NOMA ZAURE DUGU v. NOMA DANTANI TSAMIYA In The Court of Appeal of Nigeria
(2018)LCN/12376(CA)
On Friday, the 2nd day of February, 2018
CA/S/138S/2016(R)
RATIO
COURT AND PROCEDURE: WHERE THE APPLICANT SEEKS COURT DISCRETION
“An applicant who seeks the exercise of a Court’s discretion in his favour has the duty to place before the Court, materials sufficient to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion. And whenever the exercise of Court’s discretion is sought, the Court must consider all the evidence placed before it and relied on by the applicant, as well as the peculiar facts and circumstances of the motion.
See ANYAH V. A.N.N. (1992) 6 NWLR (Pt. 247) 319, GBERE V. ALLI-OWE (2000) 11 NWLR (Pt. 678) 294 and ALAMIEYESEIGHA V. F.R.N (2006) 16 NWLR (Pt. 1004) 1 at 114 – 115.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
COURT AND PROCEDURE: WHEN A PARTY CAUSE OR MATTER IS INCOMPETENT FOR BEING FILED
“A party who finds out his cause or matter is incompetent for being filed out of time should apply for extension of time to put things right. Although the Court has an inherent jurisdiction to extend time in any given case with a view to the avoidance of injustice to the parties, it should do so upon the application of the defaulting party presenting materials sufficient to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion. It is his responsibility to apply for extension of time to put things right.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
Before Their Lordships
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
NOMA ZAURE DUGUAppellant(s)
AND
NOMA DANTANI TSAMIYARespondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Lead Ruling):
By Motion on Notice brought pursuant to Order 6 Rules 2 and 9 of the Court of Appeal Rules 2016, and under the Inherent jurisdiction of the Court, the appellant/applicant’ is praying for the following orders: –
1. AN ORDER of this Honourable Court granting leave to the Appellant to appeal against the judgment delivered on the 15th day of December, 2014.
2. AN ORDER of this Honourable Court extending the time within which the Appellant/Applicant may file his Notice of Appeal dated 12th June, 2015.
3. AN ORDER of this Honourable Court deeming the Notice of Appeal dated 12th June, 2015 already filed and served as having been properly filed and served.
4. AND for such further Orders as this Honourable Court may deem fit to make in the circumstance.
The ground upon which the application is predicated are as follows: –
(a) That on the 15th day of December, 2014, the Lower Court delivered its judgment affirming the decision of the trial Court.
(b) That the Appellant being dissatisfied with the decision of the Lower Court filed a Notice of Appeal dated the 12th day of June, 2015.
(c) That the said Notice of Appeal was filed long after the time prescribed by Rules of this Honourable Court.
(d) That it is imperative that the leave of this Honourable Court must first be sought and obtained before the Appellant can appeal against the decision of the Lower Court.
(e) That the Appellant must seek leave of this Honourable Court for an order for extension of time to file his Notice of Appeal.
(f) That the Appellant has already filed and served the Respondent with the Notice of Appeal dated 12th June, 2015.
In support of this application is an affidavit of 6 paragraphs deposed to by one Sunday Samuel Dan, a litigation clerk in the Law Firm of Messrs. Ogunsanya & Ogunsanya, the Appellant/Applicant’s Solicitors.
Arguing the application, learned appellant/applicant’s counsel Mahmud Adesina, Esq. submitted that the primary duty of the Court in the exercise of its judicial discretion must be the attainment of substantial justice. And that a discretion to extend time to do an act can be exercised where the law allows it. In aid, he relied on Order 6 Rule 9 of the Court of Appeal Rules, 2016 and the cases of KASUNMU V. SHITTA BEY (2006) 17 NWLR (Pt. 1008) 375 at 393 and RIRUWAI v. SHEKARAU (2008) 12 NWLR (Pt. 1100) 152. He urged the Court to grant his reliefs.
Learned counsel for the respondent, Muhammad Nurudeen relied on the 7 paragraphs counter ? affidavit in contending that although party’s right to appeal cannot be foreclose where he fails to appeal within prescribed time but he must filed an application to seek leave of Court before appealing. He therefore submitted that considering the date when the Lower Court delivered its decision roughly about 3 years ago, the applicant has not satisfactorily explain the delay.
He submitted further that the failure of the applicant to accompany this application with vital documents such as the judgment of the Lower Court and the grounds of appeal, renders the application unsustainable. In essence, the applicant has not present sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion. He referred to the cases of C. C. B. (NIG) LTD V. OGWURU (1993) 3 NWLR (Pt. 284) 628, ALIYU V. ADEWUYI (1995) 3 NWLR (Pt.381) 16 and BANK OF BARODA V. MERCANTILE BANK LTD (1987) 3 NWLR (Pt. 60) 233 in urging the Court to refuse the application.
I have deeply considered affidavit evidence placed before this Court vis-a-vis the submissions of learned counsel on both sides. The matter in hand is short and straight forward as it is predicated on the exercise of discretion by Court.
An applicant who seeks the exercise of a Court’s discretion in his favour has the duty to place before the Court, materials sufficient to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion. And whenever the exercise of Court’s discretion is sought, the Court must consider all the evidence placed before it and relied on by the applicant, as well as the peculiar facts and circumstances of the motion.
See ANYAH V. A.N.N. (1992) 6 NWLR (Pt. 247) 319, GBERE V. ALLI-OWE (2000) 11 NWLR (Pt. 678) 294 and ALAMIEYESEIGHA V. F.R.N (2006) 16 NWLR (Pt. 1004) 1 at 114 – 115.
The applicant in the instant case was aggrieved by the decision of the Lower Court and therefore appealed to this Court even though, he is out of time. He is by this application seeking the indulge of this Court to extend the time within which to appeal by filing the necessary notice of appeal and to deem same as properly filed and served.
By virtue of the provisions of Order 7, Rule 9 (2) of the Court of Appeal Rules 2016, an applicant for extension of time within which to appeal must show two things, namely:
(a) good and substantial reasons for failure to appeal within the prescribed period, and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
The two conditions which are conjunctive and not disjunctive, must co-exist and if one is missing, the application fail. See NWORA v. NWABUEZE (2011) 15 NWLR (Pt. 1271) 467 and GUM V. UBWA (1996) 1 NWLR (Pt. 424) 323.
In the instant case, the judgment of the Lower Court was given on 15/12/2014 and barely six (6) months after the said judgment, the applicant filed a notice of appeal on 12/6/2015 without the required leave of Court been sought and obtained. Applicant thereafter transmitted the record of appeal and also filed appellant?s brief of argument on 10/2/2017.
It was when the appeal came up for hearing at a latter date, then the applicant realized that he was out of time and therefore brought the extant application.
A party who finds out his cause or matter is incompetent for being filed out of time should apply for extension of time to put things right. Although the Court has an inherent jurisdiction to extend time in any given case with a view to the avoidance of injustice to the parties, it should do so upon the application of the defaulting party presenting materials sufficient to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion. It is his responsibility to apply for extension of time to put things right.
I have stated that the applicant has a responsibility of showing good and substantial reasons for the delay as well as the prospects of the appeal succeeding. The questions begging for answers are when did the applicant tell his counsel of his disaffection with the judgment of the Lower Court? When did the applicant decide to consult his counsel M. K. Adesina? In paragraph 3 of affidavit in support of the application, it avers as follows:
3. That I was informed by M. K. Adesina Esq. of counsel on 21st of September, 2017 at 4:00pm during briefing in our office of the following facts and I verily believe him that: –
(a) On the 15th day of December, 2014, the Lower Court delivered its judgment affirming the decision of the trial Court.
(b) The Appellant being dissatisfied with the decision of the Lower Court filed a Notice of Appeal dated the 12th day of June, 2015.
(c) The said Notice of Appeal was filed long after the time prescribed by the Rules of this Honourable Court.
(d) It is imperative that leave of this Honourable Court must first be sought and obtained before the Appellant can appeal against the decision of the Lower Court.
(e) The appellant must seek leave of this Honourable Court for an order for extention of time to file his Notice of Appeal.
(f) The Appellant has already filed and served the Respondent with the Notice of Appeal dated 5th June, 2015.
(g) The Appellant has equally compiled and transmitted the Record of Appeal to this Honourable Court and same was deemed properly compiled and transmitted on the 5th June, 2017.
In response to the above averments, the respondent has averred that filing of appellant/applicant’s notice of appeal dated 12th June, 2015 without leave of either the Lower Court or this Court was in violation of the rules of Court. And that leave to file notice of appeal is granted by the Court upon establishing special circumstances.
I therefore cannot but agree with the submission of the learned counsel for the respondent that the applicant’s supporting affidavit did not discloses any reason why the notice was filed only on 12/6/2015 while the judgment of the Lower Court was delivered on 15/12/2014. Thus, no reason not to talk of good and substantial reason for the delay was explained by the applicant and thereby depriving this Court the opportunity of determining whether the appeal should be heard or not. In effect, the applicant has not shown good and substantial reasons for his failure to appeal within the prescribed period and has not demonstrated good cause way the appeal should be heard in the first place.
In the light of the foregoing; this application has failed to satisfy the requirements of Order 7 Rule 9 (2) of the Court of Appeal Rule 2016. It is dismissed with N20,000.00 costs to the respondent.
HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of previewing the ruling of my learned brother- M. L. Shuaibu, JCA. I agree with the reasons therein for the conclusion that the application is bereft of substance and should be dismissed. I hereby dismiss it and subscribe to the orders made in the ruling.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother MUHAMMED L. SHUAIBU, JCA just delivered and I am in agreement with his reasoning and conclusions in refusing the application and subsequently dismissing it for lacking in merit. I abide by the consequential orders made thereto.
Appearances:
For Appellant(s)
Muhammad NurudeenFor Respondent(s)
