IBRAHIM KAFINTA DAGO v. RUKUWA DAGO
(2018)LCN/11903(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/S/139M/2017(R)
RATIO
COURT AND PROCEDURE: REFUSAL OF EXTENSION OF TIME
“A grant or refusal of an application for extension of time to appeal is purely within the discretionary power of the Court of Appeal. Thus, that discretion must at all times be exercised not only judicially but also judiciously on sufficient materials. See UDENSI V ODUSOTE (2003) 6 NWLR (Prt 817) 545 OGBUEHI V GOV. OF IMO STATE (1995) 9 NWLR (Prt 417) 53 and UNIVERSITY OF LAGOS V AIGORO (1985) 1 NWLR (Prt 1) 143.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
IBRAHIM KAFINTA DAGO
(Successor of Late Kafinta Hoke Dago)
IN RE: KAFINTA HOKE DAGO Appellant(s)
AND
RUKUWA DAGO Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Lead Ruling):
The applicant herein vide a motion on notice filed on 4/10/2017 and brought, pursuant to Order 6 Rules 1 and 9 (1) & (2) and Order 15 Rule 2 of the Court of Appeal Act, 2010 prays for the followings: –
1. An order of this Honourable Court granting the applicant leave to substitute his father KAFINTA HOKE DAGO (now deceased).
2. An order of this Honourable Court granting the applicant leave to appeal against the decision of Kebbi State High Court of justice delivered on the 27th day of June, 2016 in appeal No. KB/HC/57A/2013, as an interested party.
3. An order of the Honourable Court granting the applicant an extention of time within which to seek leave to appeal against the decision of the Kebbi State High Court of justice delivered on the 27th day of June, 2016 in appeal No. KB/HC/57A/2013.
4. An order of the Honourable Court granting the applicant an extention of time within which to appeal against the decision of the Kebbi State High Court of Justice delivered on the 27th day of June, 2016 in appeal No. KB/HC/57A/2013.
5. An Order of the Honourable Court granting the applicant an extention of time within which to file an appeal against the decision of the Kebbi State High Court of justice delivered on the 27th day of June, 2016 in appeal No. KB/HC/57A/2013.
6. AND for such order or further Orders this Honourable Court may deem fit to make in the circumstances.
The said motion on notice is supported by 18 paragraph affidavit deposed to by one Grace O. Ojobo litigation Secretary in the applicant’s firms of solicitors. Two documents marked exhibits ‘A’ and ‘B’ are attached to the affidavit in support. Also in support of the application, the applicant filed a 10 paragraphs further and Better Affidavit deposed to by the applicant himself.
Proffering argument on behalf of the applicant, learned applicant’s counsel Ahmad A. Fingilla, Esq. submitted that where the cause of action survives the death of a party; such action is not terminated by death but such right must be exercised by a living person. He referred to ABAMO V BAMIGBOSE (2016) 2 LPELR 41947.
On leave to appeal and extention of time to appeal, learned counsel referred to the averments in both the affidavit in support as well as the further and better affidavit to contend that reasons for the delay in filing the appeal within time was due to inadvertence of counsel. He thus submitted that the applicant has shown good and substantial reasons for the delay in filing the notice of appeal and that the proposed notice of appeal has shown good cause why the appeal must be heard. He referred to MOBIL PRODUCING NIGERIA UNLIMITED V MONOKPO (2003) 12 SCNJ 2006.
He finally urged this Court to exercise its discretion in favour of the applicant.
In opposing the application, the respondent filed a 5 paragraphs counter – affidavit deposed to by one Safiya M. Na?Allah, litigation Secretary in the respondent’s firm of solicitors.
Learned counsel for the respondent, Garba A Shehu, Esq. submitted that once the Court grant the applicant leave to substitute Kafinta Hoke Dago, he is standing as Kafinta Hoke as such he cannot at the same time apply for leave to appeal as an interested party.
Still in argument, learned counsel submitted that where a party is appealing against a decision of the State High Court sitting on appeal, he needs leave to appeal within three months at the expiration of which he must seek for extention of time within which to seek leave to appeal. He referred to Section 242 of the 1999 Constitution and Section 24 of the Court of Appeal Act. Thus, a Court cannot grant a relief which has not been specifically prayed for. He referred to UNION BEVERAGES V OMNIA (2000) 12 NWLR (Prt 680) 1 in urging this Court not to grant prayers 4 and 5 since there is no prayer for leave.
He submitted further that the fact relating to the time when the applicants father died is contradictory and where an affidavit is contradictory, a Court cannot rely on it and no counter affidavit is required to challenge it. He referred to AGU & SONS V IDU (2013) LPELR 19992.
Learned counsel finally submitted that the grounds of appeal is not arguable and that it is not enough to satisfy the Court with reason for the delay as the ground too must be arguable. He referred to LEMIT ENGINEERING LTD V RYNOLDS CONSTRUCTIONS CO. LTD (2015) LPELR 24682.
A grant or refusal of an application for extension of time to appeal is purely within the discretionary power of the Court of Appeal. Thus, that discretion must at all times be exercised not only judicially but also judiciously on sufficient materials. See UDENSI V ODUSOTE (2003) 6 NWLR (Prt 817) 545 OGBUEHI V GOV. OF IMO STATE (1995) 9 NWLR (Prt 417) 53 and UNIVERSITY OF LAGOS V AIGORO (1985) 1 NWLR (Prt 1) 143.
By virtue of Order 6 Rules 1 and 9 (1) and (2) of the Court of Appeal Rules, 2016, every application for extension of time to appeal shall be accompanied 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. Therefore, the two conditions must be satisfied. See OKERE V NLEM (1992) 4 NWLR (Prt 234) 132 and IBODO V ENAROFIA (1980) 12 NSCC 195.
I have set out the applicant’s prayers in the instant case, he is in addition to the trinity prayers, also praying for leave to substitute his deceased father as well as leave to appeal as interested party. There is a world of difference between leave to appeal and leave for extension of time to appeal, which is leave to appeal out of time. Leave to appeal and leave for extension of time to appeal are not similar or like content. An application or motion for leave to appeal, by relevant rule is not of right. The appellant therefore seeks permission of the Court to file an appeal. On the other hand, leave for extension of time to appeal presupposes that the statutory time for appeal has expired and so the appellant seeks permission of the Court to extend time which he can appeal. See N.A.F. V SHEKETE (2002) 12 SC (Prt 11) 52 at 65. Likewise an application for leave to appeal as an interested party does not have a time limit.
Once granted leave to appeal, the applicant can then proceed formally to file the processes. If he is already out of time to appeal, then he would require the trinity prayers as others who were originally part of the proceedings. However, where a party obtains leave to appeal as an interested party, he is then required to appeal within time prescribed by the Court of Appeal Act. But where he fails to do so, for whatever reason; he would require the making of an application to the Court of Appeal for enlargement of time to appeal. See POROYE ?V- MAKARFI (2018) 1 NWLR (Prt 1599) 91 at 145. In the instant case, there is no need to seek for leave to appeal as an interested party at the same time seeking for substitution of the dead party. The right to appeal may survive a deceased party to a cause or matter but such right must be exercised by a living person or persons. In other words, the applicant ought to have applied for leave to substitute the dead party before he can exercise right of appeal. See ABAMO V BAMIGBOSE (Supra).
The question here is has the applicant satisfied the twin conditions of giving good and substantial reasons for failure to appeal within prescribed period showing grounds of appeal which prima facie show good cause why the appeal should be heard? In paragraphs 11, 12 and 13 of the motion on notice as well as paragraph 5 of the further and better affidavit the delay was attributed to the inadvertence of counsel and that notice and grounds of appeal is ready for filing.
Learned counsel to the respondent contended that the deceased did not instruct Mr. Fingillah to further appeal but that it was the applicant that decides to appeal after the death of his father. Also at paragraph 4 (8) of the counter affidavit, it avers as follows-
‘(8) That contrary to paragraphs 13 and 14 the Notice of Appeal did not contain any arguable grounds of appeal and there was no any sketch map tendered by the Applicants father showing the area in dispute falling within an area designated to be urban area by the Kebbi State Land Use (Declaration of Urban Areas) Law.”
The law is settled that a litigant is seldom punished for the sins of his counsel. Also a right to appeal is a very important constitutional right and therefore its exercise ought not to be unduly fettered. In STANBIC IBTC BANK PLC V LGC LTD (2017) 18 NWLR (Prt 1598) 431 at 449, it was inter alia held that a denial of extension of time to appeal constitutes a big punishment for a potential appellant as he would have lost the chance of having his appeal heard on the merit. It is as good as dismissing an appeal. Therefore, in order to deny a party an opportunity of having his appeal heard, the appellate Court must have very compelling reasons to do so.
In the instant case, the applicant has satisfactorily explained the delay in paragraphs 11, 12, 13 and 14 of the affidavit in support of the application and the grounds of appeal prima facie show good cause why the appeal should be heard and thus satisfied the twin conditions for the exercise of discretionary power of Court in his favour. I therefore, find merit in this application which I accordingly grant as prayed except prayer No.2 for leave to appeal as an interested party which I consider unnecessary in the light of the substitution. The applicant shall within 14 days from today file the notice of appeal before the lower Court in terms of the attached notice and grounds of appeal, exhibit B.
I make no order as to costs.
HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in advance, the lead ruling just rendered by my learned brother, Muhammed Lawal Shuaibu, JCA. I agree with the entire reasoning therein for the conclusion that the applicant has justified the grant of the reliefs sought for in the pending application.
The application is accordingly granted as prayed. I also subscribe to the orders made therein.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Ruling of my learned brother, M. L. Shu’aibu, JCA which he has just delivered. I am in total agreement with his decision in granting the Application and I abide by the consequential orders made in the Ruling.
Appearances:
A. A. FingillahFor Appellant(s)
G. A. ShehuFor Respondent(s)
