(2017) LPELR-43312(CA)

Transcription

1 SHETIMA v. GADAL & ORS CITATION: ADZIRA GANA MSHELIA UCHECHUKWU ONYEMENAM In the Court of Appeal In the Jos Judicial Division Holden at Jos ON FRIDAY, 2ND JUNE, 2017 Suit No: CA/J/73M/2017(R) Before Their Lordships: ELFRIEDA OLUWAYEMISI WILLIAMS- DAWODU Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal JAURO SHETIMA - Applicant(s) And 1. BAKO GADAL 2. HON. JUDGE UPPER SHARIA COURT, ALKALERI, BAUCHI STATE. 3. THE REGISTRAR, UPPER SHARIA COURT, ALKALERI, BAUCHI STATE. RATIO DECIDENDI - Respondent(s)

2 1. PRACTICE AND PROCEDURE - APPLICATION FOR EXTENSION OF TIME: Conditions for an Applicant to succeed in an application for extension of time to appeal "It is significant to point out that the law is fully settled and well defined by the Supreme Court and this Court that an application for extension of time to seek leave to appeal and leave to appeal together with extension of time to file the notice of appeal must not only establish substantial reasons for the delay but must show good cause why the appeal should be heard. Therefore it is not enough to satisfy the Court as to the reasons for delay but also that there is substance in the proposed grounds of appeal. Added to that, the applicant must succeed on both legs of the rule before the application will be granted. See Lapade Apataku & Ors v Alabi (1985) 2 SC 329 at 330, LFS Ltd v Alh. J.A.O.P.D & INV Co. Ltd (2012) 1 NWLR (Pt. 1281) 378 G- H; Emmanuel v Gomez (2009) 7 NWLR (Pt. 1139) 1 at 13 Para H; Rose hill Ltd v Okpero Ventures Ltd (2005) 5 NWLR (Pt. 974) 458 paras A - D. It is settled and remains trite that the grant of an application as the instant case is at the discretion of the Court upon its being satisfied that an applicant has fully satisfied all the two (2) laid down conditions provided under Order 6 Rule 9(2) of the Court of appeal Rules, For clarity the two conditions are: (a) good and substantial reasons for the failure to appeal within the period prescribed; (b) grounds of appeal which prima facie show good cause why appeal should be heard. See Ukpe Ibodo & Ors. v Enarofia & Ors. (1980) 5 SC 42 and UNIV. of Lagos v Olaniyan (1985) 1 SC 295. The two conditions must co-exist before the application can succeed."per MSHELIA, J.C.A. (Pp. 8-9, Paras. B-D) - read in context

3 2. PRACTICE AND PROCEDURE - APPLICATION FOR EXTENSION OF TIME: Whether mistakes or inadvertence of counsel qualify as a special circumstance to warrant the grant of an application for extension of time "The law is trite that the Court ordinarily in deserving circumstances will not visit the sins of a counsel as in the instant case, on his client. In other words, the sins of a counsel handling a case should not be the ground for defeating Appellant's cause. See Doherty v Doherty (1964) 1 All NLR 162 at 167, Chief Lamai v Chief Orbih (1980) 5-7 SC 28, Bowaje v Adediwura (1976) 6 SC 147 and Akinriboya v Akinsole & Anor. (1998) 3 NWLR (Pt. 540) (1998) LPELR 5464 (CA). Filing processes in Court is the responsibility of the counsel who had been briefed to do so and not the litigant. Applicant should not be allowed to suffer due to the fault of his counsel. I am of the firm view that Applicant has advanced good and substantial reasons for the failure to appeal within the prescribed period. The delay is not also unreasonable. Applicant has therefore satisfied the first condition."per MSHELIA, J.C.A. (P. 11, Paras. A-F) - read in context

4 3. PRACTICE AND PROCEDURE - APPLICATION FOR EXTENSION OF TIME: Conditions an applicant seeking for extension of time must fulfill "...As regards the second condition, the Applicant needs to show that the grounds of appeal are arguable and not that the grounds must succeed on appeal. See Kotoye v Saraki (1995) 5 NWLR 395; Mobil Oil (Nig) Ltd v Agadaigho (1988) 2 NWLR (Pt. 77) 383. An Applicant with an arguable ground of appeal ought not to be denied access to appeal. See Ukwu v Bunge (1997) 8 NWLR (Pt. 518) 527. The proposed Notice of Appeal contained four grounds of appeal. I have carefully examined the said grounds of appeal. I hold the view that prima facie the grounds of appeal are arguable in law. All that the Court is concerned with at this stage is whether there is substance in the grounds of appeal worth the trouble to extend the time. However, it should not be the concern of the Court at that stage that the appeal has all the merits of succeeding. See Obikoya v Wema Bank Ltd (1989) 1 NWLR (Pt. 96) 178. The appeal attached to the motion discloses arguable grounds of appeal and this is relevant in activating the exercise of this Court's equitable discretionary power."per MSHELIA, J.C.A. (Pp , Paras. F-E) - read in context

5 ADZIRA GANA MSHELIA, J.C.A. (Delivering the Lead Ruling): The applicant filed a motion on notice on 3rd day of March 2017 and same brought pursuant to Section 242(1) of the 1999 Constitution (as amended), Sections 15 and 24(4) of the Court of Appeal Act, and Order 6 Rule 9(1) and (2) of the Court of Appeal Rules, The Applicant sought for the following reliefs: (a) Extension of time within which to seek leave to appeal on Grounds of facts and mixed law and facts against the Ruling of the Bauchi State High Court, Bauchi delivered on 21/11/2016 in suit No. BA/52m/2012 Jauro Shettima v Bako Gadal & Ors. (b) Leave to appeal on Grounds of facts and mixed law and facts against the Ruling of the Bauchi State High Court, Bauchi delivered on 21/11/2016 in suit No. BA/52m/ Jauro Shettima v. Bako Gadal & Ors. (c) Extension of time within which to file the Notice and Grounds of Appeal on Grounds of facts and mixed law and facts against the Ruling of the Bauchi State High Court, Bauchi delivered on 21/11/2016 in suit No. BA/52m/2012 Jauro Shettima v. Bako Gadal & Ors., in terms of the attached Notice and Grounds of 1

6 appeal. (d) An order deeming the Notice and Grounds of Appeal separately filed as duly filed and served on the parties as filing fee have been paid. (e) Leave to use and rely on the Record of Appeal transmitted to this Court in respect of this case. (f) And for such further order(s) as this Honourable Court may deem fit to make in the circumstances. The application is predicated on the following ground: 1. The Applicant filed Motion No. Suit No. BA/32m/ Jauro Shettima v Bako Gadal & Ors. before the lower Court and was granted leave to apply for an order of certiorari to bring the proceedings and judgment of the Upper Sharia Court, Alkaleri. 2. The Applicant's former counsel filed the application for certiorari and also filed a further affidavit. 3. The Applicant s application aforesaid was struck out on 11/3/2013 and the former counsel to the Applicant filed motion for relisting of the said Applicant's motion. The, Applicant's said motion to relist the motion for certiorari was dismissed by the lower Court due to the absence of the Applicant and his former counsel on 21/11/ The Applicant 2

7 is aggrieved with the Ruling of lower Court dismissing the Appellant's motion seeking to relist the Applicant's motion for certiorari. 5. The Applicant is desirous of appealing to this Honourable Court with leave on Grounds of facts and mixed law and facts. 6. The Record of the lower Court is being compiled and to be transmitted before the hearing of this application. 7. The Applicant needs extension of time of this Honourable Court, leave to appeal and extension of time to file the Notice and Grounds of Appeal on Grounds of facts and mixed law and facts. The application is supported by a 5 paragraph affidavit, deposed to by one Aisha Musa Zakari Litigation Secretary in Doka Chambers. Exhibits A, A1, A2, B, C and D were attached to the affidavit in support. The 1st Respondent opposed the application and filed a 6 paragraph counter affidavit deposed to by one Abubakar Mahdi, Litigation secretary in the law firm of Mogaji Doho & Associates, Counsel to the 1st Respondent. Issues having been joined on the application and being contentious motion, the Court ordered the parties to file and exchange written addresses to 3

8 argue and make submissions in respect of their positions regarding the application. On behalf of the Applicant, learned counsel A.A Sangei Esq. filed a written address. Same dated and filed on 24th March, While learned counsel for the 1st Respondent Doho Mohommed Abubakar Esq. also filed a written address dated 31st March, 2017 and filed on 3rd day of April, At the hearing of the application before us on , learned counsel Sangei Esq., identified, adopted and placed reliance on the written arguments and submissions as well as the motion and urged the Court to grant prayers a- c, having withdrawn prayers (d) and (e) respectively. Prayers d and e are hereby struck out same having been withdrawn. On behalf of the 1st Respondent Mr. D.M Mogaji Esq., similarly identified, adopted and relied on the written address filed on 3rd April, 2017, in urging the Court to dismiss the application. The sole issue for determination identified by Mr. Songei Esq. is whether or not the Applicant is entitled to be granted the reliefs sought herein. Learned counsel urged the Court to grant the application. His contention is that Applicant is not 4

9 in any way in default for filing this application at this stage. It was argued that the failure of the Applicant to file the application within the prescribed period was due to the present counsel's inadvertence. Counsel urged the Court not to visit the sin of the present counsel and the former counsel on the Applicant. Reliance placed on Ogundoyin & Ors. V Adeyemi (2001) 13 NWLR (Pt. 730) 403 at 419 to 420 Paras D - C per Onu JSC and Oyegun v Nzeribe (2010) 7 NWLR (Pt. 494) 577 at 596 para c per Adekeye JSC. Counsel submitted that 1st Respondent will not be prejudiced by all the processes/cases/appeals filed on behalf of the Applicant in the Bauchi State High Court, Bauchi State Sharia Court of Appeal because he (1st Respondent) had been appropriately compensated with costs, where necessary. That even in this application, 1st Respondent could be compensated in the event the Court deems it appropriate to so order. It was further argued that the Applicant had satisfied the conditions precedent for the grant of this application. That the delay of about 40 days in bringing the application was due to the default of Applicant s present counsel. 5

10 He contended that the Grounds of Appeal raise triable issues warranting the grant of this application. Cited in aid are Adigwe v FRN (2015) 18 NWLR (Pt. 1490) 105 at 127 paras C - H, Lafferi (Nig.) Ltd & Anor. V Nal Merchant Bank Plc & Anor. (2015) 14 NWLR (Pt. 1478) 64 at 101 paras C - E. Counsel maintained that Applicant has fulfilled the conditions for the grant of his constitutional right to appeal. Reliance placed on Anachebe v Ijeoma & ors. (2014) 14 NWLR (Pt. 1426) 168 at 188 to 189 paras. E -A, 190 paras D -E. Counsel urged the Court to discountenance the counteraffidavit as same is incompetent. See Abiodun v The Chief Judge of Kwara State & Ors. (2007) 18 NWLR (Pt. 1065) 109 at 144 paras C - E and 145 paras B - F and paras F - H. He urged the Court to grant the application so that the appeal can be heard on the merit. In his response learned counsel for the 1st Respondent identified a lone issue for the determination of the application. The issue is: "Whether the applicant had met the requirement to warrant the exercise of the Court's discretion in his favour for Extension of time and leave of this Honourable 6

11 Court to Appeal, does not amount to an abuse of judicial process?" Learned counsel submitted that the machinery of justice was put in place to settle disputes among litigants who come with genuine case to be settled. What constitute an abuse of judicial process is very fluid as such cannot be limited to a particular act. Reliance placed on Saraki v Kotoye (2006) 2 LC 403 ratio 16. That looking at the entire circumstances and happening in this case, one cannot help but come to the conclusion that the Applicant has turned the machinery of justice into a weapon of oppression and suppression rather than remedy it was meant to bring. That applicant should not be allowed to utilize the justice machinery in the abuse. Reliance placed on Agwasim v Ojichie (2004) 10 NWLR (Pt. 882) 488. Learned counsel further submitted that looking at the Applicant s prayers and the affidavit in support of the motion particularly paragraph 3(h), it is the same inadvertence of the former counsel that led to the striking out and dismissal of the applicant s case at the lower Courts. He urged the Court to dismiss the motion as lacking in merit. That 7

12 Applicant has failed to satisfy the Court that he is entitled to the exercise of Court's discretion in his favour. I have carefully read and considered all the arguments/submissions of respective learned counsel and all the processes filed in support of the application. It is significant to point out that the law is fully settled and well defined by the Supreme Court and this Court that an application for extension of time to seek leave to appeal and leave to appeal together with extension of time to file the notice of appeal must not only establish substantial reasons for the delay but must show good cause why the appeal should be heard. Therefore it is not enough to satisfy the Court as to the reasons for delay but also that there is substance in the proposed grounds of appeal. Added to that, the applicant must succeed on both legs of the rule before the application will be granted. See Lapade Apataku & Ors v Alabi (1985) 2 SC 329 at 330, LFS Ltd v Alh. J.A.O.P.D & INV Co. Ltd (2012) 1 NWLR (Pt. 1281) 378 G- H; Emmanuel v Gomez (2009) 7 NWLR (Pt. 1139) 1 at 13 Para H; Rose hill Ltd v Okpero Ventures Ltd (2005) 5 NWLR (Pt. 974) 8

13 458 paras A - D. It is settled and remains trite that the grant of an application as the instant case is at the discretion of the Court upon its being satisfied that an applicant has fully satisfied all the two (2) laid down conditions provided under Order 6 Rule 9(2) of the Court of appeal Rules, For clarity the two conditions are: (a) good and substantial reasons for the failure to appeal within the period prescribed; (b) grounds of appeal which prima facie show good cause why appeal should be heard. See Ukpe Ibodo & Ors. v Enarofia & Ors. (1980) 5 SC 42 and UNIV. of Lagos v Olaniyan (1985) 1 SC 295. The two conditions must co-exist before the application can succeed. As to whether Applicant has satisfied the first requirement, resort must be had to the affidavit in support particularly paragraph 3(a) - (i). From the affidavit in support, the failure of the Applicant to appeal the decision of the lower Court within the prescribed period was attributed to the inadvertence of the present counsel. For clarity paragraphs 3(a), (b), (c) and (h) read thus: (a) The Applicant filed Motion No. SUIT NO. 9

14 BA/52M/ Jauro Shettima v Bako Gadal & Ors. before the lower Court and was granted leave to apply for an order of certiorari to bring the proceedings and judgment of the of the Upper Sharia Court, Akaleri. The order is attached hereto and marked as Exhibit A." (b) The Applicant's former counsel filed the application for certiorari and also filed a further affidavit. The said motion and the further Affidavit are attached hereto and marked as Exhibits A1 and A2. (c) The Applicant's application aforesaid was struck out on 11/3/2013 and the former counsel to the Applicant filed motion for the relisting of the said Applicant's motion. The Applicant's said motion to relist the motion for certiorari was dismissed by the lower Court due to the absence of the Applicant and his former counsel on 21/11/2016. The Applicant's motion for relisting is attached hereto and marked as Exhibit B. (h) The non-filing of the Applicant's Appeal is not due to the default of the Applicant and it was due to inadvertence of the Applicant's present counsel." The averment in paragraph 3(h) of the affidavit in support was not countered by the 1st Respondent in 10

15 his counter affidavit. Paragraph 4(a) of the counter-affidavit did not advance any good reason to show that the non-filing of the appeal within the prescribed period was not due to the fault of Applicant s present counsel. The law is trite that the Court ordinarily in deserving circumstances will not visit the sins of a counsel as in the instant case, on his client. In other words, the sins of a counsel handling a case should not be the ground for defeating Appellant s cause. See Doherty v Doherty (1964) 1 All NLR 162 at 167, Chief Lamai v Chief Orbih (1980) 5-7 SC 28, Bowaje v Adediwura (1976) 6 SC 147 and Akinriboya v Akinsole & Anor. (1998) 3 NWLR (Pt. 540) (1998) LPELR 5464 (CA). Filing processes in Court is the responsibility of the counsel who had been briefed to do so and not the litigant. Applicant should not be allowed to suffer due to the fault of his counsel. I am of the firm view that Applicant has advanced good and substantial reasons for the failure to appeal within the prescribed period. The delay is not also unreasonable. Applicant has therefore satisfied the first condition. As regards the second condition, the 11

16 Applicant needs to show that the grounds of appeal are arguable and not that the grounds must succeed on appeal. See Kotoye v Saraki (1995) 5 NWLR 395; Mobil Oil (Nig) Ltd v Agadaigho (1988) 2 NWLR (Pt. 77) 383. An Applicant with an arguable ground of appeal ought not to be denied access to appeal. See Ukwu v Bunge (1997) 8 NWLR (Pt. 518) 527. The proposed Notice of Appeal contained four grounds of appeal. I have carefully examined the said grounds of appeal. I hold the view that prima facie the grounds of appeal are arguable in law. All that the Court is concerned with at this stage is whether there is substance in the grounds of appeal worth the trouble to extend the time. However, it should not be the concern of the Court at that stage that the appeal has all the merits of succeeding. See Obikoya v Wema Bank Ltd (1989) 1 NWLR (Pt. 96) 178. The appeal attached to the motion discloses arguable grounds of appeal and this is relevant in activating the exercise of this Court's equitable discretionary power. It is my considered view that Applicant has satisfied the two conditions, and is therefore entitled to the exercise of Court's 12

17 discretion in his favour. I am satisfied that Applicant had made a case for extension of time within which to appeal and I so hold. In the result, I hold that this application is meritorious and accordingly succeeds. I hereby grant the reliefs as follows: : (1) Time is extended to today to the Applicant to seek leave to appeal on Grounds of facts and mixed law and facts against the Ruling of the Bauchi State High Court, Bauchi delivered on 21/11/2016 in suit No. BA/52m/ Jauro Shettima v Bako Gadai & Ors (2) Leave is granted to the Applicant to appeal on Grounds of facts and mixed law and facts against the Ruling of the Bauchi State High Court, Bauchi delivered on 21/11/2016 in suit No. BA/52m/ Jauro Shettima v Bako Gadal & Ors. (3) Time is extended by 14 days from today for Applicant to file his Notice and Grounds of Appeal in terms of the proposed Notice and Grounds of Appeal attached to the affidavit in support of the application as Exhibit 'D'. There will be costs assessed at N20, in favour of the 1st Respondent against the Applicant. 13

18 UCHECHUKWU ONYEMENAM, J.C.A.: I have had the advantage of reading the ruling delivered by my learned brother ADZIRA GANA MSHELIA, JCA. I entirely agree with my lord's conclusion that the application has merit and accordingly succeeds. I adopt the reasonings and conclusion reached in the lead ruling as mine. I abide by the orders made in the ruling. ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read in draft, the Ruling of my learned brother, MSHELIA ADZIRA GANA, JCA, and I agree with the reasoning and conclusion therein. I have nothing else to add. Therefore, I abide by the orders made therein. 14

19 Appearances: A.A Songei with him, A.A Isa, Esq., H.M. Abdu, Esq., and A.A. Muhammed, Esq. For Appellant(s) D.M Magaji for 1st Respondent. 2nd and 3rd Respondents (absent) though served. For Respondent(s)