(2017) LPELR-43361(CA)

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1 MUHAMMED GONI COLLEGE OF LEGAL & ISLAMIC STUDIES & ANOR v. ALI & ORS CITATION: ADAMU JAURO In the Court of Appeal In the Jos Judicial Division Holden at Jos ON TUESDAY, 11TH JULY, 2017 Suit No: CA/J/121M/2016(R) UCHECHUKWU ONYEMENAM Before Their Lordships: HABEEB ADEWALE OLUMUYIWA ABIRU Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal 1. MUHAMMED GONI COLLEGE OF LEGAL & ISLAMIC STUDIES 2. COUNCIL OF MUHAMMED GONI COLLEGE OF LEGAL & ISLAMIC STUDIES And 1. UMAR ALHAJI ALI 2. BORNO STATE HOUSE OF ASSEMBLY 3. MUSTAPHA ALI MUSTAPHA 4. MOHAMMED ALI MAKINTA RATIO DECIDENDI - Applicant(s) - Respondent(s)

2 1. APPEAL - EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Whether the complaint of jurisdiction on appeal dispenses with the reason for an applicant s delay to file an appeal "The next issue to be considered, is that the Court must be satisfied that the exercise of appealing at this late stage is worthwhile by reference to the grounds of appeal. See OBIKOYA V. WEMA BANK LTD. (1989)1 NWLR (Pt. 96) 157 at 158. Amongst the four grounds of appeal in exhibit 'A', three of the grounds are a challenge to the jurisdiction of the lower Court. It is trite law that where the intended grounds of appeal are challenging jurisdiction, the reasons for the delay in appealing are viewed with leniency and they would cease to be a relevant factor. A challenge to jurisdiction can be raised at any time or stage and jurisdiction is a good and substantial reason why an appeal should be heard. See UKWU V. BUNGE (1997)8 NWLR (Pt.518) 527, LAFFERI NIG. LTD. V. NAL MERCHANT BANK PLC. (2015)5 NWLR (Pt. 111) 1 at 19, ANACHEBE V. IJEOMA (2014) LPELR (SC), FRANCIS V CITEC INT'L ESTATE LTD. (2010)16 NWLR (Pt 1218) 243 at 265, LAUWERS IMPORT EXPORT V. JOZEBSON IND. LTD. (1988)3 NWLR (Pt. 83) 429, NGERE V. OKURUKET 'XIV' (2014) 11 NWLR (Pt. 1417) 147."Per JAURO, J.C.A. (Pp. 7-8, Paras. D-C) - read in context

3 2. APPEAL - EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Whether the granting of an application for time to appeal is at the discretion of Court; what an applicant must show to succeed "The grant of the reliefs sought in an application of this nature is discretionary and the discretion must be exercised judicially and judiciously. See OBIKOYA V. WEMA BANK LTD. (1989)1 SC (Pt. 1) 132, IROEGBU V. OKWORDU (1990)6 NWLR (pt. 159)643, NWORA v. NWABUEZE (2011) 15 NWLR (Pt. 1271) 467. The applicant is therefore expected to place enough materials before the Court to warrant the exercise of the discretion in his favour. See WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC. 153, EFP CO. LTD. V. NDIC (2007)9 NWLR (pt. 1039) 219. By Order 6 Rule 9(2) of the Court of Appeal Rules 2016, an applicant in an application of this nature must satisfy the following two mandatory requirements, namely: (i) Good and substantial reasons for failure to appeal within the prescribed period and (ii) Grounds of appeal which prima facie show good cause why the appeal should be heard. See IKENTA BEST NIG. LTD. V. A.G. RIVERS STATE (2008)6 NWLR (Pt. 1084) 612, FRANCIS V. CITEC INT'L ESTATE LTD. (2010) 16 NWLR (Pt. 1219) 243, WILLIAMS V. MOKWE (2005)12 NWLR (pt. 945)249."Per JAURO, J.C.A. (Pp. 5-6, Paras. F-E) - read in context

4 3. APPEAL - APPEAL AS OF RIGHT: Instances where an appeal shall lie as of right from the High Court or Federal High Court to the Court of Appeal "...In view of the foregoing and having satisfied the requirements of Order 6 Rule 9(2) of the Court of Appeal Rule 2016, the applicants merit the exercise of the discretion in their favour. The application is meritorious and is hereby granted in terms of prayer 3. Prayers 1 and 2 are unnecessary in view of Section 241(1) (a) of the 1999 Constitution (as amended) which makes appeal as of right against final decisions of the Federal High Court or High Court sitting at first instance. See MAJEKODUNMI V. CHRISTLIEB LTD. (2009)9 NWLR (pt. 1145) 121, AQUA LTD. V. ONDO STATE SPORTS COUNCIL (1988)4 NWLR (Pt. 91) 622, KWARA STATE MINISTRY OF HEALTH V. M.I. ELECTRICAL ENT. (2011) ALL FWLR (pt. 602) 1757, MUAZU V. BANI MUSA HOLDINGS LTD. (2011) ALL FWLR (Pt. 594) 172, F.H.A. V. KALEJAIYE (2011) ALL FWLR (pt. 562)1633. Once it is a final decision and given at first instance leave is not required irrespective of whether the ground is of facts or mixed law and facts."per JAURO, J.C.A. (Pp. 8-9, Paras. C-B) - read in context

5 4. EVIDENCE - AFFIDAVIT EVIDENCE: Effect of uncontroverted facts in an affidavit "The consequences of failure to controvert an affidavit is that the facts deposed to in the affidavit are deemed admitted as true. See AJOMALE V. YADUAT (NO. 2) (1991)5 NWLR (P. 191) 257, A.G. PLATEAU STATE V. A.G. NASARAWA STATE (2005) ALL FWLR (Pt. 266) 1227, H.S. ENGR. LTD. V. S.A. YAKUBU NIG. LTD. (2009)10 NWLR (Pt. 1149) 416. The reasons given for the delay in appealing in the affidavit are therefore deemed admitted as true."per JAURO, J.C.A. (P. 7, Paras. A-C) - read in context

6 ADAMU JAURO, J.C.A.(Delivering the Lead Ruling): The instant application dated 27th April, 2016 and filed 5th May, 2016 prays for the following reliefs: "1. An order for extension of time within which to seek leave to appeal against the judgment of the High Court of Justice Maiduguri delivered on the 11/4/2014 in Suit No. BOHC/MG/CV/51/ An order for leave to appeal against the judgment of High Court of Justice Maiduguri delivered on 11/4/2014 in Suit No. BOHC/MG/CV/51/ An order for extension of time to appeal against the judgment of High Court of Justice Maiduguri delivered on 11/4/2014 in Suit No. BOHC/MG/CV/51/ And for such further order as this Honourable Court may deem fit to make in the circumstance." The grounds given in support of the application as displayed on the face of the motion paper are as follows: "1. That judgment was delivered in the lower Court on the 11th day of April That the 2nd & 3rd defendants now appellants applied for the copy of the judgment of the lower Court through their counsel immediately after the judgment. 3. That the 1

7 counsel sought for permission from their office the Attorney-General's Chambers, Ministry of Justice to appeal against the above stated judgment. 4. That she was informed in the office of the Director Civil Litigation that there is a move for settlement of the issue administratively. 5. That she was subsequently informed that the move for settlement has proved abortive and that therefore she should proceed with the appeal. 6. That at the time she was instructed to appeal against the judgment the time within which to appeal has lapsed, hence this application." The application was brought pursuant to Order 7 Rule 1, 7 and 10 (1) of the Court of Appeal Rules 2011 and the inherent powers of this Honourable Court. In support of the application is an affidavit of seven paragraphs, two further affidavits and two exhibits marked 'A' and 'B'. Exhibit 'A' is the notice of appeal, while exhibit 'B' is the judgment sought to be appealed against. In opposition to the application the 1st Respondent filed a counter affidavit of six paragraphs. On realising the contentious nature of the application an order for written addresses to be filed by the 2

8 parties was made by the Court. The applicants written address settled by Mrs. H.Y. Gana, was filed on 21st December, 2016 though deemed properly filed on 18th May, The 1st respondent's written address settled by I.S. Benisheikh Esq. is dated 13th October, 2016 and filed on 1st November, 2016 though deemed properly filed and served on 18th May, On the date fixed for hearing the application, Mrs. H.Y Gana adopted the written address filed by the applicants and urged the Court to grant the application. Mr. A. Adamu who held brief for Mr. A. Hassan for the 1st Respondent, adopted the address filed by the 1st respondent in urging the Court to dismiss the application. The applicants submitted two issues for determination on page two of their address as follows: "1. Whether the applicant has shown sufficient reasons why the Court should exercise its discretion in their favour. 2. Whether the applicant has complied with the rules as required by the NBA stamp and seal as contain in Section 10(1)(2) and (3) of the Legal Practitioners Act, 2007." The 1st Respondent formulated a lone issue for determination on folio 2 of his unpaginated 3

9 address, to wit: "Whether the applicant herein has shown substantial reason for the delay in complying with the time within which to file this appeal." For the resolution of this application, the two set of issues will be compressed and fused into one as follows: "Whether the applicants have made out a case to warrant the grant of the application in their favour." The applicants stated that application of this nature must satisfy the requirements of Order 7 Rule 10 (2) of the Court of Appeal Rules The said requirements are to the effect that the applicants must show good and substantial reasons for the delay and grounds of appeal which prima facie show good cause why the appeal should be heard. It was submitted that paragraph 3(a) to (g) of the affidavit in support of the application has given cogent reason for the delay. It was posited that the grounds of appeal are not only arguable ones, but constitute a challenge to the jurisdiction of the lower Court hence the delay in appealing ceases to be a relevant factor. In support, reference was made to the following cases: LAFFERI NIG. LTD. V. NAL MERCHANT BANK PLC. (2015)5 MJSC (Pt. 111)1 at 4

10 19, ANACHEBE V. IJEOMA (2014) LPELR (SC) 1, FRANCIS V. CITEC INT'L ESTATE LTD. (2010)16 NWLR (Pt. 1218)243 at 265. On the issue of leave, further reference was made to the following cases:ene V. ASIKPO (2010)10 NWLR (Pt. 1203) 477, UGWU V. STATE (2013), FHA V. KALEJAIYE (2010)11-12, E.F.P. LTD. V. NDIC (2007) LPELR 1149 SC 1 at 8. The applicants urged the Court to grant the application based on the aforementioned submissions. In a short response, the 1st respondent stated that the grant of an application of this nature, is discretionary and the discretion must be exercised judicially and judiciously. It was submitted that the affidavit in support of the application, has not disclosed any cogent or convincing reason to warrant the grant of the application. In support, reference was made to the case of EZECHUKWU V. ONWUKA (2000)2 NWLR (Pt. 963) 151. This Court was urged to refuse the application and dismiss same with costs in the interest of justice. The grant of the reliefs sought in an application of this nature is discretionary and the discretion must be exercised judicially and judiciously. SeeOBIKOYA V. WEMA BANK LTD. (1989)1 SC (Pt. 1) 5

11 132,IROEGBU V. OKWORDU (1990)6 NWLR (pt. 159)643, NWORA v. NWABUEZE (2011) 15 NWLR (Pt. 1271) 467. The applicant is therefore expected to place enough materials before the Court to warrant the exercise of the discretion in his favour. See WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC. 153, EFP CO. LTD. V. NDIC (2007)9 NWLR (pt. 1039) 219. By Order 6 Rule 9(2) of the Court of Appeal Rules 2016, an applicant in an application of this nature must satisfy the following two mandatory requirements, namely: (i) Good and substantial reasons for failure to appeal within the prescribed period and (ii) Grounds of appeal which prima facie show good cause why the appeal should be heard. See IKENTA BEST NIG. LTD. V. A.G. RIVERS STATE (2008)6 NWLR (Pt. 1084) 612, FRANCIS V. CITEC INT'L ESTATE LTD. (2010) 16 NWLR (Pt. 1219) 243, WILLIAMS V. MOKWE (2005)12 NWLR (pt. 945)249. The reasons given for the delay in the instant application are stated in paragraph 3(a) to (g) of the affidavit in support of the application. The counter affidavit of the respondent did not fully controvert the depositions in the affidavit. Paragraph 3(c) of the 6

12 counter affidavit only averred thus: "That the applicants could not provide any good reason for not appealing within time." The consequences of failure to controvert an affidavit is that the facts deposed to in the affidavit are deemed admitted as true. See AJOMALE V. YADUAT (NO. 2) (1991)5 NWLR (P. 191) 257, A.G. PLATEAU STATE V. A.G. NASARAWA STATE (2005) ALL FWLR (Pt. 266) 1227, H.S. ENGR. LTD. V. S.A. YAKUBU NIG. LTD. (2009)10 NWLR (Pt. 1149) 416. The reasons given for the delay in appealing in the affidavit are therefore deemed admitted as true. The next issue to be considered, is that the Court must be satisfied that the exercise of appealing at this late stage is worthwhile by reference to the grounds of appeal. See OBIKOYA V. WEMA BANK LTD. (1989)1 NWLR (Pt. 96) 157 at 158. Amongst the four grounds of appeal in exhibit 'A', three of the grounds are a challenge to the jurisdiction of the lower Court. It is trite law that where the intended grounds of appeal are challenging jurisdiction, the reasons for the delay in appealing are viewed with leniency and they would cease to be a relevant factor. A challenge to jurisdiction can be raised 7

13 at any time or stage and jurisdiction is a good and substantial reason why an appeal should be heard. See UKWU V. BUNGE (1997)8 NWLR (Pt.518) 527, LAFFERI NIG. LTD. V. NAL MERCHANT BANK PLC. (2015)5 NWLR (Pt. 111) 1 at 19, ANACHEBE V. IJEOMA (2014) LPELR (SC), FRANCIS V CITEC INT'L ESTATE LTD. (2010)16 NWLR (Pt 1218) 243 at 265, LAUWERS IMPORT EXPORT V. JOZEBSON IND. LTD. (1988)3 NWLR (Pt. 83) 429, NGERE V. OKURUKET 'XIV' (2014) 11 NWLR (Pt. 1417) 147. In view of the foregoing and having satisfied the requirements of Order 6 Rule 9(2) of the Court of Appeal Rule 2016, the applicants merit the exercise of the discretion in their favour. The application is meritorious and is hereby granted in terms of prayer 3. Prayers 1 and 2 are unnecessary in view of Section 241(1) (a) of the 1999 Constitution (as amended) which makes appeal as of right against final decisions of the Federal High Court or High Court sitting at first instance. See MAJEKODUNMI V. CHRISTLIEB LTD. (2009)9 NWLR (pt. 1145) 121, AQUA LTD. V. ONDO STATE SPORTS COUNCIL (1988)4 NWLR (Pt. 91) 622, KWARA STATE MINISTRY OF HEALTH V. M.I. ELECTRICAL ENT. (2011) ALL FWLR (pt. 602) 1757, MUAZU 8

14 V. BANI MUSA HOLDINGS LTD. (2011) ALL FWLR (Pt. 594) 172, F.H.A. V. KALEJAIYE (2011) ALL FWLR (pt. 562)1633. Once it is a final decision and given at first instance leave is not required irrespective of whether the ground is of facts or mixed law and facts. Consequently prayers 1 and 2 are hereby struck out. The applicants are to file their Notice of appeal within 14 days. There will be no order as to costs. UCHECHUKWU ONYEMENAM, J.C.A.: I had the opportunity of reading in draft the ruling just delivered by my learned brother ADAMU JAURO, JCA. I agree with his lordship that the application is meritorious and ought to be granted. I grant the application in terms of the lead ruling. I abide by the order as to costs. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead Ruling delivered by my learned brother, Adamu Jauro, JCA. His Lordship has ably considered and resolved the issues in contention on the application of the Applicants praying for the trinity prayers to appeal against the judgment of the High Court of Borno State in Suit No 9

15 BOHC/MG/CV/51/2013 delivered on the 11th of April, I agree with and abide the conclusion reached therein. I have nothing to add. 10

16 Appearances: Mrs. H.Y. Gana (ADCL, Ministry of Justice, Borno State) For Appellant(s) A. Adamu, Esq. For Respondent(s)

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