KASHI & ANOR v. SAIDU & ORS (2022)

KASHI & ANOR v. SAIDU & ORS

(2022)LCN/16987(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Monday, July 25, 2022

CA/K/50/M/2022(R)

Before Our Lordships:

Amina Audi Wambai Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. MRS AROYEWUN HANNA KASHI 2. REMY OBI APPELANT(S)

And

1. DOGARA SAIDU 2. HAMISU ISAH DAURA 3. KADUNA SOUTH LOCAL GOVT 4. KADUNA STATE MINISTRY OF LAND SURVEY & COUNTRY PLANNING (NOW KADGIS) 5. THE ATTORNEY GENERAL OF KADUNA STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON APPEALING THE DECISION OF THE FEDERAL OR STATE HIGH COURT TO THE COURT OF APPEAL

By Section 24 (1) of the Court of Appeal Act, a person desirous of appealing a decision of the Federal or State High Court to the Court of Appeal is required to give notice of appeal or notice of his application for leave to appeal in such a manner as may be directed by the Rules of Court within the period prescribed by sub-section 2.
Sub-section 2 of section 24 provides: –
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) In an appeal in a civil case or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
It is thus crystal clear that the statutory period to apply to appeal an interlocutory decision is fourteen (14) days from the delivery of the decision sought to be appealed against. However, where the prescribed period is not complied with, the Court is empowered by sub-section 4 to enlarge the time within which an applicant may apply to seek leave to appeal the decision. The sub-section 4 provides:-
“The Court of Appeal may extend the periods prescribed in sub-section (2) & (3) of this section”.
In addition to this, Order 6 Rule 9 also bestows on this Court the power to enlarge time for the doing of anything under the Rules except as it relates to Order 16, (Order 16 deals with the Court of Appeal alternative Resolution programme).
Rule 9 (2) sets out the requirements of the application. It provides:
(2) Every application for an 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.
It is beyond argument that an application for extension of time to appeal is not granted as a matter of course. The grant of the application is at the discretion of the Court, and as with all discretionary powers, must be exercised judicially and judiciously. Such a discretion can only be exercised within the Rule where the Applicant (1) shows good and substantial reasons for failure to appeal within the prescribed period and (2) the proposed grounds of appeal disclose prima facie, good course why the appeal should be heard. The two conditions must co-exist. It is not sufficient to satisfy one without the other. Failure to satisfy one of the conditions means failure to show entitlement to the grant of the application. See JIMOH V. F.C.T. (2019) 5 NWLR (Pt. 1664) 45 at 66, F.H.A. V. KALEJAIYE (2010) 19 NWLR (Pt. 1226) 142, ANI V. EFFIOK (SUPRA) at 305 para B–D par Augie, JSC. See alsoNGERE & ANOR V. OKURUKET & ORS. (SUPRA) where the point was made per Rhodes Vivour, JSC pp 23–25 – f–n. PER WAMBAI, J.C.A.

WHETHER OR NOT THE COURT HAS A JURISDICTION TO SIT ON APPEAL OVER ITS OWN DECISION OR DECISION OF A COURT OF COORDINATE JURISDICTION

It is trite that the Court has no jurisdiction to sit on appeal over its own decision or the decision of a Court of Coordinate jurisdiction. The Court cannot constitute itself as the Appellate Court to which its decision lies. Authorities on this are legion UBA V. Ajileye (1999) 13 NWLR (Pt. 633) Tanko V. State (2009) 4 NWLR (PT.1131) 430. SKEN CONSULT (NIG) LTD V. UKEY (1981) 1547.
The power to review the decision of this Court lies extremely within the jurisdiction of the Supreme Court.
The law is trite that once a Court has delivered its decision on a matter, it becomes functus officio. It ceases to have any power to re-open the matter. Once the Court has embodied its decision or order, it can no longer revisit the same matter to do what it had not done before or to undo what it had done before. It cannot have a second bite at the cherry nor sit on appeal over its decision. Except for what may pass under the slip rule to correct clerical errors/mistakes, the Court ceases to have any power to correct any mistake it has committed. The power so to do is only vested in an appellate Court to which an appeal against the decision lies. In Nigerian Army V. Iyela (2008) 7-12 SC 35 AT 48-51, the erudite jurist Tabai JSC held that
“It is settled law that, once a Court has given a final decision on a matter placed before it for adjudication, it becomes functus officio and is precluded from reviewing or varying the term of the judgment or order apart from the correction of clerical mistakes or accidental slips.”
This principle has been explained in several cases.
Firstly, it is well settled that every judgment takes effect on pronouncement. This principle was articulated in Inter contractors Nigeria Ltd., V. UAC of Nigerian Ltd. (1988) 1 NSCC 737 AT 752, BANK of West Africa UNPC Ltd. (1962) LLR 31, Olayinka V. Elusanmi (1971) 1 NWLR 227, in the English case of Thynne V. Thyme (1955) 3 All ER 139 AT 146, the Court of Appeal; person Mofis L.J. stated the principle thus:-
“Where a Court has decided an issue and the decision of the Court is very embodied in some judgment or order that has been made effective, then the Court cannot re-open the matter and cannot substitute a different decision in place of the one which has been recorded. Those who seek to alter must in those circumstances invoke such appellant jurisdiction as may apply. But if a case arises therein the interest of accuracy it seems desirable to amend some part of a judgment other than its operative and substantive part it would seem to be regrettable if the inherent power of the Court were limited or confirmed.” It therefore stands to reason that in the instant case, this Court having rightly or wrongly affirmed the decision sought to be appealed against, the only remedy for the Appellant is to appeal the decision to the Supreme Court. It is not open to the learned counsel to file this motion before this Court seeking the trinity prayers for leave to appeal the decision that had been affirmed by this Court (either rightly or wrongly). PER WAMBAI, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgement): The Appellants/Applicants were the 1st & 2nd defendants before the lower Court in Suit No.KAD/121/2009. On the 19th January 2017, the Court declined the further application for adjournment for the 1st Appellant (2nd Defendant) to call his last witness and consequently closed the defence of the Appellants/Applicants. The Appellants/Applicants filed a motion on notice for the setting aside of the said ruling of 19th January 2017 for being a nullity. The Court dismissed the motion on the 13th July, 2017. Sequel to the dismissal of the said motion by the lower Court, the Appellants/Applicants have come before us with a motion on notice filed on 25/2/2022 seeking the following reliefs: –
1. AN ORDER of Court for the enlargement of Applicants’ time to apply for leave to appeal against the rulings of the High Court of justice of Kaduna in Suit No. KDH/KAD/121/2009 delivered on 19th January 2017 and 13th July 2017 respectively.
2. AN ORDER of Court granting the Applicants leave to appeal out of time against the ruling of High Court of justice of Kaduna State in Suit No. KDH/KAD/121/2009 delivered on 19th January 2017 and 13th July 2017 respectively.
3. AN ORDER of Court granting the Applicants enlargement of time to file Notice of appeal against the rulings of the High Court of justice of Kaduna State in Suit No: KDH/KD/121/2009 delivered on 19th January 2017 and 13th July 2017 respectively.
4. AND for such further Order/Order as this Honorable Court may deem fit to make within the circumstances.

The grounds for the application are: –
a) That on 19th January 2017, the lower Court closed the defence of the 1st Applicant as 2nd Defendant in Suit No. KDH/KAD/121/2009 while there was a pending Notice of Preliminary Objection which challenge the jurisdiction of the lower Court filed by the 3rd to 5th Respondents before the lower Court and thereby denied the 1st Applicant fair hearing in the matter.
b) That on 13th July the lower Court dismissed the Applicants’ Motion to set aside the lower Court’s ruling of 19th July 2017 in Suit No. KDH/KAD/121/2009 which is a nullity decision.
c) That both rulings of 19th January 2017 and 13th July 2017 by the lower Court in Suit No. KDH/KAD/121/2009 have denied the 1st Applicant who is the owner and occupant of the subject matter of the lower Court matter (a developed property by the 1st Applicant) the opportunity to be heard before the final decision is taken on the matter by the lower Court.

The motion is supported by an 8-paragraph affidavit, 5 annexures marked exhibits A, B, C, D & E as well as the written address of the learned Applicants’ Counsel Chuks T. Agu Esq.

In opposition to the application, learned Counsel for the 1st Respondent B. S. Asogwa Esq. filed a 4-paragraph counter-affidavit, 6 annexures marked exhibits A, B, C, D, E and F as well as Counsel’s written address.

In arguing the application Learned Counsel for the Applicants, Chuks T. Agu Esq formulated a lone issue for determination, to wit: –
“WHETHER THE APPLICANTS ARE ENTITLED TO THE GRANT OF ALL THE RELIEFS SOUGHT BEFORE THE COURT.”

APPELLANT’S SUBMISSION
Arguing the issue, learned Counsel conceded that the grant or refusal of an application for enlargement of time is discretionary and that the exercise of such discretion is based on the reason for the delay in filing the Notice of appeal which may have been caused due to mistake, negligence, or inadvertence of counsel. He referred to paragraphs 4 to 6 of the main affidavit in support of the application whereat the steps taken by the applicants immediately after the decision appealed against were deposed to along with paragraphs 7 to 13 where the action of the 1st Respondent resulting in the delay were also deposed. He submitted that the Appellants/applicants filed the Notice of appeal (Exhibit B) but for the mistake of the counsel, same was declared incompetent. The mistake being that of the counsel, he argued, citing the case of IMEGWU V. OKOLOCHA (2013) 2 SCNJ514 at 533, the Appellants/applicants should not be punished for the mistake of counsel.

He argued further that the length of time between the judgment appealed against and the application is not the material consideration but the reason for the delay IMEGWU V. OKOLOCHA (supra).

Counsel referred to the grounds of appeal in the proposed Notice of appeal and the reasons stated in the affidavit for the delay in filing the Notice of appeal to submit that the applicants have satisfied the two conditions and further show that the right of the 1st Appellant has been violated by denying him the right to defend the suit at trial urging us to grant the application.

RESPONDENT’S SUBMISSION
On his part, to guide his argument in support of his opposition to the motion, learned Counsel for the 1st Respondents B.S. Asogwa ESQ identified two issues for determination. These are:
(1) Whether this application is competent.
(2) Whether this application is not estopped by Issue Estoppel.

ISSUE 1
It was submitted that the present application is an abuse of process and thus incompetent. Learned counsel drew our attention to Exhibit B attached to the application to submit that the rulings in respect of which the Applicants seek leave to appeal having been affirmed by this Court in appeal No: CA/K/523/2017, the only remedy available to the Appellants/applicants is to appeal to the Supreme Court rather than indulge in relitigating the same issue already settled by this Court thereby constituting an abuse of Court process. Abuse of Court process he argued, is not confined only to multiplicity of action on the same subject matter, parties or their privies but also includes seeking the same relief in different Courts or litigating on same issue in more than a single forum. He cited the cases of SARAKI V. KOTOYE (1992) 9 NWLR (Pt. 264) 156 AT 188 ESQ, OYEYEMI V. OWOEYE (2017) 12 NWLR (Pt.1580) 364, OKOROCHA V. P.D.P (2014) 7 NWLR 9Pt.1406) 213 AT 290 B.E

To further fortify his argument, he pointed out that despite the dismissal of the Appellants’/Applicants’ earlier appeal (as shown by Exhibit B), the 1st Appellant still filed an application dated 7/10/2021 (filed 8/10/2021) in appeal No. CA/K/204/M/2021 praying for the same relief with this application-(CA/K/50/M/2022) to which the 1st Respondent filed a counter-affidavit and in compliance with the new Court of Appeal Rules 2021 filed a written address as evident by exhibits A, B, C, and D annexed to the counter-affidavit. That while the parties had filed their processes and joined issues on that motion of CA/K/204/M/2021 and are only waiting for a date to hear the application, the applicants served them with the present application dated 24/2/2022 and filed on 25/2/2022 (with Appeal No: CA/K/50/M/2021).

On the change in the composition of the parties by removing the 1st-5th Respondents before the lower Court and bringing up the full names of the parties as they appeared before the trial Court in this application to pull the wool over our eyes so as to make it appear as if this application is different from Exhibit A, Counsel submitted that whatever coloration is given to the application, it is obvious that the two are meant to achieve the same purpose, seeking leave to appeal the two rulings which this Court has already dismissed, thereby constituting an abuse of Court process.

ISSUE 2
On issue 2, which is an extension of issue No. 1, learned Counsel submitted that the decision of this Court in CA/K/523/2017. Exhibit B, has decided the same grounds and issues contained in Exhibit E, (the proposed Notice of appeal), this Court, he argued, is thus estopped from proceeding with the same grounds and issues under Sections 173 and 174 of the Evidence Act. 2011 as amended.

Insisting that the issue/reliefs sought in Exhibit B, to wit,
“Orders to set aside the rulings of the lower Court of the 19/1/2017 and 13/7/2017”
are the same with the present application, learned Counsel argued that the Appellants cannot re-litigate on the same issues as they want to lure this Court to sit on appeal over its decision, urging us to dismiss the application for being incompetent.

The applicants filed a 4 paragraph Further and Better Affidavit with two annextures marked exhibits F and G and a reply address on point of law.

Therein learned counsel submitted that appeal No: CA/K/523/2017 having only been struck out and not dismissed, the present application cannot constitute an abuse of process the similar motion in Appeal CA/K/204/2021 having by Exhibit F attached to the further and Affidavit been withdrawn. Reference was made to the case of M.V. SCHEEP V. MU ARAZ (2001) 12 SCNJ. 24 AT 60 paragraph 30.

RESOLUTION OF APPEAL
The two rulings of the lower Court which this application seeks the trinity prayers for leave to appeal against are interlocutory in nature. By this application, the Applicants concede that leave of Court is required to appeal the two decisions by virtue of the mandatory provision of section 242 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
By Section 24 (1) of the Court of Appeal Act, a person desirous of appealing a decision of the Federal or State High Court to the Court of Appeal is required to give notice of appeal or notice of his application for leave to appeal in such a manner as may be directed by the Rules of Court within the period prescribed by sub-section 2.
Sub-section 2 of section 24 provides: –
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) In an appeal in a civil case or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
It is thus crystal clear that the statutory period to apply to appeal an interlocutory decision is fourteen (14) days from the delivery of the decision sought to be appealed against. However, where the prescribed period is not complied with, the Court is empowered by sub-section 4 to enlarge the time within which an applicant may apply to seek leave to appeal the decision. The sub-section 4 provides:-
“The Court of Appeal may extend the periods prescribed in sub-section (2) & (3) of this section”.
In addition to this, Order 6 Rule 9 also bestows on this Court the power to enlarge time for the doing of anything under the Rules except as it relates to Order 16, (Order 16 deals with the Court of Appeal alternative Resolution programme).
Rule 9 (2) sets out the requirements of the application. It provides:
(2) Every application for an 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.
It is beyond argument that an application for extension of time to appeal is not granted as a matter of course. The grant of the application is at the discretion of the Court, and as with all discretionary powers, must be exercised judicially and judiciously. Such a discretion can only be exercised within the Rule where the Applicant (1) shows good and substantial reasons for failure to appeal within the prescribed period and (2) the proposed grounds of appeal disclose prima facie, good course why the appeal should be heard. The two conditions must co-exist. It is not sufficient to satisfy one without the other. Failure to satisfy one of the conditions means failure to show entitlement to the grant of the application. See JIMOH V. F.C.T. (2019) 5 NWLR (Pt. 1664) 45 at 66, F.H.A. V. KALEJAIYE (2010) 19 NWLR (Pt. 1226) 142, ANI V. EFFIOK (SUPRA) at 305 para B–D par Augie, JSC. See also NGERE & ANOR V. OKURUKET & ORS. (SUPRA) where the point was made per Rhodes Vivour, JSC pp 23–25 – f–n.

In the case at hand, the Respondent having raised the issue of the competence of the application, same shall first be considered before delving into the merit of the application.

The Respondent’s challenge to the competence of this application is mainly two-fold, firstly that the ruling of the lower Court sought to be appealed against has already been affirmed by this Court,
Secondly, that a similar application had been filed and processes exchanged awaiting date of hearing.

On the 1st arm, learned counsel referred to Exhibit B attached to the Applicants’ motion and also exhibited to his counter-affidavit as Exhibit B. He referred in particular to the last part of the judgment where this Court stated.
“In consequence, the ruling of the trial Court delivered on 13/7/2017 is hereby affirmed.”

On the other hand, counsel for the Appellant relies on the proceeding sentence where the Court stated.
“The Appellants’ entire appeal is therefore dead-on-arrival and is hereby struck out.”

Admittedly, the two pronouncements are different and have different effect. The big question is whether it lies within our powers to pick and choose between the two portions of the judgment or as between the Applicants’ counsel and the Respondents’ Counsel whose interpretation is right and whose is wrong or to reverse the judgment. To do that will be to sit on appeal over the judgment of this Court (differently constituted).

It is trite that the Court has no jurisdiction to sit on appeal over its own decision or the decision of a Court of Coordinate jurisdiction. The Court cannot constitute itself as the Appellate Court to which its decision lies. Authorities on this are legion UBA V. Ajileye (1999) 13 NWLR (Pt. 633) Tanko V. State (2009) 4 NWLR (PT.1131) 430. SKEN CONSULT (NIG) LTD V. UKEY (1981) 1547.
The power to review the decision of this Court lies extremely within the jurisdiction of the Supreme Court.
The law is trite that once a Court has delivered its decision on a matter, it becomes functus officio. It ceases to have any power to re-open the matter. Once the Court has embodied its decision or order, it can no longer revisit the same matter to do what it had not done before or to undo what it had done before. It cannot have a second bite at the cherry nor sit on appeal over its decision. Except for what may pass under the slip rule to correct clerical errors/mistakes, the Court ceases to have any power to correct any mistake it has committed. The power so to do is only vested in an appellate Court to which an appeal against the decision lies. In Nigerian Army V. Iyela (2008) 7-12 SC 35 AT 48-51, the erudite jurist Tabai JSC held that
“It is settled law that, once a Court has given a final decision on a matter placed before it for adjudication, it becomes functus officio and is precluded from reviewing or varying the term of the judgment or order apart from the correction of clerical mistakes or accidental slips.”
This principle has been explained in several cases.
Firstly, it is well settled that every judgment takes effect on pronouncement. This principle was articulated in Inter contractors Nigeria Ltd., V. UAC of Nigerian Ltd. (1988) 1 NSCC 737 AT 752, BANK of West Africa UNPC Ltd. (1962) LLR 31, Olayinka V. Elusanmi (1971) 1 NWLR 227, in the English case of Thynne V. Thyme (1955) 3 All ER 139 AT 146, the Court of Appeal; person Mofis L.J. stated the principle thus:-
“Where a Court has decided an issue and the decision of the Court is very embodied in some judgment or order that has been made effective, then the Court cannot re-open the matter and cannot substitute a different decision in place of the one which has been recorded. Those who seek to alter must in those circumstances invoke such appellant jurisdiction as may apply. But if a case arises therein the interest of accuracy it seems desirable to amend some part of a judgment other than its operative and substantive part it would seem to be regrettable if the inherent power of the Court were limited or confirmed.” It therefore stands to reason that in the instant case, this Court having rightly or wrongly affirmed the decision sought to be appealed against, the only remedy for the Appellant is to appeal the decision to the Supreme Court. It is not open to the learned counsel to file this motion before this Court seeking the trinity prayers for leave to appeal the decision that had been affirmed by this Court (either rightly or wrongly).

Furthermore, on the 2nd arm, it is also crystal that the Appellant had filed a similar application in appeal No: CA/K/204/M/2021.

Counsel’s contention supported by exhibit F attached to the Further and Better Affidavit (Notice of withdrawal) that the former motion CA/K/204/2021 being withdrawn is only an attempt to pull the wool over our eyes. The argument cannot fly. This is because the said Notice of withdrawal was filed on 26th April 2022 long after (two months) after this motion was filed on 25/2/2022. Simply put, the motion in CA/K/204/M/2021 was in existence and very much alive when the present motion in all fours with the previous was filed. Obviously, the concurrence of the two motions seeking the same reliefs constitutes an abuse of process. In other words, the institution of the present action during the pendency of the similar motion in appeal no. CA/K/204/M/2021 renders this motion an abuse of process

In the case of Adesokan V. Adegorolu (1997) 3 NWLR (Pt.493) 297, the Supreme Court held that to institute an action during the pendency of another one claiming the same reliefs amount to an abuse of process of Court. It does not matter whether the matter is an appeal or not, for as long as the previous action has not been finally decided, the subsequent action constitutes an abuse of process of the Court- see the authorities earlier cited. It is not the existence or pendency of a previous suit that causes the problem but the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not been disposed of that constitutes abuse of process of Court – see Okafor V. A.G Anambra State supra. See also A.C.B. PLC V. NWAIGWE AND ORS (2011) LPELR -208 (SC).
Similarly, it is an abuse of Court process for a party to relitigate an identical issue which had been decided against him YAR ADUA V ATIKU ABUBAKAR AND ORS (2008) LPELR-3513(SC)
In the circumstance, I cannot but agree with the Respondents’ counsel that this application constitutes an abuse of Court process. Indeed, in all ramifications, this application is an embodiment of abuse of process. It cannot be too often stated that the proper and legal prescription for an abuse of Court process is the dismissal of the process. This application which constitutes an abuse of process is therefore liable to be and is hereby dismissed.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the lead ruling of my learned brother AMINA AUDI WAMBAI, JCA. I agree with the reasoning and conclusion that this application constitute an abuse of Court process and it is liable to be dismissed. I also dismiss the application.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead ruling of my learned brother, Amina Audi Wambi, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.