HAMMAN v. DEWA
(2020)LCN/14025(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Friday, March 27, 2020
CA/YL/18/2019
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
GOJE HAMMAN APPELANT(S)
And
ALHAJI BAJAM DEWA RESPONDENT(S)
RATIO
GRANT OF AN APPLCIATION FOR EXTENSIONOF TIME TO APPEAL
An application for extension of time to appeal out of time is not granted as a matter of course but upon good and substantial reasons for the failure to appeal within the prescribed time; and arguable grounds of appeal which prima facie show good cause why the appeal should be heard – Ikenta Best (Nig.) Ltd. v. A-G Rivers State (2008) 6 NWLR (Pt. 1084) 612; Bowaje v. Adediwura (1976) 6 S.C. 143; Ahmadu v. Salawu (1974) 11 S. C. 43; Alagbe v. Abimbola (1978) 2 S.C. 39; Ogbu v. Urum (1981) 4 S.C. 1. PER BAYERO, J.C.A.
WHETHER OR NOT MULTIPLICITY OF ACTION IS AN ABUSE OF COURT PROCESS
The multiplicity of actions by the Appellant in respect of same parties and same subject matter is an abuse of the process of the Court. See COMMISSIONER FOR EDUCATION v. AMADI (2013) 2 SCNJ 120 at 123 Ratios 11 & 12. PER BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO J.C.A. (Delivering the Leading Judgment): This is an Appeal against the ruling of the Adamawa State High Court sitting in its Appellate jurisdiction in Suit No. ADSY/105M/2017 delivered by Nathan J on the 23rd day of January, 2018. The Appellant filed a Motion on Notice on 28th July, 2017 before the lower Court sitting on appeal for extension of time within which he may file his Notice and grounds of Appeal against the judgment of Daware Area Court, Pariya delivered on 29th April, 2013 in Suit No. CV/01/2013 between Goje Hamman v. Alhaji Bajam Dewa. The Respondent opposed the application by a counter affidavit filed on 9th January, 2018. The Appellant filed a reply on point of law on 17th January, 2018. The application was refused by the lower Court. Dissatisfied, the Appellant approached this Court by way of Motion on Notice for leave to appeal which was granted on 13th November, 2018.
The Notice of Appeal was filed on 21st November, 2018. The record of Appeal was transmitted to this Court on 5th February, 2019 but deemed compiled and transmitted on 10th March, 2020. The Appellant’s Brief of argument was filed on 18th March, 2019
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but deemed duly filed and served on 10th March, 2020. The Respondent’s Brief of argument was filed on 22nd May, 2019 but deemed filed and served on 10th March, 2020. The Appellant’s reply brief was filed on 3rd June, 2019 but deemed duly filed and served on 10th March, 2020.
In the Appellant’s Brief two issues are formulated for determination:-
1) Whether the Appellant’s application before the lower Court discloses special and exceptional circumstances that could warrant the grant of same. (Distilled from Grounds 1 and 2).
(ii) Whether the Appellant’s application before the lower Court is an abuse of Court process. (Distilled from Ground 3)
2) Whether the Appellant’s application before the lower Court discloses special and exceptional circumstances that could warrant the grant of same. (Distilled from Grounds 1 and 2).
It is submitted that an application for extension of time to appeal out of time is not granted as a matter of course but upon good and substantial reasons. That where the proposed grounds of appeal touch on jurisdiction it is good and substantial reason cogent enough to grant the
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application. He referred to the case of Anachebe v. Ijeoma [2014] 14 NWLR (Pt. 1426) 168 at 171 – 175.
According to counsel, the issue of res judicata as contained in the proposed notice and grounds of appeal (pages 86 to 88 of the Record) is an issue that touches on the jurisdiction of the trial Court citing Sylva v. INEC [2015] 16 NWLR (Pt. 1486) 576 at 623 Paras. E-F in support of his assertions. That in such circumstances reason for the delay is immaterial -Ngere vs Okuruket ‘XIV’ [2014] 11 NWLR (Pt. 1417) 176 Para. D. He urges the Court to resolve this issue in favour of the Appellant.
2) Whether the Appellant’s application before the lower Court is an abuse of Court process. (Distilled from Ground 3).
Learned counsel submitted that the proposed grounds of appeal in an application for extension of time to appeal touch on issue of jurisdiction, which is so fundamental that ought to be granted -Ngere vs Okuruket ‘XIV’ (supra) at 178 Paras. B-H.
That an application for extension of time to appeal that is based on grounds of jurisdiction as in the instant appeal is a Constitutional issue that can be raised at
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any time and cannot be an abuse of Court process.
According to counsel, what the lower Court regarded as an abuse of Court process is the fact that the Appellant was informed of his right of appeal by the trial Court but chose to file a fresh case before Upper Area Court No. 2, Yola and was represented by Counsel before the Court. That it was after the case was dismissed that the Appellant filed the application for extension of time (Page 124 of the record).
That the filling of the fresh case instead of an appeal, is the mistake of the Appellant’s former counsel for which the Appellant should not be doubly penalised – R. Lauwers Import-Export v. Jozebson Industries Co. Ltd (1988) LPELR-2934 (SC) Page 27 paras B-D.
In the Respondent’s Brief, he adopted the twin issues formulated by the Appellant thus:
(i) Whether the Appellant’s application before the lower Court discloses special and exceptional circumstance that could warrant the grant of same. (Distilled from Ground 1 and 2)
(ii) Whether the Appellant’s application before the Lower Court is an abuse of Court process. (Distilled from ground 3).
Arguing the first
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issue, counsel submitted the law is settled that an application for extension of time to appeal out of time is not granted to an applicant as a matter of course. That an applicant must place before the Court material facts which must satisfy the Court that there are good and substantial reasons for not filing the notice and grounds of appeal within time and the grounds of appeal must show good cause why the appeal should be heard. The twin requirements must co-exist such that if one requirement is satisfied and the other is not, the whole application collapses. He referred to the case of NIGERIA LABORATORY v. PACIFIC BANK (2012) 6 SCNJ 28 AT 31 AND 32 RATIO 6 (A) & (B).
That the appellant has not set forth good and substantial reasons in the supporting affidavit; particularly the depositions contained in paragraphs 6 and 12 of the Affidavit which are not enough reasons for the Appellant to be granted the extension of time to appeal.
That at paragraph 12 of the supporting affidavit, the Appellant admitted instituting another suit against the Respondent at Upper Area Court No. 2 Yola vide suit No. UAC2Y/CV/15/2013. That the only reason why the Appellant
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could not appeal against the ruling in Suit No. CV01/2013 was because he consulted his lawyers in 2017. That the true position is that the appellant was throughout the trial at Upper Area Court No. 2 Yola in suit No. UAC2Y/CV/15/2013 represented by counsel of his choice who tendered the record of proceedings of suit No. CV/01/13 subject of this appeal as Exhibit A. That the record of proceedings in suit No. CV/01/2013 also formed the basis of the Judgment of the trial Court but yet the Appellant has not appealed against the Judgment of the Upper Area Court No. 2, Yola in suit No. UAC2Y/CV/15/2013.
According to counsel, since the Affidavit of the Applicant before the lower Court has not disclosed any cogent and valid reasons for the Appellant’s failure to file his appeal within the time allowed, then it is not necessary to look at the grounds of appeal, which raised the issue of res judicata citing the case of NIGERIA LABORATORY VS PACIFIC BANK (2012) 6 SCNJ 28 AT 32 RATIO 7 & 9.
That an Appellate Court will not generally question the exercise of discretion by a lower Court unless it is shown that there is a miscarriage of justice to which
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none was shown to exist in the instant case. He urged the Court to resolve the first issue in favour of the Respondent and against the Appellant.
On issue two, it is submitted that it was the Appellant who instituted Suit No. CV/01/13 that was struck out. That he later filed suit No. UAC/2Y/CV/15/2013 before the Upper Area Court No. 2 Yola on the same land and even tendered the record of proceedings in suit CV/01/13 which form part of the Judgment of the Upper Area Court No. 2 Yola. That this is an abuse of the process of the Court, therefore, the lower Court was right in its ruling of 23/1/2018 because the Court lacked the jurisdictional competence to grant the application. Counsel referred to the case of COMMISSIONER FOR EDUCATION V AMADI (2013) 2 SCNJ 120 at 123 RATIOS 11 & 12 for the meaning and consequences of abuse of Court process.
According to counsel, the appellant’s application before the lower Court did not come before it by due process, since the lower Court lacked the jurisdiction to extend period to the appellant to appeal against Suit No. CV/01/13 when the suit forms part of the Judgment in valid and subsisting Judgment
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of the Court in suit No. UAC2Y/CV/15/2013. He referred to the case of NWORA V NWABUEZE (2013) 5 SCNJ (PART 1) PAGE 253 AT 258 RATIO 13.
That the multiplicity of actions by the Appellant and the failure to appeal against the ruling in suit No. CV/01/13 was not the fault of counsel but that of the Appellant, who was given the right to appeal but chose to file a fresh suit. He urged the Court to resolve this issue against the Appellant. In the Appellant’s Reply brief, it was argued that:-
Whether by the decisions in LABORATORY v. PACIFIC BANK (2012) 6 SCNJ 28 and HUNDAI INDUSTRIES CO. LTD v. DECY NIGERIA LIMITED (2012) ALL FWLR (PT. 651) PG. 1613 the lower Court was right when it exercised its discretion against the Appellant.
According to counsel, the Respondent argued at paragraphs 4.05, 4.06, 4.07 and 4.08 of the Respondent’s Brief of argument that by the position of the law as stated in the cases of LABORATORY v. PACIFIC BANK (2012) 6 SCNJ 28 and HUNDAI INDUSTRIES CO. LTD v. DECY NIGERIA LIMITED (2012) ALL FWLR (Pt. 651) since Appellant did not show good reasons for the delay, his grounds of appeal is irrelevant and that there is no issue to consider.
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That the cases of LABORATORY v. PACIFIC BANK (supra) and HUNDAI INDUSTRIES CO.LTD v. DECY NIGERIA LIMITED (supra) are distinguishable from the instant appeal as in those cases the grounds of appeal did not border on jurisdiction while in the instant appeal the grounds are on jurisdiction. Referring to Jimoh v. Minister FCT (2019) 5 NWLR (Pt. 1664) 45 at 66 – 67 Paras. E-B.
Counsel further submitted that where the discretion is exercised wrongly as has been done in the instant appeal by the lower Court, this Court has the power to interfere with such exercise of discretion citing the case of GEN. & AVIATION SERV. LTD. v. THAHAL (2004) 10 NWLR (PT. 880) PG. 50 @ PP. 90-91 Paras F-C.
That in the instant appeal, had the lower Court given due and sufficient consideration to the issue of jurisdiction in the grounds of appeal, it would have exercised its discretion in favour of the Appellant.
B. WHETHER BY THE JUDGMENT IN SUIT NO UAC2Y/CV/15/2013 THE APPELLANT CANNOT SEEK EXTENSION OF TIME TO APPEAL OUT OF TIME IN CV/01/2013.
On this issue learned counsel replied that the Respondent argued at paragraph 5.02 of his Brief of Argument
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that since the Judgment in suit No. UAC2Y/CV /15/2013 filed by the Appellant before Upper Area Court No.2 Yola is subsisting, the Appellant’s application for extension of time is an abuse of Court process. According to counsel, the decision in suit No. UAC2Y/CV /15/ 2013 is not on the merits. The Upper Area Court No.2, Yola even though it heard evidence on the matter did not decide the right of the parties on the land the subject matter of dispute to its finality; because its decision was based on Suit CV/01/2013 decided by Daware Area Court. That the Upper Area Court No.2 Yola simply dismissed the matter for lack of jurisdiction without going into the right of the Parties regarding the land. He referred to the case of MOHAMMED vs HUSSEINI (1998) 14 NWLR (PT. 584) PG. 104 PP. @ 144 Paras E-G.
Counsel further replied that the suit No. UAC2Y/CV/15/2013 is not an appeal in respect of Suit No. CV/10/2013, nor does it stop the Appellant from exercising his Constitutional right to Appeal against the decision in CV/01/2013 simply because the Appellant had exercised the wrong option of instituting a fresh Suit in Suit No. UAC2Y/CV/15/2013. He cited the
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case of MOHAMMED v. HUSSEINI (supra) at 140 Para E.
DETERMINATION OF THE APPEAL
I will determine this Appeal on the twin issues formulated by the Appellant which were adopted by the Respondent. Issue one is:-
“Whether the Appellant’s application before the lower Court discloses special and exceptional circumstances that could warrant the grant of same”.
It was the argument of learned counsel to the Appellant that the grounds of appeal in the instant appeal touch on jurisdiction as the issue of Res Judicata is raised which in law is good and substantial reason cogent enough to grant the application. Relying on Sylva v. INEC (Supra).That where the issue of jurisdiction is the basis of an Appeal upon which the application for extension of time to appeal is predicated, the reason or circumstances for the delay in bringing the application is immaterial citing Ngere v. Okuruket ‘XIV’ (2014) 11 NWLR (PT. 1417) at 176 Paras. D.
On the part of the Respondent, it was argued that the Appellant has not put forward good and substantial reasons in his affidavit before the lower Court for the grant of the application.
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That the Appellant instituted another suit against the same Respondent in respect of the same subject matter before Upper Area Court 2 Yola in suit number UAC2Y/CV/15/2013 after the same suit with number CV/01/2013 was decided by Daware Area Court, Pariya without appealing against same. That it is because the suit number UAC2Y/CV/15/2013 was struck out that the Appellant is now seeking for extension of time to Appeal against the Judgment in suit number CV/01/2013. He referred to Hundai Heavy Industries Co. Ltd. v. Decy Nigeria Limited (2012) AFWLR (Pt. 651) 1612 at 1613-1614 Ratio 1 and submitted that if the application for extension of time fails to show good and substantial reasons for delay, the grounds of appeal become irrelevant and a non issue to consider. According to counsel, the Appellant in the instant appeal has not satisfied the twin conditions for the grant of the application and urged us to so hold and resolve the first issue in favour of the Respondent against the Appellant.
An application for extension of time to appeal out of time is not granted as a matter of course but upon good and substantial reasons for the failure to appeal within
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the prescribed time; and arguable grounds of appeal which prima facie show good cause why the appeal should be heard – Ikenta Best (Nig.) Ltd. v. A-G Rivers State (2008) 6 NWLR (Pt. 1084) 612; Bowaje v. Adediwura (1976) 6 S.C. 143; Ahmadu v. Salawu (1974) 11 S. C. 43; Alagbe v. Abimbola (1978) 2 S.C. 39; Ogbu v. Urum (1981) 4 S.C. 1. In the instant case, the Appellant commenced suit number CV/01/13 at Daware Area Court against the Respondent over a farmland. The trial Court struck out the Suit on the ground that the ownership of the farmland in dispute had been confirmed to one Babu who had litigated on the same land before the same Daware Area Court in Suit No. CV/20/98. The Appellant did not Appeal against the Judgment in Suit number CV/20/98, neither did he appeal against the ruling of Daware Area Court Pariya in Suit number CV/01/2013 (subject matter of Appeal before this Court). He rather filed a fresh Suit against the Respondent before Upper Area Court Yola No. 2 in Suit No. UAC2Y/CV/F1/15/2013 where the Respondent tendered the record of proceedings in Suit No.CV/01/2013. (see pages 7 to 85 of the printed record).
From the above it is clear
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that the Appellant did not Appeal against the decision of trial Area Court Pariya but rather filed a fresh case involving same parties and same subject matter before Upper Area Court Yola which was dismissed. Thereafter he filed the application for extension of time which was also dismissed as an abuse of Court process. We have carefully gone through the affidavit in support of the application for extension of time filed before the lower Court and observe that it did not disclose good and substantial reasons to grant same. In fact at paragraph 12 of the said affidavit, the Appellant admitted instituting another suit against the Respondent at Upper Area Court Yola No. 2 (See page 6 of the printed record). Paragraph 12 reads:-
“That the Applicant did not realise that the only way to assert his right in this matter is by appealing the decision of the trial Court in Suit No. CV/01/2013 without waiting for the outcome of the decision of Upper Area Court No. 2 Yola in Suit No. UAC2Y/CV/15/2013 delivered on 7/04/2017 until he consulted Counsel sometimes in May, 2017 who properly advised him.”
The multiplicity of actions by the Appellant in respect
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of same parties and same subject matter is an abuse of the process of the Court. See COMMISSIONER FOR EDUCATION v. AMADI (2013) 2 SCNJ 120 at 123 Ratios 11 & 12.
At Page 125 of the printed record, what the lower Court held to be an abuse of Court process is the fact that the Appellant was informed of his right of Appeal by the trial Court but decided to file a fresh case before Upper Area Court number 2 Yola and was represented by Counsel. That it was after the case was dismissed that the Appellant filed the application for extension of time. We agree with the findings of the lower Court that the application before it for extension of time to Appeal out of time is an abuse of Court process. The Appeal is not allowed, same is accordingly dismissed. The Ruling of the lower Court delivered on 23/01/2018 is affirmed.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment of my learned brother ABDULLAHI MAHMUD BAYERO, JCA. I agree that the appeal is meritorious, I also allow same
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother Abdullahi M. Bayero JCA. I agree with my
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learned brother that the Court below rightly exercised its discretion when it dismissed the application of the Appellant and the Court should not interfere.
I too dismiss the appeal and affirm the Ruling of the Court below.
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Appearances:
Hassan G. Maidawa Esq., Hussaini G. Maidawa Esq., Victor G. Abasiodiong Esq. and T. J. Ojo Esq. For Appellant(s)
U. Peter Esq. For Respondent(s)
