Mustafa Gambomi & Anor. V. Abba Gana Bintumi (2010)
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IBRAHIM MOHAMMED MUSA SAULAWA, JCA
This is an appeal against the ruling of the Borno State High Court, dated 12/5/2003, in Suit No. M/166m/2001, in the exercise of the appellate jurisdiction thereof.
The nature and circumstances surrounding the instant appeal are discernible from the record of the lower court, transmitted to this court on, 14/10/03. On 31/5/01, the present two Appellants filed a motion on notice, dated 28/5/01, in the lower court seeking the following reliefs.
- AN ORDER granting leave to the Applicants to appeal out of time.
- AN ORDER staying the execution of the judgment of Upper Area Court Magumeri dated 15/2/2001.
- FURTHER order(s) the Honourable Court may deem fit to make in the circumstance.
The application was supported by affidavit and a further affidavit, dated 01/6/01 and 31/12/03, respectively. A copy of proceedings of trial Upper Area Court Magumeri, was also attached to the affidavit in support thereof. Also contained at pages 11 & 12 of the record, is the counter affidavit, dated 07/4/03, personally deposed to by the Respondent thereby challenging the application. The grounds of appeal upon which application was predicated are contained at pages 13 & 14 of the record.
The application was heard on 08/4/03 resulting in the lower court delivering the ruling thereupon, on 12/5/03, wherein it came to the conclusion, inter alia, thus:
Applicants had breached the Rules of court by not filing their appeals within time as such the burden is on them to satisfy this court that they are entitled to the courts discretion.
We are of the view that where Rules of court have been breached appeal is no longer as of right on the whole coc hold that applicants in this application have failed to state good and convincing reasons as to why, they delayed in filing their appeal with 30 days as provided by laws. Their failure also to exhibit the Hausa version of the record of proceeding from the English version was based and the record of proceedings of the trial court has rendered the court not to be in a position to say whether the proposed grounds of appeal on which the applicants are relying to prosecute their appeal show good cause why the appeal should be heard.
Because of the reasons herein stated above we are of the view that the application No. M/166m/2002 lacks substance and is accordingly dismissed.
Being dissatisfied with the above ruling of the lower court, the Appellants have filed the instant appeal, predicated on four grounds of appeal, and the particulars thereof.
It is noted, that on 07/11/05, the Appellants were granted leave by this court to prosecute the appeal on their brief of argument alone, the Respondent having failed to file his brief.
The said Appellant’s brief was filed on 14/10/03. A total of three issues have so far been raised therein as follows:
(1) Whether the lower court was right in dismissing the appellant’s application to appeal out of time for not satisfying the conditions for the grant of the application.
(2) Whether Exhibit ‘C’ being ruling of Sharia Court of Appeal Maiduguri Barno State relied upon by the appellants can be disregarded as not being valid court’s record.
(3) Whether time lampse is material in considering and determining application for leave to appeal out of time.
The argument of the Appellant’s learned counsel, K.J. Ntafa Esq., in the brief thereof, the Issue No.1 is to the effect, infer alia, that the lower court was wrong in holding that the Appellants have tailed to state good and substantial reasons for the grant of the application. He cited and relied on the case of UNIPETROL (NIG) PLCVS. BUKAR (1994) 5 NWLR (Pt. 334) 360 at 364 (not 354) paragraph Hand 365 paragraph A, regarding the three trite-conditions for the grant of leave to appeal out of time.
It was contended by the learned counsel that the Appellants had in their application before the tower court satisfactorily established the 3 conditions enumerated in UNIPETROL’s case (supra). That, the delay in appealing the Upper Area Court’s judgment was not willful or inordinate. The reason being that the Appellants, as deposed to in their affidavit, appealed to the wrong court i.e the Borno State Shariah Court of Appeal, instead of the High Court. See paragraphs 5 & 6 of the affidavit at page 2 of the record. That, it’s clear therefore that the delay was neither in ordinate, nor willful having taken prompt step to appeal, albeit wrongly. See SHANU & ANR VS. AFRIBANK (2000) 4 NSCQR 1 at 11 per Ayoola, JSC.
It was contended, that the above case is on all, fours with the instant case It was further argued, that the Appellants have also established in their affidavit cogent and convincing reasons for the application to succeed. That, the grounds of appeal, exhibit A, complained against jurisdiction of the Megumeri Upper Area Court. That, it’s trite that the issue of jurisdiction is fundamental, and once raised it is a substantial ground of law, which prima facie shows good cause why the appeal should be heard.
On the whole, the court has been urged upon to accordingly hold that the lower court was wrong to have dismissed the Appellant’s application to appeal out of time.
It is trite that in all cases where the leave of the court is required to appeal, until such leave is granted, no valid notice of appeal could be deemed to have been filed. An Appellate Court, the Court of Appeal inclusive, lacks jurisdictional competence to hear and determine any appeal, filed without the leave thereof, where such leave is mandatory. See CUMBES VS. ROBBINSON (1951) 1 ALL ER 661; MOORE VS. TAYEE 2 WACA 43; IKORCHRUN SACKEY 1 WACA 98; OWUDA V. LAWAL (1984) 4 SC 145; ADETUTU V. ADEROMUNNU (1981) 1 NCLR 208; AKWIWU V. MOTORS LTD V. SANGONUGA (1984) 5 SC-184; AKASUBI V. UMWENI (1982) 11 SC 132; AWHINAHWNI VS. OTERI (1984) 5 SC 38, respectively.
In AROYEWUN V. ADEBANJI (1976)11 SC33 it was held, inter alia, by the Supreme Court that where a notice at appeal is filed prior to seeking the leave of the court, such a notice is deemed incompetent, thus liable to be struck out.
The principle guiding the court in granting applications for an extension of time, or leave to appeal out of time, has been decided in a plethora of authorities, both by this court and the Supreme Court. The principle is that for an applicant to be granted an extension of time within which to appeal, pursuant to Section 24 (4) of the Court of Appeal, Rules, 2005, Order 7 Rule 4 of the Court of Appeal, Rules, 2007, he must satisfy the following conditions:
(a) Establish by affidavit evidence good and substantial reasons for his failure to appeal within the prescribed time limit; and
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard.
It is also the law; that the said provisions of Order 7 Rule 4 of the Court of Appeal Rules 2007 (supra), must be construed and interpreted conjunctively, and not disjunctively. In the sense, that if the reasons for the failure to appeal within the prescribed period are good and substantial, the grounds of appeal must equally be prima facie show good cause why the appeal should be heard. See UNILAG VS. AIGORO (1985) 1 NWLR (Pt.1) 143; CCB. (NIG) LTD VS. OGWURU (1993) 3 NWLR (Pt. 284) 630; OKERE V. NLEM (1992) 4 NWLR (Pt. 234) 132; UNIPETROL (NIG) PLC VS. BUKAR (supra) at 364 paragraphs F – H.
In the instant case, paragraphs 3 – 10 of the Applicants affidavit, dated 01/6/01, contained at pages 2 & 3 of the Record of proceedings of the lower court, have in my view constituted good and substantial reasons for failure to appeal within the prescribed time, and grounds of appeal showing prima facie good cause why the appeal should be heard.
The averments in question are to the effect, that the applicants sued the Respondent before the (trial) Area Court Maiduguri, which confirmed the ownership of the farmland in dispute to the Applicants. The Respondent appealed to the Upper Area Court which allowed the appeal, set aside the trial Area Court’s judgment, and accordingly confirmed the title of the farmland in dispute to the Respondent. Not unnaturally, the Applicants were aggrieved. However, they erroneously appealed to the Shariah Court of Appeal, Barno State, instead of the High Court, which has the necessary jurisdiction over the land in dispute. The said Shariah Court of Appeal struck out the said appeal on 29/11/2000, on the ground that it lacked jurisdiction to hear the appeal. Ironically, as at 29/11/2000, when the Shariah Court of Appeal struck out the appeal, the Applicants had ran out of time to appeal to the High Court (lower court). Hence the instant application, by which the Applicants sought leave to appeal out of time.
It is rather obvious, that the lower court was most uncharitable, to say the least, in exercising the discretion thereof, thereby refusing leave to the Applicants to file their appeal out of time. It is a well stated principle, that failure to appeal does not unequivocally indicate an acceptance of a decision, especially where there is a clear denomination of intention to challenge that decision. See SHANU V. AFRIBANK (2000) 4 NSCQUR 1 at 11, per Ayoola, JSC.
Hence, in the final analysis, I am of the firm view that this appeal is meritorious, and same is hereby allowed by me. The ruling of the lower court, in the exercise of the appellate jurisdiction thereof, dated 12/05/03, refusing leave to the Applicants to appeal against the decision of the Upper Area Court Megumeri, dated 29/11/2000, is hereby set aside.
I have observed that from the 29/11/2000, when the Upper Area Court struck out the Applicant’s appeal to date, it is exactly 9 years. Thus, the hardship which the Applicants had encountered ever since that date should rather be imagined.
Hence, in my considered view, it would amount to a sheer travesty of justice for this court to remit the case to the lower court for rehearing of the application denovo. Undoubtedly, the present case is one of the few deserving cases in which the court ought to deem it imperative to exercise the power thereof, provided under Section 15 of the Court of Appeal Act, 2004, and grant the application rather than remit same to the lower court for hearing denovo.
And I so hold.
In the Circumstance, I hereby make the following consequential orders.
- That the application of the Applicants for leave to appeal out of time against the decision of the trial Upper Area Court Megumeri dated 15/62/2000, to the High Court, Borno State, is hereby granted as prayed.
- That, the Applicants are hereby granted leave to file their notice and grounds of appeal against the said decision of the Upper Area Court, Megumeri in the High Court, Borno State within (fourteen (14) days from today.
Other Citations: (2010)LCN/3534(CA)
