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USMAN v. ABUBAKAR (2021)

USMAN v. ABUBAKAR

(2021)LCN/15814(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Wednesday, March 24, 2021

CA/KN/45/S/2019

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

ENGINEER HUSSAINI USMA APPELANT(S)

And

SADDIQA ABUBAKAR RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON THE METHOD OF LAYING A COMPLAINT BEFORE AN APPELLANT COURT

The lower Court is an appellate Court and it is settled law that the only known and legitimate way or method of laying a complaint before an appellate Court, to show the grievances of an aggrieved party against a decision taken by an inferior Court or tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision. The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1. The appeal before the lower Court was predicated on a notice of appeal filed by the Appellant thereat on the 10th of July, 2017. This notice of appeal was the foundation upon which the jurisdiction of the lower Court to entertain the appeal presented was predicated – Uwazurike Vs Attorney General Federation (2007) 8 NWLR (Pt 1035) 1, Odunze Vs Nwosu (2007) 13 NWLR (Pt 1050) 1 and First Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444. And the notice of appeal, just like pleadings, was binding on the parties and on the Court – Federal Airport Authority of Nigeria Vs Greenstone Ltd (2009) 10 NWLR (Pt 1150) 624. PER MUKHTAR, J.C.A.

WHETHER OR NOT AN APPELLANT COURT CAN INTERFERE WITH THE EXERCISE OF JUDICIAL DISCRETION BY A LOWER COURT

 It is trite law that an appellate Court will only interfere with the exercise of judicial discretion by a lower Court if it is shown that there has been a wrongful exercise of discretion such as where the lower Court acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere -Ntukidem Vs Oko (1986) 5 NWLR (Pt 45) 909, Okeke Vs Oruh (1999) 6 NWLR (Pt 606) 175, Eye Vs Federal Republic of Nigeria (2018) LPELR 43599(SC), Elf Petroleum Plc Vs Umah (2018) LPELR 43600(SC), Alioke Vs Oye (2018) LPELR 45153(SC). In Alsthom S. A. Vs Saraki (2005) 14 NWLR (Pt 687) 415, Akintan, JSC, stated that:
“It is settled law that adjournments of cases fixed for hearing are not obtained as a matter of course. They may be granted or refused at the discretion of the Court. The exercise of such discretion, however, is a judicial act which must be premised on well established legal principles. It is therefore an act against which an aggrieved party may lodge an appeal. To succeed in such an appeal, the appellant must satisfy the appellate Court that the trial Court acted on an entirely wrong principle or failed to take all the circumstances of the case into consideration and that it is manifest that the order would work injustice to the appellant.”
PER MUKHTAR, J.C.A.

THE REQUREMENT OF AN APPELLANT TO SUCCEED ON AN APPEAL AGAINST THE EXERCISE OF DISCRETION OF COURT

The law is that, to succeed on an appeal against exercise of discretion, the onus is on the Appellant to show that the reasons given by the lower Court for failing to exercise its discretion in favour of his request for extension of time were not appropriate on the peculiar facts and circumstances of this case and that the exercise of discretion by the lower Court was wrongful and requires the interference of this Court -Chijoke Vs Soetan (2006) 10 NWLR (Pt 990) 179, Ikenta Best (Nig) Ltd Vs Attorney General, Rivers State (2008) 6 NWLR (Pt 1084) 612. Reading through the entire brief of arguments of the Appellant, his Counsel woefully failed to show that the reasons given by the lower Court in refusing to exercise its discretion in favour of his application were not appropriate. Nothing was advanced to warrant this Court interfering with the decision of the lower Court. PER MUKHTAR, J.C.A.

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal against the judgment of Kano State Sharia Court of Appeal, quorum; Hon. Kadi Muktari Muhammad Kunti, Hon Kadi Ahmad Muhammad Gidado and Hon Kadi Mustapha Abubakar Lalloki delivered on the 31st December, 2018 affirming the judgment of Upper Sharia Court refusing to grant the Appellant an extension of time within which to appeal in suit no USC/KN/CV/457/2017 from the Post Office No. 2 Sharia Court in Suit No. CV/155/2017.

The Respondent instituted this matter, as plaintiff, against the Appellant as defendant at the Post Office No. 2 Sharia Court, Kano on the 24th August 2017 claiming for the maintenance of their child Muhammad Tahir.

​The matter came up for the first time on 29th August, 2017 and after the Respondent’s counsel stated her claim, the Appellant not only denied the claim but went further to deny the paternity of the said child Muhammad Tahir. The trial Court then stayed further proceedings regarding maintenance until the paternity issue of the child was first determined.

The Appellant was married to the Respondent for thirteen (13) years, which marriage was blessed with children before the Appellant divorced the Respondent. Moreover, Muhammad Tahir is not their first child. These facts were not disputed by the Appellant before the trial Court. On the 29th August, 2017 after the Appellant denied the paternity of the child, the matter was adjourned to 21st September, 2017 for continuation of hearing. On the 21st September, 2017, both parties were in Court with their respective counsel. The Appellant’s counsel persistently denied the paternity of the child, stating that the child does not belong to the Appellant and requested for a DNA test to be conducted to determine if the child belongs to the Appellant. The Respondents counsel informed the Court that the child belongs to the Appellant.

The marriage was contracted on the 14th February, 2003, the child Muhammad Tahir was born on the 16th September, 2007 and the Respondent was divorced by the Appellant on the 12th August, 2011, four (4) years after the child’s birth.

The Appellant’s counsel admitted that the marriage was contracted on 28th February, 2003, but not 14th as stated by the Respondent’s counsel. Notwithstanding, this admission by the Appellant through his counsel, still denied paternity of the child and requested that the trial Court should order for DNA test to be conducted. The matter was then adjourned to the 16th November, 2017 for the Appellant’s counsel to produce his authorities as to why DNA test should be used to determine legitimacy of the child and whether legitimacy of children under Islamic Law is determinable by DNA test.

On the return date, the Appellant’s counsel produced an authority on the recognition of expert evidence in determining paternity of a child.

The Respondent’s counsel challenged the admissibility of the document produced on the ground that it was a mere lecture note delivered by the Appellant’s counsel himself, which does not constitute an authority for the determination of legitimacy under Islamic Law.

​On the other hand, the Respondent’s counsel cited other judicial authorities and Islamic Books all showing that, under Islamic Law, it is the determination of paternity of the child of a free woman or child of a slave woman that could be done through expert evidence especially where the slave woman went to bed with two or more masters. The Respondent’s counsel submitted that the authority cited by the Appellant’s counsel was inapplicable to the peculiar facts and circumstances of the instant case since the Respondent was neither an unmarried woman nor a slave at the moment relevant to the paternity of the child Muhammad Tahir; from the time of pregnancy to the time of birth. After this submission, the Appellant’s counsel applied for an adjournment to reply to the submission of the Respondent’s counsel on points of law. The trial Court granted that application and the matter was adjourned to the 24th November, 2017, for reply on points of law in the presence of the Appellant and his counsel.

​From that day, the Appellant and his counsel stopped appearing before the trial Court. There were several adjournments to enable the Appellant’s counsel reply on points of law. The last adjournment of the matter was also at the instance of the Appellant, but on the return date neither Appellant nor his counsel was in Court. The trial Court then proceeded with the matter in accordance with Order 9 Rule 3 of the Kano State Sharia (Civil Procedure) Rules 2000. Judgment of the trial Court was delivered on the 26th January, 2018 in the absence of the Appellant because they stopped appearing in Court and no reason was given for their persistent absence.

The Appellant, claimed that he became aware of the judgment of the trial Court only when he was served with an application for execution of the judgment. Thereupon, the Appellant filed an application for extension of time to appeal against the judgment of the trial Court to the Upper Sharia Court, Kano (hereinafter referred to as “the U.S.C”).

The U.S.C. dismissed the Appellant’s application on the ground that he did not provide sufficient materials to warrant granting the application for extension of time to appeal.
Being dissatisfied with the decision of the U.S.C. the Appellant appealed to the Court below, which after hearing the Appellant’s appeal, also dismissed the appeal on 31st December, 2018 for being unmeritorious.

​The Appellant has further appealed to this Court against the decision of the Court below by filing a Notice of Appeal predicated on two grounds of appeal.

The Appellant however went ahead to formulate 3 issues from the two grounds of appeal. Not only are the issues proliferated but none of such issues was tied to any ground. The issues are reproduced thus:
1. Whether in law its necessary for a party to a civil matter to be present and attending his Court case despite the facts that the party is being represented by a counsel.
2. Whether or not a sin of a counsel can be visited on a litigant.
3. Whether the lower Court was right in disallowing the appellants appeal on the ground of a sin of his counsel.

​It has been held in plethora of cases that it is wrong for counsel to formulate more than one issue for determination from one ground of appeal. Three issues formulated from only two grounds of appeal, as done by the Appellant in the instant case, was therefore tantamount to proliferation of issues. Counsel may raise one issue from one or more grounds of appeal but not otherwise. The Appellant’s issues having not been tied to any particular ground of appeal are all affected by the virus of proliferation and rendered void. The appeal is however saved by the Respondent, who distilled a lone, though pregnant, issue for determination, which will be appraised for the determination of the instant appeal. The lone issue reads as follows:
Whether the Court below exercised its discretionary powers judicially and judiciously in affirming the decision of the Upper Sharia Court of Appeal by dismissing the Appellant’s appeal and whether by so doing, the Appellant was denied any fair hearing by the Court below.

The learned counsel for the Appellant A. B. Buba, Esq argued profusely the issue of necessity for a party to civil action who is represented by counsel to be attending Court whenever his case comes up. With due respect, this issue will only be relevant in determining the propriety of the judgment of the trial Court entered in the absence of the Appellant. It is not relevant to the decision of the U.S.C. that refused to grant extension of time to the Appellant to appeal. What calls for determination in the instant appeal is the propriety of refusal of the U.S.C. to extend time for the Appellant to file Notice of Appeal against the judgment of the trial Sharia Court, and whether the Court below was right in affirming same judgment?

The Respondent’s counsel Sadiq Abdullahi, Esq, however, argued on the propriety of delivering the judgment in the absence of the Appellant and whether there was a breach of the Appellant’s right to fair hearing. With respect, the respondent’s arguments are equally predicated upon the merit of the judgment of the trial Court, which is not the subject matter of the instant appeal. The decision of the U.S.C. refusing the application for extension of time to appeal against the judgment of the trial Court was the subject matter of the Appeal at the lower Court. However, both the lower Court and the U.S.C. predicated their decisions on the merit of the judgment of the trial Court against which there is no appeal till date as the application seeking for extension of time to appeal made to the U.S.C. was not granted. The Notice of Appeal to this Court clearly spells out the decision from which the appeal emanated. It is reproduced thus:
“NOTICE OF APPEAL
TAKE NOTICE that the appellant being dissatisfied with the judgment of the Sharia Court of Appeal of Kano State in Appeal No. SCA/KN/CV/194/2018 delivered on the 31st December, 2018, Coram Hon Khadi Muktari Muhammad Kunti (Presiding), Hon Khadi Ahmad Muhammad Gidado, Hon. Khadi Mustapha Abubakar Lalloki do hereby appeal to the Court of appeal upon the grounds set out in paragraph 3 hereof…”

It is pertinent that the appeal herein is a reflection of appeal determined by the lower Court especially since the judgment of the trial Court was affirmed at every stage of the appeal process. The appeal determined by the lower Court in turn rests on the appeal determined by the U.S.C. Hence, the need to scan the first appeal from the trial Court to the U.S.C. which was sought to be initiated by an application, made by the Appellant herein, for extension of time to file Notice of Appeal, which the U.S.C. refused to grant and instead dismissed the application.

​The law is trite that where Notice of Appeal is not filed within the statutory time-frame, it has to be regularised by an application for extension of time made to and granted by the Court to which the appeal lies. A Notice of Appeal filed belatedly and without order to Court regularising it, as in the appeal filed at the U.S.C. would be tantamount to a non-starter and void ab initio. It therefore follows that the appeal before the U.S.C. from the judgment of the trial Court that was initiated by a null Notice of Appeal was void ab initio. The U.S.C. lacked jurisdiction to determine that appeal, having dismissed the application for extension of time to file same.
The lower Court, therefore, should have struck out the proceedings and judgment of the U.S.C. as null and void and of no effect whatsoever. The lower Court was audaciously in error by affirming the null “decision” of the U.S.C. I therefore have no hesitation in dismissing the appeal that seeks to set aside that null “decision”. The appeal is dismissed for lacking in merit. The judgment of the lower Court delivered on 31st December, 2018 is set aside. Furthermore, the null proceedings and “decision” of the U.S.C. are hereby struck out for incompetence.
The judgment of the trial Sharia Court delivered on 26th January, 2018 remains the only valid and subsisting judgment and binding between the parties herein. It should, if not already executed, be enforced forthwith.
The Respondent is entitled to costs against the Appellant assessed at One Hundred Thousand Naira (N100,000.00).

HABEEB  ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Hussein Mukhtar, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I agree that there is no merit in the appeal.

​The action leading up to this appeal was commenced by the Respondent against the Appellant in the Post Office No 2 Sharia Court Kano in Suit No CV/155/2017. Judgment was entered by that Court in favour Respondent on the 26th of January, 2018 and it was stated therein that the Appellant was at liberty to appeal against the judgment to Upper Sharia Court within thirty days. The Appellant did not appeal within thirty days. Following steps taken to execute the judgment, the Appellant filed a motion before the Upper Sharia Court Yan Awaki, Kano in Suit No USCA/KN/CV/457/2017 praying for extension of time to appeal against the judgment of the Post Office No 2 Sharia Court. The Upper Sharia Court heard the motion on the merits and dismissed same in a considered Ruling delivered on the 9th of July, 2018 on the ground that the Appellant did not furnish any good reason for the extension of time sought and it stated in the Ruling that the Appellant was at liberty to appeal to the Sharia Court of Appeal within fourteen days.

The Appellant appealed against the Ruling to the Sharia Court of Appeal, Kano by a notice of appeal dated and filed on the 10th of July, 2018 in Suit No. SCA/KN/CV/194/2018. The parties filed their respective briefs of argument and the appeal was heard on the merits. In the judgment delivered by the Sharia Court of Appeal, Kano (hereinafter called the lower Court) on the 31st of December, 2018, the lower Court affirmed the decision of the Upper Sharia Court Yan Awaki, Kano dismissing the Appellant’s application for extension of time to appeal. The lower Court did not however stop there. It proceeded further in the said judgment to consider the correctness of the judgment of the Post Office No 2 Sharia Court Kano that the Appellant was seeking extension of time to appeal against and pronounced the findings of the Post Office No 2 Sharia Court Kano to be in accordance with the law.

​The Appellant was dissatisfied with the judgment of the lower Court and he caused a notice of appeal containing two grounds of appeal to be filed against it before this Court. Counsel to the Appellant, with respect, made a complete mess of the appeal in his brief of arguments. Counsel distilled three issues for determination from the Appellant’s two grounds of appeal, despite the several decisions of this Court and of the Supreme Court forbidding the formulation of issues for determination beyond the number of grounds of appeal and deprecating such behavior of the part of Counsel – see, for example, the cases of Ikuforiji Vs FRN (2018) 6 NWLR (Pt 1614) 142, Roe Ltd Vs UNN (2018) 6 NWLR (Pt 1616) 420, Olaiya Vs State (2018)10 NWLR (Pt 1624) 1. Further, the arguments canvassed by Counsel on the three issues for determination was a mumbo-jumbo of disconnected, disparate, uncoordinated and repetitive submissions.

It is pertinent to comment on the portion of the judgment of the lower Court that dealt with the correctness of the judgment of the Post Office No. 2 Sharia Court Kano that the Appellant was seeking extension of time to appeal against and its pronouncements thereon. The lower Court is an appellate Court and it is settled law that the only known and legitimate way or method of laying a complaint before an appellate Court, to show the grievances of an aggrieved party against a decision taken by an inferior Court or tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision. The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1. The appeal before the lower Court was predicated on a notice of appeal filed by the Appellant thereat on the 10th of July, 2017. This notice of appeal was the foundation upon which the jurisdiction of the lower Court to entertain the appeal presented was predicated – Uwazurike Vs Attorney General Federation (2007) 8 NWLR (Pt 1035) 1, Odunze Vs Nwosu (2007) 13 NWLR (Pt 1050) 1 and First Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444. And the notice of appeal, just like pleadings, was binding on the parties and on the Court – Federal Airport Authority of Nigeria Vs Greenstone Ltd (2009) 10 NWLR (Pt 1150) 624. The subject matter of that appeal as stated on the face of the notice of appeal was the decision of the Upper Sharia Court Yan Awaki delivered on the 9th of July, 2017 refusing the application of the Appellant for extension of time to appeal.
​Thus, the brief of the lower Court in that appeal was to find out whether on proper consideration of the facts placed before it, and the applicable law, Upper Sharia Court Yan Awaki arrived at a correct decision in its Ruling of the 9th of July, 2017, the subject matter of the appeal. It is not within the brief of the lower Court in that appeal to review any other ruling or judgment of any other Court outside the ruling of the Upper Sharia Court Yan Awaki delivered on the 9th of July, 2017 refusing the application of the Appellant for extension of time to appeal. The lower Court possessed no power or jurisdiction to pronounce any other judgment or ruling. This is because an appellate Court cannot review a judgment or ruling of a lower Court against which there is no notice and grounds of appeal legally filed before it – Anah Vs Anah (2008) 9 NWLR (Pt 1091) 75.
​Thus, the foray made by the lower Court in dealing with the correctness of the judgment of the Post Office No. 2 Sharia Court Kano that the Appellant was seeking extension of time to appeal against and its pronouncements thereon were exercises in futility as they were done without jurisdiction. I will treat the statements made by the lower Court on the judgment of the Post Office No 2 Sharia Court Kano as obiter dictum and irrelevant in this appeal. The relevant part of the judgment of the lower Court in this appeal is that portion that considered and affirmed the decision of the Upper Sharia Court dismissing the Appellant’s application for extension of time to appeal.

​This appeal is against the exercise of discretion by the lower Court. It is trite law that an appellate Court will only interfere with the exercise of judicial discretion by a lower Court if it is shown that there has been a wrongful exercise of discretion such as where the lower Court acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere -Ntukidem Vs Oko (1986) 5 NWLR (Pt 45) 909, Okeke Vs Oruh (1999) 6 NWLR (Pt 606) 175, Eye Vs Federal Republic of Nigeria (2018) LPELR 43599(SC), Elf Petroleum Plc Vs Umah (2018) LPELR 43600(SC), Alioke Vs Oye (2018) LPELR 45153(SC). In Alsthom S. A. Vs Saraki (2005) 14 NWLR (Pt 687) 415, Akintan, JSC, stated that:
“It is settled law that adjournments of cases fixed for hearing are not obtained as a matter of course. They may be granted or refused at the discretion of the Court. The exercise of such discretion, however, is a judicial act which must be premised on well established legal principles. It is therefore an act against which an aggrieved party may lodge an appeal. To succeed in such an appeal, the appellant must satisfy the appellate Court that the trial Court acted on an entirely wrong principle or failed to take all the circumstances of the case into consideration and that it is manifest that the order would work injustice to the appellant.”
​The law is that, to succeed on an appeal against exercise of discretion, the onus is on the Appellant to show that the reasons given by the lower Court for failing to exercise its discretion in favour of his request for extension of time were not appropriate on the peculiar facts and circumstances of this case and that the exercise of discretion by the lower Court was wrongful and requires the interference of this Court -Chijoke Vs Soetan (2006) 10 NWLR (Pt 990) 179, Ikenta Best (Nig) Ltd Vs Attorney General, Rivers State (2008) 6 NWLR (Pt 1084) 612. Reading through the entire brief of arguments of the Appellant, his Counsel woefully failed to show that the reasons given by the lower Court in refusing to exercise its discretion in favour of his application were not appropriate. Nothing was advanced to warrant this Court interfering with the decision of the lower Court.

​It is for these reasons that I find no merit in this appeal and I hereby dismiss same. I affirm the portion of the judgment of the Sharia Court of Appeal, Kano delivered in Appeal No SCA/KN/CV/194/2018 which upheld the decision of the Upper Sharia Court dismissing the Appellant’s application for extension of time to appeal and delivered on the 31st of December, 2018 by Honorable Kadi Muktari Muhammad Kunti, Honorable Kadi Ahmad Gidado and Honorable Kadi Mustapha Abubakar. I abide the order on cost in the lead judgment.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother HUSSEIN MUKHTAR, JCA, I am in complete agreement with the reasoning and conclusion reached therein. The appeal is unmeritorious and it is accordingly dismissed by me. I abide by all other consequential orders in the leading judgment.

Appearances:

A. B. Buba, Esq. For Appellant(s)

Sadiq Abdullahi, Esq. For Respondent(s)