MD., MOTHER COOL v. E. D. TSOKWA & CO
(2020)LCN/14259(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Monday, June 08, 2020
CA/YL/142M/2019(R)
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
MANAGING DIRECTOR, MOTHER COOL. APPELLANT(S)
And
D. TSOKWA & CO. RESPONDENT(S)
RATIO
THE REQUIREMENTS FOR FILING AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL
Under Order 6 Rules 1, 2 and 9 of the Court of Appeal Rules, 2016, an application for extension of time within which to Appeal must satisfy the following requirements:-
a) It must disclose good, cogent or satisfactory reasons for not filing his appeal timeously; and
b) Its proposed grounds of appeal must be substantial and must prima facie show good cause why the appeal should be heard. PER BAYERO, J.C.A.
WHETHER OR NOT THE ISSUE OF JURISDICTION IS A SUBSTANTIAL GROUND TO SHOW WHY AN APPEAL SHOULD BE HEARD
(Exhibit MDM 2) are substantial and prima facie show good cause why the appeal should be heard. This is because the grounds raised substantial and arguable issues of jurisdiction that there were no proper parties before the lower Court and that the Appellant was not given the opportunity to be heard. E.F.P. Co. Ltd. v. N.DI.C. (2007) 9 NWLR (Pt. 1039) 216 at 244 Paras. E-F. PER BAYERO, J.C.A.
WHETHER OR NOT THE LEAVE OF THE APPEAL COURT IS REQUIRED TO APPEAL THE DECISION OF THE TRIAL COURT, WHERE THE TRIAL COURT SITS IN ITS APPELLATE JURISDICTION
Furthermore, the lower Court sat in its Appellate jurisdiction, as such leave is required to Appeal against its decision; and the grounds of Appeal as disclosed from the proposed Notice of Appeal (Exhibit “MDM2”) involve question of mixed law and fact.Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130; Olanrewaju v. Ogunleye (1997) 2 NWLR (Pt. 485) 12. PER BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): By an application by way of Motion on Notice filed on 1/08/2019 the applicant prayed for the following reliefs:-
1) An Order of the Honourable Court extending time to the Applicant to apply for leave to Appeal against the decision of Adamawa High Court of Justice delivered by Hon, Justice Nathan Musa on 1/08/2018 in Suit No. ADSY/10A/2017 between MANAGING DIRECTOR, MOTHER COOL V. E. D. TSOKWA & CO. to the Court of Appeal on grounds of facts and mixed law and facts
2) An Order of the Honourable Court granting leave to the Applicant to Appeal against the decision of the Adamawa State High Court of Justice, delivered by Nathan Musa J. on 1/08/2018 in Suit No. ADSY/10A/2017 between MANAGING DIRECTOR, MOTHER COOL V. E. D. TSOKWA & CO to the Court of Appeal on grounds of facts and mixed law and facts.
3) An Order of this Honourable Court extending time within which the Applicant may Appeal against the decision of the Adamawa State High Court of Justice delivered by Nathan Musa J. on 1/08/2018 in Suit No. ADSY/10A/2017 between MANAGING DIRECTOR, MOTHER COOL V. E. D. TSOKWA & CO to the Court of Appeal.
4) Such further or other Order(s) as the Honourable Court may deem fit to make in the circumstances.
The grounds upon which the reliefs are sought are:-
1) The Applicant is dissatisfied with the decision of the Adamawa State High Court of Justice delivered on 1/08/2018 in Suit No. ADSY/10A/2017 and seeks to appeal against same to the Court of Appeal.
2) The Applicant requires leave of Court to Appeal against the said decision, as the Adamawa State High Court delivered same in its Appellate capacity and the grounds upon which the Applicant intends to Appeal are grounds of mixed law and facts.
3) The Applicant is out of time to apply for leave to Appeal and therefore requires the prior order of Court extending time for it 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, hence the need for an order of Court extending time for it to Appeal against the decision aforesaid.
5) The Applicant had promptly filed an application for leave at the Registry of the Court below; however, same could not be assigned to any judge of
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that Court for hearing within time.
6) The grounds upon which the Applicant seeks to maintain this Appeal are substantially points of law and facts.
The application is supported by a six paragraph affidavit and three annexures Exhibit “MDM1” (Certified true copy of the Judgment of the High Court) “MDM2” (proposed Notice of Appeal) and “MDM3” (Certified copy of the process filed on the Applicant’s behalf). The Respondent’s Counter affidavit of seventeen (17) paragraphs was filed on 3/02/2020 with one annexure ‘A’ (the attachment order from the Rent Tribunal Zone 1, Yola).
Under Order 6 Rules 1, 2 and 9 of the Court of Appeal Rules, 2016, an application for extension of time within which to Appeal must satisfy the following requirements:-
a) It must disclose good, cogent or satisfactory reasons for not filing his appeal timeously; and
b) Its proposed grounds of appeal must be substantial and must prima facie show good cause why the appeal should be heard.
In the instant case, the applicant’s supporting affidavit at paragraphs 3 (i), (ii), (iii), (iv), (v) and 4 (i),
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(ii), (iii), (iv), (v) and (vi) stated as follows:-
3 “That I am informed by Chief Ejikeme Umeh, the Applicant’s alter ego, in our office at No. 51 Mubi Road, Jimeta Yola on 14/01/019 at about 11;30 am and I verily believe him as follows:
(i) That he was served with summons as the Respondent in a suit at the instance of the Respondent as complainant before the trial Rent Tribunal Zone 1, Yola whereat Judgment was entered in favour of the said Respondent.
(ii) That he appealed against the said judgment to the Adamawa State High Court of Justice, the appeal was heard and consequently judgment delivered on 1/08/2018, wherein the said High Court affirmed the decision of the Rent Tribunal Zone 1, Yola. A certified copy of the judgment of the High Court is hereto attached and marked as Exhibit ‘MDM1’.
(iii) That being dissatisfied with the decision aforesaid, he instructed his Solicitors to file an appeal against same to the Honourable Court, wherefore his Solicitors have prepared and showed him a proposed Notice of Appeal and same is hereto attached and marked as Exhibit ‘MDM2’.
(iv) That upon his
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instructions to his Solicitors, Counsel promptly filed an application for leave to appeal on 1/08/2018 at the High Court Registry, Yola and hitherto same awaits assignment to a judge for hearing. A certified copy of the process filed on the Applicant’s behalf is hereto attached and marked as Exhibit ‘MDM3’.
(v) That I am informed by Etim Akpan Esq. of Counsel in our office on the same 14/01/2019 at about 3:30pm and I verily believe him as follows:
(i) That since the judgment of the lower Court is one delivered in exercise of its Appellate jurisdiction, prior leave of either that Court or the Honourable Court is required before an appeal can be validly lodged against same.
(ii) That he had filed an application for leave to appeal before the Court below but same had to go through the rigors of assignment by the Chief Judge of Adamawa State before it could be heard by any judge of that Court.
(iii) That the three months window allowed by the Court of Appeal Act for filing of appeals or seeking leave to appeal has lapsed hence the need to bring this application before the Court of Appeal at this time.
(iv) That the
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applicant is now out of time owing to the costly delay in waiting for assignment of its application for leave at the lower Court and upon expiry of the statutory period, he took ill and had cause to travel out of the State for treatment, hence the delay in filing this appeal.
(v) That there are recondite and arguable grounds in the proposed Notice of Appeal.”
From the paragraphs of the supporting affidavit as reproduced above, it has disclosed cogent reasons for the delay in not appealing timeously more especially at paragraphs 3 (iv) where the applicant filed an application for leave to appeal on 3/08/2018 (Exhibit ‘MDM 3’) but same had to await assignment to a judge for hearing. Paragraph 4 (iv) also shows that the applicant is out of time owing to the costly delay in waiting for assignment of its application for leave at the lower Court. These are cogent reasons in the eyes of the law that will allow the grant of the application – Yiborku v. Republic (1968) 1 All NLR 343; Saffieddine v. C.O.P. (1965) 1 All NLR 54. Furthermore grounds three (3) and four (4) of the grounds of Appeal contained in the proposed Notice of Appeal
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(Exhibit MDM 2) are substantial and prima facie show good cause why the appeal should be heard. This is because the grounds raised substantial and arguable issues of jurisdiction that there were no proper parties before the lower Court and that the Appellant was not given the opportunity to be heard. E.F.P. Co. Ltd. v. N.DI.C. (2007) 9 NWLR (Pt. 1039) 216 at 244 Paras. E-F.
A careful look and scrutiny of the Respondent’s counter affidavit reveals that the Respondent has not countered the depositions in the supporting affidavit. Furthermore, the lower Court sat in its Appellate jurisdiction, as such leave is required to Appeal against its decision; and the grounds of Appeal as disclosed from the proposed Notice of Appeal (Exhibit “MDM2”) involve question of mixed law and fact.Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130; Olanrewaju v. Ogunleye (1997) 2 NWLR (Pt. 485) 12.
1) Time is extended till today for the Applicant to apply for leave to Appeal against the decision of Adamawa State High Court of Justice, Holden at Yola and delivered by Nathan Musa J. in Suit No. ADSY/10A/2017 between
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MANAGING DIRECTOR, MOTHER COOL V. E.D TSOKWA & CO. to the Court of Appeal.
2) Leave is hereby granted to the applicant to Appeal against the decision of the Adamawa State High Court of Justice Holden at Yola and delivered by Nathan Musa J. on 1/08/2018 in Suit No. ADSY/10A/2017 between MANAGING DIRECTOR, MOTHER COOL V. E. D.TSOKWA & CO to the Court of Appeal on grounds of facts and mixed law and facts.
3) The Applicant is given fourteen days (14) from today to file his Notice of Appeal against the above mentioned Judgment. No cost awarded. Parties to bear their respective costs.
CHIDI NWAOMA UWA, J.C.A.: I read before now the Ruling delivered by my learned brother, ABDULLAHI MAHMUD BAYERO, JCA. I also grant the applicant extension of time within which to seek leave to appeal and extension of time by fourteen (14) days from today within which to file the Notice of appeal against the decision in ADSY/10A/2017 delivered on 01/08/18.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead ruling just delivered by my learned brother Abdullahi M. Bayero JCA and agree that the
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application be granted.
I also grant the application as per the order contained in the ruling of my learned brother.
I abide by the order as to costs.
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Appearances:
Etim Akpan Esq. For Appellant(s)
Ogumkko Esq. – for 1st Respondent
Hayatu Abdulmalik S.S.C. II – for 2nd and 3rd Respondents For Respondent(s)
