ABUBAKAR v. SAMA & ANOR

CITATION: (2018) LPELR-46786(CA)

In the Court of AppealIn the Sokoto Judicial Division

Holden at Sokoto

ON FRIDAY, 9TH NOVEMBER, 2018Suit No: CA/S/155M/2017(R)

Before Their Lordships:

HUSSEIN MUKHTAR Justice, Court of AppealAMINA AUDI WAMBAI Justice, Court of AppealABDULLAHI MAHMUD BAYERO Justice, Court of Appeal

BetweenHAJIYA MAIMUNA ABUBAKAR - Applicant(s)

And1. ISAH MUHAMMED SAMA2. MOHAMMED NURA GADA - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Principles guiding the grant of anapplication for extension of time within which to appeal"Having lost the right to appeal, the Appellant/Applicant may only appeal if this Court exercises its discretionin his favour by extending time within which to appeal. Order 6 Rule 9(2) guides the Court on exercising itsdiscretion to extend time within can appeal. It was argued that the Applicant has not shown good andsubstantial reasons for failing to appeal within the statutory time frame and has also not arguable groundsof appeal which prima facie show good cause why the appeal should be heard. The Court was urged torefuse and dismiss the application.?The grant of an application of this nature under Order 6 Rule 9(2) of the Court of Appeal Rules, 2016, is atthe discretion of the Court, and like any exercise of discretion, it has to be exercised judicially andjudiciously.In the exercise of its discretion under the Rules, the Court must always consider the depositions in thesupporting affidavit vis a vis the counter affidavit filed by the respondent to see if the reasons therein aregood and substantial enough to warrant the exercise of the Court's discretion in favour of the applicant orotherwise. See the cases of TOTAL INT. LTD VS AWOGBORO (1994) 4 NWLR (PT.337) 147 and NWORA VSNWABUEZE (2011) SCMJ 1163.It is pertinent, in an application of this nature, that the length of delay is immaterial so far as a good andsubstantial reasons justifying the delay is proffered. On the other hand, the duration of delay no matter howshort, is material if no good and substantial reason is given to justify it. See the case of YESUFU VCOOPERATIVE BANK (1989) NWLR (PT. 110) 483. The Applicant herein, in an attempt to satisfy the twinmandatory conditions has deposed to the fact that the delay was caused by the failure of his counsel tocarry out his instructions to file the notice of appeal soon after the judgment was delivered by the lowerCourt.A relation of the appellant had to intervene by going to the Court to find out the position of the appeal onlyto discover that the appeal had not been ignited as no notice of appeal was filed by the applicant's erstwhilecounsel A. A. Fingilla, Esq. Thus, the delay was substantially, if not wholly, due to fault of his counsel. Thisdeposition, which has not been denied in the counter affidavit, to my mind, constitutes sufficient good andsubstantial reason for failure to appeal within the prescribed period as to satisfy the first conditionenvisaged under Order 6 Rule 9(2) of the Rules.The law is well settled that mistake of counsel must not be visited on a litigant. See the case of HON.MINISTER OF THE FEDERAL CAPITAL TERRITORY V. ABDULLAHI (2010) ALL FWLR (Pt.507) 179 at 195 - 196where the Supreme Court stated thus: -"The law is definitely settled that no litigant should be punished for sin or mistake, of counsel." It wassimilarly held in the case of OSALUMHENSE v. AGBORO [2005] 16 NWLR (PT. 951) 204 thus:"It is a principle of law that litigants should not be made to suffer for the fault of counsel."The delay in filing the notice of appeal, in the instant case, was due to fault of counsel and the applicantmust not be made to suffer the fault of his counsel.The third ground in the proposed Notice of Appeal is reproduced thus:GROUND 3The Court below fell into very grave error of law when it entertained the 1st respondent's claim in suitnumber SS/24/2015 without jurisdiction.Particulars:1) That the issue between the 1st respondent and the Appellant is purely of competing interest over land.2) That the 1st respondent claimed to have bought the House sometimes in 1997 but only file suit No.SS/24/2015 in 2015 about 18 years.3) That by the provisions of Section 3 of the Limitation Law Cap. 80 Laws of Sokoto 5tate, 1996, the 1strespondent's claim is statute barred.4) That the Court below lacks the jurisdiction to hear the 1st respondent's claim in suit No. SS/24/2015 whichis statute barred.The foregoing ground 3 in the Notice of Appeal raises a critical arguable issue predicated upon jurisdiction ofthe court below. A ground of appeal alleging that the suit is statute barred and eventually incompetent isserious enough to show a compelling reason for hearing the appeal. Such ground of appeal is not frivolousas to shut out the applicant without hearing him on the merits. The Supreme Court in the case of ONASHILEV IDOWU (1961) SCNLR 16 observed as follows: -"Where there are one or two points of law and statutory interpretations in the grounds of appeal, thegrounds of appeal are not frivolous and to shut the appellant out without hearing him on the merits on theground that it was too late in carrying out the conditions laid down, would be too drastic a penalty."Similarly, in the case ofUKWU V. BUNGE (1997) 8 NWLR (Pt.518) 527 the apex Court held per Belgore, JSC(as he then was) thus: -"Where a party prays for extension of time to appeal and the ground is based on issue of jurisdiction and it isprima facie a strong issue in consideration of the whole proceedings, the Court will readily accede to theprayer as jurisdiction is always a good and substantial reason why an appeal should be heard."I cannot agree more. Being of the view that the applicant has satisfied the twin conditions stipulated inOrder 6 Rules 9(2) of the Rules, this application succeeds."Per MUKHTAR, J.C.A. (Pp. 14-19, Paras. D-B) - readin context

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2. APPEAL - EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Principles guiding the grant of anapplication for extension of time within which to appeal"...I am in agreement that this application for enlargement of time to appeal the decision of the lower Courtdelivered on the 14/2/2017, out of time, is meritorious. The unchallenged depositions at paragraphs 3(g) -(6) of the affidavit accounting for the delay in filing the notice of appeal timeously and the claim that theRespondent's action is statute barred, have sufficiently met the twin conditions stipulated in Order 6 Rule 9(2) of the Rules of this 2016, to warrant the grant of the application. Where an applicant, has satisfactorilyshown good and substantial reasons for failing to appeal within the prescribed period and his grounds ofappeal, prima facie are not frivolous but sufficiently shows why the appeal should be heard such as wherethe issue of jurisdiction or the action being statute barred is raised, an appellate Court would not, ordinarilydecline to grant the application.It must be pointed out that the length of delay in filing the Notice and likelihood of success of the appeal arenot immaterial in the consideration of the application. What is important is whether the delay whenevershort, medium or long is satisfactorily explained - See IROEGBU V OKWORDU (1990) 6 NWLR (Pt 159) 643,ISIAKA V OGUNDIMU (2006) 13 NWLR (Pt 997) 401. It is not the business or duty of the Court at this stage toconsider whether the appeal will succeed or not. That is a question for the 2nd stage after hearing theappeal. What matters and should be of prime consideration is whether there are arguable grounds of appeal.See IBODO V ENAROFIA. For this reason and the detailed reasons in the lead Ruling, I also grant theapplication..."Per WAMBAI, J.C.A. (Pp. 19-20, Paras. D-F) - read in context

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HUSSEIN MUKHTAR, J.C.A. (Delivering the Lead

Ruling): This is an application by motion on notice praying

for the following reliefs:

1. An order extending/enlarging the time within

which the Applicant may appeal against the decision

of the High Court of Justice, Sokoto State sitting at

first instance in suit No. SS/24/2015 delivered on 14th

February, 2017.

2. And for such further order or orders as this Hon.

Court may deem fit to make in the circumstances."

In other words, the application prays for extension of time

within which to appeal, against the judgment of the High

Court of Sokoto State delivered by Bello Duwale, J on 14

February, 2017 wherein the Court below entered judgment

(exhibit A) against the applicant and in favour of the 1st

respondent.

That the applicant and the 2nd respondent were the 1st

and 2nd defendants respectively at the trial Court, while

the 1st respondent was the plaintiff. The 2nd respondent

was tenant of the applicant in house No. KSHC 63 situated

at Gwiwa Low Cost Housing Estate Sokoto, Sokoto State.

That the 1st respondent filed the suit in 2015 claiming to

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have bought the house in dispute sometimes in 1997 and

praying the Court for declaratory and injunctive reliefs

against the applicant and the 2nd respondent.

The trial High Court in its judgment delivered on 14th

February 2017 conferred title of the disputed land to the

1st respondent against the applicant herein. A copy of the

said judgment is annexed to the supporting affidavit as

exhibit A.

That immediately after becoming aware of the Judgment of

the trial court, the Applicant instructed her counsel Mr. A.

A Fingilla to appeal against the judgment. However, Mr.

A.A. Fingilla was unable to file Notice of Appeal because he

did obtain not a copy of the judgment to enable him

prepare notice and grounds appeal.

Subsequently, the Applicant assigned another legal

practitioner to find out the the problem with her appeal and

it was discovered that the delay was from the registrar of

the Court below who complain of workload.

The applicant who was bitter, replaced her former counsel

with the present one to handle her appeal but it was

already timed out, hence this application praying for the

following reliefs;

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1. An order extending/enlarging the time within

which the Applicant may appeal against the decision

of the High Court of Justice, Sokoto State sitting at

first instance in suit No. SS/24/2015 delivered on 14th

February, 2017.

2. And for such order or orders as this Hon. Court

may deem fit to make in the circumstances.

The application is predicated on the following ten grounds:

1. That the applicant is the 1st defendant at the trial

Court wherein judgment was entered against her.

2. That the Applicant has been in continuous

possession and occupation of the house in dispute

from 1998 when her predecessor in title purchased

the house from Kebbi State Government to date.

3. That the judgement of the lower Court was

delivered on 14th February, 2017 in favour of the 1st

Respondent against the Applicant.

4. That there and then the Applicant instructed her

counsel Mr. A. A. Fingilla to appeal against the

judgment of the lower Court.

5. That Mr. A.A. Fingilla did not file the Notice of

Appeal because he could not get a copy of the

judgment on time.

6. That it took the Registrar of the lower Court about

7 months to prepare the copy of the judgment.

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7. That the Applicant disengaged Mr. A.A. Fingilla

counsel and employed the services of Mr. M. Nuhu to

handle her appeal.

8. That by the time the Applicant finds out the facts

above, she is already out of time to appeal, hence this

application.

9. That the Applicant is desirous of appealing against

the judgment of the trial Court.

10. That leave of this Court is required to file an

appeal out of time.

The reasons for the delay in filing the Notice of Appeal as

deposed to in the supporting affidavit are captured in

paragraph 3 (a) to (m) of the supporting affidavit thus: -

3. That I was informed by the Applicant and Mr. M.

Nuhu of counsel, in chambers on 21/10/17 at about

4.30pm of the following facts the truth of which I

truly believe as follows;

a. That the Applicant and the 2nd Respondent were

the 1st and 2nd defendants respectively at the trial

Court, while the 1st Respondent was the plaintiff.

b. That the 2nd Respondent herein was the tenant of

the Applicant herein in the house No. KSHC 63

situated at Gwiwa Low Cost Housing Estate Sokoto,

Sokoto State.

c. That the Plaintiff filed his suit in 2015 claiming to

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have bought the house sometimes in 1997 and

praying the Court for declaratory and injunctive

reliefs against the Applicant and the 2nd Respondent.

d. That the Applicant traced her root of title to one

Hajiya Zarah Isah who was the tenant of the house

since 1981 and later bought the house from Kebbi

State Government in 1998.

e. That from 1981 to date the Applicant and her

predecessor in title has been in undisturbed

possession of the House in dispute.

f. That trial High Court delivered his judgment on

14th February, 2017 in favour of the 1st Respondent

against the Applicant herein. A copy of the Judgment

is herewith annexed and marked as exhibit A.

g. That immediately after becoming aware of the

Judgment of the trial Court, the Applicant instructed

her counsel Mr A. A Fingiller to appeal against the

judgment.

h. That Mr. A.A. Fingiller was not in Court on the day

of judgment but immediately applied for the copy of

the judgment to enable him prepare the notice and

grounds appeal.

i. That after a while, when the Applicant could not

understand why a date has not been fix for hearing of

her appeal, she immediately assign her relation who

is

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a lawyer in the Ministry of Justice, Sokoto to help her

find out what is the problem.

j. That the Applicant was informed that the Registrar

of the Court did not prepare the copy of the Judgment

until after about 7 months blaming it on workload.

k. That the Applicant who was bitter, disengaged her

counsel and engage our law firm to handle her

appeal.

l. That by the time she finds out the facts above, she

is already out of time to appeal, hence this

application.

m. That the delay in filing the appeal is not deliberate

but for the reasons mentioned above.

The learned counsel for the applicant A. Maidawa, Esq

appearing with M. K. Abdullahi, Esq raised the twin issues

for determination in an application for extension of time to

appeal thus:

1. Whether the applicant has shown by affidavit

evidence good and substantial reasons for their

failure to appeal within the prescribed time, and

2. Whether there are good grounds of appeal which

prima facie shows good cause why the appeal should

be heard?

The issues were argued together. The application prays for

extension of time within which the applicant may appeal

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against the decision of the High Court of Sokoto State in

suit No. SS/24/2015 delivered on 14th February 2017 as

contained in the motion paper. It is supported by an

affidavit of 8 paragraphs deposed to by one Zayyanu Sahabi

a litigation clerk in the chambers of the applicant’s counsel.

To the application was also annexed exhibits A and B.

It was submitted for the applicant that the averments in the

supporting affidavit, have supplied sufficient reasons to

entitle the applicant to the exercise of Court’s discretion in

his favour.

This Court has the power to grant an application for

extension to appeal subject to fulfilment of the twin

condition imposed under Order 6 Rule 9(2) of the Court of

Appeal Rules 2016, which provides as follows:

"Every Application for enlargement of time within

which to appeal shall be supported by an affidavit

setting forth good and substantial reasons for failure

to appeal within the prescribed period and by grounds

of appeal which prima facie show good cause why the

appeal should be heard ... " (underline for emphasis)

The foregoing provision clearly shows that the following

two

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preconditions must be satisfied for an application of this

nature to succeed. These are:

a) Good and substantial reasons for the delay and

b) A Notice of Appeal which prima facie show cause

why the appeal should be heard.

The learned counsel for the applicant specifically referred

to paragraph 3(a) – (m) of the supporting affidavit with

emphasis on and more specifically paragraphs 3(g), (h), (i),

and (k), of the affidavit, which set forth good and

substantial reasons for the delay in filing the Notice of

Appeal. The said germane depositions are reproduced thus:

4. That I was informed by the Applicant and Mr. M.

Nuhu of counsel, in chambers on 21/10/17 at about

4.30pm of the following facts the truth of which I

truly believe as follows;

a. That the Applicant and the 2nd Respondent were

the 1st and 2nd defendants respectively at the trial

Court, while the 1st Respondent was the plaintiff.

b. That the 2nd Respondent herein was the tenant of

the Applicant herein in the house No. KSHC 63

situated at Gwiwa Low Cost Housing Estate Sokoto,

Sokoto State.

c. That the Plaintiff filed his suit, in 2015 claiming to

have bought the house sometimes in 1997

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and praying the Court for declaratory and injunctive

reliefs against the Applicant and the 2nd Respondent.

d. That the Applicant traced her root of title to one

Hajiya Zarah Isah who was the tenant of the house

since 1981 and later bought the house from Kebbi

State Government in 1998.

e. That from 1981 to date the Applicant and her

predecessor in title has been in undisturbed

possession of the House in dispute.

f. That trial High Court delivered his judgment on

14th February, 2017 in favour of the 1st Respondent

against the Applicant herein. A copy of the Judgment

is herewith annexed and marked as exhibit A.

g. That immediately after becoming aware of the

Judgment of the trial Court, the Applicant instructed

her counsel Mr. A. A Fingilla to appeal against the

judgment.

h. That Mr. A.A. Fingilla was not in Court on the day

of judgment but immediately applied for the copy of

the judgment to enable him prepare the notice and

grounds appeal.

i. That after a while, when the Applicant could not

understand why a date has not been fixed for hearing

of her appeal, she immediately assigned her relation

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who is a lawyer in the Ministry of Justice, Sokoto to

help her find out what is the problem.

j. That the Applicant was informed that the Registrar

of the Court did not prepare the copy of the Judgment

until after about 7 months blaming it on workload.

k. That the Applicant who was bitter, disengaged her

counsel and engage our law firm to handle her

appeal.

l. That by the time she finds out the facts above, she

is already out of time to appeal, hence this

application.

It was argued that the applicant’s uncontroverted

depositions have established the following salient points on

preponderance of evidence:

(1) That immediately the applicant became aware of

the judgment of the lower Court, she instructed her

counsel Mr A.A. Fingilla to appeal the judgment.

(2) That her counsel Mr. A.A Fingilla did not appeal

the judgment after several months.

(3) That the Applicant after waiting for a while the

Applicant instructed her relation who is a lawyer to

help find out the status of her appeal, that it was then

the applicant learnt that her counsel did not file any

appeal.

(4) That immediately the applicant found out the

facts

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above, she was bitter and disengaged her counsel and

she filed this application.

It was argued for the applicant that the respondent has not

controverted the foregoing applicant's depositions by

paragraphs 3(a) to (l) of his counter affidavit.

It was further argued for the applicant that the deposed

facts have shown that the delay was the fault of the former

applicant's counsel who failed to file the Notice of Appeal

within time. It took the intervention of a concerned relation

to the applicant to find out the status of her case.

It was submitted for the applicant that the Courts in a

plethora of cases have held that a litigant should not be

made to suffer for the mistake of counsel. He referred to

the case of THE HON. MINISTER OF THE FEDERAL

CAPITAL TERRITORY V. ABDULLAHI (2010) ALL

FWLR (Pt.507) 179 at 195 - 196 and the case of

OSALUMHENSE v. AGBORO [2005] 16 NWLR (PT.

951) 204.

It was also submitted on the second condition, that the

Applicant has annexed the proposed Notice of Appeal to

her supporting affidavit (exhibit B), which contain grounds

showing cause why the appeal should be heard as required

by law.

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Specific reference was made to ground 3, which shows that

the suit is statute barred and eventually incompetent. See

ONASHILE V IDOWU (1961) SCNLR 16; UKWU V.

BUNGE (1997) 8 NWLR (Pt.518) 527. The Court was

urged to grant the application as prayed.

The learned counsel for the respondent relied on the

counter affidavit especially paragraph 3 thereof to counter

the applicant’s germane depositions in paragraph 3 of the

supporting affidavit. It is reproduced thus: -

“That on the 13th of April 2017, at the Chambers, at

about 4.50pm in the course of my work, Ibrahim

Abdullahi Esq (of counsel) informed me of the

following facts, the truth of which I verily believed to

be true as follows:

a. That he has gone through the contents of the

supporting affidavit of the applicant's application and

found some depositions made in the supporting

affidavit of the applicant therein to be most untrue.

b. That contrary to paragraphs 3b - e of the

supporting affidavit of the applicant, the applicant is

a trespasser to the property as the 1st Respondent

and had been occupying same without the consent

and knowledge of him (the 1st Respondent).

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c. That further to the above, his (1st Respondent's)

reliefs in the action before the Court below relates to

continuous trespass to show the wrongful occupation

of his property and each passing day constituted a

new cause of action in favour of the 1st Respondent

for continuous trespass.

d. That contrary to paragraphs 3g - 3i of the

supporting affidavit of the Applicant, the Applicant

was represented in Court by one Aminu Saidu who

held the brief of A. A. Fingilla Esq when judgment was

delivered and by extension, both Counsel to the

Applicant and the Applicant herself are deemed to be

aware of the said judgment but sat docile and could

not even file an omnibus ground of appeal to

challenge the judgment of the Court below.

e. That contrary to paragraphs 3j of the supporting

affidavit of the Applicant, none receipt of a copy of

the judgment of the Court below is not a good ground

for not filing an omnibus ground of appeal which has

nothing to do with seeing a copy of the judgment of

the Court below.

f. That further to the above, there is nothing shown by

the Applicant of her seriousness to have a copy of the

judgment of the Court below.

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g. That contrary to paragraphs 3 a – k of the

supporting affidavit of the Applicant, the Applicant

has been most undesirous of prosecuting his appeal

to its logical conclusion.

h. That contrary to paragraphs 3 (i) – (m), of the

supporting affidavit of the applicant, the proposed

ground of appeal does not contain any recondite

issues of law to be canvassed on appeal.”

The learned counsel for the respondent relied on the

foregoing depositions in arguing that the appellant has not

fulfilled the statutory preconditions for appealing out time.

Having lost the right to appeal, the Appellant/Applicant

may only appeal if this Court exercises its discretion in his

favour by extending time within which to appeal. Order 6

Rule 9(2) guides the Court on exercising its discretion to

extend time within can appeal. It was argued that the

Applicant has not shown good and substantial reasons for

failing to appeal within the statutory time frame and has

also not arguable grounds of appeal which prima facie

show good cause why the appeal should be heard. The

Court was urged to refuse and dismiss the application.

The grant of an application of this nature

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under Order 6 Rule 9(2) of the Court of Appeal Rules, 2016,

is at the discretion of the Court, and like any exercise of

discretion, it has to be exercised judicially and judiciously.

In the exercises of its discretion under the Rules, the Court

must always consider the depositions in the supporting

affidavit vis a vis the counter affidavit filed by the

respondent to see if the reasons therein are good and

substantial enough to warrant the exercise of the Court’s

discretion in favour of the applicant or otherwise. See the

cases of TOTAL INT. LTD VS AWOGBORO (1994) 4

NWLR (PT.337) 147 and NWORA VS NWABUEZE

(2011) SCMJ 1163.

It is pertinent, in an application of this nature, that the

length of delay is immaterial so far as a good and

substantial reasons justifying the delay is proffered. On the

other hand, the duration of delay no matter how short, is

material if no good and substantial reason is given to justify

it. See the case of YESUFU V COOPERATIVE BANK

(1989) NWLR (PT. 110) 483.

The Applicant herein, in an attempt to satisfy the twin

mandatory conditions has deposed to the fact that

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the delay was caused by the failure of his counsel to carry

out his instructions to file the notice of appeal soon after

the judgment was delivered by the lower Court.

A relation of the appellant had to intervene by going to the

Court to find out the position of the appeal only to discover

that the appeal had not been ignited as no notice of appeal

was filed by the applicant’s erstwhile counsel A. A. Fingilla,

Esq. Thus, the delay was substantially, if not wholly, due to

fault of his counsel. This deposition, which has not been

denied in the counter affidavit, to my mind, constitutes

sufficient good and substantial reason for failure to appeal

within the prescribed period as to satisfy the first condition

envisaged under Order 6 Rule 9(2) of the Rules.

The law is well settled that mistake of counsel must not be

visited on a litigant. See the case of HON. MINISTER OF

THE FEDERAL CAPITAL TERRITORY V. ABDULLAHI

(2010) ALL FWLR (Pt.507) 179 at 195 – 196 where the

Supreme Court stated thus: -

"The law is definitely settled that no litigant should

be punished for sin or mistake, of counsel."

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It was similarly held in the case of OSALUMHENSE v.

AGBORO [2005] 16 NWLR (PT. 951) 204 thus:

"It is a principle of law that litigants should not be

made to suffer for the fault of counsel."

The delay in filing the notice of appeal, in the instant case,

was due to fault of counsel and the applicant must not be

made to suffer the fault of his counsel.

The third ground in the proposed Notice of Appeal is

reproduced thus:

GROUND 3

The Court below fell into very grave error of law when

it entertained the 1st respondent's claim in suit

number SS/24/2015 without jurisdiction.

Particulars:

1) That the issue between the 1st respondent and the

Appellant is purely of competing interest over land.

2) That the 1st respondent claimed to have bought

the House sometimes in 1997 but only file suit No.

SS/24/2015 in 2015 about 18 years.

3) That by the provisions of Section 3 of the

Limitation Law Cap. 80 Laws of Sokoto 5tate, 1996,

the 1st respondent's claim is statute barred.

4) That the Court below lacks the jurisdiction to hear

the 1st respondent's claim in suit No. SS/24/2015

which is statute barred.

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The foregoing ground 3 in the Notice of Appeal raises a

critical arguable issue predicated upon jurisdiction of the

court below. A ground of appeal alleging that the suit is

statute barred and eventually incompetent is serious

enough to show a compelling reason for hearing the appeal.

Such ground of appeal is not frivolous as to shut out the

applicant without hearing him on the merits. The Supreme

Court in the case of ONASHILE V IDOWU (1961) SCNLR

16 observed as follows: -

"Where there are one or two points of law and

statutory interpretations in the grounds of appeal, the

grounds of appeal are not frivolous and to shut the

appellant out without hearing him on the merits on

the ground that it was too late in carrying out the

conditions laid down, would be too drastic a penalty.”

Similarly, in the case of UKWU V. BUNGE (1997) 8

NWLR (Pt.518) 527 the apex Court held per Belgore, JSC

(as he then was) thus: -

"Where a party prays for extension of time to appeal

and the ground is based on issue of jurisdiction and it

is prima facie a strong issue in consideration of the

whole proceedings, the Court will readily accede to

the prayer as jurisdiction is always a good and

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substantial reason why an appeal should be heard."

I cannot agree more. Being of the view that the applicant

has satisfied the twin conditions stipulated in Order 6 Rules

9(2) of the Rules, this application succeeds. Accordingly,

the applicant is granted an extension of 14 days from today

to file Notice of Appeal against the judgment the High

Court of Justice, Sokoto State in suit No SS/24/2015

delivered on 14th February 2017. There shall be no order

as to costs.

AMINA AUDI WAMBAI, J.C.A.: I have read the ruling of

my learned brother, Hussein Mukhtar, JCA, with whom I

am in agreement that this application for enlargement of

time to appeal the decision of the lower Court delivered on

the 14/2/2017, out of t ime, is meritorious. The

unchallenged depositions at paragraphs 3(g) — (6) of the

affidavit accounting for the delay in filing the notice of

appeal timeously and the claim that the Respondent's

action is statute barred, have sufficiently met the twin

conditions stipulated in Order 6 Rule 9 (2) of the Rules of

this 2016, to warrant the grant of the application. Where an

applicant, has

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786(

CA)

satisfactorily shown good and substantial reasons for

failing to appeal within the prescribed period and his

grounds of appeal, prima facie are not frivolous but

sufficiently shows why the appeal should be heard such as

where the issue of jurisdiction or the action being statute

barred is raised, an appellate Court would not, ordinarily

decline to grant the application.

It must be pointed out that the length of delay in filing the

Notice and likelihood of success of the appeal are

not immaterial in the consideration of the application. What

is important is whether the delay whenever short, medium

or long is satisfactorily explained — See IROEGBU V

OKWORDU (1990) 6 NWLR (Pt 159) 643, ISIAKA V

OGUNDIMU (2006) 13 NWLR (Pt 997) 401. It is not the

business or duty of the Court at this stage to consider

whether the appeal will succeed or not. That is a question

for the 2nd stage after hearing the appeal. What matters

and should be of prime consideration is whether there are

arguable grounds of appeal. See IBODO V ENAROFIA.

For this reason and the detailed reasons in the lead Ruling,

I also grant the application and abide the consequential

order of my learned brother.

20

(201

8) LP

ELR-46

786(

CA)

ABDULLAHI MAHMUD BAYERO, J.C.A.: I have had the

preview of the Ruling just delivered by my learned brother,

Justice Hussein Mukhtar (JCA). I agree entirely that the

application for extension of time to allow the Applicant to

Appeal out of time against the decision of the High Court of

Justice, Sokoto State sitting at first instance in Suit No.

SS/24/2015 delivered on 14/2/2017 should be allowed and

is hereby allowed. The Applicant is hereby granted

extension of 14 days from today to file his Notice of Appeal.

I abide with the order as to cost.

21

(201

8) LP

ELR-46

786(

CA)

Appearances:

A. Maidawa, Esq. with him, M.K Abdullahi, Esq.For Appellant(s)

Shamsu A. Dauda, Esq. for the 1st respondent.

The 2nd Respondent was served on 20/09/2018For Respondent(s)

(201

8) LP

ELR-46

786(

CA)