HAJIYA HAUWAU IBRAHIM & ANOR v. ALHAJI HUSSAINI ZANGE & ANOR
(2019)LCN/12763(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of February, 2019
CA/S/131M/2018(R)
RATIO
APPEAL: PRAYER TO THE COURT
“The last three prayers are wholly dependent on the 1st prayer. The other prayer can’t succeed unless the applicant is first made a party in the case. In the instant case, while the necessary leave to appeal out of time was not obtain by the 2nd Respondent his application to appeal as an interested party before the Court of Appeal was incompetent and wrongly granted (Odofin vs. Agu (1992) 3 NWLR (pt. 229) 350; Adeleke vs. Oyo State House of Assembly (2006) All FWR (pt. 319) 862.” PER FREDERICK OZIAKPONO OHO, J.C.A.
APPEAL: RIGHT TO SEEK LEAVE OF COURT
“‘By the provisions of Section 243 (a) of the Constitution of the Federal Republic of Nigeria, 1999 there are two categories of persons who can appeal. The first category belongs to parties to the proceedings who may appeal as of right. The second category can only do so with the leave of the Court and not as of right. The right to appeal in this instance is only exercisable with leave, at the instance of the person who can show that he has an interest in the matter. Such a person has herculean duty to satisfy the Court that he has a legal grievance in the matter and that the decision pronounced has wrongfully and prejudicially refused him something which he had a right to demand. Only a person whose interest has been directly and not obliquely, affected by a decision can validly seek leave to appeal-as an interested party. This would not cover a person who has a general interest in the said, decision to appeal against same. In a matter of application for leave to appeal by an interested party, his interest must be clear from the record of proceeding and not from the affidavit he filed in support of his application…'”PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
1. HAJIYA HAUWAU IBRAHIM
2. MUSTAPHA ALHAJI UMARU MAIWADA
(Representing the family of Late Alhaji Umaru Maiwada) Appellant(s)
AND
1. ALHAJI HUSSAINI ZANGE
2. ALHAJI BAWA ABDULLAHI DABAI Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A.(Delivering the Lead Ruling):
By motion on notice brought pursuant to Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Order 6 Rules 1 and 2 and 9 (1) and (2) of the Court of Appeal Rules, 2016 and under the inherent powers of this Court the Applicant prayed this Court for the following Reliefs;
1. An order of this Honourable Court granting the Applicants leave to appeal as interested parties against the decision of the Kebbi State High Court, Zuru Division in Suit No: KB/ZR/HC/4CV/2016 delivered, on the 16th day of March, 2017 Styled ALHAJI HUSSAINI ZANGE vs. ALHAJI BAWA ABDULLAHI DABAI.
2. An Order of this Honourable Court granting applicants extension of time within which to file their Notice of Appeal against the judgment of the Kebbi State High Court, Zuru Division in suit No: KB/ZR/HC/4CV/2016 delivered on the 16th day of March, 2017 styled ALHAJI HUSSAINI- ZANGE vs. ALHAJI BAWA ABDULLAHI DABAI if order 1 and 2 above are granted.
3. And for such further order or orders as this Hon. Court may deemed it fit to make in the circumstances.
The grounds upon which the application is brought are as follow;
1. That the 2nd Applicant’s father and 1st Applicant’s son (One Alh. Umaru Maiwada) bought 3 shops from the 2nd Respondent sometimes in 2014 in Zuru Local Government Area of Kebbi State.
2.That the 1st Respondent also bought the same Shops from one Hussaini Isa who was assigned by the 2nd Respondent to sell same.
3.That the 1st Respondent sometimes in the year 2015 sued the 2nd Applicant’s father who is also the son to the 1st Applicant before the Upper Sharia Court Zuru in suit No: USC/ZUR/CV/14/2015 and judgment delivered on the 14th July, 2016.
4. That the judgment was entered in favour of the 2nd Applicant’s father and his sale was confirmed under Islamic law being the first in time.
5. That dissatisfied with the judgment the 1st Respondent approached the Kebbi State High Court and filed another case by Originating Summons against 2nd Respondent only without joining the 1st and 2nd Applicants who inherited the property from the Late Alhaji Umaru Maiwada.
6. That the Applicants were not parties to that case and were not even aware that the judgment of the Upper Sharia Court Zuru was nullified by the Kebbi State High Court behind their back and confirm the sale to the 1st Respondent.
7. The judgment of the Kebbi State High Court affected their title to the three shops.
8. That the period for appeal has elapsed.
The Application has in its support an Affidavit of four (4) paragraphs sworn to by one Safiya M. Na’Allah. There is filed in opposition of the grant of the motion, a 1st Respondent’s counter affidavit of twenty-nine (29) paragraphs sworn to by Alhaji Hussiani Zange in which the 1st Respondent denied all the averments in the Affidavit in support of the motion. There is also filed unto Court, a 1st Respondent’s Further and Better counter Affidavit on the 22-11-2018. Learned Counsel also filed and relied on their written addresses and a reply on points of law by the Applicant. These processes were adopted before Court on the 16-1-2019 and the motion reserved for ruling.
In arguing this application, Counsel for the Applicant Garba Abubakar Shehu Esq., submitted that in an application of this nature, for an applicant to be granted leave to appeal as an interested party he must show not only that he is a person having interest in the matter but also that the order or judgment of the Court below he is seeking leave to appeal against, prejudicially affects his interest. In other words, Counsel said that to succeed in the application, the Applicants must show that they are persons who are aggrieved, or persons who have suffered legal grievances; or persons against whom decisions have been pronounced, which have wrongfully deprived them of something or wrongly refused them of something or wrongly affected their title to something. He cited the case of SENATOR NKECHI JUSTINA NWAOGU vs. HON. EMEKA ATUMA & ORS (2012) LPELR-19648(SC).
In respect of this submission, Counsel drew attention to paragraphs 3. a), b), c), d), e), f), g), i), j) and K), of the Applicants’ affidavit in support. Counsel told Court of how the 1st Respondent sued the 1st Applicant’s son and father to the 2nd Applicant, one Alhaji Umaru Maiwada before the Upper Sharia Court, Zuru as he also claims to have bought the shops and under Islamic law, which sale to the said Alhaji Umaru Maiwada was confirmed by the Upper Sharia Court Zuru; while the said Alhaji Umaru Maiwada remained in possession of these shops as tenant even before the sale and thereafter even after the judgment of the Upper Shari’a Court Zuru in exhibit A & A1.
It was contended that while nullifying exhibits A & A1 in the judgment of the Upper Shari’a Court given in favour of Alhaji Umaru Maiwada, it was done without joining the said Alhaji Umaru Maiwada or his surviving heirs and that this affected their rights of fair hearing since the judgment was in his favour. Counsel further contended that the judgment therefore sought to be appealed against deprived the Applicants of the title to the shops they inherited from Alhaji Umaru Maiwada, which was confirmed on him by exhibit A & A1 and now confirmed same on the 1st Respondent.
As far as Counsel was concerned, these are enough facts to show genuine interest of the Applicants who are the legal heirs of the said Alh Umaru Maiwada. He submitted in this connection that by these facts the Applicants are entitled to be granted leave to appeal as interested parties and he urged the Court to so hold. Counsel further contended that there is no law that imposes on an interested party a time frame within which to seek leave to appeal as an interested party. See RE: INCORPORATED TRUSTEES OF ACTS OF APOSTLE CHURCH & ORS (2015) LPELR-24727(CA).
In referring specifically to prayer one on the motion paper, Counsel submitted that an Applicant seeking an extension of time to appeal must establish by affidavit evidence, cogent reasons for the failure to appeal within the period prescribed and must exhibit a notice of appeal which shows prima facie and good cause why the appeal should be heard. See I.C.A.N vs. UNEGBU (2012) 2 NWLR (part 1284) 326 at 343. Counsel argued that in the instant application, the Applicant had deposed in paragraph 3 of the Affidavit in Support the reasons for the failure to appeal within time as lack of knowledge of the existence of the judgment that affects their interest. See paragraphs 3 (i), (j), (k), (I) and (m) of the affidavit in support of this application.
In his further arguments, Counsel submitted that the 1st Respondent is not disputing that the judgment of the High Court sought to be appealed against was delivered on the 16th March, 2017 and that he did not take any steps to recover the shops against the 2nd Applicant until sometimes on the 18th November, 2017 and January, 2018 after about 8 months and 10 months respectively, but that whichever of the dates taken, that the Applicants were only aware after the expiration of the period of three (3) months, which expired on the 16th June, 2017.
Against the backdrop of this position, Counsel also argued that the fact that the Applicants only got wind of the existence of the said judgment is a good reason for granting prayer 3, which seeks for extension of time to appeal and he urged this Court to grant prayer 3 of the Applicants.
Learned Counsel further drew attention to the fact that the proposed grounds of appeal also questions the legality of nullifying a judgment given in favour of the said Alhaji Umaru Maiwada, the son to the 1st Applicant and Father to the 2nd Applicant without joining him as a party. In addition, that the grounds also question the determination of the sale in accordance with the principles of English Law, which Counsel said, is an issue of law that is arguable before this Court.
In his submission on the issue, Counsel said that by the proposed grounds of appeal as contained in exhibit ‘D’, the Applicants have satisfied the 2nd requirement of an application for extension of time. He urged the Court to grant the Application.
In respect of the assertion of the 1st Respondent who is of the view that the Applicants were aware of the judgment since when it was delivered, Counsel argued that the 1st Respondent carries the burden of proving what he asserts by showing either that they were joined and served but had refused to appear or by any means that they were communicated, as the law is trite that he who assert carries the burden of proof.
The submission of Counsel is that the 2nd Applicant being one of the heirs of Late Alh. Umaru Maiwada and the one in physical possession of the shop only became aware of the decision of Upper Sharia Court Zuru in suit No: USC/ZUR/CV/14/2015 in favour of his father because his father showed him the Judgment; i.e. Exhibit A and A1 which confirmed the sale of the 3 shops to his father. Counsel therefore submitted that the only documents required to accompany this application are the judgment sought to be appealed against and the proposed grounds of appeal. See Order 6, Rules 7 of Court of Appeal Rules 2016.
It was further contended by Counsel, that the trial Court i.e. Kebbi State High Court has no jurisdiction to extend time to appeal to the Court of Appeal after the expiration of the 3 months? period. He cited the case ofN.N.P.C vs. ODIDERE ENTERPRISES NIGERIA LIMITED (2008) 8 NWLR (Pt. 1090) 583 at 607 para e-f, hence the reason for filing of this application before this Court. He urged this Court to grant the Application.
In arguing in opposition of the grant of this Application, learned Counsel for the 1st Respondent Roland Adebayo Eyelade Esq., identified a lone issue for the determination of the Court thus; whether or not the Applicants’ application is defective both in form and substance and which will attract an order of dismissal. Counsel took his time to reproduce the two (2) prayers of the Applicant thus;
PRAYER 1:
An order of this Honourable Court granting the applicants leave to appeal as interested parties against the decision of the Kebbi State High Court, Zuru Division in SUIT NO: KB/ZR/HC/4CV/2016 delivered on the 16th day of March, 2017 styled ALHAJI HUSSANI ZANGE vs. ALHAJI BAWA ABDULLAHI DABAI.?
PRAYER 2:
“An order of this Honourable Court granting applicants extension of time within which to file their notice of appeal against the judgment of the Kebbi State High Court, Zuru Division in suit no KB/ZR/HC/4CV/2016 delivered on the 16th March, 2017 styled ALHAJI HUSSANI ZAGE vs. ALHAJI ADULLAHI DABAI if order 1 and 2 above are granted.
The submission of learned Counsel, for the 1st Respondent is that for a party to be allowed to appeal as an in interested party, his application must have the features prescribed by the apex Court in the case of CHUKWU vs. INEC (2014) ALL FWLR (PT. 741) 1550, Paragraphs. G-H, Pg. 1551, Paragraphs A-C) ratio: 2 and 3;
Ratio 2:
“By the provision of Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999, a person seeking leave to appeal as an interested party must seek the following:
1. Leave to appeal as a person having an interest in the case and under the rules of Court.
2. Extension of time within which to apply for leave to appeal.
3. Leave to appeal; he may of course, add other prayers for instance.
4. Extension of time with which to file notice and ground of appeal.
The last three prayers are wholly dependent on the 1st prayer. The other prayer can’t succeed unless the applicant is first made a party in the case. In the instant case, while the necessary leave to appeal out of time was not obtain by the 2nd Respondent his application to appeal as an interested party before the Court of Appeal was incompetent and wrongly granted (Odofin vs. Agu (1992) 3 NWLR (pt. 229) 350; Adeleke vs. Oyo State House of Assembly (2006) All FWR (pt. 319) 862.
Ratio 3:
“By the provisions of Section 243 (a) of the Constitution of the Federal Republic of Nigeria, 1999 there are two categories of persons who can appeal. The first category belongs to parties to the proceedings who may appeal as of right. The second category can only do so with the leave of the Court and not as of right. The right to appeal in this instance is only exercisable with leave, at the instance of the person who can show that he has an interest in the matter. Such a person has herculean duty to satisfy the Court that he has a legal grievance in the matter and that the decision pronounced has wrongfully and prejudicially refused him something which he had a right to demand. Only a person whose interest has been directly and not obliquely, affected by a decision can validly seek leave to appeal-as an interested party. This would not cover a person who has a general interest in the said, decision to appeal against same. In a matter of application for leave to appeal by an interested party, his interest must be clear from the record of proceeding and not from the affidavit he filed in support of his application…?
In his arguments against the grant of this application, Counsel contended that the reliefs sought under the application falls short of the legal requirements as espoused in the said Supreme Court decision of CHUKWU vs. INEC (supra). According to Counsel, the processes filed are insufficient and renders this application incompetent and also an abuse of the process of this Court. It was also submitted that Applicant’s Counsel arguments wherein he suggested that no time is specified to bring an Application to Appeal as an interested party, was clarified by the Supreme Court in the case of ASSAMS vs. ARARUME (2016) All FWLR (PT. 821) ratios 1 and 2 where the Court held:
‘No period of time is prescribed within which an interested party may bring an application for leave to appeal as a person with interest in the matter but when a party obtains leave to appeal as an interested party, he must appeal within the time prescribed by Section 25 of the Court of Appeal Act, 1976.’
It was thereafter contended by Counsel that out of the four prayers prescribed for an applicant/appellant seeking leave to appeal as an interested person, especially when out of time, the Applicants in the instant application only sought two (2). The argument of Counsel therefore is that this renders this application unmeritorious and he urged this Court to so hold.
‘Apart from this, Counsel further argued that the Applicants have not shown the magnitude of interest they have in the three steps having not annexed to their application the record of proceeding from the trial Court which contains the affidavit in support and counter affidavit with reply and day to day sitting of the trial Court. Counsel argued that a party who seeks the indulgence of the Court must satisfy the Court with sufficient materials. See: P.M.S LTD vs. UMARCO (NIG) LTD (2017) All FWLR (PT 894) RR. 4, 5 & 6 PAGE 1436-1438. Counsel further argued that the 1st Respondent, in proof of the facts in his counter affidavit attached the purchase receipt of the three (3) shops and a letter remitted to the 2nd Applicant to quit the shops and that all these pieces of evidence were neither challenged nor denied and therefore deemed admitted. See:MAERSK vs. WINLINE (NIG.) LTD (2015) ALL FWLR (PT. 808) R. 7 PAG E 688-689.
According to Counsel, on the 13th day of November, 2018 the Applicants filed a further and better affidavit where they alleged at paragraph 3(i) that the money of the Applicants’ father is still with the vendor for the 3 shops up till now and that this prompted the 1st Respondent to bring before this Court the affidavit and counter affidavit of the parties at the trial Court for this Court to see the veracity of that assertion. Hence, the filing of a further and better counter affidavit by the 1st Respondent. Against this position, Counsel referred this Court to paragraphs 8, 9 and 10 of the further and better counter affidavit; and exhibits 4, 5 and 6. Counsel finally urged this Court to dismiss the Application.
I have taken a very careful and calm perusal of the processes filed by the parties along with the written addresses of their Counsel. The settled position is that a party to a civil proceeding need not seek leave to appeal, if he appeals within time. A person having an interest in the matter must seek the leave of the Court of Appeal to Appeal. Usually, the test of interest to determine a person interested is whether the person could have been joined as a party to the suit. A person interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings. See the case of OJUKWU vs. MIL. GOV. OF LAGOS (NO.1)(1985)2 NWLR (PT. 10) 806; MBANU vs. MBANU (1961) 1 ALL NLR 652.
The position of the apex Court in the case of CHUKWU vs. INEC (Supra) is that the right to appeal as an interested party is only exercisable with leave, at the instance of the person who can show that he has an interest in the matter and that such a person has an herculean duty to satisfy the Court that he has a legal grievance in the matter; that the decision pronounced has wrongfully and prejudicially refused him something which he had a right to demand. The Court also held the position that only a person whose interest has been directly and not obliquely, affected by a decision can validly seek leave to appeal as an interested party. To demonstrate this clearly before the Court, in seeking leave the party’s interest must be clear from the record of proceeding and not from the affidavit he filed in support of his application. Perhaps, the question to address at this point is; whether there is exhibited in these proceedings, the record of proceedings of the Court below, whose decision the applicant is seeking leave to appeal against?
The answer to this question, however, can only be rendered in the negative. The applicant having failed to annex this process, this Court wonders how the applicant expects this Court to objectively decide the interest of the applicant whether a grant or refusal would be prejudicial to him or not. It should be emphasized here that this Court is manned by human beings who, ordinarily are not magicians or clairvoyants/soothsayers. The record of proceedings of the Court below is indeed an essential process otherwise the apex Court would not have prescribed it. In the glaring absence of a pivotal material processes such as this, the Court is hamstrung vis–vis exercise of its discretionary power judicially and judiciously as ordained by law. The pitfall created by the absence of this process, clearly renders this application incompetent in the eyes of the law. In the circumstance, this application fails and it is accordingly dismissed with cost of N50,000.00 against the applicant.
HUSSEIN MUKHTAR, J.C.A.: I am in agreement with the reasons set in the ruling of my learned brother Frederick O. Oho, JCA, which I have had a preview of. For the same reasons, which I adopt, I hereby struck out the application for incompetence.
I also adopt other orders made in the ruling.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read a draft copy of the ruling just delivered by my learned Brother Oho JCA. I agree entirely with the reasoning and the conclusion therein that the application is incompetent; it therefore fails and is hereby struck out.
Appearances:
Garba Abubakar Shehu, Esq.For Appellant(s)
Roland Adebayo Eyelade, Esq.For Respondent(s)
