CORAM

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PARTIES

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BALA DOGARI APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant as Plaintiff had instituted a civil claim against the 2nd Respondent over farmland situate at Sabon Layi before the Sabon Layi Area Court Banganje and obtained judgment against the 2nd Respondent as sole Defendant. The 2nd Respondent being dissatisfied with the said judgment had appealed to the Upper Area Court Kaltungo, which in its judgment set aside the judgment of the Sabon Layi Area Court Banganje and granted title to the land in dispute to the Respondents as Appellants after joining the 1st Respondent as a party to the said appeal. The Appellant as Respondent before the Upper Area Court Kaltungo, was dissatisfied with the said decision and had applied to the Court below for leave to appeal and for enlargement of time to appeal against the said judgment out of time vide a motion on notice filed on 26/2/2011, which application was duly heard and subsequently refused and dismissed by the Court below on 17/2/2012. The Appellant was dissatisfied with the ruling of the Court below and had now appealed to this Court against the said ruling praying this Court to set it aside to enable the Appellant appeal against the judgment of the Upper Area Court Kaltungo to the Court below.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the granting leave for extension of time within which the appellant may appeal from the decision of Upper Area Court Kaltungo to High Court of Gombe State constitute abuse of Court process. (Issue 1) Whether the Appellant has not deposed to cogent and sufficient facts in his application for extension of time within which to appeal to have warranted the High Court of Gombe State grant him leave to appeal out of time against the decision of Upper Area Court Kaltungo. (Issues 2 and 5)

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RATIONES DECIDENDI

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FINDINGS OF COURTS- INSTANCES WHEN AN APPELLATE COURT WILL DISTURB THE FINDINGS OF A LOWER COURT

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“The circumstances in which an appellate court can intervene to disturb the findings and conclusions reached by a lower court varies from case to case and would ultimately depend on the peculiar facts of each case and therefore, such circumstances cannot be laid down with any tinge of exhaustive finality by the courts though some useful guides have been proffered over the years by the Courts.
My lords, an appellate Court will readily intervene if it is shown that the conclusions drawn by the court below or a trial court on the proved facts before it do not flow from such proved facts or runs contrary to such prove facts and was thus perverse. See Obajini V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992; Mini Lodge Ltd. V. Ngei (2010) All FWLR (Pt. 506) 1806 @ pp. 1820 – 1821; Mini Lodge Ltd. V. Ngei (2010) All FWLR (Pt. 506) 1806 @ pp. 1820 – 1821.
In Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307, it was stated thus:
“A decision is said to be perverse when it is speculative not being supported by evidence or reached as a result of either wrong consideration of evidence or wrong application of a principle of substantive law or procedural law and an appellate court can interfere with a decision of the trial court that is perverse.”

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DECISION OF COURT- WHETHER A CONCLUSION BASED ON WRONG REASONING IS LIABLE TO BE SET ASIDE ON APPEAL

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“However, it is not the law that once a court reaches a conclusion on wrong reasoning or ground such a conclusion is liable to be set aside on appeal. Rather, the law is that where a court reaches a conclusion on a wrong reasoning or ground, whether such a conclusion will be liable to be set aside or not on appeal is largely dependent on the question whether the conclusion reached was right or wrong on the evidence before the court. In other words, an appellate court is not so much concerned with the reasons adduced in reaching a conclusion by a trial court but rather with the correctness or otherwise of the conclusion reached.
In law therefore, once the conclusion reached is correct on the evidence before the trial court, even if the reason or ground relied upon is wrong, the appellate court will not interfere with the correct conclusion of the trial court. Very sound logic one may say! Judicial authorities on this position of the law are legion. See Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC, had pronounced with finality on this vexed issue, thus:
“An appellate court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate court does not interfere. It is only where the misdirection has caused the court to come to a wrong conclusion that the appellate court will interfere.”

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ABUSE OF COURT PROCESS – DEFINITION OF THE TERM “ABUSE OF COURT PROCESS”

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“The term “abuse of Court’s process” is an emotive one and is often seen to be synonymous with multiplicity of actions and that may not be far from the truth of the general position of the law, but yet the term abuse of court’s process is much more than mere multiplicity of suits. In other words, multiplicity of suits is not the only way by which abuse of court’s process could be constituted.
My lords, abuse of court process, simply put, and for the lack of a precise or concise definition, denotes the improper use of the process of court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus it can safely pass as a doctrine of law without any precise or concise definition. This is rightly so because in law what would constitute an abuse of court’s process is very diverse, imprecise and subject to indefinite considerations. It would ultimately, therefore depend on the peculiar facts of each case”.

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ABUSE OF COURT PROCESS – DUTY OF THE COURT IN CONSIDERING WHETHER AN ACTION CONSTITUTES AN ABUSE OF COURT PROCESS

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“In considering therefore, whether an action constitutes an abuse of Court process, the Court is to critically consider the peculiar circumstances of each case in which the issue of abuse of Court is raised to determine whether in the peculiar circumstances of the affected case, the act of the party complained of constitutes an abuse of Court’s process.
Happily, in arriving at what would constitute an abuse of Court’s process, the Court is not left without guide as there has over the years been laid down some form of guide to assist the Courts in considering what would constitute an abuse of Court’s process. Authorities on this point are legion as are replete in the law reports. Suffice, however to refer to the very apt dictum of Karibi Whyte JSC, in the celebrated case of Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156, inter alia thus:
“The multiplicity of actions on the same subject matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of exercise of the right, rather than the exercise of the right per se”
The rationale for the principles guiding the consideration of whether an action constitutes an abuse of Court’s process or not was further explained lucidly in a very simple way in Saraki V. Kotoye (Supra), where his lordship, the erudite Karibi Whyte waxed thus:
“The abuse consists in the intention, purpose, and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the due administration of justice; such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds”
It is the subsequent institution of two concurrent actions that will constitute an abuse of Court’s process. However, it must be pointed out at once that it is not merely the existence or pendency of the previous action that would give rise to an allegation of abuse of Court’s process. Rather, it is the institution of a fresh action(s) between the same parties and on the same subject matter, when the previous action is still pending and having not been disposed off that constitutes the abuse of Court’s process. See Harriman V. Harriman (1989) 5 NWLR (Pt. 1199) 6. See also Ukachukwu V. PDP (2014) 4 FWLR (Pt. 1396) 65; C.PC. V. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1; Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225; Carrena V. Akinlase (2008) 14 NWLR (Pt. 1107) 262; Offor V. Leaders & Co. Ltd (2007) 7 NWLR (Pt. 1032) 1; Abubakar V. Bebeji Oil and Allied Products Ltd (2007) 18 NWLR (Pt. 1066) 319; E.F.P. Co. Ltd. V. N.D,I.C.(2007) 9 NWLR 1039) 216; Ntuks V. NPA (2007) 13 NWLR (Pt. 1051) 392; Ogoejeofo V. Ogoejeofo (2006) 3 NWLR (Pt. 966); F.O.M Plc. V. UBA Plc. (2010) 1 NWLR (Pt. 1176) 583; Edet V. The State (1988) 4 NWLR (Pt. 91) 722; Adesokan V. Adegorolu (1991) 3 NWLR (Pt. 179)293.
The corollary to the above uncertainty and imprecise definition of the term abuse of Court’s process is ironically the certainty that the factual situations and circumstances or categories or things that may constitute or give rise to abuse of Court’s process are never closed and therefore, cannot be stated with any exhaustive finality but depend on the peculiar facts and circumstances of each case. See Ette V. Edoho (2009) 3 NWLR (Pt. 1144) 601 @ pp. 609 – 610. See also PDP V. Obi (2009) 3 NWLR (Pt. 1128) 327 @ pp. 339 – 340; Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225; R. Benkay Nig. Ltd V. Cadbury Nig.Plc (2006) 6 NWLR (Pt. 976) 338.” –

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RIGHT OF APPEAL – EXERCISE OF RIGHT OF APPEAL

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“My lords, while the right of appeal as Constitutionally guaranteed to the citizen is almost sacrosanct and inviolable, its exercise must be within the prescribed perimeters of the law and thus once the time within time it could be invoked as of right has expired it become dependent on the discretion of the Court on sufficient good cause shown for a citizen to be granted an extension of time within which to exercise his right of appeal. A person who has used the right of appeal in several ways and manner merely to antagonise, harass, annoy and or intimidate the adversary cannot be indulged by the Court as such use is not a legitimate or bona – fide use of the right of appeal as enshrined in the Constitution and the doors of the Courts will be shut against such a person to check the abuse of the process of Court. This issue calls to remembrance the evergreen words of Niki Tobi, JSC, who in far back 1992 as a Justice of the Court of Appeal in Albion Construction Ltd V. Rao Investment & Property Ltd.(1992) 1 NWLR (Pt. 219) 583 @ p. 588, had opined aptly thus:
“While the doors of the Court are open to all through the day for litigants with genuine grievances to pursue their legitimate claims, the same door will be shut against litigants who are merely ………antagonizing the judicial process in precipitation and for the fun of it.”

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DECISION OF COURT- RESTRICTION ON THE POWER OF AN APPELLATE COURT ON INTERFERENCE WITH THE DECISIONS OF LOWER COURTS.

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“The law is now well settled that once the conclusion and decision reached by a lower Court is correct, an appellate court has no business interfering with such a correct decision or conclusion or finding, which it should rather uphold and affirm. See Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (Supra) @ p. 198.”

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APPLICATION FOR EXTENSION OF TIME TO APPEAL – INGREDIENTS AN APPLICANT MUST ESTABLISH IN AN APPLICATION FOR EXTENSION OF TIME TO APPEAL OUT OF TIME

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“In my thinking and I believe I am right, in an application for extension of time to appeal out of time, where leave of Court to appeal is not required by law and the appeal is thus as of right, all that an applicant must satisfy the Court in order to have his application granted are two – fold, namely;
(1) Good reason(s) why the appeal was not filed within time.
(2) Ground of Appeal which prima facie shows good cause why the appeal should be heard.
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APPLICATION FOR LEAVE TO APPEAL –WHETHER A CERTIFIED TRUE COPY OF THE JUDGMENT SOUGHT TO BE APPEALED AGAINST MUST ACCOMPANY AN APPLICATION FOR LEAVE TO APPEAL

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“However, it is equally pertinent to state that once there is an application for leave to appeal, and thus making the appeal not one as of right, it is essential and sine quo none that a certify true copy of the judgment or ruling sought to be appealed against with leave must be placed before the Court, failing which such an application would be both incompetent and lacking in merit and thus not worthy of any favorable consideration by the Court. See for instance the succinct provisions of Order 7(7) (a) – (d) of the Court of Appeal Rules 2011, requiring an applicant for leave to appeal to furnish before this Court amongst others requirements, a Certify true copy of the decision sought to be appealed against. On the other hand, see also the very clear provisions of Order 7(10)(1) & (2) of the Court of Appeal Rules 2011, providing for enlargement of time to appeal out of time, in which appeal is of right and there is no requirement that the applicant should furnish a certify true copy of the decision sought to be appealed against out of time”.

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EXTENSION OF TIME TO APPEAL – DUTY OF A PARTY SEEKING EXTENSION OF TIME TO APPEAL

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“In law, an application for extension of time within which to appeal against the judgment of a Court is not granted as a matter of course but rather it is granted only on sufficient materials placed before the Court by an Applicant showing the existence of good and sufficient reason for the delay in filing the appeal within the time as prescribed by law. Consequently, where no such sufficient reason is shown for the delay by an Applicant, as in the instant case, no such indulgence of an extension of time would be granted and thus issue two is also hereby resolved in the positive in favor of the Respondents as against the Appellant. See Lawal V. UBA Plc. (2008) 12 NWLR (Pt. 1102) 704 @ p. 706. See also N. A. Williams V. Hope Rising Voluntary Funds Society (1982) 1 SC 1 @ p. 135.”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Court of Appeal Rule 2011|High Court of Gombe State Civil Procedure Rules|

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