Iliyasu Sale & Ors. V. Hajiya Safiya Yahya (1998)
LawGlobal-Hub Lead Judgment Report
IGE, J.C.A.
This is an appeal against the ruling of the Kaduna State High Court delivered on 29/7/92 in Suit No. KDH/KAD/72M/92. The ruling was given to an application by the appellants asking for an extension of time within which to appeal against the judgment of the Upper Area Court Daura Road. Kaduna.
In the Upper Area Court the respondent sued the appellants claiming the sum of N387, 187.00 as compensation for the loss of life of her son who died in a motor accident. 1st appellant was the driver of the vehicle involved in the collision while the 2nd appellant was the owner of the vehicle.
On 9/4/92 the Upper Area Court gave judgment in favour of the respondent and awarded her the sum of N387, 187.00 as compensation for the loss of her son against all the 3 appellants. The appellants were dissatisfied with this judgment but they did not appeal against it within 30 days as provided by the law.
The appellants later filed an application dated 23/6/92 before the Kaduna High Court presided over by Donli J asking for an extension of time within which to appeal among other things. The applicant/appellants filed 2 affidavits in support of their application while the respondent also filed 2 counter affidavits.
In the course of argument of this application the learned counsel for the applicants sought for the leave of court to amend the grounds of appeal orally by adding Ground 3 showing that the judgment of the Upper Area Court was a nullity because the court lacked jurisdiction to entertain the suit. The court allows the amendment and a new ground of appeal touching the issue of lack of jurisdiction of the Upper Area Court was filed.
At the end of the day the learned trial High Court judge delivered a ruling on 29/7/92 refusing the application on 2 grounds:-
- That the reasons given for the delay were insufficient and
- That the grounds of appeal disclosed no arguable issues in law on the grounds of absence of the record of proceedings.
It is against this ruling that the appellants have appealed to this court. The appellants filed 6 grounds of appeal and formulated 4 issues for determination.
The following are the 4 issues:
- Whether the trial court exercised its discretion judicially.
- Whether the decisions of the Supreme court in Ibodo v. Enarofia (1980) 5-7 SC and Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 157 are applicable to the application before the trial court.
- Whether an application for extension of time to appeal from the decision of an Area Court to the High Court must satisfy 2 conditions namely; showing sufficient reasons for the delay in appealing and showing proposed grounds of appeal that raised serious issues of law.
- Whether the reasons for the delay and grounds of appeal were such that the trial court ought to have granted the appellants’ application.
For his own part the respondent formulated the following 2 issues for determination:-
i. Whether by the combined effect of the provisions of Order 4 rules 6 and 28 of the High Court (Civil Procedure Rules) 1987 Kaduna State Order 11 rules 11 and 12 of High Court (Appeals from Native Courts Rules Cap. 49, Laws of Northern Nigerian 1963, section 57 of the Area Courts Edict 1967 and having regard to the nature of appellants’ application which calls for exercise of discretion, the trial High Court was right in holding that the appellants have to satisfy 2 conditions, namely, sufficient reasons for the delay and grounds of appeal which disclose triable or arguable issues.
ii. If the answer to issue one is in the affirmative, whether the trial High Court Judge exercises her discretion judiciously and judicially.
I have examined carefully the various issues formulated by the parties, it is my view that the appeal should be considered with reference to the issues as formulated by the appellants. As a matter of fact the issues as formulated by the appellants are all embraced within the respondent’s two issues.
It is pertinent to mention at this stage that the respondent has also cross appealed by filing one ground of appeal and formulating one issue for determination.
The only issues in the cross appeal reads thus:-
“Whether the trial High Court in exercise of its appellate jurisdiction is properly constituted by a single Judge of the High Court.
In answer to the cross appeal, the appellant/cross respondents formulated 2 issues out of one ground of appeal filed by the cross appellant.
- Whether the High Court in the exercise of its appellate jurisdiction is properly constituted by a single judge of the High Court and
- Whether in an application for time to appeal1 to the High Court from the decision of Upper Area Court, the High Court is to be constituted as an appeal court.
The cross respondents in the cross appeal seem to be splitting issues in the cross appeal. You cannot and should not have more issues than the grounds filed in an appeal. A cross appeal in this case is also an appeal on its own. The second issue as formulated by the cross/respondents is therefore abandoned and discountenanced by this court.
It seems to me that the proper thing to do in this case is to deal first of all with the cross/appeal as its resolution is bound to affect my treatment of the main appeal.
The issue involved in the cross appeal is quite straight forward.
The application that went before the High Court of Kaduna State in suit No. KDH/KAD/72m/92 was a motion seeking an extension of time within which to appeal against the judgment of the Upper Area Court Daura Road, Kaduna. The said application was entertained by a High Court Judge Donli of Kaduna State High Court sitting alone. I agree very much with the cross/appellant that the learned trial Judge sat over the application in appellate jurisdiction. But the cross appellant has submitted that the application ought to be heard by at least 2 judges of Kaduna High Court instead of one judge. Both parties have referred me in their briefs to the case of Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506.
In the case of Ishola v. Ajiboye, the main issue that called for determination relates to the constitution of the High Court of Kwara State when sitting to determine an application by a losing party for leave to appeal to the Court of Appeal against a decision of the said High Court sitting in its appellate jurisdiction. In that case the Supreme Court went into details of the provisions sections 238 and 239 of the 1979 Constitution of Nigeria vis-a-vis the provisions of Order 43 of the Kaduna State High Court Civil Procedure Edict of 1978 and section 40(1) of the High Court Law Cap. 49. At the end of the day the Supreme Court held that the provisions of section 63(1) of the High Court law of Northern States as amended by section 69 of the Area Courts Edict of Kwara State is not inconsistent with section 238 of the Constitution which by its context envisages a situation where more than one judge of the High Court can constitute the court.
Hence the Supreme Court stated further in that case that the High Court when exercising its appellate jurisdiction must be constituted by 2 judges of that court. It follows that Orilonise J sitting alone could not validly exercise the appellate jurisdiction of the High Court.
I would have applied the decision in Ishola v. Ajiboye (supra) to this case but this case must be distinguished from Ishola v. Ajiboye’s case in that the Kaduna State has specifically provided for the constitution of its own High Courts both in their appellate jurisdiction and as courts of first instance. This situation is envisaged by sections 238 and 239 of the Constitution. The Supreme Court as per Ogundare JSC who delivered the leading judgment stated in clear terms the principles underlying the position of the apex court as follows at page 559 of the report, I quote:-
“Bearing in mind the canons of construction discussed above, it is my view that in interpreting section 238, section 239 must be considered along. The two sections deal with the same subject matter in that they are both enabling provisions relating to practice and procedure. Section 239 confers power on the House of Assembly of state to prescribe from time to time practice and procedure of the State High Court in the exercise of the jurisdiction vested in the court by the Constitution. If this view is accepted that section 238 is non self executing in that it envisages a situation where a State High Court only may be constituted by more than one Judge, it follows logically that the body to prescribe that number can be the House of Assembly of the state (Or the Military Administrator under the present dispensation). To suggest otherwise will, in my respectful view, occasion absurd consequences.”Applying the above principles to the case in hand let us look at the provisions of Kaduna State High Court Law of 1991 with regard to the appellate jurisdiction of the High Court. Section 40(1) of the High Court law of Kaduna State of Nigeria Cap. 67 provides thus:
(1) The High Court in the exercise of its appellate jurisdiction shall, subject to the provisions of part V, be constituted by not less than one Judge and the Chief Judge shall where practicable preside at each sitting of a court.
The High Court Civil Procedure Edict of 1987 which regulates practice and procedure in the State High Courts also provides thus: Order 43 rule 4 reads:
The Registrar of the lower court shall within 7 days of preparing the copies of proceedings aforesaid send the same to the registrar of the Court in the judicial Division in which the lower court is situated, and the appeal shall be decided by the Judge of the Division.
Order 43 rule 8 reads thus:-
All Civil Appeals from Lower Courts shall be heard by at least one Judge of the Court.
Order 43 rule 6 empowers the High Court hearing the appeal to enlarge time for an applicant whose time to file notice of appeal has expired.
Section 62 of the High Court Laws of Kaduna State Cap. 67 part V, also confers specifically on the High Court the power to hear appeals from Area Courts. It reads thus:
The High Court shall have jurisdiction to hear appeals (other than appeals in respect of matters which are the subject of the jurisdiction of the Sharia Court of Appeal) from Upper Area Courts.
Applying the above enabling laws to this case I hold that Donli J was perfectly right to sit over the application alone and validly in its appellate jurisdiction. The cross appeal has therefore failed and it is hereby dismissed.
I can now go into the main appeal since I have held that the High Court was competent to sit alone in its appellate jurisdiction. If this court had held otherwise there would have been no need to proceed further with the main appeal. The gravamen of the complaint of the appellants is that the learned trial Judge did not exercise her discretion judicially and judiciously where she dismissed their application for an extension of time within which to appeal against the decision of the Upper Area Court Daura Road Kaduna delivered on 9/4/92. The grounds of refusal were two in number – One was that the reasons given for the delay were insufficient and the other reason was that the grounds of appeal disclose no arguable or triable issues in law on ground of absence of the record of proceedings of the trial court.
I have examined carefully the affidavits in support of the application as well as the counter affidavits of the respondent opposing the application. It is my view that the learned trial Judge was right in allowing herself to be guided by the principles involved in such applications before courts of higher jurisdiction i.e. Court of Appeal and Supreme Court, but she should have relaxed the rules where the appeal is emanating from District Courts or Upper Area Courts to the High Court. The High Court Civil Procedure Rules of Kaduna State 1987 Cap. 68 have given room for no strict interference with the notice of appeal or recognizance or even form of grounds of appeal under appeals from Area Courts etc. See Order 43 rules 15(1) 16, and section 17 of High Court Civil Procedure Rules. The appellants gave many reasons for the delay in appealing against the judgment. Some of the reasons include the difficulties of bureaucratic procedure encountered by 2nd and 3rd applicants with their employers on question of briefing external solicitors. The 2nd applicant is a Bank while the 3rd applicant is Insurance Company.
The learned trial Judge ought to have taken this into consideration while deciding the sufficient or non sufficient reasons for the delay. If the learned Judge had averted her mind to the enabling provisions under the rules of the High Court pertaining to appeals from native courts (Upper Area Court inclusive), she would not have taken such a hard stand by refusing the application. The rules are very liberal and the altitude of the High Court Judge should have been liberal too. The learned trial Judge granted an amendment to the grounds of appeal by allowing the appellants to add a new ground relating to issue of jurisdiction and competence of the Upper Area Court.
She later turned round to declare this ground and other grounds of appeal as disclosing no arguable or triable issues in law. This is most unfair to the appellants. The Judge under the rules of the High Court sitting as an appeal court can even grant the applicants an adjournment if necessary to produce copy of judgment of the lower court or any other document necessary for the grant of the application. In the light of the above I cannot say that the learned Trial Judge has exercised her discretion judicially and judiciously. Failure to do so in this case has caused a miscarriage of justice and deprived the appellants’ of their constitutional right of appeal. I am therefore setting aside the ruling and order made by Donli J in suit no. KDH/KAD/72m/92 on 29/7/92.
In its place the appellants are allowed to appeal out of time against the judgment of the Upper Area Court Daura Road, Kaduna delivered on 9th April, 1992. Appellants are to file their notice and grounds of appeal within 14days from today. The appeal is to be heard by another Judge of Kaduna State High Court in its appellate jurisdiction. Respondent is to pay N2, 000 costs to the appellants as costs of this appeal and N 1,000 costs to appellants as costs of the cross appeal which was dismissed. This makes a total of N3, 000.00 costs in favour of the appellants.
Other Citations: (1998)LCN/0390(CA)
