LawCare Nigeria

Nigeria Legal Information & Law Reports

AHIAKWO v. EMEH (2022)

AHIAKWO v. EMEH

(2022)LCN/16113(CA)

In the Court of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Tuesday, April 26, 2022

CA/PH/139/2019(R)

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

MR. HENRY AMAECHI AHIAKWO APPELANT(S)

And

REUBEN E. EMEH RESPONDENT(S)

 

RATIO

THE HISTORY OF COMPILATION AND TRANSMISSION OF RECORDS OF APPEAL

A narrative of the history of compilation and transmission of records of appeal is aptly told in the case of Access Bank v. Onwuliri [2021] 6 NWLR (Pt. 1773) 391. It is said that the rules governing the compilation and transmission of records has evolved over the years. Under Order 2 Rule 13 of the Court of Appeal Rules 1981, the Registrar of the Court from which the appeal arose had the sole responsibility of compiling and transmitting the record of appeal to the appellate Court. There was no period prescribed for the conclusion of the exercise. As a result, it could take years for the record to be compiled and transmitted to the Court of Appeal. Appeals were frustrated and stagnated because of the failure or neglect of the Registrar to compile and transmit the record within a reasonable time. Order 3 Rule 13 of the Court of Appeal Rules 2002 also saddled the Registrar with the sole responsibility to compile and transmit the record with no stipulation as to time. In practice, to expedite the hearing of their appeals, appellants would seek a departure from the rules and the leave of the Court to compile and transmit the records themselves. The practice was subsequently codified in Order 8 Rules 1, 2, 3, 4 and 6 of the Court of Appeal Rules 2007. PER ADEGBEHINGBE, J.C.A. 

THE REQUIREMENT TO EARN THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME WTHIN WHICH TO APPEAL

An applicant, to earn the extension of time must show good reason. It also depends on facts and circumstances of each case. In the exercise of judicial discretion to extend time within which to take certain procedural steps as prescribed by the rules of Court, substantial justice to the parties must always be the cardinal determinant. The burden is on the applicant seeking extension of time to establish good or exceptional reasons to succeed. Extension of time for doing anything to which the rules of Court apply is within the discretionary powers of the Court. A judicious and judicial exercise of such powers could only be achieved if the extension of time that was sought was to get the appeal heard. All judicial discretions must be exercised according to common sense and justice. What is pertinent is that in the exercise of the discretion the issue of achieving substantial justice is paramount. The attitude of the appellate Court is to allow Records already compiled to come properly before the Court in the interest of substantial justice so that the appeal will be considered on its merit and determined. This augurs with the spirit of avoiding adherence to undue technicality that will cause injustice. PER ADEGBEHINGBE, J.C.A. 

THE POSITION OF LAW ON THE EXERCISE OF JUDICIAL DISCRETION

From the case of Jimoh v. Minister, F. C. T. [2019] 5 NWLR (Pt. 1664) 45 at 73, we are educated that the exercise of judicial discretion is based on the peculiar facts of a given situation guided by law and the equitable decision of what is just and proper under the circumstance. The respondent’s protest in this case is without foundation, especially, because the respondent did not file any process to cause the striking out or dismissal of the appeal when he perceived that the appellant/ applicant was in disobedience of the provisions of the Rules of this Court. It was the appellant who came to Court, without the respondent’s prompting, to file the application being determined. The respondent will not be prejudiced with or by the grant of this application. Rather the ends of justice will be well served, if time is extended as demanded by the appellant/applicant. See the case of Iwuji v. Ekweghariri (2020) 14 NWLR (Pt. 1743) 147 at 156-157.
The case of Buremoh v. Akande (2017) 7 NWLR (Pt. 1563) 74 at 106 instructs that an application for extension of time to transmit record of appeal is discretionary. The applicant must place before the Court sufficient material to warrant the exercise of the Court’s discretion in his favour, which has been satisfactorily done in this matter.  
PER ADEGBEHINGBE, J.C.A. 

THE POSITION OF LAW ON FAILURE TO OBTAIN RECORD OF PROCEEDINGS WITHIN TIME DUE

For it was held by the Supreme Court in the case of Amaechi V Omehia (2013) 16 NWLR (Pt.1381) 417 that failure to obtain record of proceedings within time due to the fault of the registry staff of the Court constitutes good and substantial reason for delay occasioned thereby. See also the case of Waziri and Anor V Geidam and Ors (2016) 11 NWLR (Pt.1522) 230. PER IKYEGH, J.C.A.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgement): This ruling is the product of the motion filed by the appellant/applicant on 20/01/2022, which was argued on 17/02/2022. On the named date, O. Nwokolu Esq. (with E. B. Igwe Esq.) appeared for the appellant/applicant. He argued the motion by adopting the written address filed along with the application, as argument thereof. He also relied on the affidavit in support of the application and exhibit attached thereto. He urged the Court to grant the application.

J. A. Ikpela Esq. (with H. A. Robinson Esq.) appeared for the respondent. He adopted the written address and the counter-affidavit, filed on 16/02/2022, as argument of respondent’s opposition to the grant of the application. He advised us to refuse the application.

​The motion asks this Court to grant an order enlarging time within which the appellant/applicant may compile, transmit and serve the record of appeal in suit no. PHC/454/2012 and deeming as properly compiled, transmitted and served, the record of appeal already compiled and transmitted to this Court on 19/03/2019. The stated grounds for the application are in summary thus:
1. That the appellant/applicant filed his notice of appeal dated 17th day of May, 2017 against the ruling of the learned trial Judge, Hon. Justice I. P. C. Igwe sitting at the High Court of Rivers State Complex, Port Harcourt which was delivered on the 3rd of May, 2017.
2. The appellant/applicant promptly filed an application for the record of proceedings and judgment of the trial Court to enable timely compilation of the record of proceedings dated 10th of May, 2017 and 5th of June, 2017.
3. That it took the trial Court 10 (ten) months to get the record of proceedings ready and delivered to the appellant/applicant.
4. That it also took the trial Court 1 (one) year and (9) nine months for the judgment of the trial Court to be delivered to the appellant/applicant.
5. That due to the above stated reasons in paragraphs 3 and 4, the Registrar of the trial Court could not compile the record of appeal within the time allowed by the Rules of this Court.
6. That the appellant/applicant could not compile the record of appeal within the time owing to the failure of the trial Court to make available the record of proceedings and the judgment.
7. That the record of appeal ought to have been compiled and transmitted to this Court within sixty (60) days by the Registrar of the Court below and where the Registrar of the Court below fails to compile and transmit the appellant/applicant shall do same within thirty (30) days thereafter.
8. That the record of appeal was compiled and transmitted to this Court on 19th day of March, 2019.
9. That the delay in compiling and transmitting the record of appeal is solely because the trial Court failed to release the judgment and the record of proceedings of the Court to the Registrar of the Appeal Registry at the lower Court on time even upon several oral applications in the open Court.
10. That the appellant/applicant is very ready to prosecute this appeal to its logical conclusion as the appellant/applicant strongly believe that the trial Court erred in law and fact when the Court gave judgment in favour of the respondent.
11. That the application is made in the interest of justice.

​The application was escorted to this Court by an affidavit deposed to by O. Nwokolu Esq., a legal practitioner, who confirmed the facts stated in the grounds for the application, on oath.
The written address filed in argument of the application was signed by E. B. Igwe Esq. Learned counsel referred to Order 4 Rule 10; Order 6 Rule 9(1), Order 23 Rule 11 of the Rules of the lower Court and paragraphs 2-10 of the affidavit in support of the application and urged this Court to grant the application, in the interest of justice.
The respondent filed a counter-affidavit on 16/02/2022, which Faith U. Nwamanah, a legal practitioner, deposed to. Learned counsel, with flourish, testified as follows:
“2. That the Appellant/Applicant application is incompetent because the Respondent has raised this point in page 31, particularly the land paragraph on the indolence of the Appellant, as such, issues have been joined as he filed his reply.
3. That the Appellant affidavit in support of his application is not true because he is expected to compile and transmit records if time given to Court lapsed.
4. That this application is to further delay this matter because the Appellant filed this case since 15th of May, 2017.
5. That Appellant did not compile and transmit records as provided until the time stipulated lapsed.
6. That this appeal was entered on the 21st March, 2019 and he did nothing to cure or regularise his processes.
7. That the Appellant filed his appellant’s brief on the 18th April, 2019.
8. That Respondent filed his brief on the 6th of December, 2019.
9. That Appellant filed this motion on the 7th January, 2022.
10. That we specifically deny each paragraph in the affidavit in its entirety as they are false.
11. That it will be in the interest of justice to refuse granting the Appellant’s Application.”

The author of the written address, filed in argument of the respondent’s opposition to the grant of the application gave his name as Jackson A. Ikpela Esq. Learned counsel stated the question to be resolved as being: whether the appellant can at this stage bring this application when parties have joined issues, particularly, when he has failed to comply with statutory provisions of this Court?

Learned counsel fingered the case of Eronini v. Iheuko (1989) 2 NWLR (Pt. 10) 46 as providing the answer to the question. He complained that the appellant should not be indolent in complying with the Rules of this Court and needed to have done the needful at the earliest time when he knew that his appeal has been delayed. He referenced Order 8 Rules (4) & (5) of the Rules of this Court, on when the record of appeal was expected to be compiled, which was not obeyed. He complained that the appellant did not seek permission to cure the defect in the vice until issues were joined by parties on the point. He cited the decision in A. A. Int’l Ltd. v. Sterling Bank Plc [2018] 281 LRCN 1 at 7 which determined the consequences of non-compliance and that Rules of Courts are sacrosanct. He also cited the cases of C. R. U. TECH v. Obeten [2012] All FWLR (Pt. 641) 1567 at 1571 and Aderibigbe v. Abidoye [2009] 173 LRCN 60 at 86 on the implication of a statute providing for the manner of taking a particular step and the effect of conditions precedent.

​In the opinion of learned counsel, the reasons offered by the appellant are not compellable enough to warrant the discretion of the Court. He pointed out that the appellant did not ascribe any blame to himself and did not give reasons for not compiling and transmitting the record of appeal. In the view of learned counsel, Order 8 Rule 4 of the Rules of this Court makes it mandatory for the appellant to compile and transmit the record of appeal. He explained that the appellant failed to take any responsibility in paragraph 11 of the affidavit in support of the application for not performing his duty within time. He described the application before the Court as void. He submitted that a party cannot benefit from his wrong, with the aid of the case of Ibrahim v. Osunde [2009] All FWLR (Pt. 465) “1651 at 1567”.
He urged the Court to dismiss the application.

Determination of the Application
A narrative of the history of compilation and transmission of records of appeal is aptly told in the case of Access Bank v. Onwuliri [2021] 6 NWLR (Pt. 1773) 391. It is said that the rules governing the compilation and transmission of records has evolved over the years. Under Order 2 Rule 13 of the Court of Appeal Rules 1981, the Registrar of the Court from which the appeal arose had the sole responsibility of compiling and transmitting the record of appeal to the appellate Court. There was no period prescribed for the conclusion of the exercise. As a result, it could take years for the record to be compiled and transmitted to the Court of Appeal. Appeals were frustrated and stagnated because of the failure or neglect of the Registrar to compile and transmit the record within a reasonable time. Order 3 Rule 13 of the Court of Appeal Rules 2002 also saddled the Registrar with the sole responsibility to compile and transmit the record with no stipulation as to time. In practice, to expedite the hearing of their appeals, appellants would seek a departure from the rules and the leave of the Court to compile and transmit the records themselves. The practice was subsequently codified in Order 8 Rules 1, 2, 3, 4 and 6 of the Court of Appeal Rules 2007. Under the new dispensation, which was carried into the Court of Appeal Rules 2011, the Registrar of the Court has the initial responsibility to compile and transmit the records to the Court of Appeal within 60 days after the filing of the notice of appeal. Where he fails or neglects to do so within the specified time, it becomes mandatory for the appellant to compile and transmit the record himself and at his own expense. He has 30 days from the date of the Registrar’s default. There is no duty on the respondent to compile an additional record. He may do so where a document, proceeding or exhibit that is crucial to the just determination of the appeal has been inadvertently omitted from the compilation. He has 15 days from the service on him of the record of appeal within which to file an additional record.
​From the above provisions, it is quite evident that the Court sought to eliminate the unconscionable delay in the compilation and transmission of the record of appeal from the trial Court by placing additional responsibility on the appellant, and, where applicable, the respondent. For the first time, the Rules also stipulate the time within which the exercise is to be carried out. 

It was not in dispute that there was a delay in the compilation and transmission of the record of appeal from the trial Court to the Court of Appeal in the instant case. 

The compilation and transmission of a complete record of appeal is a condition precedent to the assumption of jurisdiction by an appellate Court. Where the Court is bereft of jurisdiction, the proper order to make is an order of striking out, not dismissal, the appeal having not been heard on the merits. 

Order 8 Rules 1, 4 and 6 of the Court of Appeal Rules, 2021 retains the timelines for the Registrar (60 days) or the Appellant (30 days) of the date of the filing of the notice of appeal, to compile and transmit the record or additional record of appeal, to the Court of appeal, as the case may be.
The request of the appellant/applicant in his application is that the Court should extend time within which the appellant may compile and transmit the record of appeal in suit no. PHC/454/2012, coupled with an order deeming the record of appeal already compiled and transmitted to this Court on 19/03/2019 as properly compiled and transmitted. That presupposes that the record of appeal is already in this Court. The appeal has been entered in this Court already and christened CA/PH/139/2019.

I have examined the case file and discovered that the appellant/applicant filed his appellant’s brief of argument on 18/04/2019. The respondent, who is opposing the application, filed his respondent’s brief of argument on 06/12/2019. The appellant filed his appellant’s reply brief of argument on 24/11/2021. These processes are winking at me as I write this ruling. Thus, the application being considered and determined are meant to lead to the activation of the jurisdiction of the Court and lead to the determination of the appeal, which is all but ripe for hearing, leaving only a few steps to that stage.

​It is in these circumstances that the appellant/applicant brought his application for extension of time. See Order 6 Rule 9 of the Court of Appeal Rules 2021, which provides that this Court may enlarge time provided by the Rules for the doing of anything to which the Rules apply, except as it relates to the taking of any step or action under Order 16 in the Rules. The case of I. T. N. A. G. P. P. E. v. P. C. N. [2012] 12 NWLR (Pt. 1284) 262, teaches that the Court of Appeal may enlarge the time provided by the Rules of Court for the doing of anything to which the Rules apply. The law is that where a statute provides a specific time for filing of a process and it is not filed within the period specified, the reason for the delay in not complying must be reasonable. The party in default must seek for extension of time. The question whether an extension of time may be granted to regularise a particular act or default being a matter of discretion, requires the Court to exercise same judiciously. An applicant, to earn the extension of time must show good reason. It also depends on facts and circumstances of each case. In the exercise of judicial discretion to extend time within which to take certain procedural steps as prescribed by the rules of Court, substantial justice to the parties must always be the cardinal determinant. The burden is on the applicant seeking extension of time to establish good or exceptional reasons to succeed. Extension of time for doing anything to which the rules of Court apply is within the discretionary powers of the Court. A judicious and judicial exercise of such powers could only be achieved if the extension of time that was sought was to get the appeal heard. All judicial discretions must be exercised according to common sense and justice. What is pertinent is that in the exercise of the discretion the issue of achieving substantial justice is paramount. The attitude of the appellate Court is to allow Records already compiled to come properly before the Court in the interest of substantial justice so that the appeal will be considered on its merit and determined. This augurs with the spirit of avoiding adherence to undue technicality that will cause injustice.
​I have considered the evidence presented to the Court by the appellant/applicant in paragraphs 2-11 of the affidavit deposed to by O. Nwokolu Esq. I am persuaded to hold that there are cogent reasons for the grant of the application. The initial non-compliance with the requirement to compile and transmit the record of appeal within the combined period of 90 days reserved for the Registrar of the lower Court and the appellant to perform the act of compilation and transmission of the record of appeal is blamed on the inability of the appellant to secure the obtainment of a copy of the decision of the lower Court sought to be brought before this Court, on appeal, for almost two years. The respondent has not challenged that simple allegation, which resides at paragraphs 3-5 of the affidavit in support of the application. The lower Court had a duty to deliver to parties “duly authenticated copies” of any ruling, judgment or decision within seven (7) days of the date of the judgment or decision of a Court. It is an unwaveringly mandatory constitutional provision, which is in Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999. Whenever the delay to compile record of appeal is the unexplained product of the tardiness of the Court, a party must necessarily be given the benefit of the indulgence of the Court, with an order for extension of time. Where the record is already transmitted, as it is in this appeal and parties have filed their briefs of argument, except there are compelling reasons to refuse the application, which does not exist in this matter, the application should be granted.

From the case of Jimoh v. Minister, F. C. T. [2019] 5 NWLR (Pt. 1664) 45 at 73, we are educated that the exercise of judicial discretion is based on the peculiar facts of a given situation guided by law and the equitable decision of what is just and proper under the circumstance. The respondent’s protest in this case is without foundation, especially, because the respondent did not file any process to cause the striking out or dismissal of the appeal when he perceived that the appellant/ applicant was in disobedience of the provisions of the Rules of this Court. It was the appellant who came to Court, without the respondent’s prompting, to file the application being determined. The respondent will not be prejudiced with or by the grant of this application. Rather the ends of justice will be well served, if time is extended as demanded by the appellant/applicant. See the case of Iwuji v. Ekweghariri (2020) 14 NWLR (Pt. 1743) 147 at 156-157.
The case of Buremoh v. Akande (2017) 7 NWLR (Pt. 1563) 74 at 106 instructs that an application for extension of time to transmit record of appeal is discretionary. The applicant must place before the Court sufficient material to warrant the exercise of the Court’s discretion in his favour, which has been satisfactorily done in this matter. 

In the instant case, such material included cogent reasons for the delay in compiling and transmitting the record of appeal. The exercise of the discretion of this Court has been appropriately excited and it is judicial and judicious to act in favour of the appellant/applicant. It is my determination that there is merit in the application, which is hereby granted, as prayed. Time is extended to today and the record of appeal transmitted in suit no. PHC/454/2012, on 19/03/2019, is deemed properly compiled and transmitted to this Court, today.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct ruling prepared by my learned brother, Adegbehingbe, J.C.A., and add that the delay in the compilation and transmission of the record of appeal being squarely placed within the domestic domain of the registry of the lower Court over which the applicant has no control, sufficient excuse has been furnished by the applicant for the delay. For it was held by the Supreme Court in the case of Amaechi V Omehia (2013) 16 NWLR (Pt.1381) 417 that failure to obtain record of proceedings within time due to the fault of the registry staff of the Court constitutes good and substantial reason for delay occasioned thereby. See also the case of Waziri and Anor V Geidam and Ors (2016) 11 NWLR (Pt.1522) 230. I too find substance in the application and hereby grant it in the mode indicated in the lead ruling.

PAUL OBI ELECHI, J.C.A.: I had the privilege of reading in draft, the ruling delivered by my learned brother Olabode Abimbola Adegbehingbe, JCA.

I agree with him that the application is worthy of being transmitted.

​​I too grant same.

Appearances:

E. E. Pantaleon, Esq. For Appellant(s)

J. A. Ikpela, Esq. with him, H. A. Robinson Esq., F. U. Nwamanah, Esq. and C. K. Ugwugwueli, Esq. For Respondent(s)