USMAN DANTATA JNR. & ANOR. V. MOUKTAR MOHAMMED
(2011)LCN/4889(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of November, 2011
CA/L/172B/08
RATIO
INTERPRETATION OF STATUTE: IMPLICATION OF THE WORD “SHALL” AS USED IN ORDER 54 RULE 2 OF THE LAGOS STATE HIGH COURT RULES WITH RESPECT TO THE DUTY OF AN APPLICANT FOR STAY OF EXECUTION ORDER
This appeal is about the correct interpretation and application of Order 54 Rule 2 of the Lagos State High Court Rules which provides as follows: “An Applicant for stay of execution of a judgment SHALL complete the records of appeal within 90 days from the date of filing a notice of appeal and where the record is not so compiled, the Respondent may apply to strike out the application or discharge the order if already granted”. (underlining mine) The learned trial judge held as follows on page 482 Vol. II of the record: “In the instant case, the order of stay had already been granted the question that immediately arises is whether the records of appeal have been compiled within the stipulated period of 90 days in compliance with the rules of court? From the documents before the court, the notices of appeal by the 1st and Defendants were filed on March 8th 2006, records of appeal are yet to be compiled and the time interval since then would appear to be more than the stated 90 days.” Apart from the above stated, it is necessary to consider the language of the aforestated provision with respect to its intendment and purport. The word “shall” is used with regard to the action expected to be taken by the Applicant. It seems to me in that wise that the provision does not leave room for where such compilation has not been done after the stipulated 90 days. It is therefore mandatory.” By the interpretation of the learned trial judge, the 90 days stipulated for compilation of the records of appeal is mandatory. The court held that once the compilation of the record is not completed within 90 days, then the Lagos High Court is bound to discharge an earlier order of stay of execution. The Appellants had argued that in order to interpret the section properly, it is necessary to consider the old rules of the Court of Appeal before the trial judge can apply her own rules. The Appellant seem to suggest that the application of Order 54 Rule 2 is a subject of the trial court’s discretion to discharge the order of stay of execution. I am humbly of the contrary view that the operative word ‘SHALL’ is mandatory and by the rule of interpretation, all that the court will have to consider is whether the act has been performed or not; if it has not be performed, the court will not hesitate to mete out the prescribed penalty against the defaulter i.e. the Appellant. In the case of ADESANOYE V. ADEWOLE (2005) 10 MJSC (Pp 15-16) paras G-A where Niki Tobi JSC held as follows: “Where a statute clearly provides for a particular act to be performed, failure to perform the act on the part of the party will not only be interpreted as a delinquent conduct but will be interpreted as not complying with the statutory provision. In such a situation, the consequences of non-compliance with the statutory provision follow…” “…under the High Court Civil Procedure Rules, 2004 there is no more room to waste precious judicial time or to frustrate a judgment creditor who quite rightly seeks to reap and savour the fruit of his judgment. Order 54 Rules 3 and 4 are clear. An application for stay of execution is now a very urgent matter…” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
STATUTORY PROCEDURE: CONSEQUENCE OF NON-COMPLIANCE WITH THE MANDATORY REQUIREMENTS OF THE LAW
In the case of MV ARABELLA V. NIGERIA AGRIC INSURANCE CORPORATION supra also reported was held that when there is non-compliance with the mandatory requirements of the law, the court should not remain passive and helpless. There must be a sanction, lest the purpose of enacting the rules be defeated. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
RULES OF THE COURT: NEED TO ENSURE THAT THE RULES OF THE COURT RULES ARE INTERPRETED LIBERALLY TO ENSURE FAIR HEARING FOR THE PARTIES; WHETHER A PARTY WHO REFUSES OR FAILS TO TAKE ADVANTAGE OF THE FAIR HEARING PROCESS CREATED BY THE COURT CAN TURN AROUND TO ACCUSE THE COURT OF DENYING HIM FAIR HEARING
Justice is always a two way street and the courts must always ensure that the scale of justice is well balanced before wielding the sword. The rules of court are meant to ensure fairness to all parties. In the words of Niki Tobi JSC in NEWSWATCH COMMUNICATIONS V. ATTA (2006) 12 NWLR Pt 993 Pg 144 at Pg where his lordship opined as follows: ‘The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not one way traffic but two way traffic in the sense that it must satisfy a double carriage way, in: the con of both the Appellant and Respondent. The court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice. It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case, A party who refuses or fails to take advantaged of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing. That is not fair to the court and counsel must not instigate his client to accuse the court of denying him fair hearing… The fair hearing principle formerly entrenched in section 33 of the 1979 Constitution, and now section 36 of the 1999 Constitution, is not for the weakling, the slumberer the indolent or the lazy litigant, but it is for the who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The principle is not available to a party who sets a trap in the litigation process against the court of assumed wrongdoing even when such so called wrongdoing is, as a matter of fact, propelled or instigated by the party, through his counsel. (Underlining mine.)” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
Before Their Lordships
HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria
JOHN INYANG OKOROJustice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria
Between
1. USMAN DANTATA JNR.
2. ALHAJI MUKTAR AHMED MOHAMMEDAppellant(s)
AND
MOUKTAR MOHAMMEDRespondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Lagos State delivered by Hon. Justice E.O. Williams Dawodu on 29th January 2007. The stark facts which led to this appeal are that the Appellants herein were the Defendants at the lower court against whom the Respondent sued for possession due to failure of performance.
The Lagos High Court delivered judgment on 21st February 2005 granting reliefs (a), (b), (c) and (g) of the Claimant’s reliefs. Both the Defendants appealed and filed separate notices of appeal. They have been heard on appeal as CA/L/172/08 and CA/L/172A/08 respectively, They however entered joint notice of appeal against the ruling and the appeal has been entered as CA/L/172B/08 on 29th June 2006, the Lagos High Court, after hearing two separate applications for stay of execution by each of the Appellants, granted unconditional stay of execution with regards to the possession and injunctive reliefs granted to the Claimant on the property in dispute pending the appeal against the judgment.
On 26th July 2006, less than a month after the ruling staying execution, the Claimant filed an application pursuant to Order 54 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 praying for the discharge of the order of stay of execution or in the alternative for the Appellants to pay rent.
The Claimant’s application was hinged mainly on the provisions of the aforementioned Order 54 Rule 2. He contended that since a period of 90 days had elapsed after the judgment was delivered, the High Court should discharge the order of stay for failure to compile records of appeal within time. The 1st Appellant was the 1st Defendant at the trial court and he filed a counter affidavit and written address against the application while the 2nd Appellant now 2nd Appellant filed a counter affidavit and written address. The Applicant replied on points of law. The learned trial judge delivered a ruling dated 9th January 2007 wherein her ladyship granted the first leg of the Claimant’s prayer by discharging the order of stay of execution upon a strict interpretation of Order 54 Rule 2 of the Lagos State Rules.
Being dissatisfied with the ruling of the High Court, the Appellants filed an amended Notice of Appeal containing three grounds of appeal. It was filed on 15th May, 2011 and the Applicants’ brief was filed the same day. The Respondent’s amended brief was dated and filed on 11th May 2011 while the Appellants’ amended Reply brief was dated and filed on 19th May 2011. The parties agreed on the issues for determination and I will set out the issues as couched by the Appellant’s counsel which are stated as follows:
“1. Whether the learned trial judgment interpreted the provisions of Order 54 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 correctly (Ground 1).
2. Whether the learned trial judge was right to have discharged the order of stay of execution granted in favour of the Appellants in the circumstances of this case (Grounds 2 and 3).
I am of the view that issue two is essentially a repetition of issue one, and this appeal can be determined by reframing both issues into one. Thus I will formulate the sole issue for determination in these terms. Whether the learned trial judge was right to have discharged the order of stay of execution in the circumstances.
Appellant’s senior counsel J. A. Badejo SAN argued that the learned trial judge interpreted Order 54 Rule 2 to mean that the 90 days stipulated for compilation of the records is mandatory. The court held that once the compilation of the records is not completed within 90 days, then the Lagos High Court is bound to discharge an earlier order for stay of execution. He argued that such interpretation is unduly restrictive. Counsel argued that the extent Court of Appeal Rules as at 2007 was the 2002 Rules which provides two methods of compiling records of appeal. The first is by the Registrar of the court below. This procedure which laid down all that is to be done is contained in Order 3 Rules 8 -13 of the 2002 Rules.
He submitted that the second option which was evolved by the practice of this Honourable court appears to have been accommodated under the miscellaneous provisions of the 2002 Rules (Order 7 Rule 2) which was interpreted to allow an Appellant to apply to the Court of Appeal to depart from its Rules to allow the records to be compiled by him to save time.
It was his contention that the only way the first part of Order 54 Rule 2 can therefore be interpreted to make it consistent with the extant Court of Appeal Rules as at 9th January 2007 is for it to mean that where an Appellant chooses to depart from the Court of Appeal Rules to compile the records himself, he shall do so within 90 days.
He further submitted that the first part of Order 54 Rule 2 did not also make it mandatory for the court to discharge an order of stay of execution if the records are not compiled within the said 90 days. Such compelling effect cannot be read into the phrase and the words used.
Learned Appellant’s senior counsel further submitted that a careful reading of the second part of Order 54 Rule 2 shows that it is the Respondent to the appeal who is given discretion to decide whether to apply to discharge the order of stay of execution granted.
Learned Appellant’s counsel submitted that the High Court is bound to look at the circumstances and facts before deciding whether it is just and proper to discharge the order of stay of execution under Order 54 Rule 2 as the Appellant cannot be held responsible and damnified for the delay in the compilation of the records. Senior counsel relied on the following cases:
MASTERPIECE CHEMICALS CO. LTD V. AFAM AKPUTA ESQ (2000) 4 NWLR Pt. 653 Pg 459 at Pg 462 para H; F.B.N. PLC V. M.M.C. & D.C. LTD (2000) 7 NWLR Pt 663 Pg 52 at Pg 61 paras D – E. See also LABARAN V. OKOYE (1995) 4 NWLR Pt 389 Pg 303; ALHAJI HAMIDU LADAN ZURU V. ALLIED BANK OF NIGERIA PLC (1998) 4 NWLR Pt 545 Pg. 204 at Pg 209- 210 paras H – B.
In reply learned Respondent’s counsel Mr. O. A. Olulowo submitted that it is inconceivable that we have to explore the rules of one court to interpret the provisions of the rules of another court and that it had been held that courts are guided by their own rules. Section 274 of the Constitution of the Federal Republic of Nigeria provides for each court to make its own procedural rules to guide its practice. These rules of court are not only meant to be obeyed, they are also binding on all the parties before the court. He cited AJAYI & ANOR V. UMUROGBE (1973) 7 SCNJ (Pt. 1) 168 and ARABELLA V. AGRIC INSURANCE CORPORATION (2008) MJSC 145 at 148.
Learned counsel submitted that non compliance with the rules of court must be discouraged if not the rules will become useless. The lower court has no power to extend the time to compile records and the Appellant failed to take advantage of the rules by compiling records himself. The court must protect its rules. Learned counsel for the Respondent also cited the following cases: AKANBI V. ALAO (1985) 5 SCNJ 10; ADESANOYE V. ADEWOLE (2006) 10 MJSC Pg 15 – 16; NEWSWATCH V. ATTAH (2006) 7 MJSC 88 at 107 – 108.
This appeal is about the correct interpretation and application of Order 54 Rule 2 of the Lagos State High Court Rules which provides as follows: “An Applicant for stay of execution of a judgment SHALL complete the records of appeal within 90 days from the date of filing a notice of appeal and where the record is not so compiled, the Respondent may apply to strike out the application or discharge the order if already granted”. (underlining mine)
The learned trial judge held as follows on page 482 Vol. II of the record:
“In the instant case, the order of stay had already been granted the question that immediately arises is whether the records of appeal have been compiled within the stipulated period of 90 days in compliance with the rules of court?
From the documents before the court, the notices of appeal by the 1st and Defendants were filed on March 8th 2006, records of appeal are yet to be compiled and the time interval since then would appear to be more than the stated 90 days.”
Apart from the above stated, it is necessary to consider the language of the aforestated provision with respect to its intendment and purport. The word “shall” is used with regard to the action expected to be taken by the Applicant. It seems to me in that wise that the provision does not leave room for where such compilation has not been done after the stipulated 90 days. It is therefore mandatory.”
By the interpretation of the learned trial judge, the 90 days stipulated for compilation of the records of appeal is mandatory. The court held that once the compilation of the record is not completed within 90 days, then the Lagos High Court is bound to discharge an earlier order of stay of execution.
The Appellants had argued that in order to interpret the section properly, it is necessary to consider the old rules of the Court of Appeal before the trial judge can apply her own rules.
The Appellant seem to suggest that the application of Order 54 Rule 2 is a subject of the trial court’s discretion to discharge the order of stay of execution. I am humbly of the contrary view that the operative word ‘SHALL’ is mandatory and by the rule of interpretation, all that the court will have to consider is whether the act has been performed or not; if it has not be performed, the court will not hesitate to mete out the prescribed penalty against the defaulter i.e. the Appellant. In the case of ADESANOYE V. ADEWOLE (2005) 10 MJSC (Pp 15-16) paras G-A where Niki Tobi JSC held as follows:
“Where a statute clearly provides for a particular act to be performed, failure to perform the act on the part of the party will not only be interpreted as a delinquent conduct but will be interpreted as not complying with the statutory provision. In such a situation, the consequences of non-compliance with the statutory provision follow…”
“…under the High Court Civil Procedure Rules, 2004 there is no more room to waste precious judicial time or to frustrate a judgment creditor who quite rightly seeks to reap and savour the fruit of his judgment.
Order 54 Rules 3 and 4 are clear. An application for stay of execution is now a very urgent matter…”
The Appellant failed to take advantage of Order 7 Rule 2 of the 2002 Court of Appeal Rules (Order 8 Rule 4 of Court of Appeal Rules, 2007) which would have enabled him to promptly compile the records of appeal. The appeal has to be entered -that is the record transmitted within 90 days for the Appellant to continue to enjoy the discretionary remedy of a stay pending appeal.
Order 54 Rule 2 directs the Applicant for a stay of execution (Appellant in this case) to ensure the transmission of the records of appeal within 90 days. Appellants ‘application for stay of execution is dated 8th of March 2005, stay of execution was delivered on 26th July 2006 and subsequent to the ruling was the application to discharge the order of stay of execution which was eventually decided on 9th of January 2007. The relevant question of whether the Appellant compiled with the rules as per Order 54 Rule 2 is clearly in the negative.
In the case of MV ARABELLA V. NIGERIA AGRIC INSURANCE CORPORATION supra also reported was held that when there is non-compliance with the mandatory requirements of the law, the court should not remain passive and helpless. There must be a sanction, lest the purpose of enacting the rules be defeated.
Learned senior counsel for the Appellants had argued that the trial court should have extended the time within which he could compile the records of appeal instead of discharging the earlier order granted for stay of execution. It is clear that there is no such provision for extension of time to compile records at the lower court and even if there was, the Appellant never made any application to that effect.
Justice is always a two way street and the courts must always ensure that the scale of justice is well balanced before wielding the sword. The rules of court are meant to ensure fairness to all parties. In the words of Niki Tobi JSC in NEWSWATCH COMMUNICATIONS V. ATTA (2006) 12 NWLR Pt 993 Pg 144 at Pg where his lordship opined as follows:
‘The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not one way traffic but two way traffic in the sense that it must satisfy a double carriage way, in: the con of both the Appellant and Respondent. The court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice. It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case, A party who refuses or fails to take advantaged of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing. That is not fair to the court and counsel must not instigate his client to accuse the court of denying him fair hearing…
The fair hearing principle formerly entrenched in section 33 of the 1979 Constitution, and now section 36 of the 1999 Constitution, is not for the weakling, the slumberer the indolent or the lazy litigant, but it is for the who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The principle is not available to a party who sets a trap in the litigation process against the court of assumed wrongdoing even when such so called wrongdoing is, as a matter of fact, propelled or instigated by the party, through his counsel. (Underlining mine.)”
I have always held fast to the view that even though court rules should be interpreted liberally to ensure fair hearing for the parties, however under the Lagos State High Court Civil Procedure Rules 2004 there is no more room to waste precious judicial times or to frustrate a judgment creditor who quite rightly seeks to reap and savour the fruit of his judgment. An application for stay of execution is a discretionary remedy given to temporarily deprive the judgment creditor of the fruits of his judgment.
The usual practice in Nigeria is that the judgment debtor secures this relief and goes to sleep knowing fully well that the appeal is unmeritorious refusing to pursue same. That is why the provisions are made mandatory from the High Court and there is no provision for extension of time. A litigant who knows that he has 90 days to compile records must make every effort to settle the records with the lower court and ensure its transmission. If that is slow, the Appellant can take advantage of Order 7 Rule 2 and promptly compile the records himself to ensure that he meets the time limit.
I agree with the learned trial judge’s strict interpretation of the provisions of Order 54 Rule 2 of the Lagos State Rules. If an Appellant has not been able to compile records within 90 days, he is not entitled to continue to enjoy stay of execution granted by the High Court. The escure(sic) that after all compilation of records is strictly a registry matter is a self serving one where there is a will, there is a way.
Even the circumstances of this case shows that the notice of appeal was filed on 8th March 2006 and the ruling discharging the stay was given on 9th January 2007, ten months later. This shows that the Appellants were unwilling to timeously pursue the appeal by compiling records. In the circumstances, this appeal fails. It is hereby dismissed. N=50,000 costs to the Respondent against the Appellant.
JOHN INYANG OKORO, J.C.A.: In the lead Judgment just delivered by my learned brother, Ogunwumiju, JCA, the lone issue in this appeal has been succinctly and exhaustively dealt with and I have nothing else to add except to emphasize that where a court favourably exercises its discretion to grant stay of execution to an Appellant, such an Appellant is under an obligation to pursue the appeal with utmost diligence. Where he goes to sleep as to neglecting to compile records of appeal within the time prescribed by law, such an Appellant does not deserve the continual protection by the court in the circumstance. A grant of stay of execution is a temporary relief and ought to be enjoyed within the ambits of the law. By Order 54 Rule 2 of the Lagos State High Court (Civil Procedure) Rules 2004, an Appellant who has been granted stay of execution, should not continue to enjoy the remedy lf he fails to compile the record within 90 days.
In the circumstance of this case, I agree that the learned trial Judge was right when she discharged the order of stay of execution granted in favour of the Appellants when he failed to compile record of appeal within go days. This appeal is also dismissed by me. I abide by all the consequential orders made in the lead Judgment, that relating to costs, inclusive.
RITA NOSAKHARE PEMU, J.C.A.: I have had a preview of the judgment just delivered by my brother Hon. Justice H.M. OGUNWUMIJU J.C.A. I have nothing to add but to agree with the opinion and conclusions arrived at.
An Appellant who files papers in Court and goes to sleep, without pursuing the appeal by compiling records has himself to blame.
It is the duty of the Appellant to prosecute his appeal. The fact that an appeal has been filed should not be exploited to delay the appeal from being heard. Thus to merely file Notice of Appeal and do nothing more, thereby sitting back with the judgment against him unexecuted is an abuse of Court’s process.
An Appellant who chooses to sit back when the record of appeal is ready is no longer restricted to his choice of time. The appeal lacks merit and same is hereby dismissed.
I subscribe to the consequential order made in the judgment inclusive of the one as to costs.
Appearances
A. O. Owolabi;
B. A. AyeniFor Appellant
AND
O. A. OlulowoFor Respondent
