Damusa Ahmodu & Anor V. Fatima Yunusa (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

This is an application pursuant to Order 7 Rules 1 and 10 of the Rules of this Court 2007 which prays for the following reliefs:-

“(a) An Order extending time within which Defendants may apply for leave to appeal against the decision of Kogi

State High Court sitting on appeal in respect of Appeal No. AYHC/2A/2008 contained in its judgment delivered on 29th June, 2009.

(b) An Order granting leave to defendants to appeal against the decision of Kogi State High Court sitting on appeal in respect of Appeal No. AYHC/2A/2008 contained in its judgment delivered on 29th June, 2009.

(c) An Order extending time within which Defendants may appeal against the decision of Kogi State High Court sitting on appeal in respect of Appeal No. AYHC/2A/2008 contained in its judgment delivered on 29th June, 2009.”

It is supported by a 4 paragraphs affidavit to which were annexed five copies of documents marked as Exhibits A,B,C,B1,B2, and C.

When the motion came up for hearing in Court on 24/3/10, learned Counsel who represented the Respondent to the application opposed it on ground of law consequent upon which the Court directed learned Counsel for the parties to file written addresses in the application.

In compliance, the written address by the learned Counsel for the Applicants Mr. E.A. Haruna was filed on 31/3/10, that of the learned Counsel for the Respondent, Mr. Chris Obogu was filed on 27/11/10 while an Applicants’ Reply on points of law was filed on the 10/11/10. The addresses were adopted by the learned Counsel for the parties at the oral hearing of the motion in Court on 11/11/10 as the submissions in support of their respective positions.

Because the opposition of the learned Counsel for the Respondent on the ground of law challenges the competence of the application, prudence requires that it be determined first.

The pith of the objection is that the Applicant should have first made the application to the High Court before this Court as provided for in Order 7, Rule 4 of the Court of Appeal Rules, 2007 under which the reliefs being sought squarely fall. After setting out the provisions of Rule 4, learned Counsel argued that it was legally wrong for the Applicants to have come to this Court first in flagrant disobedience to the provisions and that the Applicants have not established by their affidavit evidence any special circumstances as required by the provisions to enable them come to this Court first.

He said further that since the Applicants filed a similar application before the High Court as shown in Exhibit B, attached to their supporting affidavit, they have admitted that there was nothing in the region of special circumstances that made it impossible or impracticable for them to make the application before that Court. Also that having filed Exhibit B, the Applicants had the duty to ensure that it was decided and that until that happened, this Court cannot entertain a similar application since by Order 7 Rule 7(d) the Applicants were required to exhibit a copy of the High Court order refusing leave to appeal.

The arguments of the learned Counsel in paragraph 2.5, 2.6 all relate to matters of facts in respect of Exhibit ‘B’ that should not be included in argument on point of law.

It was his further submission relying on AGWASHIM v. OJICHIE (2004) ALL FWLR (212) 1600 at 1609 that filing the two applications before the High Court and this Court for same reliefs simultaneously is an abuse of the Court process. He also cited the case of OLORO v. EKITI STATE GOVERNMENT (2007) ALL FWR (387) 958 at 973 where it was held that it makes nonsense of the judicial process where the rules of court are not obeyed and litigants come to court dependent on their whims and caprices.