Salisu Dahiru Modomawa V. Salisu Dahiru Modomawa & Ors (2016)

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TUNDE OYEBANJI AWOTOYE, J.C.A. 

This is the ruling on the motion on notice filed by the applicant on 10/5/2016 praying for the following orders:-
a) An order extending the time within the applicant may apply to this Honorable Court for leave to appeal against the ruling of the High Court of Justice Zamfara State delivered on 22/10/2013 in Suit No ZMS/GS/M.321/2013.
b) An order granting leave to the Applicant to Appeal against the ruling of the High Court of Justice Zamfara State delivered (sic) the 22/10/2013 in Suit No ZMS/GS/M221/2013.
c) An order extending the time within which the Applicant may file his notice and grounds of appeal against the ruling of the High Court of Justice, Zamfara State delivered on the 22/10/2013 in Suit No ZMS/GS/M.221/2013.
d) And for such further or other orders as the Court may deem fit to make in the circumstances.?

The grounds upon which the application is made are set out as follows:
1. The appeal against the ruling was not included in the earlier notice because the ruling of 22/10/2013 was not made part of the earlier record of

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proceedings compiled.
2. When the record was corrected on the complaint of the applicant, the learned counsel was hospitalized.
3. The issues involved in this case will be effectually and completely determined by the joinder of necessary parties.
4. The inclusion of this grounds of appeal is necessary to the just determination of this case.
5. The interest of justice will be met in the substantive case if this application is entertained.

The motion on notice is supported by 5 paragraphs affidavit. Learned counsel for the applicant Mohammed Adeleke moved the application accordingly and urged the Court to grant it in the interest of justice.

Mr Ogiza for the respondent opposed the application. He submitted that the provision of Order 7 of the Court of Appeal Rules was not complied with, He further argued that the motion on notice ought to have been filed at the lower Court.
I have carefully considered the arguments canvassed by both counsel on behalf of the parties.

This applicant in this application is invoking the provision of Order 7 Rules 2 and 10 of the Court of Appeal Rules.
?For ease of reference I shall capture the provisions of

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Order 7 Rules 1 ? 10 of the Court of Appeal Rules 2011 which I consider very pertinent in the determination of this application.
Order 7 Rules 1 ? 10 of the Rules read thus
1. Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.
2. Any application to the Court for leave to appeal (other than an application made after the expiration of the time for appealing) shall be by notice of motion, which shall be served on the party or parties, affected.
3. Where an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal.
4. Whenever under these Rules an application may be made either to the Court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances, which make it impossible or impracticable to apply to the Court below.
5. If leave to appeal is granted by the Court below, the appellant shall file a notice of appeal within the time prescribed

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by Section 24 of the Court of Appeal Act 2014.
6. Where an application for leave to appeal from a decision of the Court below has been brought within the time specified by Section 24 of the Court of Appeal Act but has not been heard within that period, the Court, if satisfied that there has not been an unreasonable delay in bringing the application, may extend time to appeal and in proper case grant leave to appeal
7. The application for leave to appeal from a decision of a lower Court shall contain copies of the following items, namely:-
a) Notice of motion for leave to appeal (Form 5);
b) A certified true copy of the decision of the Court below sought to be appeal against;
c) A copy of the proposed grounds of appeal; and
d) Where leave has been refused by the lower Court, a copy of the order refusing leave.
8. Upon the service of any application on the Respondent, he may within seven days file a notice of intention not to contest the application and upon such notice the application may be heard by the Justices in the chambers without oral argument.
9. Except with the leave of the Court, a maximum of thirty

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minutes on each side will be allowed for oral argument on any application.
10. (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not contest an application under Rule 8.
(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 enlarge a copy of the order granting such enlargement shall be annexed to the notice of appeal.?
In determining this application one needs to note that it is seeking leave of this Court to appeal against an interlocutory decision. By virtue of Section 242 (1) of the 1999 Constitution of Federal Republic of Nigeria it is necessary for such leave to be granted since the appeal sought to be filed is not against a final decision of the High Court.
?It is also necessary to note that by virtue of Section 24 (2) of the Court of Appeal Act,2004, an appeal against an

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interlocutory decision must be filed within 14 days of the decision. The section states as follows:-
?24 (2) the periods for the giving of notice of appeal or notice of application for leave to appeal are:-
a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and a 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.?
Since the decision of the lower Court in respect of which this application has been filed was delivered on 22/10/2013, the applicant is clearly out of time. The applicant therefore needs to seek leave of this Court and in addition ask for extension of time to file this application.
?The Court of Appeal Rules 2011 has laid down some conditions to be met in filing this kind of application
1. Such application has to be first filed at the Court below. See Order 7 Rules 3 & 4 unless there are special circumstances which make it impossible or impracticable to do so.
2. Where an application for leave to appeal from a decision of the

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Court below has been brought within the stipulated time under Section 24 of the Act but has not been heard within the period, this Court provided there has not been unreasonable delay in bringing the application may extend time to appeal and in proper case grant leave to appeal. See Order 7 Rule 6.
3. By virtue of Order 7 Rule 7 such application for leave to appeal must contain
a) Notice of motion for leave to appeal.
b) A certified true copy of the decision sought to be appealed against.
c) A copy of the proposed grounds of appeal and
d) Where leave was refused at the lower Court, a copy of the order refusing the leave.
4. This Court may enlarge the time provided by the Rules for doing of anything provided good and substantial reasons, for failure to appeal within the prescribed period are set out in the supporting affidavit. See Order 7 Rule 10 (1 & 2)
5. The proposed grounds of appeal attached to the application must also show prima facie good cause why the appeal should be heard. See Order 10 Rule 7 of the Rules.
?It is the contention of Mr. Ogiza for the respondent that the above provisions have not been

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complied with by the applicant. I agree absolutely with him for the following reasons:-
a) This application ought to have first been filed at the lower Court. This was not done.
b) If there were special circumstances which made it impossible or impracticable for such an application to first, have been made, such special circumstances ought to have been disclosed in the supporting affidavit to the application. This has not been done.
c) If however such an application was indeed filed but refused at the lower Court, a copy of the order refusing the leave ought to have been attached and exhibited to the supporting affidavit. This also has not been done.
d) The grounds upon which the application is made as attached to the application conflict with the reasons given in the supporting affidavit. Ground 1 of the grounds states thus
?The appeal against the ruling was not included in the earlier notice because the ruling of 22/10/2013 was not made part of the earlier record of proceeding complied.?
?Ground 2 of the grounds goes further to state that when the record was corrected on the complaint of the applicant the

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learned counsel was hospitalized. However in the supporting affidavit it is averred that the ruling was given when his illness had commenced.
It appears to me that the cause of the delay was not the sickness of counsel. It certainly also could not have been because of the incomplete compilation of the record of appeal since the filing of the notice of appeal against the ruling ought to have preceded the compilation of the record. It therefore seems clear that no substantial reasons have been adduced for the delay in filing this application. This is fatal to this application. See IBODO & ORS V ENAROFI & ORS (1980) 5 ? 7 SC. 42 at 51, UNIVERSITY OF LAGOS V OLANIYAN (1985) INWLR (PART 1) 156 at 166 ? 168 and 171, MOBIL OIL (NIG) LTD V AGADIAGHO (1988) INSCC. 77.
e. it is a requirement of Order 10 Rule 2 of the Court of Appeal Rules that the applicant must disclose grounds of appeal which prima facie show good cause why the appeal should be heard.

I have carefully gone through the proposed ground of appeal and the ruling of the lower Court. One of the key reasons why the lower Court ruled against the applicant was that the affidavit in

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support of his application was defective and incompetent. The learned trial Judge made some findings of fact to the effect that the deponent to the affidavit did not claim to have personal knowledge of the averments in the affidavit neither did he appear in any capacity in the suit. Yet his depositions were on the actions, omissions and state of mind of learned counsel for the applicant.

In the proposed ground of appeal, these findings of the facts have not been challenged by the applicant. It is apparent that the motion filed at the lower Court could not have stood on its own without a supporting affidavit. These unchallenged findings of fact constituted the back bone of the ruling being sought to be appealed against. Unchallenged findings of fact on appeal are deemed accepted and binding. See ORO V FALADE (1995) 5 SCNJ. 37, OLANIYI V AROYEHUN (1991) 5 NWLR (PART 194) 652, ALAHJA V ABDULALI (1998) 6 NWLR (PT.55) 1 at 24; ODIASE V AGHO (1972) ALL NLR (PT.125) and AMAYE V ASSOCITED CONTRACTORS (1990) 6 SCNJ 149 at 164.

The pedestal on which the application of the applicant at the lower Court stood collapsed with the incompetence of the affidavit in support

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of his application. Proposed ground of appeal that will meet the requirement of Order 7 Rule 10 of the Court of Appeal Rules must show reasonable prospects of success in the appeal. See IKENTA BEST (NIGERIA) LTD V. A.G. RIVERS STATE (2008) 6 NWLR (PT.1084) 612.

With due respect this has not been shown in this application.

For the foregoing reasons, I hold that this application lacks merit. It is accordingly dismissed.

Other Citations: (2016)LCN/8872(CA)