KAPO v. ABDULKARIM & ANOR (2021)

KAPO v. ABDULKARIM & ANOR

(2021)LCN/14999(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, February 08, 2021

CA/YL/24M/20(R)

RATIO

APPEAL: RULE GOVERNING THE GRANT OF AN APPLICATION FOR ENLARGEMENT OF TIME TO SEEK LEAVE

the grant of an application for enlargement of time within which to seek leave, leave and extension of time within which to appeal is a judicial discretion which must be exercised judicially and judiciously, taking into consideration all the circumstances of the case. See BRAITHWAITE VS. DALHATU (2006) LPELR – 40301 (SC); YESUFU VS. CO-OPERATIVE BANK LTD (1989) LPELR – 3522 (SC). PER CHIDI NWAOMA UWA, J.C.A.

APPEAL: REQUIREMENTS FOR AN APPLICATION FOR EXTENSION OF TIME TO SUCCEED

By virtue of Section 242 of the Constitution, Section 24 (4) of the Court of Appeal Act (as amended) under which the application was also brought and by the provisions of Order 6 Rule 9 (1) and (2) of the Court of Appeal Rules, 2016, for an application such as the present one to succeed, thE applicant needs to show the following:
1. Good and substantial reasons for failure to appeal within the prescribed period and;
2. The grounds of appeal which show good cause why the appeal should be heard.
The two conditions must be satisfied together at the same time. See ISIAKA V. OGUNDIMU (2006) LPELR – 1552 (SC). Order 6 Rule 9 (1) and (2) of the Rules of this Court provides as follows:
9 (1): “The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for enlargement of time within which to appeal shall be supported 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. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.”
Further, every application for an enlargement of time within which to apply for leave to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal within the prescribed period. The applicant is required to exhibit or annex to the supporting affidavit the following:
(a) A copy of the Ruling/Judgment which he intends to appeal against.
(b) A copy of the proceedings necessary to support the complaints against the decision sought to be appealed against.
(c) Grounds of appeal which prima facie show good cause why the appeal should be heard. PER CHIDI NWAOMA UWA, J.C.A.
APPEAL: DUTY OF THE APPELLATE COURT IN CONSIDERING THE PROPOSED GROUNDS OF APPEAL BY AN APPLICANT FOR LEAVE TO APPEAL

At this stage, the duty of the Court in considering the proposed grounds of appeal by an applicant for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds; the duty of the Court is not to decide on the merits of such grounds in support of the application. See OBIKOYA VS. WEMA BANK LTD (1989) 1 NWLR (PT. 96) 157 at 178. The grounds of appeal required to be exhibited are only to show why the appeal should be heard, not why the appeal should be allowed, that would be delving into the substantive matter. The requirement is that the grounds of appeal should be substantial. A ground of appeal which raises substantial issues of fact or law for consideration by the Court is a good cause which cannot be dismissed with a wave of the hand. It is a ground which needs to be argued out by the parties to test the correctness of the decision of the lower Court by the appeal Court; it is not a frivolous ground. The point is not whether the issues will succeed or not but arguable. See IKENTA BEST NIG. LTD VS. A.G. RIVERS STATE (2008) 6 NWLR (PT. 1084) 612 at 620, GTB VS. EST MASTER CONSTRUCTION LTD; WILLIAMS & ORS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR – 3484 (SC), ELIAS & ANOR VS. ECOBANK (2019) LPELR – 46527 (SC) PP. 6 – 8, PARAS. E – C, 39 – 44, PARAGRAPH G, YEKINI JIMOH VS. THE HON. MINISTER FCT & ORS (2018) LPELR – 46329 (SC) PP. 36 – 42, PARAS. A – F, NSCDC & ANOR VS. AZEGEJIR & ORS (2019) LPELR – 46883 (CA) PP. 20 – 23, PARAS. C – B and GUARANTY TRUST BANK PLC VS. DEMROWL INT. CO. (2019) LPELR – 48514 (CA) PP. 20 – 23, C – B. PER CHIDI NWAOMA UWA, J.C.A.

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

MOHAMMED KAPO APPELANT(S)

And

1. ALHAJI IBRAHIM ABDULKARIM 2. BAMANGA MOHAMMED RESPONDENT(S)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): In the application filed on 5/3/2020, brought pursuant to Section 242 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (hereafter referred to as the Constitution), Section 24(4) of the Court of Appeal Act, CAP C36 Laws of the Federation of Nigeria 2004, Order 7 Rules 6 and 10 of the Court of Appeal Rules and under the inherent powers of the Court, sought the following reliefs:
1. “An order extending time for the applicant to apply for leave to appeal against the ruling of the Adamawa State High Court of Justice delivered on the 2nd January, 2020 by Hon. Justice HELEN L. NUHU of the Mubi Judicial Division in Appeal No. ADSY/31M/2020 Between: MOHAMMADU KAPO VS. ALHAJI IBRAHIM ABDULKARIM & ANOR to the Court of Appeal on grounds of facts and mixed law and facts.
2. An order granting leave to the applicant to appeal against the ruling of the Adamawa State High Court of Justice delivered on the 22nd January, 2020 by Hon. Justice HELEN L. NUHU of the Mubi Judicial Division in Appeal No. ADSY/31M/2020 Between: MOHAMMADU KAPO VS. ALHAJI IBRAHIM ABDULKARIM & ANOR to

the Court of Appeal on grounds of facts and mixed law and facts.
3. An order extending time for the applicant to appeal against the ruling of the Adamawa State High Court of Justice delivered on the 22nd January, 2020 by Hon. Justice HELEN L. NUHU of the Mubi Judicial Division in Appeal No. ADSY/31M/2020 Between: MOHAMMADU KAPO VS. ALHAJI IBRAHIM ABDULKARIM & ANOR to the Court of Appeal on grounds of facts and mixed law and facts.
4. Any other orders as the Honourable Court may seem fit to make in the circumstances.”

The grounds under which the application was brought were as follows:
1. “The applicant is dissatisfied with the ruling of the Adamawa State High Court of Justice delivered on the 22nd January, 2020 in Appeal No. ADSY/31M/2019 and intends to appeal against same to the Court of Appeal.
2. The applicant requires leave of Court of Appeal as the ruling of the Adamawa State High Court of Justice sought to be appealed against emanated from a preliminary objection to a motion for extension of time to appeal and the grounds on which the applicant intends to appeal on grounds of facts and mixed law and facts.

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The applicant is out of time to apply for leave to appeal and therefore requires order of Court extending time for him to apply for leave to appeal on grounds of facts and mixed law and facts.
4. The applicant is also out of time within which to appeal and therefore requires order of Court extending time for him to appeal against the decision of the High Court.
5. The grounds on which the applicant intends to appeal to the Court of Appeal raise substantial points of law and facts.”

Exhibited to the affidavit in support of the application were as follows:
1. “Certified true copy of the applicant’s motion on notice for extension of time to appeal that was filed before the High Court dated 22nd March 2019, as Exhibit “A”.
2. Certified true copy of Notice of preliminary objection dated 10th May, 2019 in respect of which ruling the applicant intends to appeal to this Honourable Court, as Exhibit “B”.
3. Certified true copy of the counter affidavit to the notice of preliminary objection filed along with a written address as Exhibit “C”.
4. Copy of hearing notice that was

served on the applicant by the Upper Area Court No. 1 Mubi to appear before it on the 11th February, 2020, as Exhibit “D”.
5. Certified true copy of the ruling of the High Court dated 22nd January, 2020 sought to be appealed against by the applicant as Exhibit “E”.
6. Copy of the proposed Notice of Appeal by which the applicant intends to appeal against the ruling of the Adamawa State High Court of Justice to this Honourable Court as Exhibit “F”.

In moving the application, the learned counsel to the applicant Roland C. Emem Esq., sought the trinity prayers as reproduced above. The application was supported by a 36 paragraph affidavit deposed to by the applicant with relevant Exhibits marked A – F, also a 14 paragraph further Affidavit also deposed to by the applicant, where a single document was exhibited, the proceedings of the Upper Area Court 1, Mubi of 18/5/18. The learned counsel to the applicant relied on all the paragraphs of the affidavit and further affidavit; particularly paragraphs 6 – 13 in urging us to grant the application.

On his part, the learned counsel to the 1st Respondent

filed a 16 paragraph counter affidavit deposed to by the 1st Respondent on 30/10/2020 in opposing the application. When the application was argued on 10/11/2020, the learned counsel to the 1st Respondent was absent from Court despite having been served with the hearing Notice on 30/10/2020, the counter affidavit was therefore deemed argued/highlighted pursuant to Order 19 Rule 6(4) of the Court of Appeal Rules, 2016.

The 2nd Respondent did not file any process and had nothing to urge this Court.

In paragraph 2 of the grounds for which the application was brought, the applicant gave the reason why the leave of Court is required for him to appeal against the Ruling of the Adamawa State High Court (hereafter referred to as the lower Court) delivered on 22/1/2020 sought to be appealed against which emanated from a preliminary objection for a motion for extension of time to appeal and the grounds on which the applicant intends to appeal against are grounds of facts and mixed law and facts. Further, it was stated clearly that the applicant is out of time to apply for the leave of Court to appeal and requires an order of Court extending the time for him to

apply for leave to appeal on grounds of facts and mixed law and facts. The applicant is out of time to appeal and requires the order of Court extending the time for him to appeal against the decision of the lower Court, paragraphs 2, 3 and 4 of the grounds for the application. The proceedings of the High Court of 22/1/2020 and the Ruling sought to be appealed against are Exhibited as Exhibit “E” in the motion papers, referred to in paragraph 31 of the affidavit in support of the application. Also Exhibit “F” a copy of the proposed Notice of appeal, referred to in paragraph 34 of the affidavit in support of the application.

I have read the affidavit in support of the application and examined the Exhibits attached, the counter affidavit and the further affidavit. The applicant explained his reasons for not appealing within time against the Ruling of the lower Court and seeking the required leave timeously. It was made out that he did not know of the ruling of the High Court, until 26/2/2020 after which he made effort to get the proceedings and a copy of the proceedings, also to engage the services of counsel and eventually filed the

present application on 5/3/2020, a gap of about five weeks and just over a week (11 days) out of time, while the 1st Respondent made out that the applicant was fully aware of the Ruling delivered on 22/1/2020.
In the applicant’s further affidavit, it was deposed that no copy of the Ruling sought to be challenged was served on him on 23/1/2020, as deposed to by the 1st Respondent in paragraph 8 of his counter affidavit. The application was brought a few days out of time, the grant of an application for enlargement of time within which to seek leave, leave and extension of time within which to appeal is a judicial discretion which must be exercised judicially and judiciously, taking into consideration all the circumstances of the case. See BRAITHWAITE VS. DALHATU (2006) LPELR – 40301 (SC); YESUFU VS. CO-OPERATIVE BANK LTD (1989) LPELR – 3522 (SC).

applicant needs to show the following:
1. Good and substantial reasons for failure to appeal within the prescribed period and;
2. The grounds of appeal which show good cause why the appeal should be heard.
The two conditions must be satisfied together at the same time. See ISIAKA V. OGUNDIMU (2006) LPELR – 1552 (SC). Order 6 Rule 9 (1) and (2) of the Rules of this Court provides as follows:
9 (1): “The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for enlargement of time within which to appeal shall be supported 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. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.”
Further, every application for an enlargement of time within which to apply for leave to appeal shall be supported by an affidavit setting

forth good and substantial reasons for the failure to appeal within the prescribed period. The applicant is required to exhibit or annex to the supporting affidavit the following:
(a) A copy of the Ruling/Judgment which he intends to appeal against.
(b) A copy of the proceedings necessary to support the complaints against the decision sought to be appealed against.
(c) Grounds of appeal which prima facie show good cause why the appeal should be heard.
In the present case, the appellant requires the leave of Court to appeal, as the ruling sought to be appealed against emanated from a preliminary objection to a motion for extension of time to appeal and the grounds on which the appellant intends to appeal are grounds of facts and mixed law and facts. The applicant is out of time to apply for leave to appeal and therefore requires an order of Court extending the time for him to apply for leave to appeal on grounds of facts and mixed law and facts. As stated in the grounds and shown in the affidavit in support of the application, the applicant is also out of time within which to appeal and requires an order of Court extending time for him to

appeal against the decision of the High Court.
The trinity prayers sought in the present application must be granted for there to be a valid appeal. See ODOFIN VS. AGU (1992) 3 NWLR (PT. 229) 350 at 375 SC. The applicant has explained the reason for his lateness in seeking the leave of Court, leave and extension of time to appeal within the prescribed period. I have earlier in this Ruling given the two conditions that must co-exist before the grant. See NWORA VS. NWABUEZE (2011) 15 NWLR (PT. 1271) 467. The main reason given by the applicant is that he was not aware of the Ruling of the lower Court when it was delivered until it was brought to his notice more than a month later, precisely 26th February, 2020. It is observed that the bulk of the 1st Respondent’s counter affidavit dwelt on the sale order made by the Upper Area Court, Mubi, since 2017, what led to the sale order and what transpired thereafter in respect of that Court. All these, are not good enough reasons why the reliefs sought ought not to be granted; the depositions touch on the substantive matter where the applicant is challenging the decision of the Upper Area Court, Mubi to

which he was not a party, whose order affects him as the owner of the house that was attached and sold, paragraphs 2, 3, 4, 5, 6, 7 and 8 of the affidavit in support of the application. At this stage, the duty of the Court in considering the proposed grounds of appeal by an applicant for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds; the duty of the Court is not to decide on the merits of such grounds in support of the application. See OBIKOYA VS. WEMA BANK LTD (1989) 1 NWLR (PT. 96) 157 at 178. The grounds of appeal required to be exhibited are only to show why the appeal should be heard, not why the appeal should be allowed, that would be delving into the substantive matter. The requirement is that the grounds of appeal should be substantial. A ground of appeal which raises substantial issues of fact or law for consideration by the Court is a good cause which cannot be dismissed with a wave of the hand. It is a ground which needs to be argued out by the parties to test the correctness of the decision of the lower Court by the appeal Court; it is not a frivolous ground. The point is not whether the

issues will succeed or not but arguable. See IKENTA BEST NIG. LTD VS. A.G. RIVERS STATE (2008) 6 NWLR (PT. 1084) 612 at 620, GTB VS. EST MASTER CONSTRUCTION LTD; WILLIAMS & ORS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR – 3484 (SC), ELIAS & ANOR VS. ECOBANK (2019) LPELR – 46527 (SC) PP. 6 – 8, PARAS. E – C, 39 – 44, PARAGRAPH G, YEKINI JIMOH VS. THE HON. MINISTER FCT & ORS (2018) LPELR – 46329 (SC) PP. 36 – 42, PARAS. A – F, NSCDC & ANOR VS. AZEGEJIR & ORS (2019) LPELR – 46883 (CA) PP. 20 – 23, PARAS. C – B and GUARANTY TRUST BANK PLC VS. DEMROWL INT. CO. (2019) LPELR – 48514 (CA) PP. 20 – 23, C – B.
It is trite that an application such as is before us requires the exercise of the Court’s discretion and considering also the circumstances of the application and the applicant. In the present case, the applicant has made out that he was not a party to the case at the Upper Area Court, Mubi where his property was attached and sold, which ended up at the Adamawa State High Court where his application to appeal was struck out to which he

sought to appeal, as his interest in the property is affected.
I am of the view that the applicant has placed enough facts and materials before the Court to warrant the grant of the application. On the other hand, what should be at the back of the mind of the Court is to do substantial justice to the parties where each side would have equal opportunity to place his cards on the table to determine the grievance of one party against the other. See OLADEJO & ANOR VS. ADEYEMI & ORS (2003) 3 NWLR (PT. 647) 25 at 41, SAMUEL VS. AYOOLA (1992) 23 NSC (PT. 111) 420 at 431, OGAR VS. JAMES (2001) 10 NWLR (PT. 722) 621 at 636 and IKECHUKWU VS. NWOYE (2014) 4 NWLR (PT. 1397) 227 at 239. From the records of appeal, in Exhibit ‘E’, the Ruling of the lower Court sought to be appealed against, the lower Court struck out the application for an extension of time to appeal against the decision of the Upper Area Court which attached and sold the applicant’s property when he was not a party in the case. The lower Court declined jurisdiction, struck out the application and at the same time delved into the substantive motion which was not heard on the

merits, see, grounds of the proposed notice of appeal, highlighted in the particulars of error (c). Further, the rules of this Court earlier highlighted in this Ruling made provision for extension of time to do anything within the said rules and the applicant to provide the Court with good and substantial reasons why he did not appeal and seek leave to appeal within the statutorily stipulated period and to further show by the grounds of appeal, why the appeal should be heard on time.
In my humble but firm view, the applicant has shown good and substantial reasons for not seeking leave on time from the affidavit in support of the application and the exhibited documents.
I am of the view that the application is meritorious, I grant same as prayed in the motion papers. The applicant is granted extension of time of twenty one (21) days from today within which to file his Notice and grounds of appeal in line with Exhibit ‘F’, attached to the affidavit in support of the application, the proposed Notice of Appeal.
I award costs of N50,000.00 (Fifty Thousand Naira) in favour of the Applicant.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the ruling just delivered by my learned brother, CHIDI NWAOMA UWA, J.C.A. and I agree that the application should be granted.

The applicant could not have appealed when he was not aware of the decision of the Upper Area Court which he seeks to appeal against.

It is clear from the proposed grounds of appeal that there is good cause why the appeal should be heard.

I too grant the application. I abide by all the orders in the ruling including the order as to costs.
I abide by all other orders in the ruling including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

Roland C. Emem, Esq. For Appellant(s)

Respondents’ counsel served but absent. For Respondent(s)