MR. OBLECHOR LIFU AGU & ORS. v. HON. JOSEPH IDU
(2013)LCN/5852(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of January, 2013
CA/C/108/2010
RATIO
EVIDENCE: PURPOSE OF AN AFFIDAVIT
The purpose of an affidavit is to provide evidence to prove a material point(s) in argument. See Banque De L’Afrique Occidental vs. Alhaji Baba Sharfadi & Ors. (1963) NNLR 21.The affidavit of the appellant challenging the records has to be read along with the judgment of the learned trial Judge. See Nwosu vs. Imo State Environmental Sanitation & Ors. (1990) 4 SCNJ 97. PER JOSEPH TINE TUR, J.C.A.
EVIDENCE: INSTANCES WHERE A COUNTER-AFFIDAVIT IS USELESS
it is trite law that a counter-affidavit is useless where an affidavit is self-contradictory or lacking in credibility. See Royal Exchange Assurance vs. Aswani Textiles Industries Ltd. (1992) 2 SCNJ (Pt.2) 346 at 355 and Bank of Baroda vs. Mercantile Bank Ltd. (1987) 3 NWLR (Pt.60) 233 at 240 and 242. PER JOSEPH TINE TUR, J.C.A.
PROCEDURE: DUTY OF A COUNSEL WHENEVER ERRORS ARE POINTED OUT BY THE COURT
Blunders by Counsel shall never end. But it is part of the honour of learned Counsel to timeously accept mistakes or blunders committed in the course of proceedings. Whenever blunders, errors, inadvertence or mistakes, etc, occur and are pointed out by the Court or the opposing Counsel, they ought to timeously accept and correct them rather than persisting in those blunders, errors, mistakes or inadvertence. This saves time and cost of litigation. In Odofin vs. Agu (1992) 3 NWLR (Pt.229) 550 Olatawura, JSC held at page 374 paragraphs “C-E” in a similar vein thus:
It is patent from the prayers sought and the orders made by the lower Court that there was no prayer for an extension of time to file the notice and grounds of appeal. We looked in vain, and Chief Adedoyin was unable to assist us despite his assertion that oral application was made, for where the application was made orally, there was no record of it. As at the time we first pointed out this fundamental and fatal omission it behoved the learned Counsel Chief Adedoyin to make a through search and once he discovered that no such application was made, he should, in accordance with his duties to this Court, have conceded that there was no appeal before the lower Court on the glaring ground that the appeal is incompetent.
Where a Counsel realizes that the record of appeal is incomplete, it is his duty to inform the Court early and where he feels that, after due search in the lower court, he can take other steps to convince the Court that the record before the Court though certified as a true copy of the proceedings was indeed wrongly certified; he should know what next to do. A mistake of Counsel readily admitted by counsel is part of the honour of Counsel which is relied upon by Court not to visit the mistake of counsel on litigants.” PER JOSEPH TINE TUR, J.C.A.
APPEAL: EFFECT OF FAILURE TO COMPLY WITH STATUTORY REQUIREMENTS UNDER WHICH APPEALS ARE COMPETENT
It is now firmly settled that appeals generally, are creatures of statutes and therefore failure to comply with statutory provisions or requirements prescribed by the relevant statutes under which an appeal may be competent and proper before an Appellate court, will deprive that court of the requisite jurisdiction to entertain the appeal. See Auto Import -Export v. Adebayo (2002) 18 NWLR (799) 554 at 578; Afribank v Akwara (2006) 25 NSCQR 253 at 283. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
1. MR. OBLECHOR LIFU AGU
2. MR. EJE LIFU
3. MR. SUNDAY OGBECHE
(As for themselves and on behalf of Lifu Agu Family of Olachor, Okpoma, Yala Local Government Area). – Appellant(s)
AND
HON. JOSEPH IDU – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): Hon. Joseph Idu was the plaintiff before the High Court of Justice of Cross River State holden at Ogoja Judicial Division. The Defendants were (1) Mr. Oblechor Lifu Agu (2) Mr. Eje Lifu (3) Mr. Sunday Ogbeche. They were sued “As for themselves and on behalf of Lifu Agu family of Olachon Okpama, Yala Local Government Area” on 17th November, 2005. The subject-matter in dispute is described at paragraph 3 of the statement of claim filed on 17th November, 2005 thus:
“(3). The plaintiff is the owner of the building plot with a twin three bedrooms bungalow thereon lying and situate at Ochochi – Okpoma, more particularly situate opposite General Hospital Okpoma and situate by Okpoma/Okuku High way, Okpoma, Yala Local Government Area, Cross River State.”
In paragraph 3 of the Joint statement of defence filed on 2nd February, 2006 the defendants pleaded thus:
“3. The defendants denies paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 (all subparagraphs of the statement of claim and will at the trial of this action put the plaintiff to the strict test proof of the averments contained. And instead states as follows…”
The defendants counter-claimed the subject matter in dispute. This prompted the plaintiff to file a Reply and Defence to the Counter-claim on 11th September, 2007. The plaintiff testified as PW1 and called PW2-PW4. The defendants gave evidence as DW1-DW4. Learned Counsel submitted written addresses. The learned trial Judge considered the evidence and addresses. On the 9th day of November, 2009 the learned trial Judge entered judgment in favour of the plaintiff and made the following orders:
“I order as follows:
(1) I declare the plaintiff the owner of the property in dispute.
(2) I declare that the unlawful interference in whatever way by the defendants, their agents, privies, workers and assigns with the plaintiff’s property amounts to trespass.
(3) An order of perpetual injunction hereby issues under my seal and hand restraining the Defendants and whosoever or whatever from entering and or interfering with the plaintiff’s enjoyment of the said property.
(4) Counter claim dismissed.
This is my judgment.”
The Notice of Appeal with four grounds was filed on 24th March, 2010. Appellant’s Brief of Argument was filed on 31st August, 2010. The Respondent brought an application on 3rd April, 2012 praying for extension of time to file brief out of time and to raise a preliminary objection to the hearing of the appeal. The application was granted. The brief was deemed properly filed on 25th April, 2012. The appellant filed a Reply Brief to the preliminary objection on 14tn May, 2012. When the appeal came up for hearing on 3rd December, 2012 learned Counsel adopted their respective briefs of argument.
Learned Counsel to the Respondent argued the preliminary objection couched as follows:
“NOTICE OF PRELIMINARY OBJECTION BROUGHT PURSUANT TO ORDER 10 RULE 1 OF THE COURT OF APPEAL RULES 2011
TAKE NOTICE that the Respondent herein will at the hearing of this appeal rely on the following preliminary objection to the hearing of the appeal, notice whereof is hereby given to the Appellants herein.
AND TAKE NOTICE that the grounds of the objection are that:
1. There is no valid appeal before this Honourable Court as the notice of appeal was filed on 24th March, 2010, outside the three (3) months provided by Section 24(2)(a) of the Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria, 2004; and no order of this Honourable court was first sought for and obtained to do so.
2. Ground of appeal No.4 is incompetent and ought to be struck out as it did not arise from the decision appealed against.
3. Also, issue for determination No.4 formulated by the appellants is incompetent and should be discountenanced as they are based on an incompetent ground of appeal from which no issue should be formulated.
4. Issue for determination No.3 formulated by the Appellants is incompetent and should be struck out as it was distilled from an omnibus ground of appeal alone, from which no issue can be formulated independently of any other ground complaining of specific allegation of error or misdirection on facts or in law.
5. Grounds of appeal No.1 and 2, together with their particulars are liable to be struck out as they are verbose, argumentative, repetitive and narrative, and thus offend the provisions of Order 6, rule 2(2) and (3) of the Court of Appeal Rules, 2011.
Respondent will accordingly urge on this Honourable Court to strike out the appeal for being incompetent.
AND TAKE FURTHER NOTICE that this preliminary objection has been argued at pages 5 to 11 paragraphs 3.00 to 3.18 of the Respondent’s brief of argument.”
The argument by learned Counsel is set out at page 5 paragraph 3.01 to page 11 paragraph 4.00 of the Respondent’s Brief of Argument. The first attack concerns the Notice of Appeal. Learned Counsel submitted that the judgment was delivered on 9th November, 2009. The appellant’s had three months to have filed the Notice of Appeal but did not do so till 24tn March, 2010. Counsel’s contention is that even if three months is counted as three clear months, the last date would have been 29th February, 2010, citing Section 24(2) of the Court of Appeal Act Cap. C36 Laws of Federation of Nigeria, 2004; Kavasau vs. Ma’aji (2006) All FWLR (Pt.295) 767 and Nigerian Navy vs. Garrick (2006) All FWLR (Pt.315) 45 at 65. Learned Counsel urged that the Notice of Appeal should be struckout.
In the Reply Brief filed by the Appellant on 14th May, 2012 learned Counsel conceded that the appellant had three months to have filed the Notice of Appeal. Counsel however argued that the judgment was delivered on 25th February, 2010 as endorsed by the learned trial Judge. The Notice of Appeal was filed on 24th March , 2010 within the three months period contemplated by Section 24(2)(a) of the Court Of Appeal Act, Cap. C.36 Supra. Learned Counsel referred to the affidavit challenging pages 113 and 136 of the records of appeal. Counsel’s argument is that the appeal is competent. I shall consider this preliminary objection by alluding to the provisions of Sections 146(1)(2) and 147 of the Evidence Act, 2011 to wit:
“146(1) The Court shall Presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized in that behalf to be genuine, Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
(2) The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such document.
147. Whenever any document is produced before any court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before and officer authorized by law to take such evidence or to be a statement or confession by any prisoner or defendant, taken in accordance with law and purporting to be signed by any judge or magistrate or by any such officer as mentioned in this section, the court shall presume that
(a) the document is genuine;
(b) any statements as to the circumstances in which it was taken, purporting to be made by the person signing it, are true; and
(c) such evidence, statement or confession was duly taken.”
Regard may also be had to the provisions of Section 128(1) of the Evidence Act supra which reads thus:
“128(1) When any judgment of any Court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Bill; nor may the contents of any such document he contradicted, altered, added or varied by oral evidence:
Provided that any of the following matters may be proved:
(a) Fraud, intimidation, illegality; want of due execution; the fact that it is wrongly dated; existence or want or failure, of consideration; mistake in fact or law; want of capacity in any contracting party, or the capacity in which a contracting party acted when it is not inconsistent with the terms of the contract; or any other matter which, if proved, would produce any effect upon the validity of any document, or of any part of it, or which would entitle any person to any judgment, decree, or order relating to it;
xxxxxxxxxxxxxxxxxxxx.”
The combined reading of the above provisions will show that there is a presumption in law that a certified copy of any judgment duly signed by a judge or a magistrate is genuine; that the statements as to the circumstances in which it was taken, purporting to have been made by the person signing it are true. Thus, generally speaking the contents of a judgment or document may not be contradicted, altered, added or varied by oral evidence. See Union Bank of Nigeria Ltd. vs. Sax Nig. Ltd. (1994) 9 SCNJ 1; Wayne (W.A.) Ltd. vs. Ekwunife (1989) 12 SCNJ 99 and Union Bank of Nigeria Ltd. vs. Ozigi (1994) 5 SCNJ 41. However, affidavit evidence may be employed to show that the judgment was wrongly dated. See section 128(1)(a) of the Evidence Act supra. For the above reasons I shall examine the record of appeal to determine when the judgment was delivered by the learned trial Judge.
The defence closed her case on 7th April, 2009. All written addresses were adopted by learned Counsel on 6th August, 2009. The matter was adjourned by the learned trial Judge to 9th November, 2009. The learned trial judge did not state the purpose of the adjournment, namely, whether it was for judgment or for what? (See page 66 of the printed record). But under Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered the law is that every Court established under the constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses. The learned trial Judge had ninety days to deliver judgment from 6th August, 2009 when Counsel adopted their respective written addresses. Time began to run from 7th August, 2009 to expire on or about 4th November, 2009. section 15 of the Interpretation Act, Cap.123, Laws of the Federation of Nigeria, 2004 provides thus:
“15(1) A reference in an enactment to the time of day is a reference to the time which is one hour in advance of Greenwich mean time.
(2) A reference in an enactment to a period of days shall be construed –
(a) where the period is reckoned from a particular event, as excluding the day on which the event occurs;
(b) where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday.
(c) xxxxxxxxxxxxxx.”
See also Akeredolu vs. Akinremi (1985) 2 NWLR (Pt.10) 787 at 793-794.
The judgment was delivered on Monday, 9th November, 2009 (see page 113 and 136 of the printed record). This was within the requirements of Section 294(1) of Constitution supra. The judgment was delivered in the presence of Barrister J. Ikpala of Counsel to the plaintiff/Respondent and Barrister Adie, Esq. of Counsel to the defendants/appellants. The Notice of Appeal filed by S.E. Adie, Esq. bears the stamp and date “24/3/2010″ and is against the judgment of ‘His Lordship Honourable Justice Michael Edem and dated the 25th day of February, 2010.” But the appeal complains against “The whole judgment delivered on the 25th day of January, 2010.’Tne endorsement by the Assistant Chief Registrar 1 (Legal) is to the effect that the judgment was delivered on 25th February, 2010 at the High court of Justice, Ogoja. The question is who is right? The credibility and weight to be attached to the record of appeal, the judgment and the affidavit challenging the record is called into question. See section 34(1)(a) of the Evidence Act, 2011. See Ayeni vs. Dada (1978) 5 SC 35 at 61; Attorney General of Oyo State vs. Fairlakes Holete (1989) 12 SCNJ 1 at 20-21.
The record of appeal containing the judgment of the learned trial Judge will be used as acid test for evaluating the affidavit evidence challenging the records. See Fashanu vs. Adekoya (1974) 6 SC 83; Oscar Reynard vs. William Allan 2 WACA 52 at 55. There is no need to call for oral evidence to resolve the issue in controversy as only a point of law is involved in this argument. See Oketie vs. Olughor (1995) 5 SCNJ 217 at 230; Momah vs. UAB Petroleum Inc. (2000) 2 SC 142.
The purpose of an affidavit is to provide evidence to prove a material point(s) in argument. See Banque De L’Afrique Occidental vs. Alhaji Baba Sharfadi & Ors. (1963) NNLR 21.The affidavit of the appellant challenging the records has to be read along with the judgment of the learned trial Judge. See Nwosu vs. Imo State Environmental Sanitation & Ors. (1990) 4 SCNJ 97.
I am aware that neither the learned trial Judge, the Registrar of the Court below nor the Respondent deposed to a counter-affidavit in answer to the facts set out in the affidavit challenging the printed records. However, it is trite law that a counter-affidavit is useless where an affidavit is self-contradictory or lacking in credibility. See Royal Exchange Assurance vs. Aswani Textiles Industries Ltd. (1992) 2 SCNJ (Pt.2) 346 at 355 and Bank of Baroda vs. Mercantile Bank Ltd. (1987) 3 NWLR (Pt.60) 233 at 240 and 242.
If the judgment was delivered on 25th February, 2010 how could the Notice of Appeal be complaining about the whole judgment delivered on 25th January, 2010? (See page 137 of the printed record.) If this Court should accede to the argument by learned Counsel to the appellant that the judgment was delivered on 25th February, 2010 it would mean it was delivered in flagrant violation of the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered, namely, more than ninety days after the learned Counsel adopted their respective written addresses on 6th August, 2009. But there is no ground of appeal complaining that the judgment should be declared a nullity for violating the provisions of Section 294(1) of the Constitution supra. The appellant has been unable to rebut the presumption that the judgment was delivered by his Lordship in the lower Court on 9th November, 2009 as the affidavit lacks credibility.
Blunders by Counsel shall never end. But it is part of the honour of learned Counsel to timeously accept mistakes or blunders committed in the course of proceedings. Whenever blunders, errors, inadvertence or mistakes, etc, occur and are pointed out by the Court or the opposing Counsel, they ought to timeously accept and correct them rather than persisting in those blunders, errors, mistakes or inadvertence. This saves time and cost of litigation. In Odofin vs. Agu (1992) 3 NWLR (Pt.229) 550 Olatawura, JSC held at page 374 paragraphs “C-E” in a similar vein thus:
It is patent from the prayers sought and the orders made by the lower Court that there was no prayer for an extension of time to file the notice and grounds of appeal. We looked in vain, and Chief Adedoyin was unable to assist us despite his assertion that oral application was made, for where the application was made orally, there was no record of it. As at the time we first pointed out this fundamental and fatal omission it behoved the learned Counsel Chief Adedoyin to make a through search and once he discovered that no such application was made, he should, in accordance with his duties to this Court, have conceded that there was no appeal before the lower Court on the glaring ground that the appeal is incompetent.
Where a Counsel realizes that the record of appeal is incomplete, it is his duty to inform the Court early and where he feels that, after due search in the lower court, he can take other steps to convince the Court that the record before the Court though certified as a true copy of the proceedings was indeed wrongly certified; he should know what next to do. A mistake of Counsel readily admitted by counsel is part of the honour of Counsel which is relied upon by Court not to visit the mistake of counsel on litigants.”
The accepted path of honor for learned Counsel to the appellants was to have conceded and withdrawn this appeal when it was pointed to him that the Notice of Appeal was incompetent. That he failed to do. We shall do it for him.
On the whole, I am of the humble opinion that the Notice of Appeal filed on 24th March, 2010 is incompetent and is hereby struckout. I award N50,000.00 cost to the Respondent.
MOHAMMED LAWAL GARBA, J.C.A.: A draft of the lead judgment written by my learned brother, Joseph Tine Tur, JCA, was read by me before today.
Since the judgment of the High Court was undoubtedly delivered on the 9th of November, 2009, then by virtue of the provisions of Section 24(1) and 2(a) of the Court of Appeal Act any party thereto not satisfied therewith and was desirous of exercising the constitutional right of appeal against it, had three (3) months from that date, to give or file the notice of such an appeal, at his own discretion. Failure to do so within the stipulated time would subject the exercise of the right of appeal to the requirement of an extension of such time by the appellate court to which the appeal lies as in this case, as provided under Section 24 (4) of the Court of Appeal Act. Failure to appeal within the stipulated time and to obtain extension of time to appeal before filing a notice of appeal, is intrinsically fatal to the competence of an appeal. It is now firmly settled that appeals generally, are creatures of statutes and therefore failure to comply with statutory provisions or requirements prescribed by the relevant statutes under which an appeal may be competent and proper before an Appellate court, will deprive that court of the requisite jurisdiction to entertain the appeal. See Auto Import -Export v. Adebayo (2002) 18 NWLR (799) 554 at 578; Afribank v Akwara (2006) 25 NSCQR 253 at 283.
In the above premises, because the Appellant’s notice of appeal was filed outside the time limited by statute and did not obtain extension of time to appeal, the notice of appeal is incompetent and liable to be struck out.
In the result, I am in agreement with the lead judgment and strike out the Appellant’s notice of appeal for being incompetent.
ONYEKACHI A. OTISI, J.C.A.: I have had opportunity of reading the Judgment of my learned Brother, Joseph Tine Tur JCA in this appeal. I am in complete agreement with the Judgment.
The need for counsel to timeously accept and correct any inadvertent mistakes or blunders committed by them in the course of proceedings cannot be over-emphasized. It is indeed the honourable path to take. Time and costs are also saved by the Court, counsel and litigants.
I abide with the Order striking out the Notice of Appeal as incompetent, as well as the order as to costs.
Appearances
Offiong Effiwat For Appellant
AND
Mba E. Ukweni with Chief P. A. Akpoke; Mba O. Mba; Ekanem A. Otu (Miss); Mrs. R. E. Alae; Mrs. S. A. Ekeke and E. O. Abba For Respondent
