Dr. Muhammed Ibrahim Onujabe & Ors V. Fatimah Idris (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A (Delivering the Lead Ruling)

This is a ruling in respect of the application by motion on notice filed by the applicants on 24/03/2009 wherein they prayed for the following reliefs:

“1. For an Order of the Court extending the time within which the Appellant/Applicants may seek leave of the Court to appeal against the Judgment of the Sharia Court of Appeal sitting in Lokoja delivered on 16/07/2008.

2. For an Order of this Court grunting leave to the Appellants/Applicants to appeal against the Judgment of the Sharia Court of Appeal sitting in Lokoja and delivered on 16/07/2008.
3. For an Order extending the time within which to file the Applicant’s Notice and Grounds of Appeal against the said judgment of 16/07/2008.
4. For an Order granting leave to the Appellants/Applicants to raise fresh issues in this Appeal to this Court.
5. For an Order granting leave to the Appellants/Applicants to appeal on grounds of mixed law and facts.
6. For an Order directing the Registrar of this Honourable Court not to charge the applicants fresh Filing Fees and or to take into consideration the Filing Fees already paid at the Court below with Kogi State Government Receipt Nos. 000170038 of 22/07/2008 and 000170063 of 19/08/2008, copies of which are attached hereto and marked as Exhibit C and D.
7. For an Order granting a stay of further proceedings of this matter in any of the Courts below pending the determination of this Appeal.”

The applicants on the motion paper set out 14 (fourteen) grounds in support of the application, and a six paragraph affidavit described as “Affidavit in support of the motion” with the title “In the Sharia Court of Appeal” deposed to by Dr. Muhammed Ibrahim Onujabe. Exhibited to the affidavit are the following: Exhibit A: the Notice of Appeal, Exhibit B: the Judgment of the Court below, Exhibit C: the Revenue Collectors Receipt, Exhibit E: the Ruling of the Court delivered on 17/03/09. The applicants also filed a further and better affidavit on 02/07/09 deposed too by Alex Musa.

The respondent filed counter affidavit on 22/04/2009.

On the directive of the court the learned counsel for the respective parties filed and exchanged written submissions in respect of the said motion.

At the hearing of the application, the learned counsels for the applicant Alexander Musa adopted their written address filed on 09/12/2010 and written reply filed on 04/03/2011. Learned counsel for the respondent A.M Aliyu adopted the respondents written address filed on 06/01/2011. In the applicants written address Mr. Barrah relied on order 7 rules (1) and (2) and order 12 rule 3 of the Court of Appeal rules 2007 in arguing the application, he relied also on the averments in the affidavits and the exhibits.

He contends that there is full compliance with the provisions of order 7 rule 7 of the rules of this Court. Learned counsel relying on paragraphs 5(vi), 5(vii), 5(viii) and 5(ix) of the supporting affidavit submitted that the explanation contained therein are good and substantial enough to excuse the delay and to grant the application.

He contends that the court processes filed by them vide a motion on notice dated 22/07/2008 which included a deeming order prayer was refused on grounds that the appropriate filing fees was not paid and by the time it was eventually heard the time prescribed had lapsed.

He cited Okere vs. Nkem (1992) 4 SCNJ 24 at 32

It is the further contention of learned counsel for the applicants that they are challenging the jurisdiction of the two lower courts to entertain and or to hear the suit as Islamic matter. He submits that there are enough grounds of appeal which show good cause why the appeal should be entertained. He further submitted that the court at this stage is not to decide on the merit of the appeal or chances of success as it is enough that prima facia, the grounds show good cause why the appeal should be entertained.

He cited C.B.N vs. Ahmed (2001) 5 SCNJ 307 at 327.

It is his further contention that the applicants are seeking leave to appeal on grounds which they have no right of appeal. He urged the court to strike out paragraphs 6,7,8,9,10 and 11 of the respondents counter affidavit as they all offend section 87 of the Evidence Act being legal conclusions and arguments in law. He urged the court to grant the application. The learned counsel for the respondent Abdullahil M. Aliyu in his written submission distilled one sole issue for determination which is:

“Whether the applicants have satisfied the twin conditions for the grant of an application for extension of time to appeal.”