Mustafa Gambomi & Anor. V. Abba Gana Bintumi (2010)

LawGlobal-Hub Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, JCA

This is an appeal against the ruling of the Borno State High Court, dated 12/5/2003, in Suit No. M/166m/2001, in the exercise of the appellate jurisdiction thereof.

The nature and circumstances surrounding the instant appeal are discernible from the record of the lower court, transmitted to this court on, 14/10/03. On 31/5/01, the present two Appellants filed a motion on notice, dated 28/5/01, in the lower court seeking the following reliefs.

1. AN ORDER granting leave to the Applicants to appeal out of time.
2. AN ORDER staying the execution of the judgment of Upper Area Court Magumeri dated 15/2/2001.
3. FURTHER order(s) the Honourable Court may deem fit to make in the circumstance.

The application was supported by affidavit and a further affidavit, dated 01/6/01 and 31/12/03, respectively. A copy of proceedings of trial Upper Area Court Magumeri, was also attached to the affidavit in support thereof. Also contained at pages 11 & 12 of the record, is the counter affidavit, dated 07/4/03, personally deposed to by the Respondent thereby challenging the application. The grounds of appeal upon which application was predicated are contained at pages 13 & 14 of the record.

The application was heard on 08/4/03 resulting in the lower court delivering the ruling thereupon, on 12/5/03, wherein it came to the conclusion, inter alia, thus:

Applicants had breached the Rules of court by not filing their appeals within time as such the burden is on them to satisfy this court that they are entitled to the courts discretion.

We are of the view that where Rules of court have been breached appeal is no longer as of right on the whole coc hold that applicants in this application have failed to state good and convincing reasons as to why, they delayed in filing their appeal with 30 days as provided by laws. Their failure also to exhibit the Hausa version of the record of proceeding from the English version was based and the record of proceedings of the trial court has rendered the court not to be in a position to say whether the proposed grounds of appeal on which the applicants are relying to prosecute their appeal show good cause why the appeal should be heard.

Because of the reasons herein stated above we are of the view that the application No. M/166m/2002 lacks substance and is accordingly dismissed.

Being dissatisfied with the above ruling of the lower court, the Appellants have filed the instant appeal, predicated on four grounds of appeal, and the particulars thereof.

It is noted, that on 07/11/05, the Appellants were granted leave by this court to prosecute the appeal on their brief of argument alone, the Respondent having failed to file his brief.

The said Appellant’s brief was filed on 14/10/03. A total of three issues have so far been raised therein as follows:

(1) Whether the lower court was right in dismissing the appellant’s application to appeal out of time for not satisfying the conditions for the grant of the application.

(2) Whether Exhibit ‘C’ being ruling of Sharia Court of Appeal Maiduguri Barno State relied upon by the appellants can be disregarded as not being valid court’s record.

(3) Whether time lampse is material in considering and determining application for leave to appeal out of time.