In The Court of Appeal of Nigeria
On Wednesday, the 15th day of March, 2017
Before Their Lordships
ADAMU JAURO Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
ALH. SABO BABAGANA-Respondent
UCHECHUKWU ONYEMENAM, J.C.A.(Delivering the Lead Ruling): Upon an application by Motion on Notice brought by Muhammad Abdulhamid herein referred to as the Applicant; the same filed on 31st May, 2016 was moved on 16th January, 2017 by Mr. B.V. Dalbadal who appeared with Mr. M.T. Ishaku for the Applicant.
Mr. Dalbadal sought without objection and was granted leave to withdraw reliefs 1 and 2 on the face of the Motion paper. Accordingly, reliefs 1 and 2 were struck out. The learned counsel referred to the Motion on Notice filed 31st May, 2016, written address and reply to Respondent’s address filed on 14th October, 2016, and 14th November, 2016, respectively; upon the directive of the Court. He adopted both in urging the Court to grant the application.
In opposition, Mr. M.K. Okuma for the Respondent adopted the written address filed on 7th November, 2016 in urging the Court to refuse the application.
The application is brought pursuant to Section 24(4) of the Court of Appeal Act, 2010 (Amended); Order 7 Rules 1,10 (1) and (2) of the Court of Appeal Rules, 2011 and under the inherent jurisdiction of this Court. Reliefs 1 and 2 having been withdrawn and struck out, the application in the main seeks for the sole relief to wit;
“AN ORDER EXTENDING TIME for the Appellant/Applicant to appeal against the decision of the High Court of Justice, Bauchi State delivered on 27th January, 2014 by Hon. Justice Bitrus G. Sanga (as he then was) in suit No. BA/184/2005 between the parties in this appeal as contained in the proposed Notice of appeal attached herein and marked as Exhibit “F”.”
The brief fact as can be garnered from the processes before the Court is that the trial Court on 27th January, 2014 entered judgment in default of appearance of the Applicant after protracted frustrating adjournments at the instance of the Applicant from 22nd February, 2011, to 10th January, 2014. In the judgment, the learned trial Judge granted declaratory reliefs in respect of a disputed parcel of land.
The Applicant by this application seeks to appeal against this judgment in default of his appearance howbeit out of time hence this application.
In the Applicant’s written address, the sole issue reproduced underneath was distilled:
“Whether the application for extension of time for the Applicant to appeal against the decision of the lower Court can be granted.”
To sway the mind of the Court to grant the application, the Applicant set out four grounds of the application on the face of the Motion paper. The Motion on notice is also supported by an affidavit of 7 paragraphs deposed to by one Catherine Okoko with attachments marked Exhibits A – G. At paragraph 6 of the affidavit, the Applicant set out the reasons for his failure to appeal within time.
In the Applicant’s address, it was submitted that the grant of enlargement of time to appeal involves the Court’s discretion which must be exercised judiciously having regard to the facts deposed to in the affidavit. He referred to: MINISTER M.P.R v. F.L (NIG) LTD. (2010) 12 NWLR (PT. 1208) 261 AT 269. The learned counsel for the Applicant posited that the Courts have the powers to determine the merits of this application for enlargement of time, moreso that no counter affidavit was filed to challenge the fact that the judgment sought to be challenged was entered in the absence of the Applicant who was away outside the country. See: paragraph 6 (D) of the affidavit. He also referred to Exhibit A at page 34, last paragraph at lines 5-12 record.
The learned counsel contented that the default judgment entered was in respect of declaratory reliefs in land matter without evidence led by the Respondent. He submitted that the Court lacked jurisdiction in the circumstances relying on: JAMIU V. AYULA (2009) 17 NWLR (PT. 1170) 238. Also referring to: NGERE V. OKURUKET XIV (2014) 11 NWLR (PT. 1417) 147; to submit that no amount of delay in bringing this appeal will be inordinate since the trial Court acted out of jurisdiction. The Court was finally urged to grant the application.
In his written address, the Respondent’s counsel raised a sole issue for the determination of this application. The issue which is reproduced hereunder is:
“Whether the applicant has made out a good case as required by law, to be entitled the exercise of this honourable Court’s discretion granting him extension of time within which to appeal against the judgment of Bauchi State High Court delivered on 27-01-2014.”
The Respondent in agreement with the Applicant that in the grant of an application of this nature which is at the discretion of the Court,
such discretion must be exercised judiciously and judicially; cited: ALAMIEYESEIGHA V. C.J.N. (2005) NWLR (PT. 906) 60; MINISTER P.M.R. V. EXPO SHIPPING LINE (NIG) LTD. (2010) 12 NWLR (PT. 1208) 261. He however stressed that the two that the two conditions laid down by the apex Court in the above case must be satisfied conjunctively in the affidavit evidence of the applicant supporting the application for extension of time within which to appeal. For this he relied on: NGERE v. OKURUKET XIV (2014)Â 11 NWLR (PT. 1417) 147; ANACHEBE V. IJEOMA (2014) 14 NWLR (PT. 1426) 168.
The learned counsel submitted that the instant Applicant through his affidavit evidence did not place good and substantial reasons why the appeal was not filed within time. For what amounts to good and substantial reasons, the learned counsel relied on: MIDLAND GALVANISING PRODUCT LTD. V. O.S.I.R.S. (2015) 8 NWLR (PT. 1460) 29. In his further contention, Mr. Ben Ogbuchi in the written address for the Respondent submitted that granted the Applicant has succeeded in proffering good and substantial reasons why he did not appeal within time, a point which he did not concede to; the Applicant must still show good Grounds of Appeal which must prima facie show good cause why the appeal should be heard. Mr. Ogbuchi referred to Paragraph 4(h) of the counter affidavit to submit that the proposed notice of appeal is invalid and so cannot produce any valid ground for the Court to consider.
He finally urged the Court to refuse the application as the same will prejudice the Respondent.
The respective sole issue formulated by the parties are the same except for pleonasm; accordingly I will determine the application based on the Applicant’s issue being the party that has approached this Court for the discretionary order.
Order 7 Rule 10 (2) of the Court of Appeal Rules, 2011 provides:
“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…”
By Order 7 Rule 10 (2) of the Court of Appeal Rules 2011 the Applicant must successfully through his affidavit evidence satisfy conjunctively the two conditions set out below as laid down in the referred Order.
(a). Good and substantial reasons for failure to appeal within the period prescribed by the appropriate rule of Court and
(b). Grounds of Appeal which prima facie show good cause why the appeal should be heard.
See: MINISTER P.M.R. V. EXPO SHIPPING LINE (NIG.) LTD. (2010) 12 NWLR (PT. 1208) 261: NGERE v. OKURUKET xiv(2014) 11 NWLR (PT. 1417) 147; ANACHEBE V. IJEOMA (2014) 14 NWLR (PT. 1426) 168; YESUFU V. CO-OPERATIVE BANK LTD. (1989) 3 NWLR (PT. 110) 483.
Therefore, in an application for extension of time within which to appeal such as this, the length of delay in filing the application cannot solely be a ground to refuse the grant of the application if the Applicant proffers good and substantial reasons to absolve the delay. See: UNION BANK OF NIGERIA PLC V. ALHAJI MOHAMMED NDACE(1998) 3 NWLR (PT. 541) 331; BANK OF THE NORTH LTD. V. ISMAILA YUSUF OBANSA (2010) LPELR 3852 (CA). On this therefore, the Applicant must depose to material facts which are satisfactorily logical and weighty to sway the mind of the Court to grant the application.
On the second twin condition for the grant of an application for extension of time within which to appeal, which is that the Grounds of Appeal must prima facie show good cause why the appeal must be heard. The Applicant only needs to show that the Grounds of Appeal are arguable and not frivolous, and does not need to show that the Grounds of Appeal are such that the appeal will at all events succeed. See: YESUFU V. CO-OPERATIVE BANK (supra). This condition requires the Court to assess the persuasiveness of the Ground of Appeal in relation to the judgment or ruling sought to be appealed against.
See: LAUWERS IMPORT-EXPORT V. JOZEBSON INDUSTRIES LTD. (1988) 3 NWLR (PT. 83) 429: BLUE-CHIP ACQUISITION AND INVESTMENT CO. LTD. V. ZENITH BANK PLC. & ORS. (2008) LPELR 8529 (CA).
In ANACHEBE V. IJEOMA (2014) 14 NWLR (PT. 1426) 168 RATIO 4-6 AT 185 PARAS D- F AND 187 PARAS C-E; the apex Court had this to say:
“… In an application for extension of time to appeal, where the grounds of appeal raise substantial and arguable issues of jurisdiction same ought to be granted because jurisdiction is the life wire of any adjudication. ….when in an application for extension of time
within which to appeal, a proposed ground of appeal complains about lack of jurisdiction, and it prima facie appears so, it may not be necessary to inquire whether there are good and substantial grounds for failure to appeal within the prescribed time. In other words a complaint of absence of jurisdiction is sufficient, good and substantial reason why an appeal should be heard…….”
See also: NGERE V. OKURUKET XIV (2014) 11, NWLR (PT. 1417) 147; E.F.P. CO. LTD. V. N.D.I.C. (2007) 9 NWLR (PT. 1039) 215: NUHU V. OGELE (2003) 18 NWLR (PT. 8521 251: UGWU V. BUNGE (1997) 8 NWLR (PT.518) 527.
It must be noted that, at this point where this Court is called upon to consider an application for an extension of time to appeal, the duty of the Court is not extended to deciding the merit of the grounds of appeal. The Court at this stage is not to consider the likelihood of the success of the appeal as the merit of the appeal is not in issue. The question at this juncture is whether the proposed grounds of appeal are arguable.
At paragraph 6 (J) of the affidavit in support of the application, the Applicant deposed thus:
“That the Appellant/Applicant is desirous of appealing against the judgment as the Appeal borders on jurisdiction.”
The learned counsel submitted that the trial Court lacked the jurisdiction to make declaratory orders in the absence of evidence by the Respondent to establish his case. That there is no dispute that in the judgment in default of appearance the trial Court granted declaratory reliefs in orders 1 and 2 of the judgment. The law is fixed that; where the grounds of appeal relate to jurisdiction no amount of delay in bringing an appeal can be regarded inordinate or inexcusable nor would there be need to further seek for good and substantial reasons for the delay as the ground on jurisdiction becomes good enough reason to oblige discretion in favour of the applicant for extension of time. see: NGERE v. OKURUKET XIV (2014) 11 NWLR (PT. 1417) 147: ANACHEBE V. IJEOMA (2014) 14 NWLR (PT. 1426) 168.
Based on the above, I would have straight away proceeded to grant the application but I have looked at the proposed Notice and Grounds of Appeal marked Exhibit F and I do not find any ground of appeal that complains that the trial Court granted declaratory reliefs in default of appearance. However Ground 2 of the Grounds of appeal complains thus:
“The learned trial Judge erred in law to have awarded judgment in default of defence failing to notice that Hearing Notice was not issued on the appellant’s counsel on 4th of November, 2013 when the matter came up for hearing.”
Ground 2 is a complain that the Applicant was not served with Hearing Notice on 4th November, 2013; when from Exhibit, F the matter was adjourned to 21st November, 2013. In our legal parlance, Hearing Notice is the only means of getting a party to appear in Court. Parties to a case are entitled as of right to be served with Hearing Notice for the proceedings of each day except where the party or his counsel was in Court when the case was adjourned to a subsequent date. Service of Hearing Notice is therefore of utmost importance in our adjudicatory system that any dereliction in this regard vitiates the entire proceedings irrespective of how well conducted. See:APEH & ORS V. PDP & ORS (2016) LPELR-40726 (SC); HABIB NIG BANK LTD v. OPEMULERA & ORS.(2000) 15 NWLR (PT. 690) 315: ONWUKA v. OWOLEWA (2001) 7 NWLR (PT. 713) 695; FOLORUNSHO V. SHALOUB (1994) 3 NWLR (PT. 333) 413; MBADINUJU & ORS. V. EZUKA & ORS. (1994) 10 SCNJ 109: (1994) 8 NWLR (PT. 364) 535: SKEN CONSULT NIG. LTD V. UKEY (1981) 1 SC 6.
Like I stated above, l am not required at this stage to look into Exhibit F which is the record of the Court on 4th November, 2013; to ascertain whether Hearing Notice was ordered to be issued on the Applicant or if there is anything before the Court to show that the Applicant was communicated of the date the case was adjourned to on 4th of November, 2013; as this will amount to deciding the success of the appeal at this stage. However since the effect of failure to issue and serve Hearing Notice on the Applicant on its own would vitiate the whole proceedings of the trial Court; the proposed ground of appeal on this point in my view is substantial for which this application can be granted even if the reason for delay to appeal is found not substantial.
I am therefore of the opinion that the proposed Ground of appeal which is a complaint that the Applicant was not served with Hearing Notice is substantial and one which will oblige me to exercise my discretion in favour of the
Applicant. My view is stemmed on the fact that the referred Proposed Ground of Appeal is strong and arguable; and as such the Applicant should not be denied of his constitutional right to appeal. See: NGERE V. OKURUKET XIV (2014) 11 NWLR (PT. 1417) 147.
Accordingly, I hold that the application has merit and it is hereby granted.
Time is hereby extended for the Applicant to appeal against the judgment of High Court of Justice, Bauchi State delivered on 27th January, 2014; in SUIT No: BA/184/2005 BETWEEN ALH. SABO BABAGANA AND MUHAMMED ABDULHAMID.
The Applicant is granted 14 days within which to appeal.
I make no Order as to cost.
ADAMU JAURO, J.C.A.: I have had the advantage of reading in advance the ruling just delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. I am in agreement with the reasoning and conclusions contained therein to the effect that the application is meritorious.
I adopt the said ruling as mine, in allowing the application. I abide by all consequential orders made.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead Ruling delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship has considered and resolved the issues in contention on this application. I agree with and abide the conclusion reached therein. I do not intend to add anything.
B.U. Dalbadal with him, M.T Ishaku-For Appellant
M.K. Okuma- For Rrespondent