Ibrahim Mudi Nagoda V. Nagarta Integrated Farms Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI J.C.A. (Delivering the Lead Ruling)

In this Motion on Notice filed on 21st January, 2013 the applicants are praying the Court for the following;

1. “Extension of time within which to apply for LEAVE to appeal against, the ruling of the Kano State High Court No. 6 delivered on 22nd March 2005 in Suit No. K/483/2004.
2. Leave to appeal against the Ruling of the Kano state High Court No. 6 delivered on 22nd March 2005 in suit No. K/483/2004.
3. Extension of time within which to file Notice of Appeal against the Ruling of the Kano State High Court No. 6 delivered on 22nd March 2005 in suit No. K/483/2004.
4. AND such any further order or orders as this Court may deem fit to make in the circumstances”.

The application is premised on three (3) grounds as follows;

1. “The statutory time within which to apply for leave to appeal has expired.
2. That there is need for an extension of time to enable the applicants to file their appeal.
3. That the appeal in this matter is not as of right”.

In support of the application is a thirty five 35 paragraphed affidavit annexed to which are Six (6) Exhibits marked IA-1 to IA-6. The learned counsel for the applicants said he was relying on the supporting affidavit.

In opposition to the application, the learned counsel to the Respondent filed a four (4) paragraphed counter affidavit dated 24th April, 2013 annexed to which are two (2) Exhibits marked as I.E.1 and I.E 2.

In view of the opposition to the application parties were ordered by the Court to file written addresses.

In their written addresses the Applicants distilled two issues for determination of this application as follows;

1. Whether the Appellants/applicants are entitled to apply for LEAVE of this Court to appeal against the ruling of the lower Court delivered on 22nd March, 2005 on issue of jurisdiction.
2. Whether the Appellants/applicants can be said to have slept over their right due to the delay in determining their rights due to the delay in determining their application for LEAVE to appeal.

The Respondent submitted three issues for the determination of this application as follows;

1. Whether the Appellants/applicants in this application have satisfied the conditions for the grant of an application of this nature as prescribed by order 7 rule 10(1) and (2) of the Court of appeal rules 2011?
2. Whether this Court can rely on Exhibit IA-1 same having been signed by MUH. KALOMA ALI & CO who was not a person called to practice as legal practitioner pursuant to section 24 of the legal practitioners’ Act 2007?
3. Whether the unsigned and undated notice proposed notice of appeal attached as Exhibit IA-5 is not worthless?

The Applicants presented two issues for determination; the first issue is all encompassing and capable of subsuming the second issue. Therefore, the Appellant’s first issue is adopted for the determination of this application.

ISSUE ONE

“Whether the Appellants/applicants are entitled to apply for LEAVE of this Court to appeal against the ruling of the lower Court delivered on 22nd March, 2005 on issue of jurisdiction?

The learned counsel to the Applicants contended that in arguing this issue, it is necessary to refer to the affidavit of IBRAHIM ADAM in support of the motion dated 21st January, 2013 and filed on the same date. He submitted that applicants’ affidavit of 35 paragraphs illustrated all the necessary steps taken in the matter from the lower Court to this Court. Learned counsel placed reliance on the entire paragraphs of the affidavit and exhibits attached to it.

He submitted that it is necessary to state the law which gave this Court the power to hear the application. He referred the Court to Section 242(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 14(1) & (2) and 24(4) of the Court of Appeal Act LFN 2004 Cap C.36, Order 7 rule 1 and Order 6 rule 1(1) & (2) of the Court of Appeal Rules 2011 which enabled it to extend the time for such type of application as contained in paragraph 5 of the applicants’ affidavit.

He submitted that as shown in exhibit IA-1, the Appellant challenge the jurisdiction of the lower Court to hear the matter through its motion dated 29/12/2004. He argued that at the time of filling the action at the lower Court the Judgment of Rijiyar Lemo Kano (Exhibits FY-1) was subsisting and is still subsisting, it is the law that such judgment is binding on the parties as well as the Court until it is set a side. He referred the Court to the case of Opawoye Vs Tunbi (2004) ALL FWLR (Pt.234) 1841 at 1862.