KALSHINGI v. MASORO & ANOR (2021)

KALSHINGI v. MASORO & ANOR

(2021)LCN/15093(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Wednesday, March 17, 2021

CA/G/269/2018

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

ALHAJI HARUNA SULE KALSHINGI APPELANT(S)

And

1. ALHAJI SULEIMAN MASORO 2. ALHAJI ADAMU TABRA RESPONDENT(S)

RATIO

CONDITIONS THAT MUST BE SATISFIED BY AN APPLICANT SEEKING EXTENSION OF TIME

In an application for extension of time to appeal, there are two conditions that must be satisfied by an applicant, to wit: There must be good and satisfactory reasons for not filing his appeal timeously; and ii. That he has good, substantial and arguable grounds of appeal. These two conditions must co-exist. See Rosehill Ltd V. Okporo Ventures Ltd (2005) LPELR-7540(CA) per Kekere-Ekun, JSC (as she then was). The application must also be supported by – a) An affidavit which must give sufficient reasons to explain the delay; b) The Judgment or ruling of the Court against which an applicant is seeking to appeal; and c) The proposed grounds of appeal against the said Judgment or ruling. See CBN V. Ahmed (2001) 11 NWLR (Pt. 724) 369, 392, C-E. PER JUMMAI HANNATU SANKEY, J.C.A.

NATURE OF THE PROPOSED GROUNDS OF APPEAL IN AN APPLICATION FOR EXTENSION OF TIME

One of the conditions for the success of an application of this nature is that the proposed grounds of appeal must disclose a prima facie good cause why the appeal should be heard. The law is that the proposed grounds of appeal must be substantial and arguable, and not frivolous; the grounds must also exhibit good and reasonable prospect of success of the appeal – Kingsley V. Emeh (2018) LPELR-45633(CA)16; Chukwu V. Omehia (2012) LPELR-9344(SC); Ikenta Best (Nig) V. AG Rivers State (2008) SCNJ 152. PER JUMMAI HANNATU SANKEY, J.C.A.

POSITION OF THE LAW REGARDING THE PLEA OF LACK OF FAIR HEARING

The Supreme Court and this Court have repeatedly held that the allegation of lack of fair hearing is not a magic wand for Counsel to wave before the Court in all situations as an “open sesame” to nullify proceedings of lower Courts. It is not to be adopted to cure all inadequacies inherent in the case of the parties before the lower Court. It is a plea of substance that must be borne out by the facts in the proceedings before the Court – Magaji V. Nigeria Army (2008) 8 NWLR (Pt. 1089) 338, Niki Tobi, JSC. His lordship felt sufficiently concerned with the constant abuse of the fair hearing provision in the Constitution by litigants that he again strongly admonished as follows in Adebayo V. AG Ogun State (2008) 33 NSCQR (vol.1) 1, 25: “The fair hearing provision in the Constitution is the machinery or locomotive of justice not spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Courts to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave fair hearing constitutional provisions alone because it is not available to them just for the asking.” Charles V. State (2019) LPELR-49295(CA) 29, E-F, per Obaseki-Adejumo, JCA; Nwokocha V. AG Imo State (2016) LPELR-40077(SC) 24-25, D, per Ogunbiyi, JSC; Usongo V. State (2013) LPELR-22747(CA) 24 per Oseji, JCA; Newswatch Communications Ltd V. Atta (2006) All NWLR (Pt. 318) 580, 611, per Tobi, JSC. PER JUMMAI HANNATU SANKEY, J.C.A.

WHAT A GROUND OF APPEAL SHOWING GOOD CAUSE ENTAILS

In Obikoya V. Wema Bank Ltd (1989) 1 NWLR (Pt. 96) 157, Obaseki, JSC, speaking on the meaning of a ground of appeal showing good cause, made the point thus: “A ground showing good cause why an appeal should be heard is a ground which raises substantial issues of fact and law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of the hand or as totally lacking in substance. It is a ground which evokes a serious debate as to the correctness of the decision of the Court below. It is a ground which taxes the intellect and reasoning faculties of the appeal Judges. It is a ground which is not frivolous.” (Emphasis supplied)PER JUMMAI HANNATU SANKEY, J.C.A.

MEANING OF DISCRETION

Discretion means an equitable decision of what is just and proper under the circumstance, or a liberty or a privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of a case, guided by the spirit and principles of the law – Okoye V. Nwankwo (2014) LPELR-23172(SC); Owners of the MV Lupex V. Nigerian Overseas Chartering & Shipping Ltd (2003) LPELR-3195(SC); Artra Inds. Ltd V. NBCI (1998) 4 NWLR (Pt. 546) 381. PER JUMMAI HANNATU SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the High Court of Justice, Gombe State sitting in its appellate jurisdiction in Appeal No. GM/1CA/2014, delivered on April 2, 2014, Coram: Beatrice Iliya, J. and Abubakar Jauro, J.

The facts leading to the Appeal are briefly that the Respondents filed a complaint alleging criminal breach of trust against the Appellant in respect of 197 bags of dried pepper before the Upper Area Court 1 Gombe. The Appellant denied the allegation and contended that based on his business agreement with the Respondents, he was ready to return the bags of dried pepper and/or their monetary equivalent. After some adjournments granted by the trial Court in the case, the Appellant returned some bags of dried pepper and money, leaving 55 bags of dried pepper outstanding. As a result, on July 16, 2012 the trial Court issued an Order directing him to return the outstanding balance of 55 bags of dried pepper or their monetary value to the Respondents by 31-12-12. When the Appellant was not forthcoming in complying with the Order, the trial Court issued and served on the Appellant a

Writ of attachment on January 2, 2014 in execution of its Order.

In consequence, the Appellant filed an application at the lower Court seeking leave to appeal against the decision of the trial Upper Area Court in respect of the said Order and the Writ of attachment issued in execution of the Order. Upon a consideration of the application, the lower Court on April 2, 2014 declined to grant him leave to appeal on the ground that the Appellant was seeking to evade meeting his obligation in obedience of the Order of the trial Upper Area Court. It is against this decision that the Appellant, aggrieved, has filed this Appeal, with the leave of this Court sought and granted on January 15, 2019. He complained on three grounds as set out in his Notice of Appeal. The reliefs sought from this Court are:
1. “An order to allow the appeal and set aside the decision of High Court of Justices (sic) Gombe sitting at its appellate jurisdiction in Gombe.
2. An order granting leave to the appellant to appeal out of time against the decision of Upper Area Court 1 Gombe dated 16th July 2012 to High Court of Justice Gombe State.
3. IN THE ALTERNATVE to

order for retrial of the Appeal before another High Court Appeal Panel.”

At the hearing of the Appeal on January 18, 2021, M.A. Galaya, Esq., learned Counsel for the Appellant, adopted his submissions in the Appellant’s Brief of argument filed on 14-02-19 and settled by the same Counsel, in urging the Court to allow the Appeal and grant the application sought at the lower Court.

In the same manner, C.D. Kadala, Esq., learned Counsel for the Respondents, adopted his submissions in the Respondents’ Brief of argument settled by him, which was deemed properly filed on 15-10-20, in urging the Court to dismiss the Appeal.

In his Brief of argument, the Appellant nominated the following two issues for determination:
1) “Whether the lower Court was right to have refused leave within which the Appellant to (sic) appeal out of time against the decision of the trial Court, despite the obvious, cogent and compelling reasons adduced in the Appellant’s affidavit in support of the application. (Grounds 2 and 3)
2) Whether the High Court of Justice Gombe State was right at that stage of an application for extension of

time to appeal out of time to delved (sic) into the substance of the Appeal. (Ground 1).”

On his part, the Respondent distilled one issue for determination from the three grounds thus:
“Whether the High Court in refusing to grant the application dated 1/9/2014 exercised its discretion judicially and judiciously. (Grounds 1, 2 and 4).”

The Appeal shall be resolved on the issues nominated by the Appellant, and they shall be addressed together.

ARGUMENTS
Mr. Galaya, learned Counsel for the Appellant, submits that by Section 62 of the High Court Law Bauchi State (applicable to Gombe State), Order 43 Rule 1 of the High Court Rules of Bauchi State (applicable to Gombe State) and Section 53 of the Area Courts Law, any party aggrieved by the decision of an Upper Area Court can appeal to the High Court of Justice of the State within 30 days of the decision, and with the leave of the Court after 30 days of the decision, after adducing good reason for the delay.

Counsel readily concedes that time for filing the Appeal had lapsed leading him to approach the lower Court for an extension of time and leave to appeal. The reason

advanced for failure to appeal within time is that, at the time the trial Upper Area Court gave its Order for which he felt aggrieved, the matter had not been concluded and was still pending before the trial Court. The trial Court had ordered that the Appellant should produce the 55 bags of dried pepper or their monetary value. It then further adjourned the matter to another date. Counsel submits that since the case was still pending before the trial Court, the Appellant did not appeal against the Order in compliance with the admonition of the apex Court in Onwe V. Oke (2001) Vol. 83 LRCN 33, 36 and other such decisions, for parties aggrieved against interlocutory decisions of a Court to await the final Judgment before filing an appeal to the appellate Court incorporating all his complaints.

Counsel submits that after the proceedings of 16-07-12 when the Order was made, the matter was further adjourned to 31-12-12. Thereafter, the case went into abeyance until the process of execution was activated against him in respect of the Order of 16-07-12 and the Appellant was served a Writ of attachment, as well as a Sale of goods Form dated 02-01-14. It was at

this stage that the Appellant, being already out of time to appeal against the interlocutory Order of the trial Court, filed an application before the lower Court seeking leave to appeal the decision/Order of the trial Upper Area Court, but the application was refused.

Counsel relied on the decisions in Minister of Petroleum & MRVs V. E.S. Line (2010) Vol. 188 LRCN 169, 178; & Oba V. Egberongbe (1999) Vol. 70 LRCN 1811, 1814 for the two conditions required to be met by an applicant seeking leave to appeal. He referred to paragraphs 4(a) – (r) of the affidavit in support of the application to submit that the Appellant adduced good and substantial reasons as required. He also refers to the Notice and Grounds of Appeal attached to the application (at pages 8-10 of the printed Record of proceedings) to submit that he raised and disclosed good and arguable grounds of appeal.

In respect of the second issue for determination, Counsel submits that whereas the crux of his application before the lower Court was whether the Appellant had adduced convincing reasons to warrant the exercise of the discretion of the lower Court in his favour, the lower Court

in its Ruling delved into the substance of the proposed Appeal, which was extraneous to the application for leave. He refers to pages 77-78 of the Record where the lower Court raised the issue of the Order of the trial Court delivered on 16-07-12 and concluded that the reason behind the application for leave to appeal was to “…frustrate the performance of the obligation of the applicant.” It is for these reasons that Counsel therefore urged the Court to allow the Appeal, set aside the decision of the lower Court and grant all the reliefs sought in the application.

In response to the Appellant’s submissions, Mr. Kadala, learned Counsel for the Respondents submits that the application seeking leave to appeal called for the exercise of the lower Court’s discretion, which discretion is to be exercised judicially and judiciously. He agrees with the Appellant on the two conditions to be satisfied in an application of this nature, and contends that these conditions must co-exist – FHA V. Abosede (1998) 55 LRCN; Okwelume V. Anoliefo (1996) 1 NWLR (Pt. 425) 468; Okere V. Nlem (1992) 4 NWLR (Pt. 234) 206; Mobil Oil Ltd V. Agadaigho (1988)

2 NWLR (Pt. 77) 385.

Counsel submits that the lower Court exercised its discretion judicially and judiciously in arriving at its conclusion that there are no good, sufficient and convincing reasons why the Appeal was not filed within time. In addition, the lower Court found that the averments in the Respondents’ counter-affidavit (at page 78 of the Record) which disclosed that the Appellant was fully aware of the decision of the trial Court delivered on 16-07-12 and had even began complying with it, was not controverted. Thus, he submits that the lower Court was right when it held that an extension of time for leave to appeal is not granted as a matter of course, but only for cogent, credible and convincing reasons advanced for the delay – N.A. William V. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; Awote V. Odunsi (2007) 7 NWLR (Pt. 1034) 625, 631.

While conceding that the lower Court did not consider the substantiality of the proposed Grounds of Appeal, Counsel submits that it is not every mistake/error that results in an appeal being allowed. It is only when such error is substantial and has occasioned a miscarriage of justice that

an appellate Court may interfere – FHA V. Abosede (supra) 3075.

Nonetheless, it is Counsel’s contention that the Grounds of Appeal did not show good cause why the application should be granted. Contrary to the submissions of the Appellant, he argues that the suit before the trial Court was not in the nature of criminal proceedings, but were civil proceedings and that this was lost in the translation of the proceedings from Hausa language to English language.

Counsel further submits that since this Appeal is centered around the exercise of the discretion of the lower Court, this Court cannot disturb its ruling for the reason that it would have exercised its discretion differently – Banna V. Telepower Nig. Ltd (2007) 144 LRCN 440; Williams V. Mokwe (2005) 131 LRCN 2566; ACME Builders Ltd V. Kaduna State Waterboard (1999) 66 LRCN 318. Finally, Counsel urged the Court to dismiss the Appeal as lacking in merit and to affirm the decision of the lower Court.

RESOLUTION OF ISSUES FOR DETERMINATION
In an application for extension of time to appeal, there are two conditions that must be satisfied by an applicant, to wit:

There must be good and satisfactory reasons for not filing his appeal timeously; and
ii. That he has good, substantial and arguable grounds of appeal.
These two conditions must co-exist. See Rosehill Ltd V. Okporo Ventures Ltd (2005) LPELR-7540(CA) per Kekere-Ekun, JSC (as she then was). The application must also be supported by –
a) An affidavit which must give sufficient reasons to explain the delay;
b) The Judgment or ruling of the Court against which an applicant is seeking to appeal; and
c) The proposed grounds of appeal against the said Judgment or ruling.
See CBN V. Ahmed (2001) 11 NWLR (Pt. 724) 369, 392, C-E.
The Appellant’s reason for the delay in filing the Appeal before the lower Court is contained in paragraph 4(f) of the supporting affidavit wherein he stated that he was waiting until the conclusion of the matter which was still pending before the trial Court, after the Order complained of was made. The Respondent filed a counter-affidavit wherein he challenged this paragraph and stated that the Appellant was at all times aware of the Order of the trial Court from the time it was issued and therefore had no excuse for

the delay.
The Appeal to this Court also complains that the lower Court hinged its decision on the substance of the Appeal, instead of focusing on whether or not the conditions for the grant of the application for leave to appeal had been met. Counsel for the Appellant has therefore asked this Court to overturn the decision of the lower Court and grant him leave to appeal against the decision of the trial Court having met the two conditions, to wit: providing good and substantial reasons for his failure to appeal within the prescribed period; and disclosing Grounds of appeal which prima facie show good cause why the appeal should be heard.
From the submissions of learned Counsel for the Appellant, the delay in filing an appeal against the Order of the trial Court was because the substantive case was still pending before the trial Court, and so he was waiting until the case was concluded and Judgment delivered before incorporating his complaints in an appeal against the final Judgment of the trial Court.
After considering the affidavits before it, the lower Court found that the reason advanced was not a good reason as the said Order was a

subsisting Order of the Court and it was appealable, without more. I disagree. I am of the view that given the current stance of the Courts, a piecemeal approach to the filing of interlocutory appeals against decisions which are unfavourable to litigants, are frowned upon and actively discouraged. Instead, litigants are encouraged to compile all their complaints against the entire proceedings of the Court, inclusive of the Judgment, before an appeal is filed. This is so that an appellate Court can be availed of all the Appellant’s complaints at once and then it is able to render a holistic decision once and for all. This is both in the interest of substantial justice, as well as to guard against delays and congestion in the judicial system. Therefore, waiting until the matter before the trial Court was finally concluded serves as a good reason for the Appellant’s delay in filing the application for leave, notwithstanding that it was prompted by the issuance of a Writ of attachment in execution of the interim Order of the trial Court. Thus, the Appellant has met the first condition for the grant of the application for leave to appeal, that is, there

was no delay in filing the Appeal.

In respect of the second condition for the grant of such an application, the Appellant is required to show that there are good, substantial and arguable ground(s) of appeal. By this, it is not meant that an applicant is required to show that the appeal will succeed if leave is granted. He is only required to show a prima facie case, that is, that the Court from whose decision leave is sought, committed an error of law or has failed to exercise its discretion judicially, or that it has based the exercise of such discretion on wrong principles – Obikoya V. Wema Bank Ltd (1989) LPELR-2176(SC) 36. This condition must however co-exist with the first condition for the grant of the application, which is that the Applicant has good and substantial reasons for not filing his appeal timeously – Rosehill Ltd V. Okporo (supra).
As can be garnered from the facts of this Appeal, the matter leading to the application for leave to appeal before the lower Court, commenced at the Upper Area Court 1, Gombe. The action was commenced by the Respondents wherein they laid a complaint before the Area Court for “breach of promise”

or “breach of trust” by the Appellant. At page 1 of the Record of that Court (contained at page 63 of the Record of Appeal), it is stated thus –
“COMPLAINT
I, Alhaji Sulaiman Masoro and Alhaji Adamy Tabra brought this complaint against Alhaji Haruna Sule Kalshingi for breach of promised (sic).
The ground for this complaint is that one Alh. Haruna Sule Kalshingi collected 197 bags of dried pepper; 50 bags from Alhaji Sulaiman Masoro and 147 bags from Alhaji Adamu Tabra with the promise that he would give them back all the total of 197 bags of dried pepper collected during the period of peppe[r] harvest, 2011. He did not fulfill the promise made until February, 2012 when he gave us 124 bags of pepper. From then he requested a month additional time to enable him bring the remaining bags and we gave him end of March, 2012.
We did not ask him until April ending, 2012. Consequently, he gave us 18 bags of the dried pepper making the total of 142 bags remaining 55 bags yet to be given and all our efforts to recover the remaining 55 bags proved abortive. It is on this basis we charged him to Court for offence of breach of

trust.” (Emphasis supplied)
When asked by the trial Court to confirm the complaint, the 2nd Complainant answered:
“That is the reason for our complaint, we pray the Court to collect our remaining bags of the pepper from him.” (Emphasis supplied)
When the trial Court turned to the Appellant to comment on the complaint of the Respondents, he said-
“Yes, however that was not the exact position of things that transpired, it was a business transaction, they gave me some bags of pepper to store it when the price appreciates, they would sell it.” (Emphasis supplied)
He then proceeded to give an extensive explanation as to why he was unable to meet up with the terms of the agreement. When the Court asked him what he wanted to do about it, he responded as follows:
“I pray the Court to plead with them to exercise patient they would be paid back their goods.
…
Court to Alhaji Ibrahim: you heard them they said remaining 55 bags how would you give them back?
ANS. Alhaji Haruna – I pray the Court to plead with them for me I would return them their pepper.
COURT to Alhaji Haruna

– how are they going to get them back?
ANS. I pray the Court to plead with them for me I will give them during the harvest season of the pepper.” (Emphasis supplied)
Thereafter, the trial Court gave the Appellant two weeks within which to pay the Respondents for the dried pepper and the matter was adjourned. On the return date, the Appellant had not paid the Respondents and instead stated that he was suing some other persons who had collected the bags of pepper from him and who had neither returned them nor paid him for them. For ease of reference, he again reiterated as follows (at page 68 of the Record):
“ANS. Alhaji Haruna: I plead the indulgence of this Court to allow me time to the harvest season I will bring the goods or the equivalent value of the goods i.e. January, 2013.” (Emphasis supplied)
The Respondents disagreed with this request on the ground that the time sought was too long since the Appellant was not disputing the claim. The Appellant’s Counsel then applied as follows:
“ANS. Barrister Magaji: we are saying by that period the said goods would not be ready for harvest; we crave the

indulgence of the Court to allow us time to the harvesting season that is 12/12/12 as requested by my client.” (Emphasis supplied)
The trial Court finally held –
“COURT to the parties since the Accused person is not disputing the claim against him therefore the Court has allowed him time to 31/12/2012 to bring the remaining bags or their equivalent value.” (Emphasis supplied)
It is against this Order that the Appellant, apparently aggrieved, sought the leave of the lower Court to file an appeal out of time. Thus, based on what transpired at the trial Court (as reflected in the Record of proceedings), the lower Court declined to grant him leave to appeal for the express reason that he failed to disclose good reasons for the delay and also that he was seeking to evade meeting his obligation to the Respondents.
In an attempt to fulfill the second condition for the grant of this application, Counsel submits that his grounds of appeal are arguable because they complained that the proceedings before the trial Court were criminal in nature, and that his right to fair hearing was breached as he was not given a hearing before the

Order for the refund of/payment for the 55 bags of dried pepper was made by the trial Court. The question which therefore arises from the above narrative is: what is the purpose that this proposed appeal is designed to achieve? Put another way, what interest is the Appellant seeking to protect by the intended appeal?
As gleaned from the proceedings of the trial Upper Area Court (contained in the Record of Appeal), the Respondents filed their complaint before the trial Upper Area Court since the year 2012. In the preliminaries before the Court, from the very first day the case was mentioned, the Appellant owned up to the complaint of the Respondents against him, that out of the 197 bags of dried pepper that they had given him for business purposes, he (Appellant) had returned 142 bags, leaving an outstanding balance of 55 bags. When the Court inquired from him how he wanted to proceed, he did not deny the claim but simply asked for time up to the harvest time to return their 55 bags of dried pepper which he had distributed to other persons, or their monetary value. On a subsequent adjournment, his Counsel repeated this request, and so the trial Court

formalized/crystallized this request into an Order of Court and gave the Appellant even more time than he requested. It is this Order that the Appellant sought the leave of the lower Court to appeal against.
One of the conditions for the success of an application of this nature is that the proposed grounds of appeal must disclose a prima facie good cause why the appeal should be heard. The law is that the proposed grounds of appeal must be substantial and arguable, and not frivolous; the grounds must also exhibit good and reasonable prospect of success of the appeal – Kingsley V. Emeh (2018) LPELR-45633(CA)16; Chukwu V. Omehia (2012) LPELR-9344(SC); Ikenta Best (Nig) V. AG Rivers State (2008) SCNJ 152.
It is in this vein that I have examined the proposed Grounds of Appeal. The proposed Notice of Appeal contains three Grounds of appeal. The first two grounds complain that the trial Court converted a criminal case of “breach of contract” to a civil case and then proceeded by way of a summary trial to order the Appellant to produce the 55 bags of dried pepper or its monetary equivalent. In the particulars of the grounds, the Appellant

contends that there was no evidence adduced to warrant the Order made by the trial Court and that no charge was read to the Appellant to which he was asked to plead. In the third ground of appeal, he complains that the Judgment of the trial Upper Area Court was issued before the end of the trial. However, in the light of the Record of proceedings of the trial Upper Area Court which forms part of the Record of Appeal, these complaints are contrived and are simply not borne out by the Record.
In respect of grounds one and two, I am convinced that they are not arguable and so do not prima facie show good cause why the appeal should be heard. The complaint before the trial Court was for “breach of promise” which was used interchangeably with “breach of trust”. From the facts leading to the dispute as articulated by the parties themselves before the trial Upper Area Court, there was no imputation of crime against the Appellant. It was purely a business arrangement for which it was alleged that the Appellant defaulted, and so the Respondents sought the aid of the trial Upper Area Court Court to adjudicate. In addition, the Appellant

readily admitted/agreed that the Respondents gave him 197 bags of dried pepper out of which 55 bags remained outstanding. All he asked from the trial Court was that he should be given some time within which to refund same, either in kind or monetized. Indeed, efforts were earlier made by him successfully to make a refund of 142 bags of dried pepper, leaving only 55 bags outstanding. Based on this, the grounds of appeal were neither substantial nor arguable.
As for the third ground of appeal which alleged a lack of fair hearing on the ground that the trial Court gave its Judgment before the end of the trial, yet again there is nothing in the Record to substantiate this assertion. The Record of proceedings of the trial Court do not disclose that any Judgment was delivered at all. Indeed, the Appellant himself based his delay in filing the appeal on the very fact that he was still awaiting the Judgment/conclusion of the case by the trial Upper Area Court. He cannot therefore approbate and reprobate. The Supreme Court and this Court have repeatedly held that the allegation of lack of fair hearing is not a magic wand for Counsel to wave before the Court in all

situations as an “open sesame” to nullify proceedings of lower Courts. It is not to be adopted to cure all inadequacies inherent in the case of the parties before the lower Court. It is a plea of substance that must be borne out by the facts in the proceedings before the Court – Magaji V. Nigeria Army (2008) 8 NWLR (Pt. 1089) 338, Niki Tobi, JSC. His lordship felt sufficiently concerned with the constant abuse of the fair hearing provision in the Constitution by litigants that he again strongly admonished as follows in Adebayo V. AG Ogun State (2008) 33 NSCQR (vol.1) 1, 25:
“The fair hearing provision in the Constitution is the machinery or locomotive of justice not spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Courts to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases,

leave fair hearing constitutional provisions alone because it is not available to them just for the asking.”
Charles V. State (2019) LPELR-49295(CA) 29, E-F, per Obaseki-Adejumo, JCA; Nwokocha V. AG Imo State (2016) LPELR-40077(SC) 24-25, D, per Ogunbiyi, JSC; Usongo V. State (2013) LPELR-22747(CA) 24 per Oseji, JCA; Newswatch Communications Ltd V. Atta (2006) All NWLR (Pt. 318) 580, 611, per Tobi, JSC.
From a review of the grounds of appeal vis-a-vis the facts disclosed in the Record of proceedings of the trial Court (as contained in the Record of Appeal), it is obvious that they are merely abstract and do not constitute viable grounds of appeal. InObikoya V. Wema Bank Ltd (1989) 1 NWLR (Pt. 96) 157, Obaseki, JSC, speaking on the meaning of a ground of appeal showing good cause, made the point thus:
“A ground showing good cause why an appeal should be heard is a ground which raises substantial issues of fact and law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of the hand or as totally lacking in substance. It is a ground which evokes a serious debate as to the correctness of the decision of

the Court below. It is a ground which taxes the intellect and reasoning faculties of the appeal Judges. It is a ground which is not frivolous.” (Emphasis supplied)
The proposed grounds of appeal of the Appellant placed before the lower Court in an attempt to seek leave to appeal do not pass these tests and cannot qualify as grounds of appeal showing good cause why the appeal should be heard. Instead, they are grounds which fanciful and can be dismissed by a wave of the hand as lacking in substance, given the facts on record.
Courts are obliged to protect the judicial system from being clogged up by non-viable and non-productive appeals. The proposed grounds of appeal which the Appellant laid before the lower Court are not substantial or arguable and cannot sustain the prayers sought in the application for extension of time and leave to appeal placed before it. It is obvious that the proposed appeal of the Appellant/Applicant was meant for the sole aim of buying time to continue delaying his obligation, nay promise/undertaking made before that Court, to refund the 55 bags of dried pepper or its monetary equivalent, which he had readily admitted

to have received and had simply asked for more time to meet up with his obligation. The Appellant has done this for at least eight (8) years that it has taken the lower Court to determine the application for leave to appeal and the further Appeal to this Court (from 2012).
The attitude of the Appellant in his persistent refusal to meet his obligation to the Respondents, despite having expressly admitted the claim and simply asked for time to pay/refund, is unconscionable. It is the duty of every Court to protect its processes and not to allow them to be used to bring the justice system into disrepute. Therefore, the finding of the lower Court that the Appellant, by his application for leave to appeal, merely wanted to evade meeting his obligation, cannot be faulted based on the facts in the Record placed before it.
In the light of all the above, I am of the firm view that the Appellant failed to meet the second condition for the grant of the application for leave to appeal before the lower Court. Since both conditions must co-exist before such an application can be granted, the Appellant failed to prove his entitlement to the Order sought from the

lower Court and so the application was rightly refused.

Finally, I agree with learned Counsel for the Respondents that the application for extension of time and leave to appeal was an appeal to the discretionary jurisdiction of the lower Court. Discretion means an equitable decision of what is just and proper under the circumstance, or a liberty or a privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of a case, guided by the spirit and principles of the law – Okoye V. Nwankwo (2014) LPELR-23172(SC); Owners of the MV Lupex V. Nigerian Overseas Chartering & Shipping Ltd (2003) LPELR-3195(SC); Artra Inds. Ltd V. NBCI (1998) 4 NWLR (Pt. 546) 381.
Thus, this Court, based on all the facts placed before it, declines to interfere with the decision of the lower Court made in the exercise of its discretion which I find was properly exercised and judicially made. On the whole, I decline to interfere with the conclusion of the lower Court refusing to grant the Appellant an extension of time and leave to Appeal. Consequently, for all these reasons, I resolve the two issues for determination against the

Appellant.
In the result, I find the Appeal lacking in merit. It fails and is dismissed.

Accordingly, I affirm the Ruling of the lower Court delivered on April 2, 2014 refusing the application for leave to appeal against the Order of the Upper Area Court 1 Gombe issued on July 16, 2012.
I award the costs of this Appeal against the Appellant, to pay the sum of N50, 000.00 to each of the two (2) Respondents.

TUNDE OYEBANJI AWOTOYE, J.C.A.: My Lord, SANKEY J.C.A. availed me of the opportunity of reading the draft of the judgment just delivered.
I entirely agree with the reasoning and conclusion therein. I have nothing more to add. I resolve the two issues identified in the lead judgment against the appellant.

This appeal lacks merit. It is hereby dismissed. I abide with the consequential orders in the lead judgment (cost inclusive)

EBIOWEI TOBI, J.C.A.: My learned brother JUMMAI HANNATU SANKEY, JCA has afforded me the opportunity of reading in draft the lead judgment just delivered. I agree with the reasoning and conclusions reached therein in also discussing the appeal and affirming the judgment of the lower Court. My learned

brother has held that the power to grant a motion for extension of time to file appeal is based on the discretionary power of a Court. In exercising that discretion which must be exercised judicially and judiciously, power is given to the Court to consider the affidavit to see whether the reason or reasons for the delay are properly explained and whether the grounds of appeal disclosed in the proposed grounds of appeal discloses arguable grounds. See Chief Ujile Ngere & Anor V. Chief Job Williams Okuruket ‘xiv’ & Ors NSQLR Vol. 58 (2014) 113; Stanbic IBTC Bank Plc Vs Longterm Global Capital Ltd & Anor (2017) 18 NWLR (Pt. 1598) 431. The essence of a prayer for extension of time is to enable a party to do within the period that the extension of time is sought a thing that the rules or the Court require to be done with a prescribed time but which thing was not done within the prescribed time.
Bearing that in mind, the point must be made that extension of time is not granted as of course as it is not like a customer who has paid for a product in the supermarket which he goes to pick as of right. The Appellant must justify the granting

of the application. The time has come when Courts are to scrutinize with eagle eyes the affidavit evidence and the purposed grounds of appeal to make sure that the application for enlargement of time is worth granting. The appeal lacks merit and it is also dismissed by me. I also abide by the consequential order.

Appearances:

A. GALAYA, ESQ., with him, ABDULLAHI BASHIR, ESQ. and D. S. KIDDA, ESQ. For Appellant(s)

D. KADALA, ESQ. For Respondent(s)