CASE OF THE DAY: VALID GROUNDS FOR LEAVE TO APPEAL

HASSAN HAMMAWA V. DAUDA ALHAJI YAHAYA Suit Number: CA/YL/66M/2021

DELIVERED BY JAMILU YAMMAMA TUKUR, JCA)

By a Motion on Notice filed on 5th July 2021 brought pursuant to the provisions of Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) Order 6 Rule 9 (1) of the Court of Appeal Rules 2016 and the inherent power of this court the Applicant herein seeks the following reliefs:-1.AN ORDER OF THE HONOURABLE COURT extending time within which the Applicant shall seek leave to appeal against the Judgment of the High Court of Justice Yola in Suit No. ADSY/51M/2018 delivered on the 7/2/2019 between HASSAN HAMMAWA VS DAUDA ALHAJI YAHAYA.

2.AN ORDER OF THE HONOURABLE COURT granting the Applicant leave to appeal against the Judgment of the High Court of Justice Yola in Suit No. ADSY/51M/2018 delivered on the 7/2/2019 between HASSAN HAMMAWA VS. DAUDA ALHAJI YAHAYA.

3.AN ORDER OF THE HONOURABLE COURT extending or enlarging time within which the Applicant shall file his Notice of Appeal against the Judgment of the High Court of Justice Yola in Suit No. ADSY/51M/2018 delivered on the 7/2/2019 between HASSAN HAMMAWA VS. DAUDA YAHAYA.

4.AN ORDER OF THE HONOURABLE COURT granting the Applicants leave to appeal against the Judgment of the High Court of Justice Yola in Suit No. ADSY/51M/2018 delivered on the 7/2/2019 between the parties herein on grounds which include grounds of facts mixed law and facts.

5.ANY FURTHER OR BETTER ORDER(S) THE HONOURABLE COURT may deem fit to make in the circumstance.

The grounds upon which the Application rested is stated thus:

1.The Applicant is desirous of appealing against the Judgment of the high Court of Justice Yola in Suit Npo. ADSY/51M/2018 delivered on the 7/2/2019.

2.The Applicant could not appeal against the Judgment of the High Court of Justice Yola within time due to the Applicant’s former Counsel’s failure to carryout Applicant’s instruction to appeal and the inability of the Registry of court to release the record of proceedings of the Court below until sometimes in June, 2019.

3.That upon the release of the record of proceedings of the Court below, the Applicant’s present Counsel proceeded to work on the proposed Notice and Grounds of Appeal and an application for leave to appeal was filed but the said application was withdrawn and struck out on the 8/10/2019 on the grounds of incompetence,

4.That the Applicant’s Counsel lost touch with the Applicant and only established contact with him sometime in February, 2010 and had briefed him on the position of his Appeal.

5.That the Applicant had expressed his desire to proceed with the Appeal but asked that he be given time to consult with his other relations before getting back to his Counsel and then left.

6.That a few days after the departure of the Applicant from our law firm the Applicant had informed his Counsel i.e Sule J, Abdul Esq. who was also away to Jos for his academy pursuit on phone of his illness and could not meet up to the time of the lockdown of March, 2020 as a result of COVID 19.

7.That after the case of lockdown the Applicant contacted his Counsel to file the necessary applications in respect of this Appeal but his Counsel could not do so as he was bereaved and kept traveling to Benue State to attend to burials of his sister and cousin up to the end of December, 2020 when the office had to be closed for the year and upon resumption our Sule J. Abdul Esq. was in Jos in continuation of his academy programme after the ASUU strike was carried out until now.

8.The Applicant is desirous of appealing against the Judgment on grounds which include grounds of law such as jurisdiction and mixed law and facts but time allowed them by law has elapsed.

 The application is supported by a seven paragraph affidavit deposed to by one Anthony Charles a litigation secretary in the law firm of learned counsel for the Applicant.

Annexed with the application are three exhibits marked as exhibit ‘A’, ‘B’ and ‘C’.

Learned counsel for the Applicant filed a written address in support of the application on 22nd March, 2022.

In the written address learned counsel nominated a lone issue for determination vz:

Wehther from the affidavit in support of the application the Applicant has met the requirements of law to warrant grant of same.

Learned counsel submitted that a careful perusal of the facts deposed to in the applicant’s supporting affidavit and exhibits attached have explained the reasons necessitating this application.

Learned counsel argued that the Applicant has by the averments in the supporting affidavit explained the delay why the application was not filed in good time. It is further argued that the applicant’s grounds of include a ground of jurisdiction which raises exceptional circumstances for the grant of the application.

Learned counsel cited the following decisions: ogundimu v. Kasunmu (2006) All FWLR Parat (326) OG 207 at 216 para B-D; G.T.M. Ent. Ltd Vs. C.R. & Inv. Ltd (2012) All FWLR PT 655 PG 399 At 411 Paras D-G.

Learned counsel finally urge us to grant the application. 

In opposing the application the Respondent filed a ten paragraph counter affidavit on 15th February, 2022. Attached to the counter affidavit is an Exhibit Marked as Exhibit ‘A’ which is the certified true copy of the Proceedings of this court on 8th October, 2019 wherein an application filed on 24th June, 2019 by learned counsel for Applicant was withdrawn and struck out.

The said Exhibit ‘A’ is the same with the one annexed to the supporting affidavit of the instant application and referred to in paragraph 4 ‘C’ as exhibit ‘B’ which essentially was an application for leave to appeal which was struck out for incompetence.

In his written address filed on 4th April, 2022 opposing the application learned counsel for the Respondent distilled the following issue for determination:

Whether withdrawal of the appeal by the Appellant amount to dismissal of the Appeal. 

Learned counsel for the Respondent argued that by the provisions of order 11 Rule 6 of the Rules of this court an appeal which has been withdrawn with or without order of the court shall be deemed to have been dismissed.

Learned counsel further argued that the appeal had been dismissed by this court on 8/10/2019 and that there is nothing before the court now.

Learned counsel cited the following cases: Nal Merchant Bank Plc V. Laferri (Nig.) Ltd (2005) All FWLR (Pt. 289) 1396 C.A.; International Carpet Ltd vs. Servant Bank Nig. Plc. (2006) All FWLR (Pt.325) at 108. (CA).

Learned counsel urge the court to resolve the issue in favour of the Respondent and dismissed the application. 

Learned counsel for the Respondent had raised the preliminary point in his written address wherein he submitted that the withdrawal of the application for leave to appeal by the Applicant on 8th October 2019 and the order striking out the application by this court amounted to a dismissal of the appeal and that the Applicant cannot come back with a fresh application. That line of argument is with due respect to learned counsel for the Respondent misconceived and not in consonance with the settled principle of the law.

Exhibit ‘B’ the certified true copy of the proceedings of this court of 8th October, 2019 showed that M. P. Atsev of counsel for the Applicant applied to withdraw application on Notice filed on 24th June, 2019 and the application was thereafter struck out by the court.

The law is indeed trite that the effect of an order striking out a cause or application is that it merely suspends the cause or application with the party at liberty to either apply to relist a cause or file another application with a view to remedying the defect on which basis the cause or application was struck out. See Fasakin Foods (Nig) Ltd V. Shosanya (2006) LPELR- 1244 (SC); Sylvia V. INEC & Ors (2015) LPELR – 24447 (SC); NDIC V. Okeke & Ors (2010) LPELR 4597 (CA).

I need to further point out that from the record before us the application that was struck out by this court on 8th October, 2019 was for leave to appeal. There was therefore no valid appeal before this court to sanctioned the utilization of the provisions of Order 11 Rule 6 of the Rules of this Court, 2016 as canvassed by learned counsel for the Respondent in his written address. Order 11 Rules 6 comes to play where there is a valid appeal before the court and the Appellant decides to withdraw same before hearing. In such circumstances the effect of the withdrawal of the appeal tantamounts to a dismissal of same by the provisions of Order 11 Rules 6 and in such a case the only remedy available to the Appellant is to appeal. See Oyeyemi & Ors V. Owoeye & Anor (2017) LPELR 41903 (SC); Setraco (Nig.) Ltd V. Kpaji (2017) LPELR – 41560(SC); Akuneziri V. Okenwa & Ors (2000) LPELR 393 (SC).

However as mentioned earlier what was struck out by this court on 8th October, 2019 was an application for leave to appeal and on the authorities the Applicant herein is at liberty to file another application as was done in the instant case.

Now in the case of an application for leave to appeal the Applicant must show that the grounds of appeal are not frivolous but substantial. The Applicant is not required to show that his appeal will succeed. All he is enjoined to do is to show that his appeal is arguable and deserve to be heard on those grounds. See Iroegbu & Anor V. Okwordu & Anor (1990) LPELR-1539 (SC); Ede V. Nwidenyi & Ors (1988) LPELR 1003 (SC).

The Applicant must also show by his supporting affidavit that he has good and substantial reason for failure to appeal or apply for leave to appeal within the prescribed periods. See Amaechi V. Omehia & Ors (2012) LPELR 20603 (SC).

I have had a cursory look at the six grounds of appeal and the copious particulars in the light of the facts and circumstances of the application and the judgment sought to be appealed against and it appears to me that the six grounds have raised arguable issues to warrant the grant of the instant application. Related to this however is the requirement that the applicant must show good and substantial reason for the delay in bringing the application timeously.

In answer to this requirements the Applicant in his supporting affidavit deposed to facts which according to him explained the delay in filing the application within the time prescribed by the law.

In paragraph 4 of the supporting affidavit the Applicant deposed thus:

4. That I have been informed by Mhen P. Atsev Esq. of counsel in chambers at No. 30 Atiku Abubakar Road, Jimeta – Yola on the 26/3/2021 at about 2:00 pm and I verily believe him to be true as follows:

 a. That the Judgment of the Honourable Court below was made available to him sometime in June, 2019.

b. That the Applicant could not appeal against the Judgment of the High Court of Justice Yola within time to the Applicant’s former counsel’s failure to carry out Applicant’s instruction to appeal and the inability of the Registry of court below to release the record of proceedings of that Court until sometime in June, 2019

c. That upon the release of the record of proceedings of the Court below, the Applicant’s present Counsel proceeded to work on the proposed Notice and grounds of Appeal and an application for leave to appeal but the said application was withdrawn and struck out on the 8/10/2019 on the grounds of incompetence. The proceedings of this Honourable court is hereto attached and marked as Exhibit B.

d. That our principal in chambers i.e. Sule J. Abul Esq. who was briefed by the Applicant lost touch with the Applicant and only established contact with him sometime in February, 2020 and had briefed him on the position of his Appeal.

e. That the Applicant had expressed his desire to proceed with the Appeal but asked that he be given time to consult with his other relations before getting back to his Counsel and left.

f. That some days after his departure from our law firm our principle in Chambers was called on phone and informed of the Applicant illness at a time our principle was away to Jos for academic self-development up to the lockdown of March, 2020 as a result of COVID 19.

g. That after the ease of lockdown the Applicant contacted his Counsel to file the necessary applications in respect of this Appeal but his Counsel could not do so as he was bereaved and kept traveling to Benue State to attend the burials of his sister and cousin up to the end of December, 2020, when the office had to be closed for the year and upon resumption our Sule J. Abul Esq. was in Jos in continuation of the academic programme after the ASUU strike was called off as a result of which the Applicant’s instruction was not carried out.

h. That the Applicant had contact our principle in Chambers on 22/3/2021 to ascertain whether his instructions in respect of this Appeal were carried out and it was then that all counsel in Chambers including our principal proceeded to once again study the Judgment and work on the Applicant’s Appeal processes including the Applicant’s proposed Notice and Grounds of Appeal which is hereto attached as exhibit C. 

i. That at the time that our law firm was done working on the Applicant’s proposed Notice and Grounds of Appeal for the purpose of filing the 2021 Easter break set in and thereafter the JUSUN strike commenced and our principle’s attention was drawn to the already prepared, dated (30/3/2021) and signed application on the 5/7/2021 when he promptly instructed the filing of this application.

j. That the delay in filing the Applicant’s appeal processes before this Honourable Court is not deliberate and time has elapsed.

k. That the Appellant’s grounds of appeal include a ground challenging the jurisdiction of the trial court.

l. That some of the grounds are of facts and mixed law and facts.

I have considered the counter affidavit filed by the Respondent against the application and like the written address of Respondent’s counsel it dwell mostly on why the application should not be granted on account of the striking out of the earlier application by this court on 8th October, 2019 on the basis of which the Respondent contended that there is thus nothing before us to consider, which position as I mentioned earlier is misconceived.

I have perused the reasons adduced for the delay in filing the instant application and I am satisfied that the reasons are good and satisfactory to me, and it is against this background that I grant the application and it is hereby granted in the following terms:

1.Time is extended to today within which the Applicant shall seek leave to appeal against the judgment of the High Court of Justice Yola in Suit No. ADSY/51M/2018 delivered on the 7th February 2019 between Hassan Hammawa v. Dauda Alhaji Yahaya.

2.Leave is hereby granted to the Applicant to appeal against the judgment of the High Hourt of Justice Yola in Suit No. ADSY/51M/2018 delivered on 7th February 2019 between Hassan Hammawa v. Dauda Alhaji Yahaya.

3.Time is extended by fourteen days from today within which the Applicant may file his Notice of Appeal in line with Exhibit “C” the proposed Notice of Appeal attached to the Motion papers.