A’ Ishatu Aliyu V. Emmanuel Aderemi Adewuyi & Ors (1995)

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ABDULLAHI, J.C.A. 

This application was brought under sections 221(1) and 222(a) of the 1979 Constitution of Nigeria and Order 3 Rule 3(1) and (4) and Rule 4 of the Court of Appeal Rules, 1981.

The applicant is praying for the following orders:-

(1) An order of this court extending the time within which the applicant can apply for leave to appeal as a person having interest in the matter, against the decision of Kaduna State High Court in suit No. KDH/KAD/533/90 dated 17/3/93.

(2) An order of this court granting the applicant leaves to appeal to this court as an interested party.

(3) An order of this court extending the time within which the applicant can file notice of appeal to this court.

(4) An order directing that the Notice and Grounds of Appeal attached to this application shall be deemed to be the applicants Notice and grounds of Appeal and be deemed to be duly filed and served.

(5) Any other or further order deem fit.

The application is supported by a 14 paragraphs affidavit as well as a Hausa and English translation of record of proceedings of Upper Area Court I Zaria relating to distribution of estate affecting the house in dispute. There is also a Certificate of Judgment as well as record of proceedings of Kaduna State High Court, the applicant is desirous of appealing against. There is also attached a proposed notice and grounds of appeal against the said High Court decision. There is also attached a statement of claim as well as certificate of Occupancy No. 000601.

In opposing the application, learned counsel for respondent filed a 7 paragraphs affidavit.

Both parties relied on their respective affidavits and the attachments therein.

In moving the motion, learned counsel for applicant stated that the reasons for the delay in bringing the application was explained in the affidavit in support, particularly paragraphs 3, 4, 5, 6, 7, 8, and 10.

Learned counsel submitted further that even though the applicant was not a party to the suit before the High Court, her property was directly in issue and her interest was directly affected in the suit and she was never put on notice. Learned counsel contended that the situation in which the applicant found herself is enough to constitute special circumstances to warrant the grant of the application. Learned counsel cited the case of Kalu v. Odili (1992) 5 NWLR (Pt. 240) page 130 in support.

Learned counsel for applicant contended further that the document attached, particularly the record or proceedings of Upper Area Court Exhibits A and A1 clearly showed that the applicant has interest in the house in dispute. The Notice and grounds of appeal filed by the applicant are also substantial in nature.