RANDAWA v. WALU & ANOR
(2020)LCN/15421(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Thursday, November 05, 2020
CA/J/25/M/2019(R)
RATIO
APPEAL: DISCRETION OF COURT: CONDITIONS TO BE SATISFIED FOR THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME
The law is trite that an application of this nature, for the applicant to earn the favour of the Court, he must satisfy the two conditions which must co-exist conjunctively i.e. to say there must be good and substantial reason why a discretion should be exercised in his favour and the grounds of appeal sought to be introduced are arguable. No doubt, an application for extension of time could be granted if the delay is satisfactorily explained. See Itsueli Vs. S.E.C. (2016) 6 NWLR (Pt. 1507) 160; Midland Galvanishing Product Ltd. Vs. O.S.I.R.S. (2015) 8 NWLR (Pt. 1460) 29 and Intergrated Reality Ltd. Vs. Odofin (2018) 3 NWLR (Pt. 1606) 301 at 305. PER TANI YUSUF HASSAN, J.C.A.
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
ALHAJI IBRAHIM RANDAWA APPELANT(S)
And
1. ALHAJI SADIQ WALU 2. ALHAJI BALA SA’IDU RESPONDENT(S)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This is a Motion on Notice filed on 22nd January, 2019 praying for the following reliefs.
1. An order of this Honourable Court extending time to appeal against the judgment of the High Court of Justice of Plateau State Barkin Ladi Division contained in the judgment of Hon. Justice S.P. Gang delivered on the 23rd day of October, 2017 vide suit No. PLD/J/181/2014 in a case between: ALHAJI IBRAHIM RANDAWA Vs. ALHAJI SADIQ WALU and ALHAJI BALA SA’IDU
2. And for such further order(s) as this Honourable Court may deem it expedient to make in the circumstances.
The grounds upon which the application is predicated are:
1. That the failure by the appellant/applicant to file the Notice of Appeal within the stipulated period as required by the rules of this Honourable Court is not deliberate, but because the plaintiff/appellant/applicant has been waiting for the outcome of the action of the Chief Judge of plateau State as directed by the Chief Justice of Nigeria.
2. The trial judge lacks the requisite jurisdiction
3. That all the three (3) grounds of appeal as contained in the proposed Notice of Appeal of the Plaintiff/Appellant/Applicant are all of law worthy of consideration.
4. This Court has the power under Order 6 Rule 9 of the Court of Appeal Rules 2016 to enlarge time for the Appellant/Applicant within which to appeal out of time in respect of this case.
The application is supported by fourteen (14) paragraphs affidavit deposed to by the applicant. Attached to the affidavit are three annextures and a written address in support of the application, which the applicant’s counsel A. S. Sulaiman, adopted as his submission and urged the Court to grant the application.
In response to the application, the respondent filed a counter affidavit of Thirty-One (31) paragraphs on 25th November, 2019 with an annexture and a written address in support of the counter affidavit filed on 20th March, 2020. Respondents’ counsel F.M. Pwul Esq adopted the written address as his argument and urged the Court to dismiss the application.
In response to the counter affidavit of the respondents, the applicant filed a further and Better Affidavit of 12 (Twelve) paragraphs which the applicant’s counsel adopted and urged the Court to grant the application.
The applicant raised six (6) issues for determination as follows:
“1. Whether from the affidavit evidence and the reliefs sought therein, the applicant has established good and substantial reasons warranting this Court to grant this application
2. Whether the Order seeking by the applicant in this Court will be read and interpreted conjunctively.
3. Whether from the counter affidavit of the respondents’ deposed to by J.O. Uroko Esq. vis-a-vis exhibit “A” attached, the respondents have complied with Section 104 of the Evidence Act.
4. Whether the lower Court judge can be a judge in a case he has interest and delivered a quiet judgment in breach of Section 36(1) of the 1999 Constitution (as amended)
5. Whether a party should benefit from his own wrong.
6. Whether the proposed notice and grounds of appeal show good cause why the appeal of the applicant should be heard.
In arguing issue one, applicant’s counsel submitted that for an application of this nature to succeed, the applicant must satisfy the Court by establishing good and substantial reasons in his affidavit for failure to appeal within the prescribed period. Applicant has established substantial reasons in paragraphs 3, 4, 5, 6, 7, 9, 10 and 11 of his affidavit.
It is submitted that the respondents colluded with the High Court judge S.P. Gang and delivered a quiet judgment which resulted into taking away his property behind his back.
Submitting further, counsel referred to paragraph 5 of the Further and Better Affidavit to show that neither him or his counsel was served with a hearing notice before the delivery of the judgment in the case between him and the respondents. That where he is not aware of such date, service of hearing notice is necessary. He relied on Somaison Kahonlor Co. Ltd. Vs. Adzege (2001) FWLR (Pt. 68) 1104 R. 7 (CA).
It is finally submitted on this issue that appeal is a Constitutional right and the quiet judgment delivered by Hon. Justice S.P. Gang is a deprivation of his right to appeal within the stipulated period. That exhibit “A” attached to the applicant’s affidavit show that the trial judge was under investigation but abused his office by going ahead to deliver the quiet judgment. We are urged not to condone the act of the respondents and the trial judge. He referred to Adewoga Vs. Denegan (2001) FWLR (Pt. 61) 1776.
On issue two, counsel referred to the prayers as contained in the motion paper and urged the Court to grant the application.
On issue three, it is submitted that from the surrounding circumstances, the illegality of the transaction has become apparent between the respondents and Hon. Justice S.P. Gang when the respondent got a letter written by him expressly from the office of the Chief Judge of Plateau State without certification in line with Section 104 of the Evidence Act, 2011. The Court is urged to act and protect the law of the land by refusing the attached exhibit “A” attached to the respondents’ counter affidavit for failure to certify the exhibit incompliance with Section 104 of the Evidence Act.
The Court was referred to Tabik Investiment Ltd. Vs. G.T.B Plc. (2011) 46 (Pt. 2) 648 at 667 and Macfoy Vs. UAC (1961)13 ALLER 1169 at 1172.
Counsel argued on issue four that by virtue of Section 36(1) of the 1999 Constitution (as amended) and the case of Federal Civil Service Commission & 2Ors. Vs. J.O. Laoye (1989) 2 NWLR (Pt. 106) 652 at 725, the judgment delivered by Hon. Justice S.P. Gang, he tilts his pendulum on the side of the respondents by violating Section 36(1) of the Constitution. We are urged to hold that the trial Court was in breach of Section 36(1) of the 1999 Constitution (as amended).
On issue five, the argument of the applicant’s counsel is that the respondents having colluded with the trial judge to take away the applicant’s property cannot benefit from their wrong and the Court has a duty to prevent injustice and avoid rendering a decision which enable a party to escape from own wrongful act or profit by his own wrongful act. The cases of Teriba Vs. Adeyemo (2010) 42 (Pt. 2) NSCQR 1204 at 1228 R. 6 and Alade Vs. Alic (Nig.) Ltd. (2011) 46 (Pt. 2) 927 at 946.
That exhibit “A” attached to the respondents’ counter affidavit having clearly shown the illegality between the trial judge and the respondents and same having been brought to the attention of this Court, the Court would not close its eyes against such illegality nor lead its aid to perpetrators of the illegality. He relied on Kirwell Vs. Oyewumi (1990) 4 NWLR (Pt. 144) 384 at 406, and urged the Court to so hold.
It is finally submitted on issue six that all the three grounds contained in the proposed Notice of Appeal are issue of law worthy of consideration. That ground one of the notice of appeal alleges violation of right to fair hearing, ground two alleges lack of jurisdiction and ground three alleges delivery of a miscarriaged judgment.
In response, the respondent’s counsel formulated two issues as germine for the determination of the application thus:
“i. Whether by the affidavit in support of the application filed by the Applicant on the 22nd day of January, 2019 and the Further and Better Affidavit thereof filed on the 2nd day of March, 2020, the Applicant can be said to have advanced materials that are sufficient enough for the grant of this application.
ii. Whether the Applicant, in the light of the available facts before the Honourable Court, is entitled to the grant of this application filed by him.
Arguing the first issue, counsel submitted that the applicant has placed nothing before the Court to convince the Court in granting the application. That the application was an invitation to the Honourable Court to conduct and reward the applicant’s deliberate lack of diligence manifestly exhibited before the lower Court.
That the affidavit in support of the application as well as the Further and Better Affidavit are bereft of the necessary materials capable of granting the application. Counsel argued that an applicant for an application for extension of time within which to appeal has a duty to proffer and give cogent, valid and convincing reasons for the delay in bringing the application. He referred to Dominic Ede Vs. Nwagbara Nwodo Mba & Ors. (2011) 12 SCNJ 147 where the Supreme Court categorically stated that the emphasis is not on the length of time for the delay but on whether there are reasons which are cogent, valid and convincing that occasioned the delay. That there is no single averment in the applicant’s affidavit in support and in the Further and Better Affidavit that conveyed cogent, valid and convincing facts that are sufficient enough to warrant the grant of the application, and we are urged to so hold.
It is also the submission of the respondent’s counsel that the appellant who opened and closed his case and the respondents having opened their defence in his presence would turn round to ask the trial Court to disqualify himself to the extent of writing the then Chief Judge of Plateau State and the Chief Justice of Nigeria that judgment instituted in the case by him was quietly delivered and that the trial Court lacked jurisdiction to deliver the judgment on the ground that he (applicant) was denied fair hearing. Referring to the case of Adeogun Vs. Fashogbon (2011)3 SCNJ 34, the Supreme Court stated that a party whose case has been duly considered by a Court cannot be heard to complain of fair hearing, moreso when the judgment was delivered on a fixed date in open Court.
That it is trite the right of appeal is constitutionally guaranteed, but where the right is not aptly utilized by a party within the statutorily prescribed period, it becomes the subject of discretion of the appellate Court to grant or refuse the application for enlargement of time.
The Court was referred to Malari Vs. Leigh (2019) 3 NWLR (Pt. 1659) 332 at 339 – 340; Braithwaite Vs. Dalhatu (2016) 13 NWLR (Pt. 1528) 32 and Ani Vs. Out (2017) 12 NWLR (Pt. 1578) 30 at 39 and urged to so hold and resolve against the appellant.
On issue two, it is argued that the appellant is not entitled to the application for failure to depose facts that are cogent and valid in his affidavit in support of the application and in his further and Better Affidavit. That the documents annexed to the application fall short of the requirement of the law as it is only the judgment and the proposed notice that are exhibited without the Record of proceedings to show the proceedings of the trial Court. It is also submitted that in the proposed Notice of Appeal, the grounds contained therein did not prima facie show good cause why the appeal should be heard.
It is also the submission of the respondents’ counsel that paragraphs 4, 5, 7 and 9 of the Further and Better Affidavit offend the provisions of Section 115 of the Evidence Act, 2011, as the said paragraphs are legal arguments and conclusion that must be discountenanced and expunged. That it is a misplaced argument of the applicant to suggest that Exhibit “A” attached to the counter affidavit of the respondent is a product of illegality, when the document is a response from the trial judge to the Chief Judge and the document speaks for itself. That Exhibit “A” does not fall upon the purview contemplated under Section 104 of the Evidence Act, 2011 as claimed by the applicant. The Court was referred to CCBD Vs. Minister (2019) 2 SCNJ 378 at 386; Uyaemenam Nwora & Ors. Vs. Nwoke Nwabueze & Ors. (2011) 6 SCNJ 437 and Chief Oyegun Vs. Chief Nzeribe (2010) 6 SCNJ 47. The Court is urged to resolve in favour of the respondents for failure of the applicant to place sufficient materials to warrant the grant of the application.
The application is for an order of this Court extending time to appeal. Indeed Section 241(1) of the 1999 Constitution of Nigeria (as amended) vests a right of appeal against the decision of the Federal High Court or High Court of a State to the Court of Appeal. The right of appeal is a personal one conferred on a party by the law for the benefit of the party. But the right is not open ended or at large that the party is free to exercise it whenever he chooses to no matter how long it takes him to make his decision. This is because the right of appeal has a time limit within which it can be exercised by a party seeking to appeal and the limit in respect of appeals to the Court of Appeal is three months as provided in Section 24(2)(a) of the Court of Appeal Act.
Order 6 Rule 9(2) of the Court of Appeal Rules 2016, obligates the applicant in an application for extension of time within which to appeal to support the application 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.
The affidavit in support of the application must show:
(a) A good an substantial reasons for failure to appeal within the prescribed time; and
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard. However that is not to say he has to show that the appeal would succeed on those grounds. All that he needs to show is that they are arguable.
The two requirements must co-exist. See Jimoh Vs. Min. of F.C.T. (2019) 5 NWLR (Pt. 1664) 45 at 51; N.N.P.C. Vs. Samfadek & Sons Ltd. (2018) 7 NWLR (Pt. 1617) 1 at 3; Ahmadu Vs. Salawu (1974) 11 SC 43 and C & C. B. Dev. Co. Ltd. Vs. Min. E. H. & U. D. (2019) 5 NWLR (Pt. 1666) 484 at 493.
The judgment in this case was delivered on the 23rd of October, 2017. The reason for the delay for about three years in filing the appeal of the applicant is that the applicant filed a motion against the trial judge to disqualify himself. That because of the refusal of the judge to disqualify himself, he wrote to the Chief Judge of Plateau State who did nothing. He went further to write to the Chief Justice of Nigeria who in turn wrote to the Chief Judge of Plateau State vide a letter dated 9th May, 2017 forwarding his Petition dated 24th April, 2017. Applicant said he went to the Chief Judge of Plateau State for response of the Chief Justice to no avail. That the trial judge delivered judgment quietly when he lacked the jurisdiction because of the pending petition against him. That it was in December, 2018 that he became aware of the judgment and without delay he approached this Court for extension of time to appeal.
It is the submission of the applicant’s counsel that the respondents colluded with the trial Judge to deliver a quiet judgment to his detriment and breached his right to fair hearing as provided by Section 36(1) of the 1999 Constitution as amended. Counsel referred to Exhibit “A” attached to the respondents’ counter affidavit to show the illegality of the transaction between the respondents and the trial judge. He finally submitted that the grounds of appeal are grounds of law, worthy of consideration.
In response, the respondents’ counsel submitted that the appellant by the applicant’s affidavit and Further and Better Affidavit have disclosed nothing as they are bereft of necessary materials capable of granting the application. That the applicant did not proffer cogent, valid and convincing reasons for the delay in bringing the application. He said the emphasis is not on the length of time for the delay but on whether there are cogent and valid reasons for the delay.
The respondent’s counsel submitted that the appellant having opened and closed his case and the respondents opened their defence in his presence, cannot complain of denial of fair hearing and turn round to ask the trial Court to disqualify himself to the extent of writing to the Chief Judge and the Chief Justice of Nigeria.
It is also submitted that the proposed grounds of appeal did not prima facie show good cause why the appeal should be heard. That paragraphs 4, 5, 7 and 9 of the Further and Better Affidavit offend the provision of Section 115 of the Evidence Act as they are legal argument and conclusion.
With regard to the argument of the applicant that Exhibit “A” attached to the counter affidavit is a product of illegality, it is submitted that the document is a response to the Chief Judge by the trial judge in response to the request of the applicant to have the matter transferred to another Judge and does not fall upon the purview of Section 104 of the Evidence Act, 2011 as claimed by the applicant.
The law is trite that an application of this nature, for the applicant to earn the favour of the Court, he must satisfy the two conditions which must co-exist conjunctively i.e. to say there must be good and substantial reason why a discretion should be exercised in his favour and the grounds of appeal sought to be introduced are arguable. No doubt, an application for extension of time could be granted if the delay is satisfactorily explained. See Itsueli Vs. S.E.C. (2016) 6 NWLR (Pt. 1507) 160; Midland Galvanishing Product Ltd. Vs. O.S.I.R.S. (2015) 8 NWLR (Pt. 1460) 29 and Intergrated Reality Ltd. Vs. Odofin (2018) 3 NWLR (Pt. 1606) 301 at 305.
It is pertinent to mention that the applicant has failed to state the allegation of connivance between the respondents and the trial Judge as alleged. The fact that there was a letter written to the Chief Judge for the transfer of the matter before the trial Judge to another Judge does not qualify as a reason to say that the trial Court lacked jurisdiction. A party who opened and closed his case before a trial Court, even if not represented by a counsel cannot complain of denial of fair hearing. All the depositions in the affidavit and the Further and Better Affidavit of the appellant have not been established and mere statement to that effect cannot take the place of cogent reasons for the grant of the application. Where reasons adduced by an applicant for not taking steps timeously is neither cogent nor substantial to warrant the grant of the application for extension of time to appeal, the application will be refused as it is not granted as a matter of course. Indeed the applicant has failed to substantiate his reasons for delay with cogent facts. It is also significant to note that he became knowledgeable of the judgment in December, 2018. This was a time of almost one year after the date of delivery of judgment. I agree with the respondent’s counsel that the application of the applicant is bereft of materials to justify the grant of the application. The misconduct alleged against the trial Judge was not substantiated by any fact.
The purported exercise of the right of appeal by the applicant is, in my view cynical and done to the detriment of the respondents. Unfortunately, sentiments command no place in the judicial adjudication. The fact remains, that law should be administered in accordance with rules of Court devoid of sentiment or emotion. See Chemiron Int. Ltd. Vs. Stabilini Visinoni Ltd. (2018) 17 NWLR (Pt. 1647) 62; L.G.S.C. Ekiti State Vs. Jegede (2016) 8 NWLR (Pt. 1514) 402 and Fapahunda Vs. R.C.C.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163 at 175.
Also the allegation on the relationship of the respondents and the trial Judge is speculative and the Court does not speculate but act on evidence properly before it. See Opayemi Vs. State (2019) 17 NWLR (Pt. 1702) 403 at 409 and F.R.N. Vs. Yahaya (2019) 7 NWLR (Pt. 1670) 85 at 92.
From the facts deposed in the affidavit in support, the Further and Better Affidavit taken together and also the grounds predicting the application, I hold the view that Justice of this application does not operate in favour of the applicant.
The application is dismissed for want of merit.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I am at one with the reasoning and conclusion reached in the Ruling just delivered by my learned brother TANI YUSUF HASSAN JCA and I have nothing to add.
I also find the application unmeritorious and accordingly refuse and dismiss same while the objection thereto is sustained.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead Ruling of my learned brother TANI YUSUF HASSAN, J.C.A., and I am in agreement with him that the application lacks merit; accordingly, I also dismiss it.
Appearances:
A. S. Sulaiman, holding the brief of G. A. Abdulrahman For Appellant(s)
F. M. Pwul For Respondent(s)
