SHIGAWA v. YALI (2021)

SHIGAWA v. YALI

(2021)LCN/15592(CA)

In The Court of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, December 15, 2021

CA/YL/98/2020(R)

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

1. HENRY SHIGAWA (Carrying on Business in the name of Shalom Nursery/Primary School, Nyamu-Sallah Jalingo) APPELANT(S)

And

YAZEN MAGO YALI RESPONDENT(S)

RATIO DECIDENDI

DETERMINATION OF APPLICATION OF TRINITY PRAYERS

In order to determine this application, recourse must be had to relevant rules of this Court, coupled with judicial authorities.

Order 6, Rules 1,2,4 and 9 of the Court of Appeal Rules, 2016, under which the Applicant brought his application provides thus:
1. Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.
2. Any application to the Court for leave to appeal (other than an application made after the expiration of the time for appealing) shall be by notice of motion, which shall be served on the party or parties, affected.
4. Wherever under these Rules an application may be made either to the Court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances, which makes it impossible or impracticable to apply to the Court below.
9(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(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. PER JAMILU YAMMAMA TUKUR, J.C.A.

WHEN THE TRINITY PRAYERS ARE NECESSARY

“In other words, an application requiring trinity prayers for extension of time within which to apply for leave; leave to appeal; and extension of time within which to appeal must relate to situations where an appeal requires leave of Court and time within which to lodge the appeal had also expired. In the case of Odofin v. Agu (supra) his Lordship, Nnaemeka-Agu, (JSC) of (blessed memory), had this to say at page 371: “…a person who wishes to seek leave on any ground of appeal after the expiration of the statutory period to appeal under Section 25 of the Court of Appeal Act (No. 43) of 1976 (No.12) of 1960) requires three substantive prayers, namely for – (i) extension of time to seek leave to appeal; (ii) leave to appeal; and (iii) extension of time within which to appeal. That any such application must contain these three prayers is not a matter of mere cosmetic importance which could be waved off with levity or waived. Rather, it is a matter which goes to the serious issue of the jurisdiction of Court.”
See: NAF v. SHEKETE (2002) LPELR-3193(SC); MASHINGIL & ANOR v. MURUM (2021) LPELR-54761(CA); and MASHINGIL & ANOR v. MURUM (2021) LPELR-54761(CA).PER JAMILU YAMMAMA TUKUR, J.C.A.

GROUNDS GRANTING THE TRINITY PRAYERS

This Court is eminently empowered to both grant leave and an enlargement of time within which to file an appeal, subject to the condition that the party asking for said prayers must show good and substantial reason why the prayers should be granted. This Court in the case of RE: ABUTU (2018) LPELR-44253(CA) (Pp 17 – 20 Paras A – A) Per JOSEPH EYO EKANEM, JCA, had cause to examine the grounds upon which this Court may grant an extension of time and leave to appeal thus:
“In an application for enlargement of time to appeal, the applicant is required to show by affidavit; (I) Good and substantial reasons for failure to appeal or to apply for leave to appeal within the prescribed period, and (II) grounds of appeal which prime facie show cause why the appeal should be heard. See Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016 and Amaechi v Omehia (2013) 16 NWLR (Pt. 1381) 417, 432.” PER JAMILU YAMMAMA TUKUR, J.C.A.

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgement): The Applicant herein is the Appellant in Appeal No. CA/YL/98/2020 and has approached this Court with a Motion on Notice dated 29th June, 2021, and filed on 7th July, 2021, brought pursuant to Order 6 Rules 1, 2, 4 & 9 of the Court of Appeal Rules 2016; Section 14(1) of the Court of Appeal Act (Cap 36) LFN 2004; and Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), seeking the following:
1. An Order for extension of time within which the Applicant may seek leave to appeal against the ruling of Honourable Justice J.D. Yakubu of the High Court of Justice, Jalingo in Motion No: TRSJ/531M/18 dated 14th December, 2018.
2. An Order granting the Applicant leave to appeal against the said ruling of the Court below in Motion No: TRSJ/531M/18.
3. An Order extending the time within which the Applicant may appeal against the ruling of the trial Court delivered on 14th December, 2018 in Motion No: TRSJ/531M/18.
4. Leave to appeal on grounds of fact, and mixed law and facts.
5. And for such further or other order(s) as this Honourable Court may deem fit to make in the circumstances.

The grounds for the application were stated thus:
a. That by the combined effects of Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 14(1) of the Court of Appeal Act (Cap 36) LFN 2004, leave of this Court or the Court below must be sought and obtained to file a valid interlocutory appeal.
b. That leave to appeal against interlocutory decision is a precondition that must be complied with for the filing of a valid notice of appeal.
c. That the time within which the Applicant ought to have obtained leave of the trial Court to appeal against the interlocutory decision was 14 days effective from the date of the ruling which elapsed on 28th December, 2018.
d. That even though the Applicant timeously filed the notice of appeal on the 20th of December, 2018, no leave of the trial Court was sought and/or granted to the Applicant.
e. By Order 6 Rules 4 & 9 (1) & (2) of the Court of Appeal Rules, 2016, this Court may exercise its discretionary power to enlarge time for the Applicant to seek leave to appeal against the said ruling of the trial Court dated 14th December, 2018.
f. That the grounds of appeal contained in the proposed Notice of Appeal marked “Exhibit B” contains grounds of facts, mixed law and facts.

Applicant’s counsel in compliance with the Rules of this Court accompanied his Motion on Notice with a 28-paragraph affidavit deposed to by the Applicant at the Registry of this Court on 1st July, 2021.

In opposing, the Respondent filed a 10-paragraph counter affidavit deposed to by Suyisumsari Bristone at the Registry of this Court on 3rd August, 2021.

From the affidavit in support filed by the Applicant, the major reason why this application containing the trinity prayers of enlargement of time to seek leave, leave and enlargement of time within which to appeal, is that the failure to file the Notice of Appeal against the decision of the lower Court in question, is due to THE mistake of counsel.

In the counter affidavit, it was averred that on 18th March, 2021, this Court heard the Applicant’s application in Appeal No. CA/YL/2020 between Mr. Henry Shigawa v. Yazen Mago Yali and struck out same on the ground that the Motion and Affidavit are both incompetent; it was also averred that the Applicant did not disclose any good or substantial reason that would justify grant of his application; and that Appeal No. CA/YL/99/2020 between the same parties and in respect of which they had exchanged briefs of arguments, is good enough to address the Applicant’s grouse in this application.

In order to determine this application, recourse must be had to relevant rules of this Court, coupled with judicial authorities.

I agree with the Applicant`s counsel that the three prayers made herein, which is commonly referred to as the ‘trinity prayers’ is necessary for the proper filing and hearing of an appeal on the ruling made by the lower Court, as leave is required, and time within which to seek said leave and also to appeal must be enlarged, before the appeal can be validly brought.

The Supreme Court in the case of ANACHEBE v. IJEOMA & ORS (2014) LPELR-23181(SC) (Pp 23 – 23 Paras B- F), Per CLARA BATA OGUNBIYI, JSC, gave a brief exposition on where such prayers are required thus:
“In other words, an application requiring trinity prayers for extension of time within which to apply for leave; leave to appeal; and extension of time within which to appeal must relate to situations where an appeal requires leave of Court and time within which to lodge the appeal had also expired. In the case of Odofin v. Agu (supra) his Lordship, Nnaemeka-Agu, (JSC) of (blessed memory), had this to say at page 371: “…a person who wishes to seek leave on any ground of appeal after the expiration of the statutory period to appeal under Section 25 of the Court of Appeal Act (No. 43) of 1976 (No.12) of 1960) requires three substantive prayers, namely for – (i) extension of time to seek leave to appeal; (ii) leave to appeal; and (iii) extension of time within which to appeal. That any such application must contain these three prayers is not a matter of mere cosmetic importance which could be waved off with levity or waived. Rather, it is a matter which goes to the serious issue of the jurisdiction of Court.”
See: NAF v. SHEKETE (2002) LPELR-3193(SC); MASHINGIL & ANOR v. MURUM (2021) LPELR-54761(CA); and MASHINGIL & ANOR v. MURUM (2021) LPELR-54761(CA).

The paragraph in support filed by the Applicant reveals that the Applicant instructed his counsel to file an appeal against the ruling of the lower Court delivered on 14th December, 2018, timeously, but the Counsel failed to comply with the provisions of the law on seeking leave for appealing an interlocutory decision. This is a fault of counsel which this Court is not willing to punish the Applicant for. In addition, an examination of the Notice of Appeal dated 20th December, 2018, attached to the affidavit as exhibit, reveals that there are grounds of appeal which prime facie show cause why the appeal should be heard.
In light of the above, it is clear that the application has merit and same is hereby granted.

It is hereby ordered thus:-
Time is extended to today within which the Applicant may seek leave to Appeal against the Ruling of the High Court of Taraba State delivered on 14th December, 2018 in Suit No. TRSJ/532m/2018.
Leave to appeal the said Ruling delivered on 14/12/2018.
Time is extended by 14 days from today within which the Applicant may appeal the Ruling.

CHIDI NWAOMA UWA, J.C.A.: I read before now a draft copy of the ruling delivered by my learned brother JAMILU YAMMAMA TUKUR, JCA. I agree with his reasoning and conclusion arrived at. The application is meritorious and it is accordingly granted.
I abide by the order made by my learned brother in the leading ruling extending the time of the applicant

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

E.A. Nyaro, Esq. For Appellant(s)

S.M. Tafi War War, Esq. For Respondent(s)