Abdu Yunusa Indabawa V. Garba Magashi & Anor (2016)
LawGlobal-Hub Lead Judgment Report
IBRAHIM SHATA BDLIYA, J.C.A.
By a motion on notice dated 26th of February, 2015 and filed on the 2nd of March, 2015, the applicant prayed the Court for the following orders:
1. An Order of this Honourable Court granting extension of time to the Applicant within which to file an appeal against the decision of Kano State High Court in suit No. K/726/95 presided over by Honourable Justice Tani Yusuf Hassan delivered on 18th May, 2005;
2. An Order of this Honourable Court deeming the Notice of Appeal attached to the Affidavit in support hereof as ‘Exhibit MB12? as duly and properly filed and served;
3. An Order of interim injunction restraining the Respondents from changing the structures, disposing or in any way whatsoever alienating the interest in the properties subject matters of the High Court suit pending the determination of the appeal;
4. An Order of the Honourable Court directing the Respondents to maintain the status quo regarding the properties subject matters of the High Court suit pending the determination of the appeal;
?5. And for such further or other orders as the Honourable Court may deem
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fit to make in the circumstances of the case.
On pages 7 to 9 of the written address, learned counsel to the respondent, contended that the applicant is not claiming any personal interest in the sub-matter of litigation, that is, he is not the owner of the subject-matter of the dispute. Counsel referred to Paragraph 3(e) of the affidavit in support of the application to buttress his contention that the applicant has no interest in the outcome of the application, therefore, he cannot bring this application. Counsel cited the case of Adesanya V. The President, Federal Republic of Nigeria to buttress his contention that a person or party cannot present an action in Court of law, if he has no interest in the outcome of the litigation. Counsel also contended that the application filed by the applicant is an abuse of Court process having filed similar application before High Court and this Court at various times without prosecuting same to finality. Counsel did urge the Court to strike out the application since the applicant has no locus standing to institute same, and also being an abuse of Court process having filed similar application before the High Court,
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and this Court.
The contention of learned counsel that the application has no standing to file the application, and also that it is an abuse of Court process tantamount to raising a preliminary objection to the competency of the application. The law is trite, where a preliminary objection is raised in any suit, same is to be disposed off before proceeding to hear the substantive suit or application. For the primary purpose of raising a preliminary objection is to determine or terminate the proceedings in limine at the point the objection was raised. The Court has a duty to consider and determine the preliminary objection before proceeding to hear the suit or action. Okoi v. Ibiang (2002) 10 NWLR (Pt.776) 455; Ahaneku v. Ekoruo (2002) 1 NWLR (Pt. 748) 301.
On whether the applicant had the interest to file the application, counsel referred to Paragraph 3(e) of the affidavit in support and submitted the property belonged to the Emir of Kano, therefore the applicant had no interest in the property to institute any action. Counsel cited and relied on the case of Adesanya v. President, FRN, wherein it was held that a Court of law can only entertain
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an action where the interest of the person bringing the action has been shown or established. A recourse to the affidavit, the counter-affidavit and the further affidavit filed by the applicant and the respondent is imperative at this juncture. The depositions in Paragraphs 3(d),(g),(j),(k) and 7(g) and (h) are germane. In these paragraphs, it has been shown that the applicant has interest in the property, subject of the dispute at the trial Court. The law is trite, the interest of a party is determined by the pleadings or the affidavit relied on in bringing the action. Therefore, the question whether or not a person has locus standi is determinable from the totality of the averments in the statement of claim. The approach has always been for the Court to resolve the issue by scrutinizing the statement of claim or the affidavit alone with a view to ascertaining whether or not the claimant’s sufficient interest has been disclosed and how the interest has arisen in the subject matter of the action. Where the averments have disclosed the interest of the plaintiff and the interest is threatened with violation or actually violated by the act of the defendant, the
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plaintiff would be adjudged by the Court to have manifested sufficient interest to entitle him to litigate over the subject matter.
Exhibit MBI attached to the application of the applicant shows that the parties to the suit No. K/267/1995 before the High Court of Kano State was between Garba Magashi & Ors v, Abdu Yusha’u Indabawa, the applicant. The respondent has not shown or established the applicant was not the defendant at the trial Court, that is Kano State High Court of Justice. In view of the foregoing, I hold that the applicant, Abdu Youshua Indabawa, has sufficient interest in bringing the application.
Learned counsel to the respondent also contended that the application is an abuse of Court process, therefore same is incompetent, and be struck out. What is an abuse of Court process or abuse of judicial process? Generally, an, abuse of Court process contemplates multiplicity of suits between the same parties with regard to same subject matter on the same issue in same or another Court. The Courts, in a plethora of judicial decisions, have had defined or described the phrase or terminology “abuse of Court process” or “abuse of
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judicial process”. For instance in UMEH vs. Iwu (2008) 8 NWLR (Pt. 225) @ 2450 the Supreme Court per Muhammad, J.S.C defined it thus:
“The term ?abuse of Court process” and ?abuse of judicial process?, are one and the same thing.
I once observed that:
?Abuse of Court process simply means that the process of the Court has not been used bona fide and properly. It also connotes the employment of judicious process by a party in improper use to the irritation and annoyance of his opponent and the efficient and effective administration of justice?.
See the case of Expo, Ltd. v. Pafab Enterprises Ltd. (1992) 2 NWLR (Pt. 591) 449 at 462 where it was stated that an abuse of Court process is a multiplicity of same action in same Court or even before another Court or Courts being pursued simultaneously by the plaintiff/applicant as the case may be.
Learned counsel to the respondent relied heavily on the deposition in Paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the counter-affidavit in his objection to the competency of the application of the applicant. The depositions in these paragraphs are to the effect that,
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at various times the applicant has had brought similar application but were not prosecuted to finality. That the applicant is just wasting the time of the Court, and frustrating the respondent. He is not prosecuting the application in good faith. Granted, there might have been previous applications by the applicant. But, all have been either withdrawn or struck out by the Court. As at the time the current application was filed there was no pending application by the applicant, before any Court.
The contention of learned counsel that the application filed on the 9th of June, 2015 by the appellant is an abuse of Court process, cannot be sustained. On the whole, I hold that the application by the applicant filed on 9th of June, 2015, is competent, same is to be considered on its merit.
The application of the applicant is predicated on eight (8) grounds enumerated on pages 2-3 of the motion on notice processes. It is also supported by an affidavit of 8 paragraphs. The respondents filed a twelve (12) paragraphs counter-affidavit in support of their opposition to the granting of the prayers of the applicant. A Reply to the counter affidavit was filed
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on the 6th of October, 2015. The relevant and material paragraphs of the affidavit and the Counter-affidavit would be resorted to in course of the ruling where desirable. The hearing of the application took place on the 16th of April, 2016, whereat learned Counsel to the parties adopted their written addresses which were filed pursuant to an order of the Court.
The application of the applicant is pursuant to the provisions of Order 7 Rules 1 and 10 (1) and (2), the Court of Appeal Rules of Court, 2011 which provides thus;
?10(1) The Court may enlarge the time provided by the Rules for the doing of anything to which these Rules apply except the filling of notice of intention not to contest an application under Rule 8 above.
(2) Every application for an enlargement of time within 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 so enlarged a copy of the order granting such enlargement shall be annexed to the notice of
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appeal.”
In compliance with the Order of the Court, the parties filed and adopted their written addresses at the hearing of the application of the applicant.
The applicant’s written address was filed on the 18th of November, 2015, wherein a lone issue has been formulated for the consideration of the Court; which is thus:
“Whether in the circumstances of the Applicant’s case refusal of this Application will not amount miscarriage of justice in view of the fact that the Applicant will be shut out of justice on account of inadvertence of his counsel that led to the delay in filling his appeal.”
Learned counsel to the applicant canvassed arguments on the issue formulated supra on pages 3 to 11 thereof and concluded thus:
(1) The Applicant complied with the rules of this Honourable Court in seeking for the indulgence of this Honourable Court.
(2) The Affidavit in support discloses good and substantial reasons for the delay.
(3) That the proposed grounds of appeal contained in Exhibits MB 12 disclose substantial and recondite point of law for the Applicant not to be shut out of justice.
?The applicant therefore urged this
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Honourable Court to grant this application as prayed.
The respondent filed written addresses on the 2nd of December, 2015 wherein 2 issues were formulated for the consideration of the Court which are:
“(a) Whether the applicant has satisfied the legal requirement for this Court to grant this application dated 26th day of February, 2015.
(b) Whether this application is abuse of Court process.”
The argument canvassed in the respondents written address are on pages 3 to 9 thereof.
In an application for extension of time within which to appeal, an applicant must satisfy the provisions of Order 7 Rule 10(1) and (2) of the Rules of Court. The Supreme Court had this to say in case of ANPP vs. Albashir (2010) 2 SCNJ P. 159 @ 181:
“An applicant who seeks an equitable relief from the Court of Appeal must meet the requirements in Order 7 Rule 10(2) of the Court of Appeal Rules 2007. Such an application shall be supported by an affidavit evidence which must show (1) good and substantial reason for failure to appeal within the prescribed period.
(2) grounds of appeal which prima facie show good cause why the appeal should be
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heard. In order to exercise its discretion to grant any application for extension of time within which to appeal the Court has never compromised on the issue that the two conditions stated above must be satisfied conjunctively. The two conditions must be established in the affidavit evidence in support of the application. When only one out of two conditions is satisfied, the application cannot be granted.?
(Underlining for emphasis).
An applicant applying for extension of time to appeal who wishes that the discretion of the Court under the Court of Appeal Rules be exercised in his favour must satisfy the two conditions prescribed under the Rules. It is not enough to satisfy just one of the two conditions. In other words, to warrant the exercise of the Court’s discretion in favour of the applicant both conditions must be satisfied concurrently and conjunctively.
In order for an application for extension of time within which to appeal can be granted, the Court must carefully scrutinize the affidavit in support of the application and proposed ground(s) of appeal annexed to the affidavit in support so as to determine whether the
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conditions stipulated in the rules have been fulfilled or complied with.
The applicant is relying on the grounds stated in the motion on notice filed on the 2nd of March, 2015, the affidavit in support and the Reply to the counter-affidavit. The respondents are opposing the granting of the applicant’s prayers on the depositions contained in the counter-affidavit filed on the 9th of June, 2015. I have dispassionately considered the depositions contained in the affidavit of the appellant and the counter-affidavit of the respondents. The applicant, on the whole, have given satisfactory reason why the appeal has not been filed within the prescribed period. The depositions contained in the affidavit have also explained the reasons for not bringing the application within a reasonable period since the delivery of the judgment by the lower Court.
The second requirement which must be satisfied in order for an applicant to be entitled to an order extending time within which to appeal is that the proposed grounds of appeal must show good cause why the appeal should be heard. See J. C. An v. Unegbu (2012) 2 NWLR Pt. 1284 P. 216 @ 230 wherein it was
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enunciated that it is not the duty of the Court at this stage to consider whether the appeal will succeed. It is enough that the grounds of appeal are arguable. As to whether the appeal will succeed, that is to be left for consideration at the hearing of the appeal. C. C. B. (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (Pt. 284) 63 In Re. Adewumi (1988) 3 NWLR (Pt. 83) 483; Ibodo v. Enarofia (1980) 5-7 SC 42; Ogbu v. Urum (1981) 4 SC 145 Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) P. 577.
It must be pointed out that the applicant need not show that the proposed grounds of appeal will succeed. Rather, what is required of the applicant at this stage is only to show that a prima-facie case has been shown by the proposed grounds of appeal. See Ukwu v. Bunge (1977) 8 NWLR (Pt. 518) P. 577 and Ikenna Best (Nig.) Ltd v. A. G. Rivers State (2008) 6 NWLR Pt. 1084 P.612. The proposed grounds of appeal, without their particulars are thus:
GROUND ONE
(i). The learned trial Judge erred in law when he determined the matter without joining the original title holder of the properties in dispute i.e. the Emir of Kano and/or the Kano Emirate Council as a necessary party
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to the suit and this led to miscarriage of justice and breach of fair hearing.
GROUND TWO
(ii). The learned trail Judge erred in law when he granted the reliefs sought by the plaintiffs when the identity of the properties in dispute could not be established by the plaintiff’s witnesses.
GROUND THREE
(iii). The learned trail Judge erred in law when he granted the reliefs sought by the plaintiffs despite the material contradictions in the evidences of the plaintiff witnesses on the root of title over the properties subject matters of the suit.
In an application for extension of time within which to appeal, the Court is faced with two competing interest of the respondent to enforce the judgment given in his favour and the interest of the application not to be shut out the litigation which he is normally constitutionally entitled to. In the face of these directly competing interests, the Court must closely examine the affidavit evidence and come to a conclusion one way or the other.
See Dahuwa V. Aderiren (1993) 2 NWLR (Pt. 277) (P.580) @ 585.
On the depositions of the applicants in Paragraph 3(f); (h); (i);
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(l); (m); (n); (o); (r); (s); (u); (v); (aa); 4 (a-n), of the affidavit, he attributed the delay in filing the notice of appeal due to the laxity or negligence of learned counsel who was briefed to pursue the appeal on behalf of the applicant. The law is trite, negligence of counsel should not be visited on a litigant. Where a litigant has briefed counsel to presents his case, he cannot suffer injustice due to laxity or failure of counsel to prosecute the case diligently. See Doherty V. Doherty (1964) 3 NSCC P. 213 @ 214. Per Coker JSC, where it was held that:
“It occurs to us that the failure to comply with the conditions of appeal is entirely due in this case to the fault of the appellants? solicitors and to shut them out from the hearing of the appeal on the merits is to hold them personally responsible for the negligence of their solicitors.”
In CBN vs. Ahmed (2001) 5 SCNJ P. 307 @ 328, the Apex Court had an occasion to state what a Court should do where counsel has been negligence or inadvertent; thus:
?”It is not right to visit the parties with punishment arising out of the mistake or inadvertence or negligence of counsel. It
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follows that in such a case the Court is not stopped in the exercise of its discretion which require the Court to exercise its powers judicially and judiciously…. ”
On the whole, I find the application of the applicant meritorious and accordingly, I hereby grant prayers (1) & (4) of the applicant Prayer, 2 cannot be granted because no separate copy of the Notice of Appeal has been filed. An annexure to an affidavit cannot be deemed to have been filed to originate the appeal by the applicant against the judgment of the lower Court of Justice, Kano State delivered on the 18th of May, 2005 in suit No. K/726/95. The Applicant is given 14 days to file the Notice of Appeal from the date of the drawn-up order in respect of the application is served on him. Since there is no appeal pending before this Court, prayers 2, and 3 cannot be granted. Same are struck out accordingly. I make no order as to costs.
Other Citations: (2016)LCN/8696(CA)
