 19th October, 2017. Looking at the motion papers, in the relief sought, the date of the judgment sought to appeal against was said to have been delivered on 19th October, 2017 in the case of Abdulrazaq Gidado v. Audu Dankembu with Suit No. ADSY/69/2010. The judgment is Exhibit ‘A’ attached to the motion papers. In paragraph 4 of the grounds for the application and paragraph 3 (C) of the affidavit in support, a Notice of Appeal was filed on 23rd November, 2017, it was deposed in paragraphs 3 (E) and (F) that when the appeal came up for hearing of the motion it was discovered by this Court that the Notice of Appeal indicated the date of delivery of the judgment as 18th June, 2017 instead of 19th June, 2018 (which is wrong). It is noteworthy that in
8
paragraph 3(F) of the supporting affidavit the deponent has given the date of delivery of the judgment as 19th June, 2018, which is also wrong.
The Notice of Appeal was struck out as deposed in paragraph 3 (G). Further, in paragraph 3 (H) the date of delivery of the judgment was given as 19th October, 2017. The question is: was the judgment delivered on 19th June, 2018 or 19th October, 2017.
A second motion to appeal out of time was filed on 5th June, 2020, two years after the striking out order of 26th June, 2018 (paragraph 3 (E), (F), (G) and (H) of the affidavit in support of the application) for enlargement of time within which to appeal (paragraph 3 (I) of the counter affidavit), the second motion paper was struck out on 9th November, 2020 for lacking in particulars of the case sought to be appealed against, which would identify the particular decision sought to be appealed against.
Further, Exhibit ‘B’ attached to the motion papers is the proposed Notice of Appeal in the present application, the date of the judgment of the lower Court sought to be appealed against was given as 18th October, 2017. As a whole we now have the
9
following dates as the date of delivery of the judgment as 19th October, 2017, 19th June, 2018 and 18th October, 2017. There is still inconsistency in the date of delivery of the judgment of the lower Court. Exhibit ‘A’ attached to the motion papers, the judgment of the lower Court was delivered on 19th October, 2017, as rightly argued by the learned counsel to the Respondent, after the first motion was struck out on 26/6/18, the applicant did not file another motion until 5/6/2020, two years after the judgment of the lower Court before the present application was filed on 11/11/2020. As deposed in the counter affidavit in opposition to the application, with no action taken by the applicant in view of re-filing his application for enlargement of time to appeal, the Respondent felt that (and rightly too) the applicant was no longer interested in filing an appeal against the judgment of the trial Court after two years, partitioned the plots and disposed of the land in question to different purchasers, about twenty (20) different people, paragraphs 5 and 6 of the counter affidavit. In paragraph 7, the applicant named some of the purchasers and the use
10
being made of the plots. In paragraph 8 of the counter affidavit, some of the buyers of the plot of land were also named and some of the sale agreements attached to the counter affidavit as Exhibits 1, 2 and 3. The applicant neither refuted the Respondent’s personal depositions nor did he file any further affidavit to the contrary. I am of the view that as much as often said that a litigant should not be made to suffer or be punished for the inadvertence, act or omission of his counsel but, learned counsel should be diligent, committed and careful in the prosecution of his client’s case. Within the two years or more of inactivity on the concluded case in which judgment had been delivered and there was no appeal filed against the decision, any beneficiary of such judgment, as the Respondent, would feel that the case is over, therefore free to deal with the land in question as he deems fit having obtained judgment in his favour.
No beneficiary of a valid judgment of the Court would wait indefinitely for his adversary that lost at the trial or any stage of the matter, to make up his mind whether to challenge the judgment in his favour or not.
11
Perhaps, if the land in question was still intact as it was at the time of the judgment, maybe the case would be different, it is hypothetical speculative and of no use since the land in question has been partitioned and sold by the Respondent.
I am of the view that the learned counsel to the applicant was neither diligent in filing the application in time nor meticulous and accurate with the facts of the judgment sought to be appealed against. The applicant also unnecessarily delayed in bringing the application. The delay is not the problem but, the learned counsel to the applicant had no explanation, that is, good and substantial reasons for the delay whatsoever for bringing the application two years after the first motion was struck out on 26th June, 2018. For an application such as the present one to succeed, the two conditions earlier given in this Ruling must co-exist. Further, the learned counsel did not show good cause why the appeal he sought to file out of time should be heard. See, UNITY BANK PLC. vs. IGALA CONSTRUCTION COMPANY LIMITED (2020) LPELR – 49881 (CA), ADELEKAN vs. ECU-LINE NV (2006) 12 NWLR (PT. 993) 33, BLESSING ODOCHA vs. ENGINEER (CHIEF) EBERE I. UDEAGU
12
(2017) LPELR – 43287 (CA) and E. F. P. CO. LTD. Vs. NDIC (2007) 9 NWLR.
The grant or refusal of an application for extension of time within which to appeal is discretionary, the application should be supported by an affidavit which must state sufficient reasons for the delay. The applicant is required to explain the following:
(a) The reason why the applicant could not appeal within time statutorily allowed to appeal and
(b) The reason why the application was not filed earlier than the time it was filed after the time statutorily allowed for the applicant to appeal.
The applicant failed to explain the above conditions and does not deserve the discretion of the Court in his favour. Further, there must be an end to litigation. The application lacks merit and it is hereby dismissed.
I award costs of N50,000.00 (Fifty thousand naira) to the Respondent.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother CHIDI NWAOMA UWA, J.C.A. afforded me the opportunity of reading before today the draft of the Ruling just delivered.
13
I agree with the reasoning and conclusion contained therein and join my learned brother in dismissing the application for lacking in merit.
I abide by the consequential order made as to costs.
14
Appearances:
A. Ogundeko, Esq. For Appellant(s)
J. Akanmode, Esq. with him, A. C. Obadiah, Esq. For Respondent(s)
