AKPAENO v. AKPAENO (2021)

AKPAENO v. AKPAENO

(2021)LCN/15049(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, February 24, 2021

CA/C/113/2019

RATIO

DUTY INCUMBENT ON A PARTY SEEKING TO INVOKE THE DISCRETIONARY POWER OF COURT

As rightly posited that a party seeking to invoke the discretionary power of Court has the duty of providing the necessary material on which basis the discretion is to be exercised in his favour. This is premised on the fact that the Court does not exercise its discretion in vacuum but on legal evidence or materials placed before it. Thus, where such materials are not placed before the Court by the party seeking the exercise of its discretion, his application ought to fail, reason being that, there is no corresponding burden on the opposing party to supply any fact or any omission in the facts supplied by a party seeking an exercise of the Court’s discretion to enable the Court to exercise its discretion. See GENERAL AND AVIATION SERVICES LTD V. THAHAL (supra), UNIVERSITY OF LAGOS V. AIGORO (1985), NWLR (prt 1) 143 and ENEH V. NDIC (2018)16 NWLR (prt 1645) 355. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE WAY A TRIAL JUDGE EXERCISED HIS DISCRETION

It is also trite that an appellate Court is always reluctant to interfere with the way a trial Judge exercised his discretion but would be compelled to do so if:- (a) The discretion was wrongly exercised; (b) The exercise of discretion was tainted with some illegality or substantial irregularity; (c) There is miscarriage of justice, or (d) It is in the interest of justice to interfere. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

PASTOR ASUQUO AKPAENO APPELANT(S)

And

ANTHONY AKPAENO RESPONDENT(S)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Akwa Ibom State delivered on 10th January, 2019 dismissing the appellant’s application as well as the appeal in suit NO HU/607/2018.

The appellant as applicant through a motion on notice of 13/3/2018 prayed the lower Court for the followings:-
(1) An Order granting leave to the Applicant/Appellant to compile and transmit the Record of Appeal out of time.
(2) An Order deeming the Record of Appeal already compiled and transmitted as properly filed and served.

In support of the motion on notice was an affidavit of 9 paragraphs. The respondent upon been served also filed a 9 paragraphs counter affidavit. After hearing argument of the learned counsel on both sides and in considered ruling delivered on 10th January, 2019, learned trial Judge refused the application at page 158 of the record of appeal as follows:-
“… I am of the considered view and I so hold that the reasons stated out by the appellant/applicant for bringing this application in his affidavit in support being ill health and inability to fund

the compilation of the records on time are not substantial not good and reliable in law. The said reasons are incapable of persuading this Court to exercise its discretion in favour of granting the application of the appellant / applicant.”

At page 159 of the record of appeal, learned trial Judge concluded thus:-
“In consequence of this Court’s refusal to grant the application sought by the appellant/applicant, the appeal before this Court is without a record of appeal. An appeal without a record of appeal is incompetent.
Accordingly, the entire appeal is hereby dismissed. Costs of N20,000.00 is hereby awarded against the appellant/applicant in favour of the respondent.”

Dissatisfied with above, appellant appealed to this Court through a notice of appeal filed on 14/1/2019. The said notice of appeal contains two grounds of appeal at pages 160 – 162 of the record of appeal.

In the appellant’s brief of argument, settled by Anthony Ebuk Esq., a sole issue is identified for the hearing of this appeal as follows:-

Whether the learned trial Court in refusing the application for enlargement of time to transmit Record of Appeal out of time and to deem the Record of Appeal already transmitted as properly transmitted exercised his discretion judiciously, judicially and equitably.

In the respondent’s brief of argument, settled by Edem Asuquo, Esq. the appellant’s sole issue was adopted.
Arguing the sole issue, learned counsel for the appellant submitted that in refusing the application for enlargement of time to transmit the records of appeal and deeming the record already transmitted as proper, the learned trial Judge did not exercise his discretion judiciously, judicially and equitably. Counsel cited ABIODUN ODUSOTE V. OLAITAN ODUSOTE (1971)1 ALL NLR 219 at 222 and OLATUBOSUN V. TEXACO (NIG) PLC & ANOR (2012) LPELR – 7805 to contend that all judicial discretions must be exercised according to common sense and according to justice and thus, if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of the appellate court to intervene.

Counsel also contended that, even though the appellant did not transmit the record of appeal within time but that he filed an

application to regularize same along with his brief of argument and the respondent equally filed respondent’s brief which presupposes that the appeal was ripe for hearing, subject to the regularization of the record of appeal. He thus submitted that the refusal to grant an extension of time to the appellant invariably leads to a miscarriage of justice as the Court in the exercise of its discretion must necessarily be guided by consideration of doing justice.

It was further submitted that where a Court extends time for one part to file a challenge to another party’s application for extension of time to seek justice, it become injustice on the party whose application has been refused. Counsel therefore argued that the respondent having filed and moved a motion for extension of time to file a respondent brief and other Court processes in the appeal is deemed to have waived his right to the irregularity of the appellant’s record of appeal. He referred to ZAKIRAI V. MUHAMMED & ORS (2017) LPELR – 42349.

On the part of the respondent, it was submitted that a party who seeks an exercise of the discretion of the Court in his

favour has the burden of presenting all the material facts necessary for the exercise of the discretion as the Court does not exercise its discretion in vacuum. Counsel contends that ill-health and impecuniosity are not good and sufficient reason for delay to justify the exercise of the Court’s discretion to grant an extension of time. He referred to OMOREGIE V. EMOVON (1982) 6. SC and AKANKE V. ALAO (2005) 11 NWLR (prt 2937) 620 at 628 – 629.

Counsel submitted further that an appeal challenging interlocutory decision of Court that is predicated on exercise of discretion is at best a ground of mixed law and facts and as such leave of Court must be sought and obtained, relying on Section 241 (1) (b) and 242 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and the case of DESTRA INVESTMENT LTD V. F.R.N. (2018) 8 NWLR (prt 162) 335 at 338. And where leave of Court is a condition precedent to the exercise of the right of appeal, failure to obtain leave to appeal renders the application incompetent, concluded learned counsel for the respondent.

I have stated that the appellant in this case was the applicant before the lower Court and that the application giving rise to this appeal was for extension of time to compile and transmit record of appeal out of time and for a deeming order. The application for extension of time to compile and transmit record out of time no doubt call for an

exercise of the Court’s discretion which must be exercised judiciously and judicially. The facts and circumstances of each case being the parameter on which the exercise depends. This presupposes that at the mind of the Court is the consideration of doing substantial justice between the parties so as to hear the dispute on the merit.
The pertinent question is, did the trial Court exercise its discretion judiciously and judicially given the peculiar facts and circumstances of the case? The materials placed before the lower Court by the appellant are as set out in paragraphs 2, 3, 4, 6, 7 and 8 of the affidavit in support of the motion on notice which read as follows:-
“2. That the Notice of Appeal in this appeal was filed on the 2nd day of August, 2016 and thereafter, record was settled to be compiled and transmitted from the Court below.
3. That the appellant who is quite elderly had been seriously ill and could not fund the compilation of record on time.
4. That the record so compiled was not transmitted to this honourable Court sometimes about the 1st day of March, 2018.
6. That a copy of the record so transmitted was

served on the respondent through his counsel Edem Asuquo, Esq. of No.1 Ekpo Obot Street, Uyo, Akwa Ibom State.
7. The said record of appeal is in the Court file and the cover page evidencing same is hereto attached and marked Exhibit PA I.
8. That I verily believe that the respondent will not be prejudiced if this application is granted, whereas it will occasion great hardship on the appellant/applicant if this application is refused.”
I have earlier reproduced excerpt from the judgment of the lower Court which shows that ill health and inability to fund the compilation of the record on time are not substantial reasons to persuade it to exercise its discretion in favour of granting the extension of time to compile and transmit record of appeal. Perhaps, the learned trial Judge was oblivious of the fact that the record of appeal was eventually compiled and transmitted and hence the reason for seeking a deeming order to validate it. What is of paramount importance in such circumstance is to place all the cards on the table for full determination of the grievance of a party on one side and the other side which could present a picture

different from what the applicant is persuading the Court to accept as correct. There is indeed a duty on Court to afford parties an opportunity to correct their errors. In NALSA & TEAM ASSOCIATES V. NNPC (1991)8 NWLR (prt 212) 652 at 676, the Supreme Court had re-echoed the already settled principle that whenever a party to an action has detected an error in the proceedings which if uncorrected will adversely affect his chances and has by application made effort to correct such errors, the principles of justice demand that he should not be denied the opportunity to do so.

It is also trite that an appellate Court is always reluctant to interfere with the way a trial Judge exercised his discretion but would be compelled to do so if:-
(a) The discretion was wrongly exercised;
(b) The exercise of discretion was tainted with some illegality or substantial irregularity;
(c) There is miscarriage of justice, or
(d) It is in the interest of justice to interfere.
In the instance case, the appellant has shown that the discretion was wrongly exercised because it would occasion great hardship on him particularly having already

paved way for hearing the appeal on its merit by extending time for the respondent to file and deemed his respondent’s brief of argument. Had the learned trial Judge considered doing substantial justice between the parties and not been hindered by technicality, he would have exercised his discretion in favour of granting the extension of time sought by the appellant herein. In order words, the learned trial Judge did not exercise his discretion judiciously and judicially in the circumstance of this case.

In the result, the sole issue is resolved in favour of the appellant. I hereby allow the appeal and set aside the ruling of the trial Court delivered on 10th January, 2019. Time is accordingly extended to the appellant to compile and transmit the record of appeal in Suit NO HU/6A/2018 and the record of appeal already transmitted on 14/03/2019 is deemed as properly transmitted as at that date. The case is remitted to the Chief Judge of Akwa Ibom State for hearing of the appellant’s appeal by any judge of the High Court other than Hon. Justice Winifred I. A. Effiong.
Parties shall however bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege to read in draft the judgment delivered by my learned brother Muhammed L Shuaibu. JCA.

I agree with reasoning and conclusion in the judgment. In particular. I agree with the lead judgment that the trial Court did not exercise his discretion in refusing to grant extension of time to appeal to the Appellant judicially and judiciously in all the circumstances of the case.
I also allow the appeal. I abide by the consequential orders

JAMES SHEHU ABIRIYI, J.C.A.: I read in draft judgment just delivered by my learned brother, M. L. Shuaibu, JCA. I am also persuaded to allow the appeal. I allow the appeal and abide by all the orders in the judgment including the order as to costs.

Appearances:

Anthony Ebuk, Esq. For Appellant(s)

Edem Asuquo, Esq. For Respondent(s)