Iliyasu Sale & Ors. V. Hajiya Safiya Yahya (1998)

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IGE, J.C.A. 

This is an appeal against the ruling of the Kaduna State High Court delivered on 29/7/92 in Suit No. KDH/KAD/72M/92. The ruling was given to an application by the appellants asking for an extension of time within which to appeal against the judgment of the Upper Area Court Daura Road. Kaduna.

In the Upper Area Court the respondent sued the appellants claiming the sum of N387, 187.00 as compensation for the loss of life of her son who died in a motor accident. 1st appellant was the driver of the vehicle involved in the collision while the 2nd appellant was the owner of the vehicle.

On 9/4/92 the Upper Area Court gave judgment in favour of the respondent and awarded her the sum of N387, 187.00 as compensation for the loss of her son against all the 3 appellants. The appellants were dissatisfied with this judgment but they did not appeal against it within 30 days as provided by the law.

The appellants later filed an application dated 23/6/92 before the Kaduna High Court presided over by Donli J asking for an extension of time within which to appeal among other things. The applicant/appellants filed 2 affidavits in support of their application while the respondent also filed 2 counter affidavits.

In the course of argument of this application the learned counsel for the applicants sought for the leave of court to amend the grounds of appeal orally by adding Ground 3 showing that the judgment of the Upper Area Court was a nullity because the court lacked jurisdiction to entertain the suit. The court allows the amendment and a new ground of appeal touching the issue of lack of jurisdiction of the Upper Area Court was filed.

At the end of the day the learned trial High Court judge delivered a ruling on 29/7/92 refusing the application on 2 grounds:-

1. That the reasons given for the delay were insufficient and
2. That the grounds of appeal disclosed no arguable issues in law on the grounds of absence of the record of proceedings.

It is against this ruling that the appellants have appealed to this court. The appellants filed 6 grounds of appeal and formulated 4 issues for determination.

The following are the 4 issues:

1. Whether the trial court exercised its discretion judicially.
2. Whether the decisions of the Supreme court in Ibodo v. Enarofia (1980) 5-7 SC and Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 157 are applicable to the application before the trial court.
3. Whether an application for extension of time to appeal from the decision of an Area Court to the High Court must satisfy 2 conditions namely; showing sufficient reasons for the delay in appealing and showing proposed grounds of appeal that raised serious issues of law.
4. Whether the reasons for the delay and grounds of appeal were such that the trial court ought to have granted the appellants’ application.

For his own part the respondent formulated the following 2 issues for determination:-

i. Whether by the combined effect of the provisions of Order 4 rules 6 and 28 of the High Court (Civil Procedure Rules) 1987 Kaduna State Order 11 rules 11 and 12 of High Court (Appeals from Native Courts Rules Cap. 49, Laws of Northern Nigerian 1963, section 57 of the Area Courts Edict 1967 and having regard to the nature of appellants’ application which calls for exercise of discretion, the trial High Court was right in holding that the appellants have to satisfy 2 conditions, namely, sufficient reasons for the delay and grounds of appeal which disclose triable or arguable issues.

ii. If the answer to issue one is in the affirmative, whether the trial High Court Judge exercises her discretion judiciously and judicially.

I have examined carefully the various issues formulated by the parties, it is my view that the appeal should be considered with reference to the issues as formulated by the appellants. As a matter of fact the issues as formulated by the appellants are all embraced within the respondent’s two issues.

It is pertinent to mention at this stage that the respondent has also cross appealed by filing one ground of appeal and formulating one issue for determination.