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

LawGlobal-Hub Lead Judgment Report

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