FRANCIS A. S. BWALA V. ASHAKA CEMENT PLC
(2010)LCN/3838(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of June, 2010
CA/J/199/2005
RATIO
EVIDENCE: AFFIDAVIT EVIDENCE; WHETHER THE COURT ACTS ON UNCHALLENGED AFFIDAVIT EVIDENCE
The Court acts on unchallenged affidavit evidence.
See: Egbuna v. Egbuna 1989 2 NWLR pt. 106 p. 773, Alagbe v. Akinsola 1978 2 SC P. 39. PER BODE RHODES-VIVOUR, J.C.A
JUSTICES
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
UZO NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
FRANCIS A. S. BWALA Appellant(s)
AND
ASHAKA CEMENT PLC Respondent(s)
BODE RHODES-VIVOUR, J.C.A (Delivering the leading Judgment): Learned Counsel for the Respondent/Appellant seeks by his motion filed on 26th February 2008 and brought under Order 17 Rules 1 and 10 of the Court of Appeal Rules 2007 the following:
1. An Order to strike out the Appellants brief dated and filed on 10/5/07 on the ground it was filed out of time and without the leave of this Court.
2. An-Order dismissing this appeal for want of prosecution.
3. And for such further or other orders as the Honourable court shall deem fit to make in the circumstances.
Abubakar Imam Esq. a legal practitioner in chambers of Learned of Counsel for the Respondent/Appellant deposed to a 7 paragraph affidavit in support of the motion.
Mr. Francis A. S. Bwala, the Appellant/Respondent deposed to a 12 paragraph counter-affidavit Annexed to it is document marked Exhibit A.
He also deposed to a 12 paragraph further and better counter-affidavit. Annexed to it are documents marked Exhibit A, and B.
At the hearing of the application on the 18th of May 2010 Learned Counsel for the Respondent/Applicant, Mr. A. Dauda observed that the Record of Appeal was served on parties on the 20th of October 2005, while the Appellants brief was filed on the 10th of May 2007. He submitted that the Appellants brief was filed out of time and there was no application for extension of time. He urged us to grant the prayers.
In reply Learned Counsel for the Appellant/Respondent Mr. J. John observed that under Order 6 Rule 2 of the Court of Appeal Rules 2002 he had 60 days to file his brief after receipt of Record of Appeal. He further observed that the Record of Appeal was served on him on the 28th day of March 2007 while his brief was filed on the 10th of May 2007, contending that the Appellants brief was filed within-time and so the application should be dismissed.
The Notice of Appeal was filed in 2005. The applicable Rules were the Court of Appeal Rules 2002. The current Rules i.e. the Court of Appeal Rules 2007 came into force on the 1st of September, 2007 and so not applicable to this application as regards filing of Record of Appeal and Briefs. Under Order 6 Rule 2 of the applicable Rules the Appellant/Respondent had sixty days after being served with the Record of Appeal to file the Appellants brief and where he is unable to file his brief within 6o days he can do so after 60 days if he files on application for extension of time. See Order 7 Rule 10 of the Court of Appeal Rules 2007.
The Appellant/Respondent says his brief was filed within 60 days after he was served with the Record of Appeal. I have examined the counter-affidavit and further and better counter-affidavit, and nowhere in these processes is it stated when the Appellant was served with the Record of Appeal. Intact at the “hearing or this application Learned Counsel for the Appellant/Respondent was asked by the Court to identify the paragraph in his affidavits which show when he was served the Record of Appeal. His answer was none my Lord.
The central issue in this matter is when the Appellant was served the Record of Appeal and whether the appellant filed his brief within 60 days from that day (i.e. the day the Record of Appeal was served on the Appellant).
Paragraph 3 (a) of the Affidavit in Support reads:
(a) That they have since on the 20th of October, 2005 received a copy of Record of Proceedings in this appeal.
In his submissions before us Learned Counsel for the Appellant/Respondent said that the Record of Appeal was served on him on the 28th of March 2007, but admitted that nowhere in his affidavit has he said so.
To my mind the deposition that the Record of Appeal was served on Counsel on or about the 20th of October 2005 is unchallenged.
The Court acts on unchallenged affidavit evidence.
See: Egbuna v. Egbuna 1989 2 NWLR pt. 106 p. 773, Alagbe v. Akinsola 1978 2 SC P. 39.
Furthermore the Record of Appeal was filed on the 22nd of September 2005.
It becomes abundantly clear that the Appellant/Respondent ought to have filed his brief before the end of 2005 since it is clear Counsel were served Record of Appeal in September 2005.
The Appellant filed his brief on the 10th of May 2007, well over two years out of time.
The filing of the Appellants brief in the circumstances is fundamentally flawed. In the absence of a successful application for enlargement of time to regularise the said brief the appropriate order is to strike out the brief. It is hereby struck out.
I must remind Learned Counsel for the Appellant/Respondent that affidavit to justify the filing of a process within time must be comprehensive on details. Where the contents of the affidavit are evasive on details or, and material facts the adverse parties depositions would go unchallenged and would be accepted by the Court as the correct state of the facts.
Now, Order 17 Rule 10 states inter alia that:
“Where the Appellant fails to file his brief within time…….. or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution.”
And that is precisely what Learned Counsel for the Respondent has done by this application.
Accordingly Appeal No. CA/J/199/05 is hereby dismissed for want of prosecution”
No order on costs.
UZO NDUKWE-ANYANWU, J.C.A: I have had the privilege of reading in draft form the Ruling just delivered by my learned brother Rhodes-Vivour, JCA. I agree that when a party is out of time in filing his processes he must give satisfactory reasons in his affidavit as to why this is so.
The Applicant has not given any reason to urge the Court to exercise its discretionary powers in granting his application.
This application is unmeritorious and it ought to fail. It is hereby refused.
ABUBAKAR DATTI YAHAYA, J.C.A.: I agree.
Appearances
J. John Esq
with him A. M. Umar, P. A. Ubeng, P. T. Shagaya;For Appellant
AND
A. Dauda Esq.,For Respondent
