CORAM
HON. JUSTICE, OYEBISI FOLAYEMI OMOLEYE JUSTICE, COURT OF APPEAL
HON. JUSTICE, JAMES SHEHU ABIRIYI JUSTICE, COURT OF APPEAL
HON. JUSTICE, SAIDU TANKO HUSAINI JUSTICE, COURT OF APPEAL
PARTIES
MR. ABBAS MUSTAPHA
APPELLANTS
IDRIS MAHMUD
RESPONDENTS
AREA(S) OF LAW
APPEAL, INTERLOCUTORY APPLICATION, JURISDICTION, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The High Court of Taraba State sitting in Jalingo on the 1st November, 2013 in the Judgment delivered by it on the same date in Suit No. TRSJ/31/2011 granted the reliefs, the Respondent sought as the Plaintiff before that Court. The Applicant was the Defendant before the trial Court.
The Applicant, on the 4th April, 2017, filed a Motion on Notice for extension of time to seek leave to appeal against the decision of the Taraba State High Court in Suit No. TRSJ/31/2011 between Idris Mahmud Vs. Abbas Mustapha delivered on 1st November, 2013; Leave to appeal against the said decision; an order extending time within which to appeal; such other order or further orders this court deems fit to make in the circumstances.
The application is predicated on the six (6) grounds listed or spelt out on the Motion paper dated the 31st March, 2017 was filed on 4th April, 2017. The application was supported by an Affidavit deposed to by Mr. Abbas Mustapha (the Applicant). Attached to the application is, the Judgment of the Taraba State High Court, sought to be appealed against. It is marked Exhibit “A”. The document attached and marked as Exhibit “B” is the proposed Notice of appeal.
Upon being filed and served the Application, the Respondent filed a Counter Affidavit of Eight (8) paragraphs on the 12th June, 2017 and denied the material facts contained in in supporting Affidavit to the Motion on Notice.
On the 12th June, 2012 when the application came up for hearing, this court ordered for written addresses to be filed. In due compliance with the order of court, the applicant, by leave of court sought and granted on 5th July, 2017 filed his written address and the same was deemed as having properly been filed and served on that date. The respondent in the similar manner filed his written address on the 5th October, 2015 with leave of court sought and obtained. The said written address was on the 9th October, 2017 deemed as properly filed and served.
On the 9th October, 2017 when the case came up for hearing, learned Applicant’s counsel (holding brief of M. I. C. Osuji) moved his application and adopted his written address. He urged the court to grant all the prayers contained in the Motion paper. On the other hand, Mr. I. A. Jalo learned counsel for the Respondent, who, after making references to the thirty-two (32) paragraphed counter-affidavit deposed to by Idris Mahmud on 12th June, 2017 and filed on 12th June, 2017 in opposition, and the written address thereto, adopted same to urge on the court to dismiss the application.
HELD
Application dismissed.
ISSUES
Whether from the materials placed before the court in this application, the Applicant is entitled to the reliefs he had sought.
RATIONES DECIDENDI
EXTENSION OF TIME TO APPEAL- FACTS THAT MUST BE ESTABLISHED IN AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
“Order 6 Rule 9(1)(2) of the Court of Appeal Rules, 2016 is the provision under which application can be made or brought by a party or parties in default, to apply to court for enlargement of time within which to appeal where he is already out of time. For such application to scale through, the applicant must be ready to establish facts as would constitute:
Good and substantial reasons for failure to appeal within the period prescribed, and
Grounds of appeal which prima facie show good cause why the appeal should be heard.” – Per HUSAINI, J.C.A.
APPEAL- TIME AND MANNER BY WHICH APPEALS CAN BE BROUGHT TO THE COURT OF APPEAL
“I would, if you permit me, first refer to the law which regulate the time and manner by which appeals can be brought to the Court of Appeal from subordinate courts in both interlocutory and final decisions. The law or Statute is the Court of Appeal Act, 2004 where it is enacted at Section 24 (1) (2) of the Act that:-
“24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manners as may be directed by rules of court within the period; prescribed by the provision of sub-section (2) of this section that is applicable to the case.
(2) The periods for the giving of 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 three months where the appeals 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.”– Per HUSAINI, J.C.A.
RIGHT OF APPEAL- WHETHER EXERCISE OF RIGHT OF APPEAL IS EXTINGUISHED ON A PARTY WHO CHOSE TO EXPLORE OUT OF COURT SETTLEMENT
“Parties should, at all times be encouraged to embark on settlement of their differences outside the courts but this is not to say that the right of exercise of right of appeal is extinguished on the party merely because he chose to explore settlement out of court. The two can go pari pasu, that is, the party who desires to appeal against a decision can go and do so while at the same time continue with negotiations for settlement out of court.”– Per HUSAINI, J.C.A.
COURT’S EXERCISE OF DISCRETION- DUTY ON THE PERSON SEEKING A COURT’S EXERCISE OF DISCRETION IN HIS FAVOUR
“The person seeking the indulgence of the court to exercise discretion in his favour is bound to explain and give satisfactory reasons as would account for his delay.
If he succeeds in giving that account, the extent or duration of delay becomes immaterial. It can be overlooked by the courts. See: Yusuf Vs. Cooperative Bank (1989) NWLR (Pt. 110) 483 at 485 but the duration of delay only becomes material once the person seeking to appeal is unable to account for it.”– Per HUSAINI, J.C.A.
JURISDICTION OF COURT- WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED AT ANYTIME WITHOUT THE NEED TO CONSIDER THE REASON FOR DELAY IN FILING AN APPLICATION FOR EXTENSION OF TIME
“I am not oblivious of the decision in Ukwu Vs. Baunge (1997) 8 NWLR (Pt. 518) 527, 541. An issue bothering on jurisdiction of court raises a constitutional question. This explains why such an issue can be raised at any time and howsoever and once raised as a ground of appeal, there is no longer the need to consider the reason for the delay in filing application for extention of time, if only there are facts deposed to in the supporting affidavit to the application and the Judgment sought to be appealed against to that effect. See: NDIC V. Globus (Enterprise) Ltd (2011) 3 NWLR (Pt. 1233-1235) 74, 1890. Facts deposed to in the supporting affidavit to the application do not so suggest that the trial court lacked the jurisdiction to have entertained the matter as it did or that the trial Court was not competent when it heard the case to conclusion and gave Judgment on it.”– Per HUSAINI, J.C.A.
CASES CITED
NONE
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria (1999 as amended).
Court of Appeal Rules, 2016.