Allamai Dantani V. Alhaji Kakan Daji (1998)
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MUNTAKA-COOMASSIE, J.C.A.
This is an appeal against the judgment of the Kebbi State Sharia Court of Appeal in which the appellant’s application to appeal to the Sharia Court of Appeal out of time was turned down. The appellant was six months out of statutory period for appeal. The court below refused to extend time for the lady appellant to appeal.
The facts of this case are quite interesting and revealing. The appellant as Plaintiff instituted an action before the Upper Area Court III Birnin Kebbi asking the court to cause the Estate of her late father hitherto with the defendant, Alhaji Kakan Daji Masama, to be distributed in accordance with the dictates of Sharia.
The Estate, according to the plaintiff, herein-after referred to as the appellant, are as follows:-
(1) Thirty five cows;
(2) Forty five sheep
(3) Nine farm land
(4) Two dwelling houses and
(5) One Silo (Rihewa) or grain-store
The defendant, now respondent, flatly denied the claim of the appellant. He stated that he bought some of the items, some were given to him as gifts, inter vivos and the rest were given to the appellant and her daughter. The respondent being junior brother to the appellant. The trial court entered judgment in favour of the respondent and against the appellant on 14/2/95 with 30 days from that date to appeal to the Sharia Court of Appeal.
The appellant did not appeal within time. According to her she fell sick after the judgment was handed down to her. She was only able to file an appeal on 18/9/95, six months four days after the judgment was delivered. She then urged the Sharia Court of Appeal, Birnin Kebbi, now court below, to extend time for her to appeal out of time to the court below. Her reasons being that when the case ended she was very sick and that after she recovered she has no means to file an appeal and there was no one readily available to file an appeal on her behalf.
Learned Kadis of the court below reviewed the grounds of appeal and reasons for failure to file an appeal within time and refused her application to extend time for her to appeal. The court below has this to say:-
“In our view the appellant’s grounds of appeal out of time are not strong to warrant the extending of time for her to appeal. For even if true (sic) she was sick after the termination of their case she has the right to assign her son Aliyu to file the appeal on her behalf…
Similarly her ground that she has no means to file an appeal is baseless for has she come to the court and explain as such … this court will assist her in filing her appeal. And in our view lateness of 6 months (sic) is unreasonable and it shows her lack of interest in the appeal.”
Against this decision the appellant lodged an appeal to this court and filed a notice of appeal containing two grounds of appeal. It is to be noted that both parties are illiterates as far as English language and common law procedure are concerned. They appeared in person although without the benefit of counsel. On the date set out for hearing both parties adopted their respective case as contained in the records of proceedings of the trial Upper Area Court and court below. The appellant stated that he has nothing to add other than urging this court to allow the appeal and ordered that she be allowed to appeal to the Sharia Court of Appeal. Kebbi State. The respondent similarly urged this court to affirm the decision of the court below and to dismiss the appellant’s appeal as lacking in merit.
Considering the nature of the parties vis-Ã -vis the appeal, the facts of the case and the prevailing law. I am of the view that the emphasis in these courts is always on doing substantial justice rather than strict adherence to rules and procedures. Abodunrin v. Arabe (1995) 5 NWLR (Pt. 393) 77. And that this court can look critically into the appellant’s application of leave to appeal out of time. This is because the procedure in the trial court and court below are clearly different from the procedure applicable in the English-type court. We cannot possibly start insisting that the provisions of Section 25(1)(2)(a) of the Court of Appeal Act, 1976 as amended must be complied with.
It is equally untenable for the parties before us, especially the appellant, to strictly mention three distinct prayers whenever she approached this court for leave to appeal out of time. In the whole we decided to invoke our powers under Order Six rule II of the Court of Appeal Rules, 1981 as amended to deal with the appeal without parties’ briefs. There was no necessity in these type of appeals to say that there must be three distinct prayers before us before we can grant an indulgence to the applicant as was the case in Owena Bank v. Stack Exchange (1997) 8 NWLR (Pt.515) 1; (1997)7 SCNJ P. 160/162 and 171-172 per Mohammed, J.S.C.
It is also stated in the Record of Proceedings before us that the respondent despite the fact that there were wide-spread disease in the town and the appellant might be sick, nonetheless he objected.
Looking at the nature of the action, (involving the issue of inheritance (Mee rath) and the fact that at the material time the appellant was indisposed coupled with the fact that the grounds of appeal are formidable and arguable this court believes that the Sharia Court of Appeal could have exercised its discretion and granted leave to appeal against the decision of the trial Upper Area Court.
That being the case and considering that length of time does not operate against the applicant. Moreover the grounds of appeal are good and substantial – Iyalabani v. Bank of Baroda (1995) 4 NWLR (Pt.387) P. 20; or (1995) 4 SCNJ P. 1/4. It was held in that case that an applicant for extension of the time within which to appeal does not have to justify the delay in respect of every day, week or month forming pan of the period of delay. Pursuant to my powers under Section 16 of the Court of Appeal Act, 1976 as amended. I grant the appellant leave to appeal against the decision of the Upper Area Court III Birnin Kebbi to the Sharia Court of Appeal. Kebbi State. Thirty days from today 27/2/98 to file the appeal.
Appeal is allowed. The refusal of the court below to extend time within which the appellant could appeal is hereby set aside. N800.00 costs is awarded to the appellant against the respondent.
Appeal allowed.
Other Citations: (1998)LCN/0465(CA)
