CHIEF INNOCENT IWUJI v. PASTOR (MRS.) STELLA EKWEGHARIRI & ORS
(2019)LCN/12801(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/OW/306/2017
RATIO
INTERPRETATION OF STATUTE
“Order 8 Rules 4 and 5 of the Court of Appeal Rules have this to say:- RULE 4 ‘Where at the expiration of 60 days after the filing of the Notice of Appeal the registrar has failed and or neglected to compile and transmit the Records of Appeal in accordance with the preceding provision of this Rule, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the Court within 30 days after the registrar failure or neglect.” RULE 5 ‘Such Record compiled by the Appellant, shall be served on the Respondent or Respondents within the time stipulated for transmitting such records to the Court, which is 30 days.” PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
CHIEF INNOCENT IWUJI Appellant(s)
AND
1. PASTOR (MRS.) STELLA EKWEGHARIRI
2. INSP. ENYINNAYA (IPO) Ahiazu Divisional Police Office Mbaise
3. SUPOL DANJUMA (DPO) Ahiazu Division Police Office Mbaise
4. THE COMMISSIONER OF POLICE (C.O.P) (Imo State Command)
5. INSPECTOR GENERAL OF POLICE (IG) (Abuja Nigeria)
6. POLICE SERVICE COMMISSION (Nigeria) Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Federal High Court 2 Owerri Division, delivered on the 1st of March, 2017 in Suit No. FHC/OW/193/2016.
SYNOPSIS OF FACTS
In the matter for the enforcement of Fundamental Rights, in Suit No FHC/OW/CS/193/2016, the Applicant (Respondent in the present appeal had brought an application for inter alia the enforcement or securing the enforcement of her Fundamental Rights as guaranteed under Sections 34 (1), 35 (1) and 41 (1) of the 1999 Constitution (as amended) – Pages 1 – 26 of the Record of Appeal.
The Appellant story is that on the 13th of November, 2013, one Christopher Udah, brother in law to the 1st Respondent/Appellant was kidnapped from the family house of the Appellant at Mbaise, while the Appellant and his family were in Lagos.
The said brother in law was killed and his body was found abandoned at Eke Mpam, the Market Square of the community. This was while negotiation to pay the ransom was going on.
The matter was reported to the Police at Mbaise by the Appellant.
The Respondent was linked to the offence by virtue of statements of some of the suspects. She was invited for questioning by the Police, and was later discharged.
The story of the Respondents is that on the 26th day of July 2016, the 2nd Respondent led a team of armed Policemen to the Respondents house and arrested her. She was not told why she was arrested and detained, until the next day.
That it was the Appellant who furnished the Police with wrong information about her, leading to her arrest. That if the Respondents had investigated the matter properly, she should not have been arrested and detained.
The Court below after taking evidence, found for the Applicant (1st Respondent in this appeal). She was accordingly awarded the sum of one million naira against the Appellant and the 2nd ? 6th Respondents.
The Appellant dissatisfied with the judgment, has appealed it.
He filed a Notice of Appeal on the 27th of March 2017, encapsulating three (3) Grounds of Appeal ? Pages 158 ? 164 of the Record of Appeal.
The judgment of the Court is at Pages 147 – 153 of the Record of Appeal.
The Appellant filed an amended brief of argument on the 8th of September 2017. It is settled by P. C. Nwanyanwu Esq.
The 1st Respondents brief of argument was filed on the 28th of May 2018. It is deemed filed on the 28th of May 2018. It is settled by Ngozi Olechi Esq.
The Appellant filed an amended reply brief of argument on the 21st of February 2018.
The Appellant distilled three issues for determination from his Grounds of Appeal. They are:-
1. WHETHER THE COUNTER AFFIDAVIT OF THE APPELLANT IN THE COURT BELOW DID NOT SUBSTANTIALLY COMPLY WITH SECTION 115 OF THE EVIDENCE ACT 2011 TO HAVE ENABLED THE TRIAL COURT EXERCISE HER DISCRETIONAL POWERS AND DETERMINE THE MATTER ON ITS MERIT.
2. WHETHER THE ONE MILLION NAIRA (N1,000,000.00) AWARDED TO THE 1ST RESPONDENT AGAINST THE 1ST APPELLANT AND OTHER IS JUSTIFIED IN LAW IN VIEW OF THE CIRCUMSTANCES OF THIS CASE.
3. WHETHER THE TOTAL REJECTION OF THE COUNTER AFFIDAVIT OF THE 1ST RESPONDENT/APPELLANT BY THE COURT BELOW DOES NOT AMOUNT TO DENIAL OF FAIR HEARING.
The 1st Respondent distilled three (3) issues for determination from the Grounds of Appeal. They are:
1. WHETHER THE COUNTER – AFFIDAVIT OF THE APPELLANT AT THE COURT BELOW WAS NOT TOTALLY IN BREACH OF SECTION 115 OF THE EVIDENCE ACT, 2011 AND THEREFORE NOT ENTITLED TO ANY DISCRETIONAL POWERS OF THE SAID COURT IN DETERMINATING THE MATTER ON ITS MERIT.
2. WHETHER THE COURT BELOW WAS NOT RIGHT IN AWARDING ONE MILLION NAIRA (N1,000,000.00) TO THE APPLICANT/7TH RESPONDENT AGAINST THE 1ST RESPONDENT/APPELLANT AND OTHERS IN VIEW OF THE CIRCUMSTANCES OF THIS CASE.
3. WHETHER THE REJECTION OF THE COUNTER AFFIDAVIT OF THE APPELLANT BY THE COURT BELOW AMOUNTED TO DENIAL OF THE APPELLANT?S RIGHT TO FAIR HEARING.
In paragraph 3.00 of the 1st Respondent?s brief of argument. At Page 4, she has brought to the attention of this Honourable Court some absurdities in this appeal.
First of all, that the Notice of Appeal was filed out of time.
Secondly, that at Pages 1 to 6 of the Appellant’s brief of argument, the Record of Appeal does not bear out the Appellant’s claim in paragraphs 2.07, 2.08 and 2.09 of the brief of argument. Argues that it is unethical to rob in such allegation in the Brief of Argument.
I shall consider this so called absurdities which smacks of a preliminary objection, as it burdens on jurisdictional issues.
The 1st Respondent has argued thus:- That by the provision of Order 8 Rule 1 of the Court of Appeal Rules 2016, it stipulates that:
‘The registrar of the Court below shall within sixty days after the filing of the Notice of Appeal compile and transmit the Record of Appeal to the Court.
That the sixty days expired on the 26th of May,2017.
By Order 19 Rule 2 of the Court of Appeal Rules 2016 it says:
‘The Appellant shall within forty-five days of the receipt of the Record of Appeal from the Court below file in the Court a written brief being a succinct statement of his argument in the appeal.’
That the forty five days within which the Appellant ought to have filed his Appellants? brief of argument from the 26th of May, 2017, expired on the 10th day of July 2017.
The Appellant’s brief of argument was filed on the 8th of September 2017. Therefore his process is in competent. There was no application made for extension of time to regularize the Record of Appeal and the brief of argument. Cites IRO & ORS v. ECHEWENDU & ORS (1996) 8 NWLR (PART 468) 629. Urges Court to strike out the Appellant?s brief and dismiss the Appeal for want of diligent prosecution.
She submits that there are lies and misleading inaccuracies that pervade the Appellant?s brief particularly at Pages 1 – 6 thereof.
That for example, the Record of Appeal does not bear out the Appellant?s claim in paragraph 2.07, 2.08 and 2.09 of his brief of argument. Urges this Honourable Court to strike out those paragraphs.
In the Amended Appellant’s Reply on issues arising from the 1st Respondent’s brief, it is submitted that the purported preliminary objection titled ‘ABSURDITIES IN THIS APPEAL’ is not competently placed before the Court and therefore cannot be considered. He urged Court to discountenance same accordingly.
Submits that the objection touches on issues of facts and not law. This is because the processes here filed border on issues of fact, not law.
Citing OKEREKE v. JAMES (2012) 12. SCM 242, he submits that the Apex Court had this to say inter alia.
‘In law where a preliminary objection is argued in a brief, the need for separate notice is obviated, but where the facts are in issue in preliminary objection, an affidavit verifying the facts in issue becomes very necessary.”
Submits that the 1st Respondent relied on mathematical compilation of time and at the end, landed on a wrong answer.
Submits that the objection is speculative. That even when the objection is based on mixed law and facts, an affidavit of those facts are required to enable the Court act on it.
Submits that judgment in the Court below was delivered on 1/3/2017
1. Notice of Appeal was filed by the Appellant on the 31/5/2017
2. Record was compiled and transmitted to Court of Appeal on 2/8/2017.
3. Appellants’ brief was therefore filed and served on 8/9/2017.
Urges that considering when the Record of Appeal was transmitted, the Appellant’s brief was filed within time.
Urges Court to overrule the objection. From records, the judgment of the Court below was delivered on the 1st of March 2017. Pages 154 – 157 of the Record of Appeal.
The Notice of Appeal was filed on the 27/3/2017. Pages 158 – 164 of the Record of Appeal. The Record of Appeal was transmitted to this Court on the 4th of August, 2017.
The Appellant filed his brief of argument on the 8th of September 2017, but same was amended on the 8th of September 2017.
He filed a Reply Brief on the 21st of February 2018, but same was amended on same date.
The 7th Respondent had filed a brief of argument on the 27th of November, 2017, but amended same by terming itself 1st Respondent filed as the 1st Respondents brief of argument on the 28th of May 2018.
In all, the processes before Court, the Appellant’s name has always been stated as CHIEF INNOCENT IWUJI.
In the 1st Respondents’ brief of argument filed on the 28/5/2018, but deemed filed on same date, the 7th Respondent now is stated to be the 1st Respondent – PASTOR (MRS) STELLA EKWEGHARIRI. So is it in the Amended Appellants brief of argument filed on the 8th of September, 2017, and the Amended Appellants Reply brief filed on the 21st of February, 2018 respectively.
I observe that the motion on notice filed on the 7th of February, 2018, filed by the present 1st Respondent (but stated as 7th Respondent on the motion paper) is for an order extending time to file the 7th Respondent’s brief of argument, but the amended brief however bears the 1st Respondent as PASTOR (MRS) STELLA EKWEGHARIRI and not the 7th Respondent.
The main issue in my view is whether the term ‘Absurdities in this appeal’ can aptly be deemed a preliminary objection. The answer is No. Order 10 Rule 1 of the Court of Appeal Rules 2016 clearly states and clearly provides for Notice of preliminary objection. It states that ‘Respondent intending to rely upon a preliminary objection to the hearing of the Appeal, shall give the Appellant three clear days’ notice thereof before the hearing, setting out the grounds of objection.
This the Respondent has not done. Therefore there is no Preliminary Objection before this Court, as the term ‘ABSURDITIES IN THIS APPEAL’ cannot be said to connote a PRELIMINARY OBJECTION, known to law.
The objection should have been brought according to law, to enable the other party be put on proper notice.
Secondly, to submit that the issues of compilation of dates are issues of fact is misconceived. This is because the period for compilation, and transmission of records, and filing of brief of argument, are legal provisions as provided for by the Rules of the Court of Appeal.
This Honourable Court however, has observed that the Record of Appeal was not transmitted within time. In other words both the Record of Appeal and the briefs of argument are utterly incompetent as the briefs are based on an incompetent Record of Appeal.
By virtue of the express provisions of Order 8 Rule 18 of the Court of Appeal Rules 2016, it stipulates that:
‘If the registrar has failed to compile and transmit the Record under Rule 1 and the Appellant has also failed to compile and transmit the Records in accordance with Rule 4 the Respondent may by Notice of motion move the Court to dismiss the Appeal.’
Order 8 Rules 4 and 5 of the Court of Appeal Rules have this to say:-
RULE 4 ‘Where at the expiration of 60 days after the filing of the Notice of Appeal the registrar has failed and or neglected to compile and transmit the Records of Appeal in accordance with the preceding provision of this Rule, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the Court within 30 days after the registrar failure or neglect.”
RULE 5 ‘Such Record compiled by the Appellant, shall be served on the Respondent or Respondents within the time stipulated for transmitting such records to the Court, which is 30 days.
I must state here that the result of this lacuna is that there is no appeal before this Court.
The Appeal is therefore accordingly dismissed.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my Lord, Pemu JCA in the lead judgment and I think the appeal should be struck out since the Records of Appeal and the brief of argument by Appellant are found to be incompetent. I abide by the consequential orders in the lead judgment.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother HON. JUSTICE R. N. PEMU, JCA. I completely agree with her reasoning and conclusions. I have nothing more to add. I adopt her orders as mine.
Appearances:
P. C. Nwanyanwu, Esq.For Appellant(s)
Ngozi Olechi, Esq.For Respondent(s)
