In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2018
Before Their Lordships
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
ALHAJI IBRAHIM AHMAD Appellant(s)
1. SAHAB ENTERPRISES NIG.
2. MINISTRY OF LAND AND PHYSICAL PLANNING, KANO STATE.
3. UNITED BANK FOR AFRICA Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Lead Ruling): The applicant’s application dated and filed on the 25th July, 2016, prayed the Court for the following Orders:(a) AN ORDER for Extension of time within which to seek leave to appeal against the judgment of High Court of Kano State presided by Hon. Justice I. M. Karaye in suit No. K/173/2009 delivered on the 21st day of July 2011 out of time.
(b) LEAVE of this Court to appeal against the judgment of High Court of Kano State in suit No. K/173/2009 delivered in the 21st day of July, 2011.
(c) AN ORDER extending time to the applicant within which to appeal against the judgment of High Court of Kano State presided by Hon. Justice I. M. Karaye in suit No. K/173/2009 out of time.
(d) ANY SUCH FURTHER ORDER(S) as this honourable Court may deem fit to make in the circumstances of this case
The application is predicated on these grounds:
(i) Judgment has been entered against the applicant in this matter and the time prescribed within which to appeal has since elapsed.
(ii) That the applicant was not sufficiently and adequatelyserved by the trial Court with hearing notices of its proceedings leading to the judgment.
(iii) The applicant was only been served with the judgment order (8) eight months after delivery of same by pasting same on his property known and called No. 62 Hotoro GRA Nassarawa District Kano subject matter of the suit.
(iv) The applicant’s application before the lower Court to have the said judgment set aside was unsuccessful as the Court refused to grant the application.
(v) The applicant’s appeal before this Court against refusal of the trial Court to set aside its default judgment of 21st July 2011 was dismissed on the 10th day of June 2016, hence the need of this application to appeal against the main judgment.
The application is supported by an affidavit. The respondents filed counter-affidavit opposing the granting of orders sought by the applicant. Written addresses were ordered to be filed by the parties, same being contentions in view of the depositions contained in the affidavit of the applicant and the counter-affidavit of the respondents. The applicant’s written address was filed on the 7th of February 2017. The 1st respondent’s written address was filed on the 22nd of February 2017. The 2nd and 3rd respondents did not file written address. The application was therefore moved and determined on the Written addresses of the applicant and the 1st respondent. The sole issue for determination in the application which would determine the granting of the orders sought or not is thus:
Whether the applicant has shown in the affidavit in support of the application, good and substantial reasons for failure to appeal within the prescribed period and the proposed grounds of appeal, prima facie, show good cause why the appeal should be heard to warrant the exercise of this Court’s discretion in favour of the applicant
Umar Esq., of learned counsel to the applicant, did contend that by the provisions of Order 7 Rule 10 of the Court of Appeal Rules, 2016, and decisions of the Courts, an application seeking for an order extending time within which to do an act out the prescribed period is not granted as a matter of course, but on sufficient materials being placed before the Court. That there are 2 requirements which must be met or satisfied before an application of this nature can be granted, which are:
1. Good and substantial reasons for the failure to appeal within the prescribed period.
2. Grounds of appeal which, prima facie, show good cause why the appeal should be heard.
That the two requirements or conditions to be satisfied for an order extending the time to do an act to
be granted are to be satisfied conjunctively. The principles of law enunciated inMinister, Federal Capital Territory v. Abdullahi (2010) All FWLR (Pt. 507) P. 179 @ 195 and Obi v. Ojukwu (2010) All FWLR (Pt. 533) P. 1941 @ 1963 were cited and relied on to reinforce the submissions supra.
Learned counsel further submitted that the depositions contained in paragraphs 3(b) (i) (j) (k) (l) (m) (s) (u) (v) (w) and (x) of the applicant’s affidavit are sufficient and therefore constitutes good and substantial reason for the failure to have appealed against the judgment of the lower Court within the prescribed period. It is counsel’s contention that the depositions in the aforesaid paragraphs of the applicant’s affidavit have not been controverted by counter-affidavit.
That where depositions in an affidavit have not been controverted by the opposing party, a Court of law should rely on same to arrived at a just decision. This proposition of the principles of law has been expounded in the case of Didel v. Seleketmibi (2010) All FWLR (Pt. 535) P. 275 @ 288.
On the second requirement, that the proposed grounds of appeal must disclose substantial points of law to be argued at the appeal, if the order simple is granted, counsel referred to Exh A to be motion on notice filed on the 25th of July 2017, and submitted that the proposed grounds of appeal consists of serious issues of law which would be argued at the hearing of the appeal. Concluding, learned counsel did urge that the orders sought by the applicant be granted, there being sufficient matter placed before the Court to do so.
Adaremala Esq., did contend that the affidavit of the applicant is bereft of any explanation as to why the notice of appeal against the judgment of the lower Court was not filed within the prescribed period. That the applicant neglected and or refused to appeal within time, notwithstanding being aware of the judgment of the lower Court.
That in view of the foregoing, no good and substantial reasons have been given or proferred for the 5 years delay in filing an appeal against the judgment of the lower Court. As to what tantamount to good and substantial reasons in an application for an order extending time within which to appeal, counsel cited and relied on the principles of law enunciated in Obi v. Ojukwu (2010) All FWLR (Pt. 533) P. 1945 to buttress the submissions supra.
It is counsel’s contention that the delay in filing an appeal cannot be a mistake of counsel, rather, it is due to the incompetence or ineptitude of counsel which cannot be excused. That where counsel failed to realise the need to appeal against a judgment within time, such failure can only be taken as incompetence, and the Court cannot over-look same in the considering of whether to grant an order extending time to appeal or not. The case ofFCT v. Abdullahi supra was cited to buttress the submissions that mistake of counsel and ineptitude or incompetence are different, the latter being unacceptable as a basis to grant an order extending within which to appeal. It is counsel’s contention that the applicant has failed to proffer any good reason or substantial reason for not appealing with time. Concluding, counsel adumbrated that the application of the applicant is unmeritorious and does not deserve the favourable consideration of the Court. It is an application which if granted, will gravely prejudice the respondent who is being deprived the fruits of his success at the lower Court for six years. Counsel urged the Court to refuse and dismiss the application of the applicant for lacking in merit.
Section 24(1) and (2) of the Court of Appeal Act 2010, provides thus:
24(1) where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of subsection of this section that is application.
(2) The period for the giving of notice of appeal or notice of application for leave to appeal are
a. In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory
decision and three months where the appeal is against a final decision.
b. In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against
(4) The Court of Appeal may extend the period prescribed in Subsections (2) and (3) of this section.
It must be noted that, what an applicant seeking for leave to appeal out of the prescribed period needs to do is to seek for the trinity prayers as enunciated in the case of Deen Mark Construction Co. Ltd v. Abiola (2002) 3 NWLR (Pt. 754) P. 418 @ 437, that:
The three prayers for extension of time within which to apply for leave to appeal, leave to appeal and extension of time within which to appeal required by law are relevant where an applicant needs leave to appeal within time but failed to obtain leave before the expiration of the time prescribed for appealing and brings an application for extension of time to appeal. Thus, there is the need to have the three reliefs incorporated in one motion where the appeal sought to be filed is on grounds of facts or mixed law and facts and in a situation where the period for appealing had expired.
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.
For an application for extension of time for leave to appeal to succeed, an applicant must place or provide sufficient materials before the Court. See CBN v. S. H. Ahmed & 2 Ors (2001) 11 NWLR (Pt. 724) P. 369 @ 392wherein EJIWUNMI J.S.C (of blessed memory) held that:
Before an application for extension of time for leave to appeal can succeed, the applicant must satisfy the Court that there are good and satisfactory reasons for not filing the application timeously. It must also be shown that the applicant has good, substantial and arguable grounds of appeal. And for the Court to exercise its discretionary power, an application of such nature must be supported by an affidavit which must give sufficient reasons to explain the delay, the judgment or ruling of the Court against which an applicant is seeking to appeal and the proposed grounds of appeal against the said judgment or ruling. In the instant case the appellant has shown good and sufficient reasons for the delay in filing its application.
The applicant filed a six (6) paragraphs affidavit in support of the motion on notice filed on the 25th of July 2016. Paragraphs 3(g) to (l) (s) (x) (y) and 4(a) thereof are germane to the granting of the orders sought. The depositions contained therein are thus:
3. That I am informed by the applicant in our office on the 22/06/2016 at about 3.00p.m of the following facts which I verily to be true and correct as follows:
(g) That the trial Court delivered its judgment in default of defence of the applicant on the 21/7/2013 wherein all reliefs sought by the 1st respondent were granted.
(h) That neither the applicant nor his solicitors were served with the copy of the judgment to take appropriate step until about eight months after delivery of same when the judgment order was pasted on the house subject matter of the suit.
(i) That the applicant was notified of the judgment by his tenants who were occupying the property.
(j) That the applicant promptly through his solicitors applied before the trial Court i.e High Court of Kano State by way of motion of notice dated 18th June 2013 to have the said judgment entered in default of his defence set aside.
(k) That in the said application a proposed defence to the action was annexed as exhibit in the application but nevertheless the Court heard and refused the applicant’s application.
(l) That the applicant was dissatisfied with the decision of High Court of Kano State refusal to set aside the default judgment and he appealed to this Court against same in appeal No. CA/K/302/2013.
(s) That the applicant’s failure to appeal against the judgment was occasioned by nonservice of the judgment on him or his solicitors within time coupled with his fruitless efforts in pursuing his appeal for the setting aside of judgment in default of defence argued in appeal No. CA/K/302/2013 before this Court.
(x) That the delay in filing an appeal against the default judgment of the trial Court was not in any way deliberate.
(y) That the applicant’s solicitors hope was that the proposed defence would be heard by trial Court so that the matter will be heard purely on merit, hence the delay in challenging the default judgment of the trial Court.
(4) That I am informed by Mr. F. I. Umar Esq. in our office and I verily believe him to be true and correct as follows:
(a) That going by exhibit A, the applicant has substantial and recondite point of law to be canvassed in the appeal.
An eighteen (18) paragraphs counter affidavit opposing the granting of the orders sought by the applicant was filed on the 17th of October 2016, by the respondents. The depositions contained in paragraphs 5, 6, 11, 12 and 17 are reproduced hereunder:
5. That the Kano High Court in suit No. K/173/2009 had entered judgment against the applicant and in favour of the 1st respondent on the 21st July 2011.
6. That the Kano State High Court also dismissed an application brought by the applicant to set-aside the judgment of the Court, in a ruling delivered on the 31st January 2013.
11. That the affidavit in support of this application did not establish good and substantial reason for the applicant’s failure to appeal the substantive judgment within the prescribed time.
12. That failure to appeal the substantive judgment of the lower Court was a deliberate gamble taken by the applicant.
17. That it shall better serve the cause of justice to dismiss the application of the applicant.
I have had dispassionately considered the depositions contained in the affidavit of the applicant and the counter-affidavit of the respondent. The applicant, on the whole, have given satisfactory reasons why the appeal has not been filed within the prescribed period. The depositions contained in the affidavit and the Further and Better affidavit have also explained the reasons for not bringing the application within a reasonable period since the delivery of the judgment by the lower Court.
The second 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 J.C An 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 left for consideration at the hearing of the appeal. SeeC.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 (1977) 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:
1. The learned trial Judge erred in law when he entered judgment in favour of the plaintiff/1st respondent when the plaintiff has failed woefully to discharge the burden of proof on it on the balance of probability as provided under Section 134 of the Evidence Act.
2. The learned trial Judge erred in law when it entered judgment in favour of the plaintiff/1st respondent when none of the essential elements/means of proof of title to land were proved by the plaintiff/1st respondent before it to warrant conferring title/ownership of the land on the plaintiff.
3. The lower trial Court erred in law when it shut out the appellant by refusing to serve the appellant with hearing notice of some of its proceedings in the matter.
4. The learned trial Judge erred in law when he entered judgment in favour of the plaintiff in this matter in which the plaintiff claimed to have acquired the property in dispute from the 3rd defendant/respondent as unpaid mortgagee without joining the mortgagor as co-defendant in this matter.
5. The whole judgment is against the weight of evidence.
The proposed grounds of appeal, if taken as a whole with the particulars thereto, have established a prima facie case why the appeal must be heard in view of the issues raised therein which require the appellate Court to resolve same on appeal in the over-all interest of justice to both parties, that is, the applicant and the respondents. It is in view of the foregoing that I am of the firm view that the prayers/orders sought by the applicant must be granted.
Accordingly, I make an order granting all the prayers sought by the appellant/applicant. The applicant is to file his Notice of appeal at the lower Court within 14 days from the date he is served with a drawn-up order of the Court. No order as to costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the Ruling of my learned brother, Ibrahim Shata Bdliya JCA and I am in agreement therewith.
I also grant the application and subscribe to the orders made.
AMINA AUDI WAMBAI, J.C.A.: I have read in advance the Ruling just rendered by my learned brother Ibrahim Shata Bdliya, JCA I agree with the reasoning and conclusion that the depositions in the affidavit and the further affidavit have sufficiently explained the reason for the failure to file the Notice of appeal within the prescribed period.
Furthermore, a study of the grounds of appeal read along with their particulars also reveal a prima facie case, the reason why the appeal should be heard. On these grounds, I also grant the application in terms of prayers 1, 2 and 3.
The applicant shall file the Notice of appeal within 14 days of the service of the drawn up order on him
Faruk I. Umar Esq. For Appellant
Bayo Funso Adaremola Esq. For Respondent.