CORAM
UWANI MUSA ABBA AJI, JUSTICE COURT OF APPEAL
IBRAHIM SHATA BDLIYA, JUSTICE COURT OF APPEAL
HABEEB ADEWALE OLUMUYIWA ABIRU, JUSTICE COURT OF APPEAL
PARTIES
APPELLANTS
GARBA MAGASHI & ANOR
RESPONDENTS
AREA(S) OF LAW
ACTION, APPEAL, COURT, LEGAL PRACTITIONER, LOCUS STANDI, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Applicant by a motion on notice filed before the Court of Appeal, Makurdi Judicial Division, sought for an Order of the Court granting him extension of time within which to file an appeal against the decision of Kano State High Court in suit No. K/726/95 delivered on 18th May, 2005; a deeming Order, a restraining Order; amongst other reliefs. The Respondent opposed the application on the grounds that firstly, the Applicant is not the owner of the subject-matter of the dispute and has no interest in the outcome of the application, hence he cannot bring this application; secondly, that the application is an abuse of Court process having filed similar application before High Court and this Court at various times without prosecuting same to finality.
HELD
Appeal Allowed In Part
ISSUES
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.
RATIONES DECIDENDI
PRELIMINARY OBJECTION – PURPOSE AND EFFECT OF A PRELIMINARY OBJECTION
“The law is trite, where a preliminary objection is raised in any suit, same is to be disposed of 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. – PER I. S. BDLIYA, J.C.A
LOCUS STANDI –DETERMINATION OF WHETHER OR NOT A PERSON HAS LOCUS STANDI
“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 plaintiff would be adjudged by the Court to have manifested sufficient interest to entitle him to litigate over the subject matter. – PER I. S. BDLIYA, J.C.A
ABUSE OF COURT PROCESS – WHAT CONSTITUTES AN ABUSE OF COURT 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 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. – PER I. S. BDLIYA, J.C.A
EXTENSION OF TIME TO APPEAL – CONDITION PRECEDENT FOR THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME
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 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 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 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.- PER I. S. BDLIYA, J.C.A
EXTENSION OF TIME TO APPEAL – DUTY OF THE COURT WHEN EXERCISING ITS DISCRETION IN THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
“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. – PER I. S. BDLIYA, J.C.A
NEGLIGENCE OF A COUNSEL – WHETHER THE NEGLIGENCE OF A COUNSEL SHOULD BE VISITED ON THE LITIGANT
“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 appellant’s 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 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…. ”
– PER I. S. BDLIYA, J.C.A
CASES CITED
Not Available
STATUTES REFERRED TO
Court of Appeal Rules, 2011