MAGAJI MARKUS CHEYE v. PETER DODO SIDI
(2018)LCN/12110(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of October, 2018
CA/K/158/2012
RATIO
APPEAL: WHERE AN APPLICANT SEEKS EXTENSION OF TIME
“The primary duty of an applicant seeking extension of time to appeal is to place before the Court such materials as may be adjudged sufficient to explain the cause of the delay. If the primary duty is not discharge, a consideration of whether the grounds of appeal prima facie show good cause why the appeal should be heard is unnecessary. Isiaka v. Ogundimu (2006) 12 NWLR (Pt. 997) 401; Mobil Oil (Nig). Ltd. v. Agadaigho (1988) 2 NWLR (Pt. 77) 383; F.H.A. v. Abosede (1998) 2 NWLR (Pt. 537) 177. All material evidence ought to be placed before the Court for the proper exercise of its discretion when determining an application for enlargement of time to appeal. It is the applicant that has the responsibility of making such available. In other words, it is the duty of an applicant seeking enlargement of time to prove the merit of his application and not rely on the weakness of the respondents case. Alamieyeseigha v. F.R.N. (2006) 16 NWLR (Pt. 1004) 1.” PER IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES:
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
MAGAJI MARKUS CHEYE – Appellant(s)
AND
PETER DODO SIDI – Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment):
The respondent as plaintiff, commenced suit No. CCAZX/02/2010 before the Zango Kataf Customary Court (the trial Court) against the appellant (as the defendant). Judgment was delivered on the 4th day of August, 2010 in favour of the respondent. The appellant did not appeal against the judgment delivered on the 4th day of August, 2010 within the time prescribed for the filing of an appeal. An application was however filed on the 5th of June 2011, for an order extending the time within which to appeal to the Customary Court of Appeal, Kaduna State, the lower Court, seeking for an order extending time within which to appeal against the judgment of the trial Court. The lower Court, after considering the application, refused and dismissed same for lacking in merit. Dissatisfied with the ruling of the lower Court, the appellant filed Notice of appeal, challenging the said ruling to this Court.
The appellants brief of argument was filed on the 30th of May, 2017, out of time, and deemed properly filed on the 6th of May 2017.
The respondent filed notice of Preliminary Objection to the competency of the appeal on the 7th of December, 2017, which was argued in the respondents brief of argument filed on the same date. The appeal was heard on the 15th of October, 2018. Learned counsel to the respondent drew the attention of the Court to the Notice of Preliminary Objection, which was argued on pages 3 to 6 of the respondents brief of argument. Same was adopted as the argument in support of the preliminary objection. The Court was then urged to uphold the Preliminary Objection to the competence of the appeal, and to strike out same for being incompetent. Learned counsel to the appellant did not file a Reply brief. He did not therefore respond to the Notice of preliminary objection to the competency of the notice of appeal filed by the respondent.
THE PRELIMINARY OBJECTION
A preliminary objection in a brief of argument is to be attended to and resolved before delving in to the appeal because it may fore-close or abort the appeal in limine. Where a preliminary objection is upheld by the Court, the appeal is to be deemed aborted or terminated in limine without necessarily determining the rights of the parties thereto, one way or the other, on the merit. See CBN v. Beekiti Const. Ltd. (2011) 5 NWLR (Pt. 1240) P. 203 @ 222; Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) P. 1; ANNP v. RE. C. Akwa Ibom State (2008) 8 NWLR (Pt. 1080) P. 453.
The Preliminary Objection to the competency of the appeal against the ruling of the lower Court delivered on the 30th of June, 2010, is produced hereunder for emphasis and easy comprehension.
NOTICE OF PRELIMINARY OBJECTION
BROUGHT UNDER ORDER 10 RULE 1 OF THE COURT OF APPEAL RULES 2016 AND THE INHERENT JURISDICTION OF THE COURTS.
TAKE NOTICE that the respondent shall at the hearing of the appeal raise a Preliminary Objection to the hearing of the Appeal.
1. GROUNDS OF THE OBJECTION
1. The 4 grounds of Appeal contain in the appellants Notice of Appeal dated 16th April 2013 do not fall within the jurisdiction of the Court under Section 245(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
2. Ground of appeal No. 4 was filed out of time without the leave of the Court.
2. RELIEFS SOUGHT
An Order striking out the appeal for being incompetent.”
E. B. Kantiok Esq., did submit that by the provisions of Section 245(1) of the 1999 Constitution (amended), the Court of appeal is not seised of the jurisdiction to adjudicate on the appeal filed on the 17th of April 2013, having due regard to the contents or nature of the grounds of which do not involve or concern Customary law or any matter related thereto. Learned counsel cited and relied on the principles of law espoused in the case of BONA v. T. Textile v. ASABA MILL Plc (2013) All FWLR (Pt. 669) P. 995 @ 1015 to buttress the submissions supra. That none of the grounds of appeal raised any issue of customary law as could be gleaned from the particulars given to each of the grounds contained in the notice of appeal against the ruling of the lower Court delivered on the 30th of June, 2011.
On the 2nd ground of the Preliminary Objection, counsel adumbrated that the 4th ground of appeal is incompetent having been filed without obtaining the leave of this Court or the lower Court to do, since same was not part of the grounds contained in the Notice of appeal when it was filed.
Secondly, that the 4th ground of appeal does not disclose any issue relating to customary law. The case of Ojemale Invest. Ltd v. A. G. Federation (2011) All FWLR (Pt. 582) P. 1738 @ 1770 cited and relied on to reinforce the submissions supra. In conclusion, learned counsel did urge that the preliminary objection be sustained, and in consequence, the appeal be struck out for being incompetent.
The appellant did not file a Reply brief, so there is no response from him on the submissions of learned counsel on the Preliminary Objection to the competency of the appeal against the ruling of the lower Court, delivered on the 30th of June, 2011.
Section 245(1) of the 1999 Constitution (altered) provides thus:
An appeal shall lie from decisions of the Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary and such other matters as may be prescribed by an act of the National Assembly. (Underlining for emphasis).
The Notice of appeal filed on the 19th of April, 2013 as could be found on pages 80 81 of the printed record of appeal contains 4 grounds of appeal.
The 4 grounds of appeal, without the particulars, are as follows:
Ground 1
That the learned Justice of the Customary Court of Appeal Kaduna State erred in law in refusing to exercise their discretion in favour of the appellant by granting the extension of time within which to appeal to the said Customary Court of Appeal Kaduna from the decision of the Customary Court, Zangon Kataf, Kaduna in Suit No. CCZK/02/2010.
Ground 2
That the learned Justice of the Customary Court of Appeal Kaduna State, Kaduna, erred in law in that, they failed to judiciously and judicially exercise their discretion in favour of the appellant by granting him the extension of time within which to appeal against the decision of the Customary Court, Zangon Kataf, Kaduna, Kaduna State in CASE NO: CCZK/02/2010.
Ground 3
That the learned justices erred in law in that they failed to be guided by Section 59 of the Customary Court Law 2001 as amended which enjoins them to do substantial justice in every case that is before them.
Ground 4
The learned justices of the lower Court erred when they held thus:
we have also not seen the earlier notice of appeal supposedly filed by the appellant himself before the lower Court. All that could be seen in the Courts file is a notice of appeal dated 19th October, 2010 and filed on 20th October, 2010 which makes the applicants case worse. It is also to be noted that as at the time applicant briefed Gbenga Esq., on 25th September, 2010, the period to appeal had already elapsed.
An examination of the 4 grounds of appeal, with their particular, clearly discloses that:
(i) Ground one quarrels with the refusal of the customary Court of Appeal to exercise its discretion to grant the application.
(ii) Ground two also challenges the refusal of the Customary Court of Appeal to grant the application.
(iii) Ground three further challenges the refusal of the Customary Court of Appeal to exercise its discretion in favour of the appellants notwithstanding the provisions of Section 59 of the Customary Court Law 2011.
(iv) Ground four is also a mere challenge on the refusal of the Customary Court of Appeal to extend time for the appellant notwithstanding an earlier notice of appeal he had filed.
The law is settled, where there is an appeal against the decision of a Customary Court of Appeal of a State, which does not involve customary law or any issue(s) thereto, such an appeal is not competent in view of the provisions of Section 245(1) of the 1999 Constitution (Amended). See BONA v. T. Textile Ltd v. Asaba Textile Mill Plc (2013) All FWLR (Pt. 669) P. 995 @ 1015. As to when an appeal from the decision of a Customary Court of Appeal consist of issues of customary law or not, the Apex Court, in the case of PAM v. Gwom (2000) FWLR (Pt. 1) P. 1 @ 15, espoused that:
I venture to think that decision is in respect of a question of Customary Law when the controversy involves a determination of what the relevant customary law is and the application of customary law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable Customary law is and the customary Court of appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question customary law arises. However, where notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to extent and manner in which such applicable customary law determines and regulates the rights, obligation or relationship of parties having regard to facts established in the case, a resolution of such dispute can, in my opinion be regarded as a decision with respect to a question of customary law. Where the decision of the Customary Court of appeal turns purely on facts, or on question of procedure, such decision is not with respect to a question of customary law, notwithstanding that the applicable law is Customary Law.
See also Hirnor v. Yongo (2003) FWLR (Pt. 159) P. 1358 @ 1375; Nwaigwe v. Ojere (2008) All FWLR (Pt. 431) P. 843 @ 861; Dakur v. Wedlet (2005) All FWLR (Pt. 278) P. 1116 @ 112.
As to the 2nd ground of the Preliminary Objection, on the validity or competence of ground 4 of the Notice and grounds of appeal, having added the 4th ground of appeal in the Notice of appeal filed on the 19th of April, 2013, which was not contained in the one earlier filed, it was filed out of time, and leave of the lower Court or this Court, ought to have been sought and obtained. Having not obtained the required leave before adding the 4th ground of appeal, same is incompetent. Consequently, I hold that the preliminary objection to the competency of the notice of appeal filed on the 19th of April, 2013, against the ruling of the lower Court delivered on the 30th of June, 2010, is hereby sustained. The notice of appeal having been declared incompetent, same is null and void, as if there has been no Notice of appeal filed against the ruling of the lower Court, delivered on the 30th of June, 2010, in suit CCA/KAD/KAF/29A/M1/2011. The appeal is hereby struck out. See B.O.I Ltd. v. Awojugbagbe Light Ind. Ltd. (2018) 6 NWLR (Pt. 1615) P. 220 @ 229 30 and Isa v. INEC (2016) 18 NWLR (Pt. 1544) P. 175.
The sustenance of the preliminary objection to the competency of the appeal, would had brought this appeal to an end. There is no need to proceed to consider the appeal on its merit, but since this Court is not an Apex Court, it is desirable to consider them and take a decision thereon, in the event of there being an appeal against this judgment to the Apex Court. This is to enable the Apex Court to have the benefits of the views of this Court on the other issues so raised in the appeal.
The law is trite, this Court is a penultimate or intermediate one. It is only an Apex Court that can decide not to delve into other issues in an appeal, where the resolution of one of the issues can or has determined an appeal. For as adumbrated in Shasi v. Smith (2009) 18 NWLR (Pt. 1173) P. 330 @ 356, per Chukuma-Eneh, J.S.C, that:
As a matter of fact and law this is the final Court and one of its attributes arising from this privileged position is the power of deciding an appeal before it even on resolving one issue which is decisive amongst other issues submitted before it for adjudication. This may not be the case with regard to the intermediate lower Courts, excepting if within the narrow exceptions as contemplated in the cases of F.C.D.A v. Sule (supra) that is, where it is decided that the Court lacks jurisdiction in the matter before the Court, it then becomes unnecessary to consider other issues once a decision has been taken on the issue of jurisdiction, also see: Oro v. Falade (supra) and Ifeanyi Chukwu (Osondu) Ltd v. Soleh Boneh Ltd, (2000) 5 NWLR (Pt. 656) 322 at 352; and again as rightly pointed out by this Court in Sapara v. U.C.H. Board of Management (1988) 4 NWLR (Pt. 86) 58 at 61 to the effect that an appellant before an appellate Court has a constitutional right to a determination by that Court of all the issues submitted to it.”
Ogbuinya, J.C.A, expressed similar view in the case of NJC v. Agumagu (2015) 10 NWLR (Pt. 1467) P. 365 @ 407, when he said that:
Ordinarily, having struck out the appeal for being incompetent, that would have been the end of my arduous judicial assignment. However, it is not. This a penultimate Court next to the apex Court on the judicial ladder. In view of this hierarchical position, the law insists that I showcase my view on the appeal for the benefit of the Supreme Court, on the likely event of appeal to it. This is to, ultimately, obviate the need for the apex Court to remit the appeal to this Court if it has a contrary view on the preliminary objection thereby saving judicial time and costs for the Courts and the litigants alike. See Adah v. N.Y.S.C (2004) 13 NWLR (Pt. 891) 639; Tanko v. UBA Plc (2010) 17 NWLR (Pt. 1221) 80; Obiuweubi v. C.B.N (2011) 7 NWLR (Pt. 1247) 465; Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450; Elelu-Habeeb v. A.-G., Fed. (2012) 13 NWLR (Pt. 1318) 423. In due obedience to this current state of the law, I will proceed to consider the merit of the appeal in the alternative.”
With the foregoing admonition in mind, I would proceed to consider the appeal on its merit. Two (2) issues for determination have been distilled from the 4 grounds of appeal on page 4 of the appellants brief of argument, which have been adopted on page 6 of the respondents brief of argument. The 2 issues for determination are hereunder amalgamated and compressed into a sole issue, for which if resolved, would determine the appeal fairly and justly. The sole issue is thus:
Whether the Customary Court of Appeal Kaduna State exercised its discretionary power properly in refusing the Appellants application for extension of time within which to appeal from the decision of the Customary Court, Zangon Kataf, Kaduna in Suit No. CCZK/02/2010 to the said Customary Court of Appeal in view of the contents of the affidavit evidence and other materials placed before the said Court? (Grounds 1, 2, 3 and 4 of the grounds of appeal).”
O. E. Oguniran Esq., of learned counsel who settled the appellants brief of argument, did refer to the provisions of Section 59 of the Customary Courts Law 2011 and contended that the current trend of legal Opinion is that dispute, before the Court, is to be decided on the merit, rather than on undue reliance to technicalities. The principle of law espoused in Surakatu v. NHDS (1989) 4 SC was cited and relied on to buttress the contention supra. That in the exercise of its discretionary power in the adjudicatory process, a Court of law is to do so judicially and judiciously to attain substantial justice. The cases of Global Scene Ltd v. The Registrar of Trade Marks (2011) ALL FWLR (Pt. 558) P. 877 @ 901 and Julius Berger (Nig) Plc v. Ogundehin (2013) ALL FWLR (Pt. 676) P. 497 @ 553 were cited to reinforce the submissions supra.
It is counsels contention that by the findings and the decision arrived at on pages 73-74 of the printed record of appeal, the lower Court ought to have granted the reliefs sought by the appellants. Submitting further, learned counsel adumbrated that, having found that the two (2) requirements for the granting of an application for extension of time to appeal were satisfied, the order sought ought to have been granted, had the lower Court exercised its discretion in the interest of substantial justice.
On whether there were sufficient materials placed before the lower Court to grant the application of the appellant, learned counsel did submit that, since the depositions contained in the affidavit, and further and better affidavit, were not contradicted by the respondent, the lower Court ought to have relied on same in granting the order. The case of Best Vision Cont. Ltd v. U.A.C.N.D.C Plc (2003) 13 NWLR (Pt. 838) P. 594 cited and relied on in reinforcement of the submission supra. This Court has been urged to resolve the issues for determination in favour of the appellant, and in consequence allow the appeal, and grant the application of the application, accordingly.
For the respondent, E. B. Kantiok, Esq., did submit that having regard to the materials placed before the lower Court, the application of the appellant was rightly refused and dismissed. That the appellant was aware of the durational period within which an appeal is to be filed against a final judgment, yet he neglected to do so within time.
Counsel further pointed out that before such an application for extension of time to appeal can be granted, the applicant has a duty to place sufficient materials explaining the reasons for the delay, which the appellant failed to do so. That the appellant failed to show by the depositions in the affidavit the reasons why the appeal was not filed as required by law, moreso that none of the requirements was satisfied as found by the lower Court. On the requirement that the reasons for the delay in filing an appeal, and that the proposed grounds of appeal must show a prima facie case, before the order for extension the time to appeal can be granted, the principles of law espoused in the case Uma Ent. Ltd v. Bendel Cement Co. Ltd (2009) ALL FWLR (Pt. 500) P. 789 @ 800 were cited and relied on to buttress the submissions supra. On the provisions of Section 59 of the Customary Courts Law of Kaduna State, 2011, counsel did contend that same is applicable only in the determination of the substantive appeal, not in an application for extension of time to so act.
On the assertion that there are sufficient materials in the depositions contained in the affidavit in support of the application, learned counsel did submit that, it is far from the truth. It is Counsels contention that the lower Court was right in its holding that there were no sufficient materials placed before the lower Court to warrant the granting of the order sought, because merely stating that there was a mixed up without giving a detailed account of the assertion, cannot be the basis for the granting of the order sought. In conclusion, the learned counsel did urge that the issue for determination be resolved against the appellant, having failed to show good cause for the granting of such an application as propounded in the case of Airhiavbere v. Oshiomhole (2013) ALL FWLR (Pt. 687) P. 797 @ 813.
Order 7 Rule 10 (1) and (2) of the Court of Appeal Rules 2011 (applicable at the time) provides as follows:
10(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.
(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 case 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.”
In an application for extension of time within which to appeal, an applicant must satisfy the provisions of Order 7 Rule 10(1) and (2) of the Rules of Court. The Supreme Court had this to say in the case of ANPP v. Albashir (2010) 2 SCNJ P. 159 @ 181:
An applicant who seeks an equitable relief from the Court of Appeal must meet the requirements in Order 7 Rule 10(2) of the Court of Appeal Rules 2007. Such an application shall be supported by an affidavit evidence which must show (1) good and substantial reason for failure to appeal within the prescribed period. (2) grounds of appeal which prima facie show good cause why the appeal should be heard, in order to exercise its discretion to grant any application for extension of time within which to appeal, the Court has never compromised on the issue that the two conditions stated above must be satisfy conjunctively. The two conditions must be established in the affidavit evidence in support of the application. When only one out of two conditions is satisfy, the application cannot be granted. (Underlining for emphasis).
Order 7 Rule 10(2) of the Court of Appeal Rules, 2011, lays down two conditions for the exercise of the Courts discretion to grant an enlargement of time within which to appeal. They are:
(i) Good and substantial reasons of failure to appeal within time; and
(ii) Grounds of appeal which prima facie show good cause why the appeal should be heard. These two conditions must co-exist to warrant the granting of an application for enlargement of time within which to appeal. Where only one out of the two conditions is satisfied, the application cannot be granted.
See ANPP v. Albashir (2010) 9 NWLR (Pt. 1198) P. 118 @ 146; Emmanuel v. Gome 2 (2009) 7 NWLR (Pt. 1139) P. 1@ 14 and Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) P. 527.
For an application for extension of time in which to appeal to succeed, the applicant must show good and substantial reasons for the failure to appeal within the prescribed period, and grounds of appeal which prima facie show good cause why the appeal should be heard. The two conditions must be satisfied together at the same time. The entire application must state clearly the reasons for the delay in complying with the rules of Court. The length of time for the delay is immaterial provided the applicant is able to explain the delay and show good cause why the appeal should be heard. If there is no good and substantial reason for the delay, the Court may refuse the application. See Jesus Union Kingdom v. Ogiji (2010) 4 NUCR (Pt. 1183) P. 91 @ 99, Williams v. Mokwe (2000) 14 NUCR (Pt. 684) P. 392; Isiaka v. Ogundimu (2006) NWLR (Pt. 997) P. 401; Ibodo v. Enarofia (1980) 5-7 SC. 42 and Balogun v. Afolalu (1994) 7 NWLR (Pt. 355) P. 206.
The primary duty of an applicant seeking extension of time to appeal is to place before the Court such materials as may be adjudged sufficient to explain the cause of the delay. If the primary duty is not discharge, a consideration of whether the grounds of appeal prima facie show good cause why the appeal should be heard is unnecessary. Isiaka v. Ogundimu (2006) 12 NWLR (Pt. 997) 401; Mobil Oil (Nig). Ltd. v. Agadaigho (1988) 2 NWLR (Pt. 77) 383; F.H.A. v. Abosede (1998) 2 NWLR (Pt. 537) 177.
All material evidence ought to be placed before the Court for the proper exercise of its discretion when determining an application for enlargement of time to appeal. It is the applicant that has the responsibility of making such available. In other words, it is the duty of an applicant seeking enlargement of time to prove the merit of his application and not rely on the weakness of the respondents case. Alamieyeseigha v. F.R.N. (2006) 16 NWLR (Pt. 1004) 1.
The delineating feature is that the granting of an application for extension or enlargement of time to appeal is not a matter of course but at the discretion of the Court. It is the fact deposed to in the affidavit evidence that would hold relevant in giving the requisite information directing the exercise of discretion, which must be judicial and judicious. See SCOA (Nig) Plc. V. Omatshode (2009) 11 NWLR (Pt. 1151) P. 106 @ 112. If there is no good and substantial reason for the delay, the Court must refuse the application. Isiaka v. Ogundimu (2006) 13 NWLR (Pt. 997) 401; Alagbe v. Abimbola (1978) 2 SC 39; Pjora v. Bakere (1976) 1 SC47; Akano v. Adediran (1975) 1 NMLR 391.
The reasons given as to why the applicant did not appeal against the ruling of the trial Court within the prescribed time have been given and explained in the affidavit and the further and better affidavit of the appellant. Paragraphs 4(a)-(g) 20 of the affidavit supporting the application, and paragraphs 4(a)-(d) 8, of the further and better affidavit are germane. They are reproduced hereunder:
THE AFFIDAVIT IN SUPPORT
I was informed by Olugbenga E. Oguniran Esq., the principal counsel in chamber; of the following facts which I verily believe to be true and correct that:
(a) He was briefed of this matter on 25th day of September, 2010 at about 2:30pm to file Appeal on behalf of the Appellant/Applicant by the Appellant.
(b) The Appellant/Applicant instructed him to file the Notice of Appeal and withdraw the previous one that was personally filed by the Appellant/Applicant.
(c) That he quickly prepared and filed the Notice of Appeal containing the grounds of Appeal and dated 28th day of September, 2010 with an application letter by the Applicant to replace the already filed Notice of Appeal dated 7th day of September, 2010.
(d) He erroneously in the Notice of Appeal dated 28th day of September, 2010 referred to the judgment of the Customary Court, Zangon Kataf, as been delivered on the 13th day of September, 2010.
(e) On the 20th of May, 2011, when this matter came up before this Court, the Respondent Counsel drew the attention of the Court that judgment was delivered according to the record of proceedings compiled on the 4th August, 2010.
(f) He had prepared a new Notice and grounds of appeal reflecting the date, the judgment was delivered in the compiled record as 4th August, 2010. The said Notice and grounds of appeal are hereby annexed and marked as Exhibit A.
(g) That the delay in filing the appeal within time is due to the mix up stated in the preceding paragraphs and it was not a deliberate act.
The respondent filed a counter-affidavit opposing the granting of the prayers of the appellant. Paragraphs 3(i) to (iv) thereof are germane.
3. That I have been informed by E. B. Kantiok Esq, of counsel handling this Application on the 6th of June, 2011 at the hour of 12:00 noon and I verily believed him as follows:
(i) That as at the 25th day of September, 2010 when the applicant briefed Olugbenga E. Ogunniran Esq., to appeal against the Judgment of the trial Court, the 30 days allowed for the appeal had elapsed.
(ii) That as at the 4th of August 2010 an appeal from the trial Customary Court Zangon Kataf lied to the Upper Customary Court Zonkwa.
(iii) That as at the time the law conferring jurisdiction on the customary Court of Appeal to hear appeals from the Customary and Upper Customary Courts was made, no appeal existed at the Upper Customary Court Zonkwa.
(iv) That the grounds of Appeal annexed to the motion for extension of time do not raise issues of Customary Law to rest the Court with jurisdiction to hear the appeal.
A further and better affidavit has been filed in response to the depositions contained in the counter-affidavit of the respondent. Paragraphs 4(a) to (d) are as follows:
4. I was informed by Olugbenga E. Ogunniran Esq, the principal counsel in chambers of the following facts which I verily believe to be true and correct that:
a. I have seen the counter affidavit depose to Miss Lydia Zachariah
b. Paragraph 3 (iv) is not correct.
c. The Grounds of Appeals in the notice Appeal relates squarely to Customary Law of inheritance.
d. The grounds of Appeal relates to Customary Law of Founding a place and calling of evidence in establishing ownership of the land.”
I have carefully and dispassionately examined and evaluated the depositions contained in the affidavit and the Further and Better affidavit of the appellant as well as those contained in the counter-affidavit of the respondent. The depositions in the affidavit and the further affidavit have not explained what the Mixed up entails. It is not for the Court to speculate or conjure as to what the mixed-up is. I am satisfied that the applicant have not satisfactorily explained why he was not able to appeal against the ruling of the trial Court within the specified period. I am in full agreement with the lower Court when it held on pages 74-75 of the printed record of appeal thus:
However, having found that the applicant did not adduce good and substantial reasons why he could not file the appeal on time, this Court would therefore not exercise its discretion in his favour. The two requirements must co-exist, for this Court to exercise its discretion in his favour.”
Having failed to do that, the appeal (application) lacks merit and it is liable to be dismissed and same is hereby dismissed.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Justice Ibrahim Shata Bdliya, JCA. I agree with him that the said application and this appeal are liable to be dismissed and should be struck out. I totally share His Lordships, viewpoint that the respondens preliminary objection is meritorious and should be sustained. However, I wish to add few words of my own.
It is paramount to observe herein that the instant appeal matter emanated from the decision of the Customary Court of Appeal of Kaduna State (hereinafter referred to as the lower Court). Appeals emanating from the decision of the lower Court are special class of appeals and they are strictly regulated by the provision of Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
By virtue of the above referenced provision of the Constitution, an appeal from the decision of the Customary Court of Appeal can only be competently and validly filed as of right and entertained by this Court only when it dwells and/or raises issues of customary law. Thus, any ground(s) of appeal or notice of appeal which does not raise issue of customary law would be adjudged and considered as incompetent and liable to be struck out. This interpretation of the provision of Section 245(1) of the 1999 Constitution, has plethora of cases been interpreted in this manner and accordingly affirmed by the apex Court; notably among those decisions are: PAM VS. GWOM (2000) LPELR 2896 (SC); OHAI VS. AKPOEMONYE (1999) LPELR 2358 (SC); HIRNOR VS. YONGO (2003) 9 NWLR (PT. 824) 77; GOLOK VS. DIYALPWAN (1990) 3 NWLR (PT. 139) 411 and UDEMBA VS. NWABUEZE (2016) LPELR 41314 (CA).
In the instant appeal matter, the appeal was predicated on the ruling of the lower Court, whereby the said lower Court refused the appellants application seeking for an order extending time within which the appellant shall file his notice of appeal. The said application dismissed accordingly. Without any shadow of doubt, the main purport of this appeal or its main gist pertains to the supposed improper exercise of discretion by the lower Court, and it does not raise any question which borders on the determination of the parties customary law. Thus, I am also of the firm viewpoint that this appeal is incompetent and should be struck out.
For the fuller and more resounding reasons given in the lead judgment of His Lordship, Bdliya, JCA, I too share the view that this appeal is incompetent even if considered on the merit, is and unmeritorious, and thus, it should be dismissed accordingly.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother IBRAHIM SHATA BDLIYA JCA, in draft form. I agree that the appeal should have been terminated on the basis of the Preliminary Objection. My Lord went on to consider the main appeal itself on the well reasoned ground based on decided authorities that this Court being the penultimate Court, should consider the issues in the appeal proper in order to afford the apex Court the opportunity of considering the views of this Court should there be a further appeal to the apex Court. However, the apex Court has also stated in a number of cases that in the clearest cases, it will not be necessary to consider all the issues. In A.G. LEVENTIS NIG PLC V. CHIEF CHRISTIAN AKPU (2007) 6 SC PART 1 p. 236; (2007) 17 NWLR PART 1063 p. 416 the apex Court stated: –
It is firmly settled that it is the duty of all lower Court to consider issues placed before them except in the clearest cases.”
See also ONOCHIE V. ODOGWU (2006) 6 NWLR PART 975 p. 66.
While I think that the resolution of the Preliminary Objection in the Respondent’s favour is one of those clearest cases, I nonetheless agree with my Lord that circumspection requires the issues on appeal to be considered and resolved. I agree with the resolution of the issues in the appeal and also conclude that the appeal lacks merit. I dismiss it.
Appearances:
Elizabeth Yayok, Esq. For Appellant(s)
E. B. Kantiok, Esq. For Respondent(s)
