A’ Ishatu Aliyu V. Emmanuel Aderemi Adewuyi & Ors (1995)
LawGlobal-Hub Lead Judgment Report
ABDULLAHI, J.C.A.
This application was brought under sections 221(1) and 222(a) of the 1979 Constitution of Nigeria and Order 3 Rule 3(1) and (4) and Rule 4 of the Court of Appeal Rules, 1981.
The applicant is praying for the following orders:-
(1) An order of this court extending the time within which the applicant can apply for leave to appeal as a person having interest in the matter, against the decision of Kaduna State High Court in suit No. KDH/KAD/533/90 dated 17/3/93.
(2) An order of this court granting the applicant leaves to appeal to this court as an interested party.
(3) An order of this court extending the time within which the applicant can file notice of appeal to this court.
(4) An order directing that the Notice and Grounds of Appeal attached to this application shall be deemed to be the applicants Notice and grounds of Appeal and be deemed to be duly filed and served.
(5) Any other or further order deem fit.
The application is supported by a 14 paragraphs affidavit as well as a Hausa and English translation of record of proceedings of Upper Area Court I Zaria relating to distribution of estate affecting the house in dispute. There is also a Certificate of Judgment as well as record of proceedings of Kaduna State High Court, the applicant is desirous of appealing against. There is also attached a proposed notice and grounds of appeal against the said High Court decision. There is also attached a statement of claim as well as certificate of Occupancy No. 000601.
In opposing the application, learned counsel for respondent filed a 7 paragraphs affidavit.
Both parties relied on their respective affidavits and the attachments therein.
In moving the motion, learned counsel for applicant stated that the reasons for the delay in bringing the application was explained in the affidavit in support, particularly paragraphs 3, 4, 5, 6, 7, 8, and 10.
Learned counsel submitted further that even though the applicant was not a party to the suit before the High Court, her property was directly in issue and her interest was directly affected in the suit and she was never put on notice. Learned counsel contended that the situation in which the applicant found herself is enough to constitute special circumstances to warrant the grant of the application. Learned counsel cited the case of Kalu v. Odili (1992) 5 NWLR (Pt. 240) page 130 in support.
Learned counsel for applicant contended further that the document attached, particularly the record or proceedings of Upper Area Court Exhibits A and A1 clearly showed that the applicant has interest in the house in dispute. The Notice and grounds of appeal filed by the applicant are also substantial in nature.
Learned counsel for applicant finally pointed out that the counter affidavit filed by the 1st respondent has no bearing on the substance of the application.
Now paragraphs 3, 4, 5, 6, 7, 8, and 10 of the affidavit in support of the application read as follows:-
- That I am informed by the applicant and I verily believe her that her husband, Alhaji Aliyu died in 1984 and she inherited plot No. F8 Zango Road Makera, Kaduna and the uncompleted building thereon as part of her share of her deceased husband’s estate which was distributed on the 3rd of December, 1984 by Alhaji Mijinyawa Abubakar, Honourable Judge, Upper Area Court No.1 Zaria (as he then was). (A copy of the Hausa version and the English translation of the record of proceedings of Upper Area Court No.1, Zaria relating to the said distribution of estate are herewith attached and marked EXHIBITS A and A1 respectively).
4, That I am informed by the applicant and I verily believe her that it was when she commenced clearing plot No. F8 Road, Makera Kaduna, the disputed land, for the purpose of development sometime in February, 1994 that she was served, through the people she employed on site, with a certificate of judgment relating to suit No. KDH/KAD/533/90 litigated between the 1st respondent on the one hand and the other respondents on the other hand. (I have seen and read a copy of the said certificate of judgment and a copy is herewith attached and marked EXHIBIT “B”).
- That I am informed by the applicant and I verily believe her that she did not become aware of suit No. KDH/KAD/533/90 between the respondents until she was shown EXHIBIT “B” attached to this affidavit.
- That I am informed by the applicant and I verily believe her that when she received EXHIBIT B, she ceased further development of the land in dispute and briefed her Solicitors.
- That I am informed by the applicant and I verily believe her that the 1st respondent had, since the service of EXHIBIT “B” on her, taken over possession of the dispute land.
- That I am informed by the applicant and I verily believe her that she is desirous of appealing to this Honourable Court against the judgment of Kaduna State High Court in suit No.KDH/KAD/533/90. (I have seen and read a certified true copy of the said judgment and it is hereby attached and marked EXHIBIT “C”)
- That to the best of my knowledge and belief the applicant has interest in the subject matter in suit No.KDH/KAD/533/90.
For his part, Learned counsel for 1st respondent in opposing the application submitted that the applicant has not shown that she is an interested party, which is a fundamental element which the Court would look at, to grant the application. Learned counsel cited case of L.S.D.P.C. v. Banire (1992) 11-12 SCNJ. (Pt.2) at 217 (1992) 5 NWLR (Pt. 243) 620 in support.
Learned counsel contended that there is nothing in the affidavit of the applicant to show that the judgment of the Lower Court affected her interest. He contended further that judgment in land matter is a judgment against the parties and not against the whole world, therefore a stranger cannot benefit from it. Learned counsel cited the case of Adesina Oke v. Shittu Atoloye (1986) I NWLR (Pt. 15) 241. I have no doubt that this is a correct statement of the law. But, can it in all seriousness be contended as the learned counsel for 1st respondent did that, the applicant’s interest had not been affected adversely in the judgment of the Lower Court date 17/3/93. It is my view that the affidavit evidence of the applicant clearly showed that her interest had been adversely affected by the decision of the Lower Court. Besides, applicant’s application is not aimed at deriving any benefit from the proceedings of the Lower Court to which she was not a party.
The next issue to be determined is, can the applicant be allowed to appeal against the decision of the court, to which she was not a party, but which affected her interest.
The answer to this question is adequately provided by the provision of section 222(a) of the 1979 Constitution of Nigeria as Amended. It reads as follows:-
“S.222. Any right of appeal to the Court of Appeal from the decision of a High Court conferred by this Constitution – shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provision of this Constitution any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.” (Italics mine).
The provisions of this section in my view is clear enough to call for any further comments or clarification.
By the provision of this section 222 of the Constitution and as a person having interest in the matter, the applicant in can be allowed to appeal against the decision of the Lower Court, dated 17/3/93.Now, this type of application is not granted just as a matter of course. The Rules of this court lays down the conditions to be satisfied by an applicant in order to succeed in the application such as this one. Order 3 Rule 4 states:-
“4(1) The Court may enlarge the time provided by these Rules for the doing of any thing to which these Rules apply.
(2) Every application for an enlargement of time in 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. When time is enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
It is clear from the affidavit evidence that the judgment of the Lower Court was given on 17/3/93 and this application was filed on 1/8/94, so obviously there was a delay in bringing this application, see subsections (2) and (Rule 4) of section 25 of the Court of Appeal Act Cap. 75 Laws of the Federation 1990 which provides thus:-
“S. 25(1) “…………………………………
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) In an appeal in Civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
(b) In an appeal in a criminal cause or matter Ninety days from the date of the decision appealed against.
(3) …………………………………….
(4) The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section.”
It is now trite that for an applicant seeking the relief of extension of time within which to appeal pursuant to Order 3 Rule 4 of this Court to succeed, the applicant must satisfy the following two conditions:-
(1) Establish by affidavit evidence good and substantial reasons for failure to appeal within the prescribed period; and
(2) Exhibit notice of appeal containing grounds of appeal which prima facie show good cause why the appeal should be heard.
These conditions must be satisfied conjunctively for the application to succeed. See In the Re Adewunmi (1988) 3 NWLR (Pt. 83) 483; Co-Operative and Commerce Bank (Nig.) Ltd v. Emeka Ogwuru (1993) 3 NWLR (Pt. 284) 630.
There is no doubt that in considering an application such as this one, which calls for the exercise of judicial discretion, the court must satisfy itself that the reasons given by the applicant are good and substantial and that on clear facts placed before the court, the applicant deserves to be granted the indulgence being sought. It is also the law that the length of time that had elapsed before bringing the application even though a material factor in deciding whether to grant the application or not, the delay may be rendered irrelevant where it is explained satisfactorily by the applicant. See Okere v. Nlem (1992) 4 NWLR (Pt. 234) 132.I am satisfied by the explanation contained in the affidavit of the applicant, that she was not put on notice of the suit before the High Court and the first information she had about the suit was when her workers saw the Certificate of Judgment pasted on the building in February, 1994 at the time they were clearing the premises for the applicant who intended to continue with her building.
The averments in the counter affidavit of the 1st respondent in no way answered this point. In fact it even strengthened the position of the applicant’s averments, See paragraph 6 of the counter affidavit, which states thus:-
- That Mr. Emmanuel Aderemi Adewuyi informed me which information I verily believe to be true and correct.
(a) That when he visited the plot in question, he saw people working on the land and on inquiry, he was informed by the labourers, that the uncompleted building was sold to their master who instructed them to work there.
(b) That he immediately pasted the Certificate of Judgment of the Kaduna High Court of Justice on the building.
There is no mention that the applicant was aware about the suit before the High Court, until when this Certificate of Judgment was pasted on the building.
It is my view therefore that the applicant has adequately explained the cause of the delay in filing her appeal.
With regard to condition No.(2). I examined the two proposed grounds of appeal filed by the applicant. I do not need to set them out in this ruling. But I am of the view that they raised serious issues of misdirections committed by the Lower Court in its decision.
It is the law that ground of appeal showing good cause why the appeal should be heard means ground of appeal which raises substantial issue of fact and law for the consideration of the appellate court. See Obikoya v. Wema Bank Ltd (1989) 1 NWLR (Pt. 96) 157 and at 178 where OBASEKI, J.S.C. (as he then was) said:-
“A ground of appeal showing good cause why an appeal should be heard is a ground which raises substantial issues of fact and law for the consideration of the court. It is a ground which can not be dismissed with a wave of the land or totally lacking insubstance. It is a ground which makes a serious debate as to the correctness of the decision of the court below. It is a ground which takes the intellect and reasoning faculties of the appeal Judges. It is a ground which is not frivolous.”It is pertinent to mention that the learned counsel for 1st respondent made no mention or comment on the grounds of appeal.
It is my view that these two proposed grounds of appeal raised substantial issues to evoke a serious debate as to the correctness of the decision of the Lower court. They are not frivolous grounds of appeal. They have therefore disclosed prima facie good cause why the applicant’s appeal should be heard.
It is probably worthy to mention that, 1st respondent averred feebly in paragraph 6 of the counter affidavit that he will be prejudiced by the grant of this application as the appellant has no interest in the matter. I have already found earlier on in this ruling that the applicant has interest. No other reason was given by the 1st respondent, how he would be prejudiced. This assertion has not therefore been substantiated.
The applicant in my view has succeed in satisfying the requirements of the law to be entitled to have the discretion of this court exercised in her favour. The reliefs sought are therefore granted as follows:-
(1) Time is extended up to today for the applicant to ask for leave to appeal as a person having interest in the matter against the decision of Kaduna State High Court in suit No. KDH/KAD/533/90, dated 17/3/93.
(2) Leave is hereby granted to the applicant to appeal against the said decision.
(3) Time is hereby extended up to today for the applicant to file notice and grounds of appeal. The notice and grounds of appeal attached, necessary fees having been paid already is deemed duly filed and served.”
The appeal is adjourned to 20/6/95 for hearing.
Other Citations: (1995)LCN/0225(CA)
