ADENIWE v. AMIDU
(2020)LCN/14112(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Friday, March 27, 2020
CA/J/149/M/2019
Before Our Lordships:
Adzira Gana Mshelia Justice of the Court of Appeal
Tani Yusuf Hassan Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
DARE A. ADENIWE APPELANT(S)
And
JAMES AMIDU RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS THE DUTY OF AN APPLICANT WHO WANTS THE DISCRETION OF THE COURT TO BE EXERCISED IN HIS FAVOUR TO SUPPLY THE COURT THE NECESSARY MATERIALS FOR THE EXERCISE OFTHAT DISCRETION
It is settled law, and follows logically too, that it is the duty of an applicant who wants the discretion of the Court to be exercised in his favour to supply the Court the necessary materials for the exercise of that discretion. Having made that application one of the reasons for the delay and to argue that he was not really tardy in appealing, one had expected that he would make that process available to the Court. PER UGO, J.C.A.
WHETHER OR NOT THE TIME FOR GIVING NOTICE OF APPEAL CAN BE EXTENDED BECAUSE THERE WAS DELAY IN OBTAIING A COPY OF THE JUDGEMENT SOUGHT TO BE APPEALED AGAINST
But much more fundamental than all that is whether the main ground for his application, which is difficulty in obtaining a certified true copy of the said judgment appealed from, is acceptable reason for delay in appealing. The answer to that question is a loud No. That much is now well established. In Federal Housing Authority v. Abosede (1998) 1-2 S.C 122, (1998) LPELR-SC. 161/1990, (1998) 2 NWLR (PT 537) 177 @ 187 – 188 (S.C.) Iguh, JSC, put that point thus:
“…It seems to me established that the time for giving notice of appeal will not be extended merely because there was delay in obtaining a copy of the judgment or ruling sought to be appealed against. This is because an appellant or his legal representative ought to be in a position to file grounds of appeal he conceives are available to him within the time prescribed by law without a certified true copy of the judgment appealed against and to obtain leave subsequently to file additional or amended grounds of appeal after his receipt of the certified true copy of the judgment in question. In this regard, de Comarmond, S.P.J. in Ayinla v. S.C.O.A. 20 NLR 154 explained theposition as follows: ‘The defendant or his legal advisers were certainly in a position to file grounds of appeal within the prescribed period and it would not have been difficult to obtain the leave to file additional or modified grounds of appeal after obtaining a copy of the judgment.
The West African Court of Appeal recently refused an application based on similar grounds and remarked that, as copies of records were seldom obtained within the time fixed for appealing, the statutory period become virtually inoperative if such applications were granted.’
That was reconfirmed more recently in The Minister of Petroleum & Mineral Resources & Anor v. Expo Shipping Line (Nigeria) Ltd (2010) 12 NWLR (PT 1208) 261 (Adekeye, J.S.C.) thus:
“It is trite that inability to secure a copy of a judgment or ruling is not a reason for failure to file an appeal within the time prescribed by law: Idris v. Audu (2005) 1 NWLR (PT 908) 612.”PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading judgment): By this application filed in this Court on 18/04/2019, the applicant seeks (1) Extension of time to seek leave to appeal against the judgment of the Plateau State High Court of 4th day of May 2017 delivered by P.L. Lot, J. (now retired) in Suit No. PLD/J45M1/13, (2) Leave to appeal the same Judgment, (3) Extension of time within which he can appeal against that judgment, and (4) An order extending time within which he can file Notice and Grounds of appeal against the same judgment.
He attributes his reason for the delay in appealing within the statutory ninety days to difficulties he encountered in obtaining the certified true copy of the judgment of the said Suit No. PLD/J45M1/13 he now seeks extension of time to appeal. His counsel’s secretary, one Blessing Amos, on his behalf and that of his counsel Gyang Zi Esq., deposed to these in paragraphs 3(d) (e) and (f) of her affidavit thus:
(d) That after judgment was delivered, counsel applied for a copy of the judgment to enable him to study same to file a Notice of Appeal. The application for the copy of the Judgment dated 8th May
1
2017 is hereby annexed and marked Exhibit B.
(e) That Hon. Justice P.L. Lot who delivered the judgment retired on the 4th July 2017 and it was difficult for the applicant to collect the judgment until 10th November 2017 when certified true copy of the judgment was made available to the applicant.
(f) That the applicant filed a motion on the 13th November 2017 to appeal the said judgment but the motion was withdrawn on the 24th January 2018 due to error of the registry of the Court below who dated the judgment 4th April 2017 instead of 4th May 2017.
In sub-paragraphs g – i of the same paragraph 3, Miss Amos, with applicant’s authority, went on to state thus:
(g) That the applicant expressed his intention to re-file the application immediately and we wrote to the Chief Registrar of the High Court of the Plateau State to have the date on the judgment corrected by reflecting 4th May 2017 in place of 4th April 2017. The letter to the Chief Registrar dated 25th January 2018 is annexed herein and marked Exhibit C.
(h) That despite effort to have the date on the judgment corrected, the Certified True Copy of the judgment could not
2
be made available to the applicant by the High Court of Plateau State until 18th April 2018 owing to the fact that the Judge needed to also run through the judgment to ensure there is no alteration of the judgment, thus the delay in bringing the application.
(i) That the said date on the judgment has been duly corrected and certified by the Court.
Miss Amos on applicant’s behalf went to further say in sub-paragraph (k) of that same paragraph 3 that ‘the proposed Notice of appeal is now ready and marked as Exhibit D.’ Incidentally, in the said Proposed Notice of Appeal (Exhibit D), applicant only gave notice, in line with his said wrongly dated judgment, that the judgment of the Plateau State High Court delivered by P.L. Lot J. that he was ‘dissatisfied with’ and was appealing is the one ‘delivered’ by the same judge on ‘4th APRIL 2017.’
The respondent is opposed to the application and filed a counter affidavit of six paragraphs, in which he contends that applicant neither adduced good and substantial reasons for the delay in appealing within the statutory time nor have good grounds of
3
appeal to support the grant of his application.
On this Court’s order, parties exchanged and adopted addresses. Applicant even filed a reply on points of law to Respondent’s address.
While applicant in argument placed emphasis on the fact that the delay in appealing within time was due to the mistake of the Registry of the High Court of Plateau State in wrongly dating the judgment appealed and the law is that the Court does not punish parties for mistake of their counsel or the staff of the Registry of the Court but will always aim to do substantial justice between parties, Respondent harped on the fact that the applicant’s affidavit and supporting documents was full of inconsistencies and contradictions which cannot be overlooked nor capable of meeting the twin-grounds for the grant of this type of application namely substantial reasons for the delay in appealing within time and grounds of appeal that are arguable. He also made the point that difficulty in obtaining a certified true copy of judgment to appeal within the statutory time is not acceptable reason for delay in appealing.
I must observe, first, that even though
4
applicant maintains that he had earlier brought a similar application like this in 2017 and later withdrew it because of error in the judgment sought to be appealed against, he did not produce that application or even the said wrongly dated judgment that purportedly induced the withdrawal of that application. It is settled law, and follows logically too, that it is the duty of an applicant who wants the discretion of the Court to be exercised in his favour to supply the Court the necessary materials for the exercise of that discretion. Having made that application one of the reasons for the delay and to argue that he was not really tardy in appealing, one had expected that he would make that process available to the Court.
I have also pointed out that the judgment applicant has given notice to this Court via his Proposed Notice of Appeal, that he is dissatisfied with and wants to appeal, is a judgment of 4th April 2017 of Lot, J. of the Plateau State High Court. That same judgment, by applicant’s own admission, does not exist at all. That being the case, one wonders whether this application is not even dead on arrival on that ground alone.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
5
But much more fundamental than all that is whether the main ground for his application, which is difficulty in obtaining a certified true copy of the said judgment appealed from, is acceptable reason for delay in appealing. The answer to that question is a loud No. That much is now well established. In Federal Housing Authority v. Abosede (1998) 1-2 S.C 122, (1998) LPELR-SC. 161/1990, (1998) 2 NWLR (PT 537) 177 @ 187 – 188 (S.C.) Iguh, JSC, put that point thus:
“…It seems to me established that the time for giving notice of appeal will not be extended merely because there was delay in obtaining a copy of the judgment or ruling sought to be appealed against. This is because an appellant or his legal representative ought to be in a position to file grounds of appeal he conceives are available to him within the time prescribed by law without a certified true copy of the judgment appealed against and to obtain leave subsequently to file additional or amended grounds of appeal after his receipt of the certified true copy of the judgment in question. In this regard, de Comarmond, S.P.J. in Ayinla v. S.C.O.A. 20 NLR 154 explained the
6
position as follows:
‘The defendant or his legal advisers were certainly in a position to file grounds of appeal within the prescribed period and it would not have been difficult to obtain the leave to file additional or modified grounds of appeal after obtaining a copy of the judgment.
The West African Court of Appeal recently refused an application based on similar grounds and remarked that, as copies of records were seldom obtained within the time fixed for appealing, the statutory period become virtually inoperative if such applications were granted.’
That was reconfirmed more recently in The Minister of Petroleum & Mineral Resources & Anor v. Expo Shipping Line (Nigeria) Ltd (2010) 12 NWLR (PT 1208) 261 (Adekeye, J.S.C.) thus:
“It is trite that inability to secure a copy of a judgment or ruling is not a reason for failure to file an appeal within the time prescribed by law: Idris v. Audu (2005) 1 NWLR (PT 908) 612.”
The sum total of all the foregoing is that applicant has failed to make out a case for this Court to extend time for him to appeal. In the event, this application fails and is
7
here dismissed.
Parties shall bear their costs.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the Ruling of my learned brother Ugo, J.C.A just delivered. I agree with the reasoning and conclusion arrived thereat, that the application has no merit. The application fails and same dismissed.
TANI YUSUF HASSAN, J.C.A.: I agree with the Ruling just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA. I also dismiss the application.
Parties to bear their costs.
8
Appearances:
Gyang Zi, Esq., with him, H.A. Dongo, Esq. For Appellant(s)
A.M. Okwori, Esq., with him, O.Y. Othman Esq. For Respondent(s)
