Faruku Hakimi & Anor V. Alh. Tukur Dalijan & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TUNDE O. AWOTOYE, J.C.A. (Delivering the Lead Ruling)

This is the ruling on the motion on notice brought pursuant to section 244 (1) & (2) of the constitution and Order 7 Rule 1, 6, 7 and 10 of the Court of Appeal Rule 2011 praying for;

1. “An Order extending time to the applicants to seek leave of this Honourable Court to apply for leave to appeal against the decision of Kebbi State Sharia Court of Appeal in Suit No.SCA/KBS/KB/69/2010 delivered on the 22/12/2010 as interested parties.

2. An Order of this Honourable Court granting leave to the Applicants to file a notice of appeal against the decision of Kebbi State Sharia Court of Appeal in Suit No/SCA/KBS/KB/6/2010 delivered on the 22nd day of December 2010 as interested parties.

3. An Order extending time within which the Applicants may appeal against the decision of Kebbi State Sharia Court of Appeal in Suit No/ SCA/KBS/KB/6/2010 delivered on the 22nd day of December 2010 as interested parties.

4. An Order deeming the proposed notice of appeal attached as Exhibit “A” as having been duly filed and served on the Respondent.

5. For such further order/orders as this Honourable Court may deem fit to make in the circumstances.”

The grounds upon which the application is based are:

“1. The time within which the Applicants/Interested Parties may file their Application for leave to appeal as interested parties and consequent Notice of Appeal against the judgment of State Sharia Court of Appeal in Suit No/ SCA/KBS/KB/6/2010 delivered on the 22nd day of December 2010 has already elapsed.

2. The Applicants interested were affected by the decision of State Sharia Court of Appeal in Suit No/ SCA/KBS/KB/6/2010 delivered on the 22nd day of December 2010, despite the fact that they are not party to the original suit.

3. The statutory regulated time to appeal had already elapsed and the applicants seek leave to appeal as interested parties.”

The applicants annexed the proposed notice of appeal and the judgment of the lower court as exhibits in the affidavit.
The applicants also filed a written address.

The Respondents on the other hand filed counter-affidavits to oppose the application. The 1st Respondent in addition filed written address in opposition.
In his written address, the applicants formulated one issue for determination to wit; whether the grant of this application is at the discretion of this court that must be exercised judicially and judiciously.

The applicants counsel M. A. Sambo submitted that this court had the power to grant this application. He referred the court to ALHAJI ABDULLAHI ATANDA KOLAWOLE V SALAMI ADISA OLOR, IFELODUN LOCAL GOVERNMENT [2007] 11 WRN 63 at 65.
He submitted that the applicants were interested persons and that the refusal of this application would amount to denying the appellants/applicants constitutional right.
He further urged the court to grant extension of time as per prayer 3 on the motion paper. He relied on ITEX LIMITED v. INLAND BANK NIGERIA PLS [2007] 16 WRN 170. He referred the court to paragraphs 3a – k of the supporting affidavit and submitted that sufficient reasons for the delay were given in the affidavit.
He finally urged the court to grant the application.