MUSA v. NASEER
(2022)LCN/17165(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, January 28, 2022
CA/K/471/M/2019(R)
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
IBRAHIM DAN MUSA APPELANT(S)
And
MUHAMMAD NASEER RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE A COUNSEL FAILS OR NEGLECT TO APPEAL WITHIN TIME
It cannot escape notice that mistake or inadvertence of counsel has become the first refuge of, and a ready excuse for, lethargic litigants who fail or neglect to appeal within time. But what must always be borne in mind is that notwithstanding that the Courts exist to do justice and not to supervise a game of forensic dialectics or to punish litigants for the errors of their counsel [see BOWAJE v. ADEDIWURA (1979) 6 SC 143 at 147 and HART v. IGBI [1998] 10 NWLR (PT. 568) 28], the rule which enjoins Courts not to visit the mistake or inadvertence of counsel on litigants is not intended to be a universal talisman, the waver of which will act as a panacea or elixir in all cases. Before the plea is accepted, the Court must not only be satisfied that the allegation of fault of counsel is true and genuine, but also that it is availing having regard to the circumstances of the particular case. See IROEGBU v. OKWORDU [1990] 6 NWLR (PT. 159) 643 –per Nnaemeka-Agu, JSC and ERINFOLABI v. OKE [1995] 5 NWLR (PT. 395) 296 –per Niki Tobi, JCA (as he then was). The further point to underscore is that owing to the fact that a plea of negligence or inadvertence of counsel casts a slur on counsel’s professional integrity and competence, the attitude of the Courts is to insist that the plea be brought to the attention of the counsel involved in order to afford him the opportunity to deny or admit the allegation. See JOZEBSON INDUSTRIES CO. LTD v. R. LAUWERS IMPORT- EXPORT (1988) 7 SCNJ 8, IWUMDU JAMARI & ORS v. IJABANI YAGA (2012) LPELR-CA/J/190/08 and LEKI v. YOUBOGHA [2017 All FWLR (PT. 889) 407. PER AFFEN, J.C.A.
WHETHER OR NOT A CLAIMANT WHO HAS COMPLIED WITH THE PROVISIONS OF THE RULES OF COURT BY FRONTLOADING ALL THE REQUISITE ORIGINATING PROCESSES IS AT LIBERTY TO MOVE THE COURT FOR FINAL JUDGMENT IN DEFAULT OF DEFENCE WITHOUT HAVING TO ESTABLISH HIS CASE AT A PLENARY TRIAL
I note however that the Applicant did not exhibit any proposed defence to the Respondent’s claim; and the fact that the default judgment entered by the lower Court entailed declaratory and injunctive reliefs is of no moment. The cases of GE INT’L OPERATIONS LTD v. Q-OIL & GAS SERVICES [2015] 1 NWLR (PT. 1440) 244 at 271-272 –per Ejembi Eko, JCA (now JSC) and GE INT’L OPERATIONS (NIG) LTD v Q-OIL & GAS SERVICES LIMITED [2016] 10 NWLR (PT. 1520) 304 at 331 –per Ngwuta JSC donate the proposition that a claimant who has complied with the provisions of the Rules of Court by frontloading all the requisite originating processes is at liberty to move the Court for final judgment in default of defence without having to establish his case at a plenary trial notwithstanding that the claim is for declaratory or non-declaratory reliefs. PER AFFEN, J.C.A.
PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgement): The Respondent herein [Muhammad Naseer] initiated Suit No. KDH/Z/211/2017 against the Applicant [Ibrahim Dan Umma] vide a writ of summons issued out of the Registry of the High Court of Kaduna State holden at Zaria, claiming declaratory and injunctive reliefs, as well as an order for possession, in respect of a plot of land situate at Anguwar Alkali, Zaria. The Applicant did not file statement of defence within the period stipulated in the rules of Court for exchange of pleadings. He was also absent in Court and not represented by counsel when the matter came up for pre-trial conference on 9/10/18, whereupon the lower Court (per M. M. Ladan, J.) “entered judgment for the Plaintiff against the Defendant as per the Plaintiff’s Writ of Summons and Statement of Claim” pursuant to Order 26 Rule 6(b) of the High Court of Kaduna State (Civil Procedure) Rules 2007.
The Applicant is desirous of appealing the said judgment, and has beseeched this Court with the ‘trinity prayers’ set out in a Motion on Notice filed on 15/8/19 as follows:
“1. An order extending the time within which the Applicant may seek leave to appeal against the Ruling of the Kaduna High Court delivered on the 9/10/2018 in Suit No. KDH/Z/211/2017 between Muhammad Naseer vs. Ibrahim Dan Umma CORAM HON JUSTICE M. M. LADAN.
2. An Order granting the Appellant leave to appeal against the Ruling of Kaduna High Court dated 9/10/2018 in Suit No. KDH/Z/211/2017.
3. An order enlarging the time within which to appeal against the Ruling of Kaduna High Court dated 9/10/2018 in Suit No. KDH/Z/211/2017.
4. And for any such further order or further order as the Honourable Court may deem fit to make in the circumstances of this case.
The application is supported by a 14-paragraphed affidavit deposed by one Shakirat Suleiman (a litigation secretary in the Law Firm of A. T. Abubakar & Associates, solicitors for the Applicant), as well as a 9-paragraphed further affidavit deposed by the Applicant on 5/7/21. It is averred in the further affidavit (which is an almost verbatim reproduction of the supporting affidavit) thusly:
“1. I am the Applicant/Appellant in this application.
2. That by virtue of my position aforesaid, I am conversant with the facts leading to this affidavit.
a. That on or about the 18/8/17 the Respondent commence[d] action against me by a writ of summons dated the 21/9/17.
b. That I engaged the services of Hassan Bala, Esq. to defend the suit.
c. That my counsel was not in Court on the day fixed for pretrial conference.
d. That the Court entered judgment against me for failure of my counsel to appear.
3. That I only came to know of the decision of the lower Court when its official came to execute the said judgment.
4. That I have debriefed the said Hassan Bala, Esq. and retained the services of A. T. Abubakar, Esq. and instructed him to take steps to appeal the judgment of the lower Court.
5. The time to appeal against the said judgment has since elapsed.
6. That the leave of this Honourable Court is needed to file Notice of Appeal.
7. That I am desirous of prosecuting my appeal to its logical conclusion.
8. That it is in the supreme interest of justice to grant this application.
9. That I make this oath in good faith & in accordance with the Oaths Act 2004.”
It is contended in the Applicant’s written address dated 23/7/21 that the lower Court entered judgment against the Applicant owing to counsel’s failure to appear at the Pre-trial Conference and that the Applicant was not aware of the development until Court officials invaded his premises to execute judgment, whereupon he debriefed his former counsel, Hassan Bala, Esq. and retained the services of A. T. Abubakar, Esq. to take steps to appeal the judgment, but had to seek leave to appeal as the time to appeal has since elapsed; that the Applicant is desirous of prosecuting his appeal to a logical conclusion and has prepared notice and grounds of appeal (as shown in Exhibit C), insisting that “the judgment of the trial Court raises serious issues of law and procedural irregularities & the appeal is likely to be allowed”.
The Appellant pointed out that he not only sought the trinity prayers in the application, but has equally adduced substantial reasons for his failure to appeal within the prescribed period in the supporting and further affidavits, citing MIDLAND GALVANISING PRODUCT LTD v. O.S.I.R.S. [2015] 5 NWLR (PT. 1460) 29 at 33.
The Applicant maintained that the four grounds of appeal raised in Exhibit C prima facie show good cause why the appeal should be heard, calling in aid the case of OBIKOYA v. WEMA BANK LTD [1989] 1 NWLR (PT. 96) 157 at 178 – 179 (on what constitutes ‘a ground showing a good cause why an appeal should be heard’); that the grounds of the application raise fundamental issues of law, especially on Order 26 Rule 6(b) of the Kaduna State High Court (Civil Procedure) Rules 2007, insisting that Rules of Court are designed to aid parties to put forward their case before the Court, but not intended to deny them the opportunity of presenting their case thereby resulting in injustice, placing reliance on SAVANNAH BANK OF NIGERIA PLC v. JATAU KYENTU [1998] 2 NWLR (PT 536) 41 at 59; and that the Applicant has furnished sufficient material to enable this Honourable Court exercise its unimpeded discretion in his favour, citing ONI v. OTU [2017] 12 NWLR (PT. 1578) 30 at 57.
The Applicant’s further contention is that the [lower] Court’s duty is to decide the rights of parties and not to punish them for errors, if any, in the conduct of cases by deciding otherwise than in accordance with their rights, thus where a defendant has a good defence and is willing and ready to defend the action, it would be inequitable to shut him out by technical rules relating to the form in which the defence has been brought. This Court was urged to grant the application to enable the Applicant exercise his constitutional right of appeal.
In opposition to the application, the Respondent caused to be filed a 6-paragraphed counter-affidavit deposed by one Mustapha Lawal (of S. U. Lawal & Co.) wherein it is averred that the Appellant was duly served with the originating processes but did not file any statement of defence, which indicated that he had no defence to the suit; that the Applicant equally had due notice of the date fixed by the lower Court for Pre-Trial Conference but refused or neglected to attend Court either personally or though counsel; that the Applicant was very much aware of the judgment of the lower Court against him and attempted to disturb the Respondent’s possession of the land subject matter of the suit; that the Applicant is bent on depriving the Respondent of the fruits of the judgment, and granting this application will not only prejudice the Respondent but equally ridicule the judgment of the lower Court and the entire process of justice administration.
Now, Order 26 Rule 6 of the High of Kaduna State (Civil Procedure) Rules 2007 pursuant to which the lower Court entered a default judgment against the Appellant on 9/10/18 provides thusly: “If a party or the party’s Legal Practitioner fails to attend the pre-trial conference or obey a scheduling or pretrial order or is substantially unprepared to participate in the conference or fails to participate in good faith, the Judge shall: (a) in the case of the Plaintiff dismiss the claim; (b) in the case of the defendant enter final judgement against the defendant. Any Judgement given under this rule may be set aside upon an application made within 7 days of the judgment or such other period as the Pre-trial Judge may allow not exceeding the pre-trial conference period. The application shall be accompanied by an undertaking to participate effectively in the pre-trial conference”. There is nothing to show that the Applicant took advantage of the opening in Order 26 Rule 6 of the Rules of the lower Court to set aside the default judgment before approaching this Court with the present application for leave to appeal out of time. This is crucial because a defendant against whom a default judgment is entered, either for failing to appear at a date fixed for pre-trial conference or hearing, or failing to file his statement of defence within the period prescribed by the rules of Court, who claims to be desirous of defending the action ought, at the very least, to place before the Court necessary materials in the form of a proposed statement of defence on the basis of which the Court’s discretion can be exercised in his favour. See WILLIAMS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145 and SANUSI v. AYOOLA [1992] 9 NWLR (PT. 265) 275.
It being that discretion is not an indulgence of a judicial whim but the exercise of judicial judgment based on facts and guided by the law and equitable considerations, nor does it brook any capricious exercise of power according to private fancies and affection [see UDOTIM & ORS v. IDIONG (2013) LPELR-2213 (CA) 1 at 13-14 –per Nweze JCA (as he then was) and ADIGWE v. FRN [2015] 18 NWLR (PT. 1490) 105 at 133], the Court’s discretion cannot be exercised in a vacuum without any defence placed before it. See UNIVERSITY OF LAGOS v. AIGORO [1985] 1 NWLR (PT. 1) 143.
Be that as it may, the prescription of Order 6 Rule 9(2) of the Court of Appeal Rules 2021 is that an application for enlargement of time within which to appeal shall satisfy the concurrent requirements of disclosing “good and substantial reasons for failure to appeal within the prescribed period” and “grounds of appeal which prima facie show good cause why the appeal should be heard”. See ONI v. OTU [2017] 12 NWLR (PT. 1578) 30 at 5, UBA PLC v. ADIKWU [2015] 1 NWLR (PT. 1439) 27 at 42 and MIDLAND GALVANISING PRODUCT LTD v. O.S.I.R.S.[2015] 5 NWLR (PT. 1460) 29. Thus, extension of time to appeal is not granted mechanically or as matter of course following the filing of an application, even as it is hardly necessary to state that Rules of Court are meant to obeyed.
I have already reproduced the Applicant’s further affidavit. The reason put forward by the Applicant for not appealing within time is that judgment was entered against him owing the failure or neglect of his former counsel, Hassan Bala, Esq. to attend Court on the date fixed for pre-trial conference, and that he was not informed and therefore unaware of the development until officials of the Kaduna High Court came to enforce the judgment, whereupon he debriefed his former counsel and retained the services of A. T. Abubakar, Esq. and instructed him to takes steps to appeal the judgment, but time to appeal has since lapsed, hence this application.
The same reason is advanced in the written address filed in support of the application thus: “The Appellant’s [former] counsel never informed the Appellant/Applicant about the said judgment of the Court below” and “the Appellant/Applicant was not aware of the judgment of the lower Court against him until when the Court Officials visited to execute the said judgment of the Court”. In essence, the Applicant attributes his failure to appeal within time to the alleged failings of his former counsel.
It cannot escape notice that mistake or inadvertence of counsel has become the first refuge of, and a ready excuse for, lethargic litigants who fail or neglect to appeal within time. But what must always be borne in mind is that notwithstanding that the Courts exist to do justice and not to supervise a game of forensic dialectics or to punish litigants for the errors of their counsel [see BOWAJE v. ADEDIWURA (1979) 6 SC 143 at 147 and HART v. IGBI [1998] 10 NWLR (PT. 568) 28], the rule which enjoins Courts not to visit the mistake or inadvertence of counsel on litigants is not intended to be a universal talisman, the waver of which will act as a panacea or elixir in all cases. Before the plea is accepted, the Court must not only be satisfied that the allegation of fault of counsel is true and genuine, but also that it is availing having regard to the circumstances of the particular case. See IROEGBU v. OKWORDU [1990] 6 NWLR (PT. 159) 643 –per Nnaemeka-Agu, JSC and ERINFOLABI v. OKE [1995] 5 NWLR (PT. 395) 296 –per Niki Tobi, JCA (as he then was). The further point to underscore is that owing to the fact that a plea of negligence or inadvertence of counsel casts a slur on counsel’s professional integrity and competence, the attitude of the Courts is to insist that the plea be brought to the attention of the counsel involved in order to afford him the opportunity to deny or admit the allegation. See JOZEBSON INDUSTRIES CO. LTD v. R. LAUWERS IMPORT- EXPORT (1988) 7 SCNJ 8, IWUMDU JAMARI & ORS v. IJABANI YAGA (2012) LPELR-CA/J/190/08 and LEKI v. YOUBOGHA [2017 All FWLR (PT. 889) 407.
In this regard, it is quite intriguing that the Applicant’s former counsel, Dr Hassan Bala filed a 20-paragraphed ‘Affidavit in Response to the Appellant Further Affidavit’ as follows:
“1. That I am the deponent herein and by virtue of the aforesaid conversant with the deposed facts .
2. That I am a Lecturer with the Department of Private Law and one of the Coordinators of the ABU Law Clinic, Faculty of Law, Ahmadu Bello University, Zaria.
3. That ABU Law Clinic renders free legal services to indigent citizens of Nigeria.
4. That one of the fundamental objectives of the Clinic is to facilitate out of Court settlement of disputes.
5. That between 2017 and 2018 the Appellant approached ABU Law Clinic and lodged his complaint in respect of his land matter before the High Court No. 1, Dogarawa, Zaria.
6. That as one of the Coordinators of the Clinic I volunteered to handle the case.
7. That in the process, the need arose for settlement out of Court as the Appellant was married to the blood sister of the Respondent and had many children.
8. That consequent upon above, a meeting was scheduled by all the Coordinators of the Clinic to settle the appellant and the Respondent.
9. That the last time the Appellant came for the meeting, he disrupted the meeting and it was postponed due to fear of breach of peace.
10. That a day after, that is, sometimes in 2018, the Appellant met me at home and told me that he did not want settlement and was not ready to comply with any of the objectives of the Clinic pursuance brief was accepted pro bono.
11. That in response, I told him that I will not continue with the case as going ahead with same will be contrary to the ethics and objectives of our Clinic.
12. That I told him I will withdraw my appearance and will no longer represent him in the matter.
13. That I asked him to come another time to collect his processes but there and then insisted that I must give him the processes at that moment.
14. That luckily, the file was in my car, I brought it out and gave him all the processes relating to the case.
15. That the Appellant refused to collect the processes and insisted that I must give him together with the file to which I obliged.
16. That as at the time the foregoing took place, the matter was adjourned from 18th April, 2018 to 5th July, 2018 but the Court not sit on the returned date.
17. That in view of what transpired between the Appellant and I, I drafted Motion for Withdrawal of appearance. The said Motion is hereby attached and marked as EXHIBIT A1.
18. That I do not know the steps taken by the Appellant at the registry of the trial Court to make them effect service personally on him as shown by the Certified record of the lower Court. The Certified True Copy of the record of the portion of the judgment delivered on the 10th of September, 2018 is hereby attached and marked as EXHIBIT A2.
19. That the hearing notice served on the Appellant against the 9th day of October, 2018 was not known to me and in consequence I was unable to file my Motion for withdrawal of appearance and move same.
20. That since the day I handed over the file to the Appellant I have never had [sic: heard) from him until when I was served with the instant further and better affidavit.”
The above affidavit of Dr Hassan Bala (which the Applicant did not controvert or contradict by filing a counter or further affidavit) clearly puts a lie to the Applicant’s assertions, and takes the wind out of his sails. Since the Applicant’s former counsel did not admit the fault attributed to him by the Applicant, the plea of inadvertence of counsel is unavailing. Having fallen out with, and collected the case file from, his former counsel long before 9/10/17 when the matter came up in Court for pre-trial conference, culminating in the final judgment being complained of, it certainly does not lie in the Applicant’s mouth to say that his former counsel failed to attend Court and/or inform him that judgment was entered against him. What appears in rather bold relief is that the Applicant did absolutely nothing about his case after collecting the case file from his former counsel.
It is therefore obvious that the excuse proffered by the Applicant for not appealing within the time prescribed by law does not constitute good and substantial reasons for his failure to appeal within time. See JOZEBSON INDUSTRIES CO. LTD v. R. LAUWERS IMPORT- EXPORT supra.
As stated hereinbefore, Order 6 Rule 9(2) of the Court of Appeal Rules enjoins an applicant seeking enlargement of time to appeal to satisfy the concurrent requirements of disclosing “good and substantial reasons for failure to appeal within the prescribed period” and “grounds of appeal which prima facie show good cause why the appeal should be heard”. Having not crossed the first hurdle, no necessity arises to consider the second requirement.
I note however that the Applicant did not exhibit any proposed defence to the Respondent’s claim; and the fact that the default judgment entered by the lower Court entailed declaratory and injunctive reliefs is of no moment. The cases of GE INT’L OPERATIONS LTD v. Q-OIL & GAS SERVICES [2015] 1 NWLR (PT. 1440) 244 at 271-272 –per Ejembi Eko, JCA (now JSC) and GE INT’L OPERATIONS (NIG) LTD v Q-OIL & GAS SERVICES LIMITED [2016] 10 NWLR (PT. 1520) 304 at 331 –per Ngwuta JSC donate the proposition that a claimant who has complied with the provisions of the Rules of Court by frontloading all the requisite originating processes is at liberty to move the Court for final judgment in default of defence without having to establish his case at a plenary trial notwithstanding that the claim is for declaratory or non-declaratory reliefs.
The application dated 8/8/19 but filed on 15/8/19 fails without further assurance, and it will be and is hereby dismissed. There shall be no order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft the ruling just delivered by my learned brother PETER O. AFFEN, JCA. I agree with his reasoning and conclusion that there is no merit in the application and same is liable to be dismissed.
Rules of Court must prima facie be obeyed and in order to justify a Court in extending time during which some steps or procedure is required to be taken, there must be some material on which the Court can exercise its discretion. If the law were otherwise a party in breach would have unqualified right to an extension of time which would defeat the objective of the rules, which is to provide a time table for the conduct of litigation. Order 6 Rules 9(2) of the Court of Appeal Rules 2021, provides that: 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. The two conditions set out by the rules are conjunctive and not disjunctive, in other words the two conditions must be satisfied. The applicants affidavit in this instant application fails to set out good and substantial reasons for failure to appeal within the prescribed period. Therefore the application fails and it is dismissed.
Appearances:
S. Salwanu, Esq. For Appellant(s)
S. U. Lawal, Esq. For Respondent(s)
