ZAWACIKI & ANOR v. SALEH & ORS (2022)

ZAWACIKI & ANOR v. SALEH & ORS

(2022)LCN/16662(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/KN/100/M/2020(R)

Before Our Lordships

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

1. BABANDI ZAWACIKI 2. ADO ADO APPELANT(S)

And

1. ALHAJI ALIYU AHMAD SALEH 2. MUHAMMAD SANI MADA 3. ABDULHAMID IBRAHIM RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE THE REASON FOR DELAY IN FILING AN APPEAL IS ATTRIBUTED TO COUNSEL BY THE APPLICANT

What is more? it is settled law that where the reason for delay in filing an appeal is attributed to counsel by the applicant, there ought to be before the Court an affidavit by that counsel admitting fault otherwise that reason cannot be said to have been made out. That was the decision of this Court in Irrumdu Jamari & Ors v. Ijabani Yaga (2012) LPELR-15188(CA) cited by 1st respondent’s counsel. That decision followed the decision of the Apex Court in Lauwers Import-Export v. Jozebson Industries Limited (1988) 3 NWLR (PT 83) 429 where the applicant for extension of time to appeal, Jozebson Industries Ltd, like the instant case, attributed her delay in appealing to the negligence of her former counsel, one Mr. Okwudili, in failing to file her appeal promptly as purportedly instructed. There, the Supreme Court (Agbaje, JSC, delivering lead judgment), in overturning the decision of this Court which had granted the same application for extension of time to appeal even without any affidavit from Okwudili, had this to say at page 449 para. G-H:
“There is clearly no iota of evidence of negligence or inadvertence against Mr. Okwudili in the matter before the lower Court. Even if there was one on the affidavit of the defendant, which in my judgment there is none, one would ordinarily require an affidavit from Mr. Okwudili admitting fault before such an allegation can be held to have been established by the defendant. There is no such thing in the instant case.” (Italics mine) I note that in that case, the applicant Jozebson Industries, was two years, six months and three days out of time in appealing, a period the Apex Court, Agbaje JSC, at p. 447 para H said ‘means that the defendant was not a little but a very great deal out of time.” The delay of the applicants here is three years, thus beating by six months the ‘very great deal of delay’ in Lauwers Import-Export v. Jozebson Industries Limited supra. PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgement): The two applicants by this application dated and filed on 07/07/2020 seek the discretion of this Court enlarging time for them to appeal against the judgment of the High Court of Kano State of 26/07/2017 in Suit No: K/231/2014 in which that Court entered judgment in favour of 1st respondent as claimant for his claims against appellants and 2nd and 3rd respondents as defendants. In the affidavit supporting their application, 1st applicant outlined the circumstances that gave rise to their application and the reason for their three-year delay in appealing thus:
3. That judgment was delivered against us before the lower Court, High Court of Justice of Kano State, on 26th July 2017.
4. That I instructed my counsel, having been dissatisfied with the judgment of the lower Court, to appeal to this Honourable Court as at the time the judgment was delivered.
5. That unknown to me on (sic) the 2nd applicant, he did not file the appeal and it came to my knowledge when bailiff of the lower Court made an attempt to attach my property sometimes this year 2020.
6. That I informed the bailiff of the lower Court about the fact of the case and the circumstances, in fact I am bona fide purchaser for value without notice of the subject matter.
7. That the bailiff of the lower Court informs me that from their records no appeal was filed.
8. That I approached the law firm of Abdullahi A. Duro & Co. for legal advice and suggestion where I was informed that a motion on notice for extension of time to file an appeal need to be filed before taking any step.
9. That a lawyer from the law firm of Abdullahi A. Duro & Co. obtained the judgment of the lower Court and studied same and drafted grounds of appeal.
12. That we are ready to prosecute our appeal diligently and the proposed Notice of appeal is hereby attached and marked as Exhibit B, which contained cogent and arguable grounds of appeal.

Counsel from the law firm of Abdullahi & Co, applicants’ new solicitors, in their written address in support of the application, submitted correctly that it is trite that an application for enlargement of time to appeal must set forth good and substantial reasons for the delay in appealing within the prescribed statutory period. They then went on to cite the dictum of Ayoola JSC in Shanu v. Afribank (Nig.) Plc (2000) 13 NWLR (PT 684) 392 AT 403 to further submit that it is acceptable practice of the Court not to punish a litigant for the error of judgment or sin of his counsel, particularly when the said error is only procedural as in their case. Counsel submitted that applicants have shown substantial reasons for their delay in appealing and also shown arguable grounds of appeal so the application ought to be granted.

First respondent is opposed to the application and filed a 22-paragraph affidavit along with a written address to oppose it. Among other points, he sought to puncture the reason given by applicants for their delay in appealing by deposing in paragraph 11 of his counter affidavit thus:
11. The deposition in paragraph 4 of the affidavit in support of the application is false and untrue as there is nothing to show the Court that the applicant/appellants instructed their counsel to file and appeal at the time the judgment was obtained.

His arguments in his written address in support of that counter affidavit followed that same pattern and were all to the effect that applicants failed to disclose substantial reasons for the delay in appealing. Learned counsel on his behalf also called in aid the decision of this Court as given by Nweze, JCA (as he then was) in Irrumdu Jamari & Ors v. Ijabani Yaga (2012) LPELR-15188 (CA) p.22-23 to the effect that before error of counsel can be called in aid of a litigant an affidavit is required from counsel himself admitting fault.

Now, Order 6 Rule 9 of the Rules of the Court of Appeal 2021 states thus:
“Every application for 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.”
In other words, for this Court to exercise its discretion in favour of applicants in extending time to appeal, they must show good and substantial reasons for their failure to appeal within time and also give grounds of appeal why the appeal should be heard. These two conditions must be fulfilled conjunctively: see Jimoh v. Hon. Minister Federal Capital Territory & Ors (2018) LPELR-46329 (SC) p.18-20.

Did applicants meet them? Their sole reason for the three-year delay in appealing, as shown earlier, is that a lawyer, whose identity they did not even bother to disclose, who 1st applicant purportedly briefed to appeal after delivery of the judgment in issue in July 2017, omitted to file their appeal until the Sheriff of the lower Court came to 1st applicant’s house to execute it and it was then he came to know that his unnamed lawyer had not filed his appeal as instructed. First applicant did not also disclose what steps he took in following up his instructions to his lawyer for all three years until the Sheriffs appeared at his doorsteps. In the absence of all those particulars, it is impossible for the Court to exercise its discretion in their favour.

What is more? it is settled law that where the reason for delay in filing an appeal is attributed to counsel by the applicant, there ought to be before the Court an affidavit by that counsel admitting fault otherwise that reason cannot be said to have been made out. That was the decision of this Court in Irrumdu Jamari & Ors v. Ijabani Yaga (2012) LPELR-15188(CA) cited by 1st respondent’s counsel. That decision followed the decision of the Apex Court in Lauwers Import-Export v. Jozebson Industries Limited (1988) 3 NWLR (PT 83) 429 where the applicant for extension of time to appeal, Jozebson Industries Ltd, like the instant case, attributed her delay in appealing to the negligence of her former counsel, one Mr. Okwudili, in failing to file her appeal promptly as purportedly instructed. There, the Supreme Court (Agbaje, JSC, delivering lead judgment), in overturning the decision of this Court which had granted the same application for extension of time to appeal even without any affidavit from Okwudili, had this to say at page 449 para. G-H:
“There is clearly no iota of evidence of negligence or inadvertence against Mr. Okwudili in the matter before the lower Court. Even if there was one on the affidavit of the defendant, which in my judgment there is none, one would ordinarily require an affidavit from Mr. Okwudili admitting fault before such an allegation can be held to have been established by the defendant. There is no such thing in the instant case.” (Italics mine) I note that in that case, the applicant Jozebson Industries, was two years, six months and three days out of time in appealing, a period the Apex Court, Agbaje JSC, at p. 447 para H said ‘means that the defendant was not a little but a very great deal out of time.” The delay of the applicants here is three years, thus beating by six months the ‘very great deal of delay’ in Lauwers Import-Export v. Jozebson Industries Limited supra.

The summary of all the foregoing is that applicants failed to cross even the first hurdle of giving cogent reasons for their delay in appealing, meaning that the need to consider the substantiality of the grounds of their appeal, which is the second and final hurdle in an application of this type does not arise.

In effect, appellant’s application for extension of time to appeal the judgment of the High Court of Kano State of 26/07/2017 in Suit No: K/231/2014 between Alhaji Aliyu Ahmad Sale v. Muhammad Sani fails and is hereby refused and dismissed.
Parties to bear their costs.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother

BOLOUKUROMO MOSES UGO, JCA, and I am in complete agreement with the reasoning and conclusion reached that this application is without any merit. I too dismiss the application and abide by all the consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: My Noble Lord B. M. Ugo, JCA availed me with the Ruling in draft before now. I am in agreement with my learned brother that the application is not meritorious. I adopt the reasoning and conclusion reached as mine.

Let me add that Section 36(1) of the 1999 Constitution (as amended) guaranteed speedy trial to both the applicants and the respondents. That right according to the constitution is termed right to fair hearing within a reasonable time. What constitute reasonable time had never been easy for the Courts to determine. It is however determined by the surrounding circumstances.

Would it be reasonable in the circumstance to apply for leave to appeal against a decision of a Court after 3 years?

In my view, and as held by my learned brother, three years is certainly most unreasonable. Counsel have now taken their failure to do any act within the prescribed period as sin of counsel which should not be visited on the litigant. To sustain the plea, the applicant ought to show that he acted promptly in giving instructions to his solicitor to file the appeal but that the inadvertence or negligence of the solicitor caused the delay. See AHMED v. TRADE BANK PLC (1996) 3 NWLR (Pt. 437) 445. This Court had in UNION BANK OF NIGERIA v. LAWAL (2008) LPELR-5055 (CA) emphasized that: –
“Even where the appellant acted promptly in instructing his counsel, he is still expected to ensure that the counsel carried out the instruction. This is so because a litigant who fails to ascertain if his counsel has taken the necessary steps to bring his appeal is as well negligent. See UNIVERSITY OF LAGOS v. AIGORO (1984) 11 SC 152.”

It is for this and fuller reasons given by my learned brother Ugo, JCA that I too dismiss the application for extension of time to appeal against the decision/judgment of High Court of Kano State in Suit No. K/231/2014 delivered on 26th July, 2017.