NUUMAN HABIBU MUHAMMAD v. ALHAJI BATURE ABBA KABARA & ORS
(2018)LCN/12222(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/K/191/M/2016(R)
RATIO
APPEAL: WHERE AN APPELLATE SEEKS LEAVE OF COURT
“The law is trite, a person seeking leave to appeal as an interested party must first of all seek and obtain leave of this Court. See Funduk Eng. Ltd v. J McArthur in Re Madaki (1996) 2 SCNJ P. 64 @75, where the Apex Court held that: ‘A party interested to appeal because he has an interest in the proceedings must first of all obtain leave under S.221 to become a party’.'” PER IBRAHIM SHATA BDLIYA, J.C.A.
APPEAL: PLEA FOR EXTENSION OF TIME
“Another requirement which must be satisfied in order for an applicant to be entitled to an order extending time within which to appeal is that the proposed grounds of appeal must show good cause why the appeal should be heard. See I.C.A.N v. Unegbu (2012) 2 NWLR (Pt. 1284) P. 216 @ 230 wherein it was enunciated that it is not the duty of the Court at this stage to consider whether the appeal will succeed. It is enough that the grounds of appeal are arguable. As to whether the appeal will succeed, that is to be left for consideration at the hearing of the appeal.C.C.B. (Nig) Ltd v. Ogwuru (1993) 3 NWLR (Pt. 284) 63 In Re.Adewumi (1988) 3 NWLR (Pt. 83) 483; Ibodo v. Enarofia (1980) 5-7 SC 42; Ogbu v. Urum (1981) 4 SC 145 Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) P. 577.” 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
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
NUUMAN HABIBU MUHAMMAD Appellant(s)
AND
1. ALHAJI BATURE ABBA KABARA
2. ALH. BASHIR HABIBU MUHAMMAD
3. ALIYU BASHIR MAIFADA
4. ILA MUHAMMAD Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Lead Ruling):
By a motion on notice dated 25th day of February and filed on the 28th of April, 2016, the Interested Party/Applicant, sought for the following orders:
1. An order granting leave to the Interested Party/Applicant to appeal against the judgment of the High Court of Justice Kano State in Suit No. K/266/2005 delivered on 31/03/2009 as an interested Party.
2. An order extending the time within which the interested Party/Applicant, may appeal against the judgment of the High Court of Kano State in Suit No. K/266/2005 delivered on 31/03/2009 as an Interested Party.
The application is predicated on the following grounds:
(a) The action was filed for a declaration of title to a House No. 169 Magashi Quarters Kano which the Plaintiff claimed at the Lower Court was sold to him by the 2nd Respondent Bashir Habibu Muhammad.
(b) That the said house belongs to Late Alhaji Habibu Muhammad who is the father of the Applicant and Alhaji Bashir Habibu Muhammad who claimed that their late father gave the house to him as a gift.
(c) The Applicant is an heir to the Estate of Late Alhaji Habibu Muhammad and the Administrator of the Estate by virtue of letters of Administration dated 03/07/2001 issued by the Kano State High Court.
(d) The Suit No. K/266/2005 was heard and determined without the knowledge of the Applicant as an heir and Administrator to the Estate of Late Alhaji Muhammad.
(e) The Suit before the Lower Court was initiated while an action filed by one Hindatu Muhammad (3rd defendant at the Lower Court now deceased) before the Kasuwa Sharia Court in Suit No. CV/30/04 for the distribution of the Estate of Late Muhammad Inuwa (grandfather to the Applicant and the 2nd Respondent) where it was alleged that house No. 169 Magashi Quarters belonged to him.
(f) That Alhaji Bature Abba Kabara was summoned before the Kasuwa Sharia Court Kano and was told that a suit is pending before the Court but he went and filed his action at the Lower Court.
(g) The Applicant was not joined as a party at the Lower Court and he became aware of the case after judgment.
(h) All the defendants before the Lower Court did not defend the case and a default judgment was entered against them.
The following documents were exhibited as annextures to the Motion on notice, which are these:
(i) Certified True Copy of the record of Proceedings of the Court below sought to be appealed against.
(ii) A copy of the proposed grounds of appeal.
(iii) A copy of the ruling of the Court below refusing to set aside the judgment entered on the Application of the Applicant delivered on 29/07/2010.
(iv) A copy of the letter of Administration dated 03/07/2001.
The applicant filed a nine (9) paragraph affidavit in support of the application. The 1st respondent filed a 15 paragraph Counter-affidavit in opposing the application. The relevant and material depositions contained in the affidavit and the counter-affidavit will be resorted to in course of the hearing and determination of the application where desirable. The application being contentious this Court ordered for written addresses in support of their respective positions in the application. The interested Party/applicant filed written address on the 16th of May, 2012 out of time, which was deemed duly filed and served on the 11th of April, 2017, with a sole Issue for determination contained on page 4 thereof. The issue is as follows:
“Whether the interested party/applicant have made out a case for the grant of this application”.
The 1st respondent filed written address on the 20th of September, 2017, out of time, which was deemed duly filed on the 23rd day of January, 2018, wherein two (2) Issues were formulated for determination on page 2 thereof, which are thus:
1. Whether the applicant’s application is competent having regard to the provision of Section 243 of the 1999 Constitution as amended.
2. Whether having regard to the antecedent of the case can this Court exercise its discretion in favour of the Applicant.
At the hearing of the application on the 31st of October, 2018, learned counsel to the Interested Party/applicant adopted the written address in support of the application; and urged this Court to grant same as prayed. Learned counsel to the 1st respondent also adopted the written address, and did urge that the application be dismissed for being unmeritorious.
There are two sets of issues for determination in this application, one contained in the applicant’s written address and the other in the respondents’ written address. The law is trite, a Court is not under a regimental duty to take all the issues canvassed by the parties. A Court can and is entitled to reformulate issue or issues formulated by a party or parties or counsel in order to give it precision and clarity if it appears that the issues they formulated are awkward or not well framed.
The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. See Okoro vs. State (1988) 5 NWLR (Pt. 94) 255; Latunde vs. Lajinfin (1989) 3 NWLR (Pt. 108) 177; Awojugbagbe Light Industries Ltd. vs. Chinukwe (1995) 5 NWLR (Pt. 390) 379. For the foregoing reasons, the two sets of issues referred to supra are hereunder compressed into 2 issues to be resolved which would ultimately determine the application one way or the other. The issues for determination, therefore, are thus:
(1) Whether the applicant’s application is competent having regard to the provisions of Section 243 of the 1999 Constitution (Amended)?
(2) Whether the Interested Party/applicant has made out a case for the granting of the orders (reliefs, sought therein)?
ISSUE (1)
Mohammed Umaru Esq, who settled the respondents’ written address did contend that the Interested Party/applicant having not obtained leave of the lower Court nor this Court to seek leave to appeal as an interested person, the application filed on the 25th day of February, 2016, is incompetent. That a party who was not a party to the suit at the trial Court, but claimed to be having interest in same, must first seek and obtained an order to be joined to that suit from the trial Court or the appellate Court, before bringing an application to seek leave of the lower Court or this Court, to appeal as an interested person or any person having interest in the judgment appealed against.
The provisions of Section 243 of the 1999 Constitution (Amended) and the principle of law espoused in the cases of Adeleke v. Oyo House of Assembly (2006) 3 JNSC (Pt. II) P. 548; Otu v. ABC (2008) Vol. 3 MJSC P. 206; were cited and relied on to buttress the submissions supra. It is learned counsel’s further contention that where no leave of the trial or appellate Court has been obtained, any Court of law is without the jurisdiction to adjudicate upon any application by an interested person to appeal against a judgment of the Court to which he was not a party thereto.
That the Interested Party/applicant did not seek and obtained an order of the trial or appellate Court, before filing the application of 28th of April, 2016, seeking for leave to appeal against the judgment of the High Court of Justice, Kaduna State, which he was not a party thereto. Learned counsel did urge that the application of the Interested Party/applicant filed on the 28th of April, 2016, is incompetent, therefore, it should be struck out for being incompetent in law. Is the application of the Interested Party/ applicant incompetent? Section 243 (a) of the (1999) Constitution (Amended) provides thus:
“Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by the Constitution shall be-
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter?.
In the case of Adeleke v. Oyo House State of Assembly (2006) 3 SCNJ (Pt. II) P. 548, (2006) 10 NWLR (Pt. 987) 50 @ 74, this Court (Ibadan Division) referred to and quoted the pronouncement of the Apex Court in Re Madaki (1996) 7 NWLR (Pt. 459) 153 thus:
“Any other person who has interest in a case, but is not a party to the case, cannot appeal in the proceedings, until he obtains the leave of either High Court from which the case is being appealed or the Court of Appeal to which the Appeal is to be brought… A party who desires to Appeal as interested party has the option to obtain the necessary leave prescribed for doing so, on application to either High Court, which decided the case or the Court of Appeal, by Section 243 of the 1999 Constitution, the Court of Appeal can grant an applicant having an interest in the matter, leave to appeal and there is no time limit prescribed in said Constitution over Court of Appeal or Court of Appeal Rules within which to bring the Application”.
In Otu v. ACB (2008) Vol. 3 MJSC P. 206, the Apex Court enunciated that a party who has an interest in an appeal from a High Court to the Court of Appeal must obtain leave to do so. That where leave of the High Court or the Court of Appeal has not been obtained in an application by an interested party, to appeal to the Court of Appeal against the judgment of a High Court, to which he was not a party, the Court would not be seised of the jurisdiction to adjudicate in any matter either, at the High Court or the Court of Appeal. The foregoing position of the law has the support in the case of Otu v. ACB (2008) Vol. 3 P. 206, wherein Oguntade J.S.C. held that:
“Where leave is required either in the Constitution or in the rules of Court and leave is not sought and granted, the Court has no jurisdiction to grant the motion as it is incompetent. An order on such an incompetent motion is invalid”.
By the provisions of Section 243(a) of the 1999 Constitution (Amended), any person who claims to have an interest or is aggrieved by a judgment of the Federal High Court or High Court of a State or any Court of Superior jurisdiction, and intends to appeal against such judgment to the Court of Appeal, must obtain leave of the trial Court or the Appellate Court. By the application filed on the 28th of April, 2016, the applicant is seeking for an order to appeal against the judgment of the High Court of Justice, Kano State in Suit No. K/266/2005, delivered on the 31st day of March, 2009.
It is after being granted the leave, that the applicant is going to appeal against the judgment of the lower Court, the High Court of Justice, Kano State. I am of the view that the contention of learned counsel to the 1st respondent that the application filed on the 28th of April 2016 seeking leave to appeal is incompetent, is premature. I therefore, hold that the application filed by the interested person/party, is competent, and same would be considered on the merit.
ISSUE (2)
On this issue, Danjuma Siaka Esq, who settled the Interested Party/applicant’s written address, did submit that in an application of this nature, that is, seeking leave of Court to appeal as an interested party, he must depose to facts and materials showing or disclosing his interest in the judgment of the Court he intends to appeal against. He must also show that he was not made a party in the suit at the trial Court, and the reasons for the delay in filing the application.
Learned counsel referred to paragraphs 3 and 4 of the affidavit in support of the application and submitted that the depositions contained therein have sufficiently shown or disclosed the interest of the applicant in the dispute at the trial Court. Also that the depositions in the aforesaid paragraphs of the affidavit have shown the reasons why the application was not filed within time. Furthermore, that he is a son to one of the heirs of the Estate of late Alh. Habibu Muhammed, the owner of the house, subject-matter of the dispute in Suit No. K/266/2005, before the trial Court.
As to the reason for the delay in filing the application, learned counsel referred to paragraphs 4, 5, 6, and of the supporting affidavit, and did contend that the depositions contained therein have explained why the application was not filed within time. On the question as to who is an interested party for the purpose of Section 243(a) of the 1999 Constitution (Amended), learned counsel referred to the definition of same in the case ofC.P.C v. Nyako (2011) 5-7 (Pt. 11) (MJSC) P. 158 @ 163, wherein, it was held that, an interested person in any judgment of Court, is one that is aggrieved by the decision of the Court.
Learned counsel further submitted that any person who can establish his interest which has been affected or will be affected by the decision of the Court, but who was not opportuned to be a party to the litigation at the High Court, can apply for leave of the trial Court or the appellate Court for redress as provided by the provisions of 243(a) of the 1999 Constitution (Amended) and as enunciated in the case of Otu v. A.C.B (2008) 3 MJSC P. 191 @ 197. For the reasons in not filing the application within time, learned counsel referred to the depositions in paragraph 4 of the affidavit in support of the same to reinforce the submissions supra. That by exhibits, ?A, B?, ?C and D? the applicant has placed sufficient materials before this Court to warrant granting the prayers of the applicant; and same be granted accordingly.
Muhammed Umaru Esq, of learned counsel who settled the 1st respondent’s written address, did submit that the applicant did not take any step or action to defend the suit at the trial Court when the judgment in suit K/266/2005 was delivered on the 31st of March, 2009. That the 2nd respondent was served with the Writ of Summons, the statement of claim and several hearing notices but he refused or neglected to appear before the trial Court. That the assertion that the 2nd respondent did not take any action to defend the action at the trial Court cannot be a good reason for the delay in filing the application by the applicant.
It is learned counsel’s further contention that the applicant’s delay for six (6) years, after the delivery of the judgment on 31st March, 2009, has not been explained by the depositions contained in the affidavit filed in support of the applicant’s application filed on the 28th of April, 2018. The cases of Umukaro Usikaro & Ors v. Itsekiri Communal Land Trustees & 12 Ors (1991) 2 SCNJ P. 75 and Honkong Synthetic Fibre Co. (Nig) Ltd v. Spring side Co. Ltd (2010) ALL FWLR (Pt. 551) P. 551 were cited and relied on to reinforce the submissions that undue delay or prolonged delay in the administration of justice leads to a miscarriage of justice which the Courts frown at. That in such a situation the Court would not be too indulging to grant an application, especially where no good and substantial reasons have been given for such delay.
That the applicant stood-by and allowed other persons to take over the property, he cannot therefore complain, after Six (6) years of inaction, in that equity aids the vigilant; nor the indolent as espoused in the case of NLC V. Pacific Merchant Bank Ltd (2012) ALL FWLR (Pt. 640) P. 1226. In conclusion, learned counsel did urge that the application be refused and dismissed, for there are no good and substantial reasons given by the applicant to warrant the granting of same in his favour.
Suit No. K/266/2005 was adjudicated upon by the Kano State High Court, and judgment was delivered on the 31st of March, 2009. The applicant was not a party to the suit before the trial Court. When he became aware of the judgment, he filed the application seeking for leave of this Court to appeal against the said judgment as an interested party pursuant to the provisions of Section 243(a) of the 1999 Constitution (Amended).
The provisions of the aforesaid provisions of Section 243(a) of the Constitution (Amended) have been reproduced hereinbefore in this judgment when considering Issue 1. It will be repetitive to do same at this juncture.
In SCB (Nig) Ind. V. Afororo Ltd (1999) 1 NWLR (Pt. 628) P. 521, it was held that a person who is not a party in any proceedings in which a decision has been taken by the Federal High Court, National Industrial Court or the High Court but wishes to appeal to the Court of Appeal against such decision must seek leave of the Federal High Court, the High Court or the Court of Appeal (as the case may be) to do so. Also in Chukwu v. INEC (2014) 10 NWLR (Pt. 1415) P. 385, the Supreme Court endorsed the decision of this Court in Omotesho v. Abdullahi (2008) 2 NWLR (Pt. 1072) P. 526 @ 543. How can a person having interest in the decision of a Court be determined? In EFC (Nig) Ltd v. NDIC (2007) 9 NWLR (Pt. 1039) P. 216, it was held that the test for determining a person interested in a matter decided by a Court is whether he would have been joined as a party, ab initio, in the suit or matter, the judgment of which he is seeking to appeal against.
That a person having an interest includes a person who is affected or likely to be affected or aggrieved or likely to be aggrieved by the decision in the proceedings which he seeks to appeal against.
The law is trite, a person seeking leave to appeal as an interested party must first of all seek and obtain leave of this Court. See Funduk Eng. Ltd v. J McArthur in Re Madaki (1996) 2 SCNJ P. 64 @75, where the Apex Court held that:
“A party interested to appeal because he has an interest in the proceedings must first of all obtain leave under S.221 to become a party”.
That a person who was not a party in an action can only appeal against the decision of a Court, must first of all obtain leave of the Court, has been further reinforced in the case of Mobil v. Monokpo (2003) 12 SCNJ P. 122, wherein the Apex Court, per NIKI TOBI, J.S.C (of blessed memory) said:
“In other words, only a party who is aggrieved by a judgment can appeal against it. Such a party is either a party in the case or a party interested in the case. While a party in the case can appeal as an appellant qua plaintiff or defendant at the lower Court without satisfying the Court of any reason for filing an appeal, a party interested must prove his interest in the case”.
Katsina Alu JSC (as he then was) (of blessed memory) expressed similar views when his lordship held in Cherubim & Seraphim v. Talasi (2001) 6 SCNJ P. 136 that:
“One does not need a magnifying glass to see that the existence of a decision affecting a party is a condition precedent to the existence of a right of Appeal and indeed the exercise of any such right of appeal by that party. The right of Appeal conferred by the Constitution is a right against the decision of a Court adversely affecting a party. It therefore goes without any argument that for a person to claim any right of appeal as envisaged, that person must show that the decision of the Court is against him or his interest”.
In order to ascertain the interest of the applicant or his grievance with the judgment of the trial Court, that is the Kano State High Court in Suit No. K/266/2005, a resort or recourse to the depositions contained in the affidavit in support of the application, and the counter-affidavit filed by the 1st respondent, is pertinent.
Paragraphs 3(K)-(P) of the applicant’s affidavit in support of the application are relevant or germane to his interest in the matter before the trial Court.
K. That 1st Respondent then instituted the action before the High Court of Justice Kano but joined his brother the 2nd Respondent who sold the house, their two uncles and their other heirs to the Estate of their late father.
l. That the 2nd Respondent refused to appear before the Kasuwa Sharia Court and did nothing to defend the suit before the High Court of Kano State.
m. That their late father never at any time gave the house subject matter of this suit before Kano High Court to 2nd respondent or any person.
n. That due to the family dispute they have with the said Hajiya Hindatu Muhammad, 3rd Defendant at the lower Court, now deceased and 4th Respondent they did not inform him or other heirs of their late father, about the action before the High Court of Justice Kano, State.
o. That neither himself, nor any of the heirs of their late father was living in the house and when the 2nd Respondent drove away the person their late father put in the house by removing all the roofing?s and windows they did not know.
p. That the 1st Respondent knew that there are other heirs to the Estate of Late Muhammad Inuwa and Alhaji Habibu Muhammad who are claiming various interests in the house subject matter of the suit but refused to notify them of the suit before the High Court of Kano or joined them as parties?.
The 1st respondent’s filed a counter-affidavit challenging the depositions contained in the affidavit supporting the application of the applicant. Paragraphs 6 to 12 thereof are germane to the case the 1st respondent. The depositions in the aforesaid paragraphs as follows:
6. The 2nd Judgment Debtor refused and neglected to appear before the Sharia Court Kasuwa, Kano and the Sharia Court Kasuwa, Kano discharged me.
7. That when it was apparent that the 3rd, 4th and 5th Respondent in dispute with the 2nd Respondent as to the ownership of the subject matter, were I instituted an action the 2nd, 3rd, 4th and 5th Respondents who were the parties before the Sharia Court Kasuwa Kano.
8. That it was never raised at the Sharia Court Kasuwa Kano, that the 2nd Respondent was never given the subject matter by the 2nd Respondent’s father.
9. That while at the High Court of Justice Kano State in Suit No. K/266/2005, the 2nd Judgment Debtor after being served with the writ of summon, statement of claim and several hearing notices refused and neglected to appear before the High Court.
10. The 3rd, 4th and 5th Judgment debtors appeared before the Kano State High Court to defend their interest and right as well as engaged the service of a lawyer to defend them.
11. That the letter of administration was never obtained to administer the subject matter of this suit, because the subject matter of this suit, which is House No. 169 Magashi Quarters Fuskar Yamma Gwale LGA Kano was not part of the estate of Late Habib Muhammad (Gado da Masu) nor the Estate of Late Muhammad Inuwa.
12. That I never knew that there are other sons or daughters of late Muhammad Habibu (Gado da Masu) who are challenging the gift of the late Muhammad Habibu to the 2nd Judgment Debtors/Respondent in fact they have conceded the subject matter to the 2nd Judgment Debtors Respondent?.
By the depositions contained in paragraphs 3 K-P which were reproduced supra, the applicant, Nu’uman Habibu Muhammad, is one of the heirs to the Estate of late Alhaji Habibu Muhammad and the Administrator of the Estate by virtue of the letters of Administration dated the 3rd day of July, 2001, issued by the Kano State High Court. In the judgment of the trial Court delivered on the 31st of March, 2009, the learned judge held as follows on pages 56-57 of Exhibit “B? to the motion on notice filed on the 28th of April, 2016:
The plaintiff has therefore proved his case on the balance of probability. From the totality of the evidence before me, there is only one logical conclusion to this case and that is that the placing the evidence on the imaginary scale of justice, the pendulum of justice lifts in favour of the plaintiff. The plaintiff is therefore entitled to judgment in his favour. And I so hold. It is therefore the Judgment of this Court which is as follows:
1. There is a legally subsisting contract of sale of the house No. 169 Magashi Fuskar Yamma Gwale LGA of Kano State between the 1st defendant and the plaintiff which they are bound by its terms and condition.
2. The 1st defendant has legally passed title and ownership of House No. 169 Magashi Fuskar Yamma to the plaintiff Alhaji Bature Abba when he accepted the amount of N1,500,000.00K as consideration for the sale of the house.
3. The plaintiff is therefore declared the lawful and legal owner of House No. 169 Magashi Fuskar Yamma Gwale LGA and is therefore entitled to take immediate and exclusive possession of this house.
4. The plaintiff is awarded N100,000.00K damages for causing inconvenience and preventing him from the lawful use of this house for a period of 4 years.
5. Costs of this action?.
The applicants complaint, grievance or grouse against the judgment of the trial Court, partially reproduced supra, is that the subject-matter of Suit No. K/266/2005 was at one time owned by his father’s grandfather, and that he was issued with a Letter of Administration to administer the same. The essence of seeking for an order to grant him leave to appeal against the judgment of the trial Court is to challenge the judgment of the Court as to who is the title holder of the disputed property. The applicant has therefore shown or established his interest in the judgment involving the subject-matter of the dispute at the trial Court, especially as to the orders made by the Court in respect of the ownership of the property in dispute; and the applicant being in possession of the letter of Administration, issued by the High Court of Kano State, to administer the property.
In the result, I hold that the applicant is an interested person in respect of the property, subject-matter of the dispute in Suit No. K/266/2005, which judgment was delivered on the 31st of March, 2009, affecting the interest of the applicant as an administrator of the Estate by virtue of the letter of Administration issued to him by the Kano State High Court.
The 2nd prayer of the applicant is for an order extending the time within which the applicant can appeal to this Court against the judgment of the lower Court delivered on the 31st of March, 2009 in Suit No. K/266/2005. Order 6 Rules (1) (4) and 10 (1) (2) of the Court of Appeal Rules, 2016, provide thus:
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 cause 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 6 Rule 10(1) and (2) of the Rules of Court. The Supreme Court Per Adekeye, JSC had this to say in the case ofANPP v. Albashir (2010) 2 SCNJ P. 159 @ 181, 9 NWLR (Pt. 1198) 118 @ 149-150:
“An applicant who seeks this 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 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 satisfied conjunctively. The two conditions must be established in the affidavit evidence in support of the application. When only one out of the two conditions is satisfied, the application cannot be granted”.
An applicant applying for extension of time within which to appeal and who wishes that the discretion of the Court of Appeal under the Court of Appeal Rules be exercised in his favour must satisfy the two conditions prescribed under the Rules. It is not enough to satisfy just one of the two conditions. In other words, to warrant the exercise of the Court’s discretion in favour of the applicant both conditions must be satisfied concurrently. In order for an application for extension of time within which to appeal to be granted, the Court must carefully scrutinize the affidavit in support of the application and the proposed ground(s) of appeal annexed to the affidavit in support so as to determine whether the conditions stipulated in the Rules have been fulfilled or complied with.
Earlier in this ruling, I have made reference to the affidavit and the counter-affidavit before the Court in support of the application of the applicant. I have dispassionately considered the depositions contained in the said affidavits. The applicant, on the whole, has given satisfactory reasons why the appeal was not filed within the prescribed period. The depositions contained in the affidavit have also explained the reasons for not bringing the application within a reasonable period since the delivery of the judgment by the trial Court.
By the depositions contained in paragraphs 4(d) to (f) of the affidavit in support of the application, the applicant had given sufficient reasons why he could not have appealed within the time prescribed within which to do so. Paragraphs 4 (d) to (f) of the affidavit are as follows:
d. That at the time the interested party/applicant become aware of the judgment of High Court of Justice Kano State and concluded his effort to obtain a certified true copy of the record of proceedings of the said Court the time within which to appeal has expired.
e. That the only option open to the interested party/applicant is to seek the leave of this Honourable Court to appeal against the judgment of the High Court of Justice of Kano State in Suit No. K/266/2005 as an interested party hence this application.
f. That he has prepared the proposed notice of appeal of the interested party/applicant same has been shown to me and is hereby attached and marked as Exhibit D?.
Another requirement which must be satisfied in order for an applicant to be entitled to an order extending time within which to appeal is that the proposed grounds of appeal must show good cause why the appeal should be heard. See I.C.A.N v. Unegbu (2012) 2 NWLR (Pt. 1284) P. 216 @ 230 wherein it was enunciated that it is not the duty of the Court at this stage to consider whether the appeal will succeed. It is enough that the grounds of appeal are arguable. As to whether the appeal will succeed, that is to be left for consideration at the hearing of the appeal.C.C.B. (Nig) Ltd v. Ogwuru (1993) 3 NWLR (Pt. 284) 63 In Re.Adewumi (1988) 3 NWLR (Pt. 83) 483; Ibodo v. Enarofia (1980) 5-7 SC 42; Ogbu v. Urum (1981) 4 SC 145 Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) P. 577.
It must be pointed out that the applicant need not show the proposed grounds of appeal will succeed. Rather, what is required of the applicant is only to show that a prima-facie case has been shown by the proposed grounds of appeal. See Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) P. 577 and Ikenta Best (Nig) Ltd v. A. G. Rivers State (2008) 6 NWLR (Pt. 1084) P. 612. The proposed grounds of appeal, without their particulars are thus:
Ground One
The learned trial judge erred in law when she heard and determined the matter without jurisdiction.
Ground Two
The learned trial judge erred in law and is in breach of the principles of fair hearing when she slated the matter for defence, closed the defendants defence, adjourned the case for filing and adoption of written address, adjourned the matter for judgment and delivered its judgment on dates which the defendants were not aware of?.
Ground Three
The Lower Court erred in law when it admitted in admissible evidence and relied on same to make its judgment.
Ground Four
The learned trial judge erred in law when she declare that ‘the plaintiff is therefore declared the lawful and legal owner of house No. 169 Magashi Fuskar Yamma Gawale L.G.A. and therefore entitled to take immediate and exclusive possession of this house’ when all conditions required by law in respect of transfer of landed property have not been fulfilled?.
Exhibit ‘D’ attached to the affidavit of the applicant contained the proposed grounds of appeal. They are four (4) grounds of appeal, which consist of arguable issues on points of law. The proposed grounds of appeal, if taken as a whole with their particulars have established a prima-facie case why the appeal must be heard in view of the issues raised therein which requires the appellate Court to resolve same on appeal in the over-all interest of justice to both parties, the applicant and the respondents. It is in view of the foregoing that I am of the firm view that the orders sought by the application should be granted.
Accordingly, the application of the applicant is hereby granted. I make an order granting prayers 1 and 2 that is:
(i) Leave is granted to the applicant to appeal as an interested party against the judgment of the lower Court in Suit No. K/266/2005, delivered on the 31st day of March, 2009.
(ii) Time within which to appeal against the judgment of the trial Court is hereby extended. The applicant is to file Notice and grounds of appeal within 14 days from the date a drawn up order of the Court is served on him. I make no order as to costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had a preview of the ruling just delivered by my learned brother, Justice Ibrahim Shata Bdliya, JCA in respect of this application. I agree with the reasoning and conclusion reached therein, to the significant effect that the instant application has merit and thereby deserves to be granted. I adopt the said ruling as mine in granting the application. I also subscribe to the consequential orders made in the said ruling of my learned brother, Bdliya, JCA including the one made with regard to costs.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read in draft the lead ruling delivered by my learned brother, Ibrahim Shata Bdliya, JCA.
I agree with him that the Applicant herein, Mu’uman Habibu has shown sufficient interest in the appeal and is therefore entitled to be granted leave to appeal as an interested party. I therefore abide by all the orders made, including the order as to costs made by him.
Appearances:
Danjuma Siaka Esq.For Appellant(s)
Muhammed Umaru Esq.For Respondent(s)
