CHIEF J.L.E. DUKE v. REV. (DR.) PETER ETIM DUKE (2012)

CHIEF J.L.E. DUKE v. REV. (DR.) PETER ETIM DUKE

(2012)LCN/5823(CA)

In The Court of Appeal of Nigeria

On Thursday, the 26th day of July, 2012

CA/C/170/2010(R)

RATIO

APPEAL: WHEN IS AN APPEAL ENTERED

PROCEDURE: ATTITUDE OF COURT TOWARDS DWELLING ON TECHNICALITIES

In UBA plc v. Mode Nig. Ltd. (2001) FWLR (pt.40) 1664 at 1681 Niki Tobi, JCA (as he then was) described justice as “… that very expensive commodity.” In Joseph Afolabi & Ors. V. John Adekunle & Anor. (1983) 2 SCNLR 141 Aniagolu, JSC held at page 150 that:

“While recognizing that the Rules of Court should be followed by parties to a suit, it is perhaps necessary to emphasize that justice is not a fencing game in which parties engage themselves in an exercise of out smarting each other in a whirligig of technicalities, to the detriment of the determination of the substantial issues between them.”

To me, the objection raised by the respondent’s learned counsel constitutes a whirligig of technicality aimed at delaying the hearing of the appeal. Rather than filing a Respondent’s brief for the appeal to be set down for hearing the Respondent’s learned counsel has embarked on a frivolous objection that has nothing to do with the merit of the appeal. PER JOSEPH TINE TUR, J.C.A.

WORDS AND PHRASES: MEANING OF DEEM

To “deem” is to treat something as if it were really something else, or it had qualities that it does not have. See Black’s Law Dictionary, 8th edition, page 446. PER JOSEPH TINE TUR, J.C.A.

Before Their Lordships

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

Between

CHIEF J.L.E. DUKEAppellant(s)

AND

REV. (DR.) PETER ETIM DUKERespondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Lead Ruling): The Appellant is alleged to be a half brother of the Respondent and supposed beneficiaries of the estate of their late father. The appellant is said to have refused to share the estate with the Respondent and other siblings of their late father. The appellant went to the Probate Court in Calabar, Cross River State to obtain letters of Administration as the sole administrator of the Estate. The Respondent entered a caveat and applied to be joined as a co-administrator of the estate. The Probate Court ruled in favour of the appellant on 17th September, 2009. The ruling was set aside on appeal by Hon. Justice Obojor Ogar of the High Court of Justice, Cross River State on 11th June, 2010. Being aggrieved the appellant appealed to this Court on 2nd July, 2010. On 19th July, 2010 the appellant deposited money in the lower court for the compilation and transmission of the records. The Registrar compiled but transmitted the records on 20th October, 2010 outside the sixty days period stipulated under Order 8 rule 1 of the Court of Appeal Rules, 2007.
Noticing this the appellant brought an application on 21st October, 2010 in this court praying that time be enlarged within which he shall compile and transmit the records without praying that the records compiled and transmitted be deemed properly compiled and transmitted to this court for use at the hearing of the appeal. Nevertheless, on 9th November, 2010 the Court of Appeal granted the appellant’s request in the following language:
“IT IS ORDERED:
1. The Application be and is hereby granted as prayed.
2. Time is extended to the end of business today for the Applicant to compile and transmit the Record of Appeal to the Registry of this Court.”
The Respondent did not appeal to the Supreme Court against the above ruling.
On 31st January, 2011 the appellant’s learned Counsel filed a motion supported by affidavit praying for an order that the appeal should be determined on the appellant’s brief alone. The reason was that though the records were served on the Respondent on 9th November, 2010 no brief of argument had been filed on his behalf.
I hereby reproduce what transpired when the application came up for hearing:
“Duke: There is a motion dated 31st January, 2011 praying for an order to hear the appeal on the appellant’s brief alone since the Respondent has neglected or refused to file the Respondent’s brief.
Akpan: I am opposing the application. The Records are yet to be served on us.
Duke: There is proof of service of the Records on the Respondent as shown in Exhibit “6” and “7” attached to the further affidavit sworn to by the Appellant/Applicant on 8th April, 2011.
Court: Exhibit “7”, the Record of proceedings was served on Ekanem on 8th February, 2011. The application to hear appeal on the appellant’s brief is based on records which were compiled by the lower Court. Apparently the appellant who was granted extension of time to compile the records fell back on the records compiled by the lower Court but transmitted outside the 60 days allowed by Order 8 rule 1 Court of Appeal Rules. This is what learned Counsel for the Respondent is using to ambush the appellant. There is therefore need for the appellant to regularize the records he intends to use for the appeal by bringing the proper application. The motion is therefore struck out.
sgd.
Kuma B. Akaah’s, JCA
29-06-2011.”

On 11th July, 2011 the appellant brought this application supported by affidavit praying that the order striking out his application to hear the appeal on the appellant’s brief alone for non-compliance with the Rules be set aside on the grounds that under Order 19 rule 4 of the Court of Appeal Rules, 2007 the Court of Appeal having made the order of 9th November, 2010 became functus officio, and could not subsequently set aside that order on 29th June, 2011, citing Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt.50) 556; Lawal v. Dawodu (1972) 8 SC 83; Awusse v. Odili (2005) 16 NWLR (Pt.952) 416 at 453; Section 287(2) of the Constitution of the Federal Republic of Nigeria, 1999. That the ruling of 29th June, 2011 was a nullity and should be set aside ex debito justiatiae, citing Onwuka v. Ononuju (2009) 11 NWLR (Pt.1151) 174-184.
The learned counsel to the Respondent opposed the application on the ground that in the motion filed on 21st October, 2010 seeking extension of time to compile and transmit the records of Appeal to this court, the applicant did not pray that this Court should deem the records as properly filed and that same shall be used in this appeal after the enlargement of time was granted on 9th November, 2010. This was the main ground for opposing the application to have the orders of 29th June, 2011 set aside by this Court. On that basis this Court ordered Counsel to file written addresses.
Appellant’s Counsel filed a written address on 15th March, 2010 while the Respondent’s written address was filed on 23rd March, 2012. Both addresses were adopted on 14th May, 2012.
In his written address learned counsel to the appellant cited in argument the following decisions to show that the orders of 29th June, 2011 ought not to have been made in view of the ruling of 9th November, 2010, namely, Awuse v. Odili (2005) 16 NWLR (Pt.952) 416 at 453; Fidelitas Shipping Co. Ltd. v. V/O Export Chleb (1966) 1 Q.B. 630 at 640; Oyeyipo v. Oyinloye (1987) 1 NWLR (pt.50) 236; The State v. Oladimeji (2003) 14 NWLR (pt.839) 52 at 69 and Onwuka v. Ononuju (2009) 11 NWLR (pt.1151) 174-184 and order 20 rule 5(1) and (2) of the Court of Appeal Rules, 2011.
The learned counsel to the Respondent replied that the records could not be used without praying for two prayers, namely, a deeming order, and secondly, that the records should be used at the hearing and determination of this appeal. Respondent’s Counsel argued that there is no record of appeal before this court. The Court of Appeal cannot suo motu make use of the records of 20th October, 2010.
In my humble opinion the only objection I have deciphered from the argument of learned counsel to the Respondent is that the appellant did not ask for a deeming order when he applied for an order enlarging time within which to compile and transmit the record of appeal to this Honourable Court. However, the Court of Appeal granted the prayer to compile and transmit the records on 9th November, 2010. The records of appeal are in the file of this Court. They bear this Court’s stamp, dated 20th October, 2010 showing that the appeal has been entered. The appellant’s brief was filed on 9th November, 2010. The Respondent is yet to file a brief of argument.

An appeal is entered when the record of proceeding is received in the Court of Appeal and it is entered in the cause list. See Ogunremi v. Dada (1962) 1 All NLR 663 at 668; Order 4 rule 10 of the Court of Appeal Rules, 2011. Once an appeal has been entered the Court becomes seised of the whole proceedings. See Ajibade Aina & Ors. v. Tika Tore Press Ltd. (1968) 1 All NLR 210; Cesare Missini & Ors. V. Michael Olasubomi Balogun (1968) 1 All NLR 518. The appeal having been entered and the appellant having filed a brief of argument, would it be just and equitable not to make use of the record of Appeal of 20th October, 2010 simply because the appellant did not seek a deeming order nor pray that he should be allowed to make use of the records of 20th October, 2010 at the hearing of this appeal?
In UBA plc v. Mode Nig. Ltd. (2001) FWLR (pt.40) 1664 at 1681 Niki Tobi, JCA (as he then was) described justice as “… that very expensive commodity.” In Joseph Afolabi & Ors. V. John Adekunle & Anor. (1983) 2 SCNLR 141 Aniagolu, JSC held at page 150 that:
“While recognizing that the Rules of Court should be followed by parties to a suit, it is perhaps necessary to emphasize that justice is not a fencing game in which parties engage themselves in an exercise of out smarting each other in a whirligig of technicalities, to the detriment of the determination of the substantial issues between them.”
To me, the objection raised by the respondent’s learned counsel constitutes a whirligig of technicality aimed at delaying the hearing of the appeal. Rather than filing a Respondent’s brief for the appeal to be set down for hearing the Respondent’s learned counsel has embarked on a frivolous objection that has nothing to do with the merit of the appeal.
My humble view is that on 9th November, 2010 this court extended time to the end of business on that day for the appellant to compile and transmit the records because the Registrar of the lower Court had transmitted that which he had compiled out of the sixty days permissible by law. The Court of Appeal could not have expected the appellant to compile and transmit another record on 9th November, 2010. That would have been impossibility: What was exhibited in the application was the record of 20th October, 2010 stamped as received in the Registry of the Court of Appeal. I do not see how without a deeming order or a prayer that the records shall be used at the hearing of the appeal that should debar the appellant’s appeal from being heard on the merit. To “deem” is to treat something as if it were really something else, or it had qualities that it does not have. See Black’s Law Dictionary, 8th edition, page 446. The ruling of 9th November, 2010 was in effect to deem the records of 20th October, 2010 as properly compiled and transmitted to this Court for use at the hearing of the appeal.
On 29th June, 2011 this court acknowledged the fact that the records compiled by the lower Court (Exhibit “7”) was served on Ekanem on 8th February, 2011. Though irregularly put in, in my humble view, for the purpose of attainment of justice without undue technicalities, this court had by the ruling of 9th November, 2010 empowered the parties to make use of the proceedings at the hearing of the appeal. The ruling of 9th November, 2010 was not a nullity. In Ojiako & Ors. v. Ogueze & Ors. (1962) All NLR 58 at 62 the Federal Supreme Court held that:
“…Where no question of nullity arises, once the judgment of any competent Court is perfected it is valid until set aside by competent authority, and there can be no presumption against the validity of such a judgment.
But in Odutola v. Kayode (1994) 2 NWLR (pt. 324) 1 at 16 the Supreme Court held that proceedings conducted without jurisdiction is ab initio null and void. The effect would be as if the proceedings did not take place at all.
The ruling of 9th November, 2010 not been a nullity, had not been set aside by the Court of Appeal on 29th June, 2011. What the Court of Appeal did on 29th June, 2011 was to strikeout the application seeking that the appeal be heard only on the appellant’s brief of argument. The ruling of 9th November, 2010 still subsists.
Order 19 rule 10 of the Court of Appeal, Rules 2011 provides that:
“10. No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just.”
Order 20 rule 3(1) and (2) of the Rules supra further provides that:
3(1) The Court may, in an exceptional circumstance, and where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.
(2) Where there is such waiver of compliance with the Rules, the Court may, in such manner as it thinks right, direct the Appellant or the Respondent as the case may be, to remedy such non-compliance or may, notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstances.”
In United Bank for Africa Ltd. vs. Dike Nwora (1978) NSCC 519 the defendants did not file their statements of defences as prescribed by the rules of the Court until the plaintiff applied for judgment in default of pleadings. Upon receipt of a copy of the application each defendant filed a statement of defence out of time and without leave of the Court. The learned trial Judge directed each defendant to file an application for enlargement of time within which to file a defence within 10 days of the date of the ruling. Being aggrieved the defendant’s appeal to the then Federal Court of Appeal was dismissed. On further appeal the Supreme Court held at page 524 lines 5-25 as follows:
“Looking at this particular Case where each defendant has filed a statement of defence which, having regard to his observation, the learned Chief Judge must have found to disclose a substantial ground of defence, it seems to us that it is a wrong exercise of his discretion to have ordered the defendants to file an “application for enlargement of time within which to file a defence within 10 days” the date of his order, thus indicating, albeit by implication, that no statements of defence had been filed before. With respect, we think it was erroneous of him to have ordered them, in those Circumstances, to apply for extension of time to file what amounted to new statements of defence within ten days. Surely, this discretion, which the learned Chief Judge undoubtedly has in the matter, must be exercised judiciously, bearing in mind that it is the duty of the Court whenever possible, not only to minimize the cost of litigation, but also to see to it that justice is not delayed unnecessarily.
In our view, the learned Chief Judge, in the exercise of his power under Order 18 rule 6, should have extended the time suo motu up to 11th April, 1976, the day when he delivered his ruling. By ordering the defendants, as he did, to apply within ten days to file another statement of defence, the learned Chief Judge, if we may say so, again with respect, was merely taking refuge in an unnecessary legal technicality which would obviously delay the hearing of the action further. We think he should have extended the time to file the statements of defence to the date of his ruling, order that the statement of defence already filed had been duly filed and then fix a date for the hearing of the case.”
This case is in authority that to save time and cost of litigation, and to do substantial justice to the parties, even if a document such as the statement of claim or defence or the records of appeal are irregularly before the court, the court can suo motu regularize the irregularity so as to enable the appeal or suit to be heard on the merit see also Akeredolu & ors. v. Akinremi (1986) 1 NSCC 581; Savannah Bank Nig. Ltd. v. Ajilo (2001) FWLR (pt.75) 513.
What the Respondent wants is, notwithstanding that the records of appeal of 20th October, 2010 are before this court and the appeal has been entered, the appellant should compile and transmit another record of appeal and ask for a deeming order before the appeal would be ripe for hearing. I do not think that represents the current trend in legal thinking. Though I shall not grant relief one, that is, an order setting aside the Court’s orders of 29th June, 2011 for non-compliance with the Rules, the applicant asked in relief two for “such further order or orders as this Honourable Court may deem necessary to make in the circumstance.”
The appropriate order to make in this circumstance is to deem the ruling of 9th November, 2010 as still subsisting. Secondly, I hereby direct that this appeal be set down for hearing on the records transmitted to this Court and stamped 20th October, 2010.

MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Joseph Tine Tur, JCA, had availed me of a draft of the lead ruling delivered by him in respect of the motion by the Appellant.
The prayers sought on the face of the motion paper are as follows:
1. An Order setting aside the court’s orders of 29/6/2011 for noncompliance with the Rules.
2. Such further order or orders as this Honourable court may deem necessary to make in the circumstance.

Simply put, the ground for the relief 1, (which was called grounds of objection to the orders of 29/6/2011 on the motion paper) is that the court by the order of 29/6/2011 had re-opened the issue of the compilation and transmission of the record of the appeal, which it had earlier decided on the 9/11/2010 copies of the orders by the court on 9/11/2010 and on 29/6/2011 were annexed to the affidavit in support of the prayer.
The arguments canvassed in the written address by the learned counsel for the Appellant are to the effect that the court lacks the competence to open the issue and substitute a different decision to the one already taken by it. Reliance was placed on order 19 Rule 4 of the CAR, 2011, Section 49 of the Evidence Act, 287 (2) of the 1999 Constitution and some judicial authorities that include Oyeyipo v. Oyinloye (1987) 1 NWLR (50) 356; Lawal v. Dawodu (1972) 8 SC, 83 and The State v. Oladimeji (2003) 14 NWLR (839) 57 at 69.
Because the pith of the Appellants’ case is that the court had taken a decision in the orders of the 29/6/2011 different from the earlier orders of 9/11/2010, it expedient to set out the said orders as Exhibited by the Appellant in order to see if the position was right.
First the orders of 9/11/2010
“UPON READING THE APPLICATION herein and the Affidavit in support sworn to by Chief J.L.E. Duke and filed 21/10/2010.
AND AFTER HEARING Charles E. Duke, Esq. of counsel for the Applicant and A. U. Akpan, Esq. for the Respondent.
SGD:
M. A. OREDOLA
JUSTICE, COURT OF APPEAL

IT IS ORDERED
1. The Application be and is hereby granted as prayed.
2. Time is extended to the end of business today for the Applicant to compile and transmit the Record of Appeal to the Registry of this Court.”

The above orders are straight forward and admit of no doubt in understanding. The application for enlargement or extension of time to compile and transmit the record of the appeal by the Appellant/Applicant was granted as prayed and the time to do so was “extended to the end of business today (which was the day of the order). Undoubtedly, the expressly manifest requirement and directive embodied in the order was for the Appellant/Applicant to compile and transmit the record of the appeal, by the end of the working hours of the court on the 9/11/2010, the time extended by the court. The Appellant/Applicant had and owed the binding legal duty and obligation to comply with that directive by the court which was made on the basis of his own application. There can be no contest about that position.
Now, I have carefully and calmly perused the entire processes in the appeal but cannot see or find the record of the appeal ordered to be compiled and transmitted by the Appellant/Applicant by the end of business on the 9/11/2010.
In the 11 paragraphs affidavit in support of the present motion, there is no averment howsoever of the fact that the Appellant/Applicant had complied with the order of the court to compile and transmit the record of appeal on the 9/11/2010.
Perhaps, counsel should be reminded that the orders of the court or any court of law are not made in vain and should therefore not be ignored or even taken for granted by the parties at whom they were directed.
Whilst still ignoring or failing to comply with the order to compile and transmit the record of the appeal within the time extended by the court, the Appellant/Applicant later, on the 31/1/2011, approached the same court whose order he had neglected, failed or/and refused to comply with for another and further indulgence that the appeal be heard on the Appellant’s brief alone.
After a consideration of the affidavit of the Appellant/Applicant in support of that motion and the counter-affidavit by the Respondent, the court made the orders of 29/6/2011 in the following terms:
“1. There is need for the Appellant/Applicant to regularize the records he intends to use for the appeal by bringing the proper application.
2. Motions dated and filed 31/12/2011 is hereby struck out.”
The plain directive in order 1 above is that the Appellant/Applicant was to regularize the records he intended to use for the appeal.
Taking into account that it is undisputable that the Appellant/Applicant did not comply with the order of the court made on 9/11/2010 extending time for him to compile and transmit the record of the appeal by end of that day, the order was magnanimous and gratituous for the court to have made (in the interest of justice as if is usually said) to a party who for no reason whatsoever known to the court, had refused or at least failed to comply with its earlier order in respect of the same appeal.
Speaking the law and the requirements of the Rules of court, by the time the Appellant/Applicant filed the motion for the appeal to be heard on his brief alone, there was no record of appeal which was transmitted in accordance with the Rules of Court or the specific order made by the court on the 9/11/2010. By the date of filing that motion, the appeal was liable to be struck out for want of diligent prosecution because the record of the appeal was not transmitted not only within the time limited by the Rules of court, but also within the time specifically extended for the Appellant/Applicant to have done so.
I have observed that in the application for extension of time to compile and transmit the record of appeal, there was an averment in paragraph 3 of the affidavit in support thereof that the record of the appeal was transmitted to them on 20/10/2010 (which was repeated in paragraph 4 of the affidavit in support of the present motion.
It is to be pointed out that the Appellant/Applicant in the said motion did not ask/request or pray for the said record of appeal transmitted outside the prescribed time, be deemed or used for the purposes of hearing and determination of the appeal. The court in its own wisdom, fury aware of the averments, did not order that the said record of appeal be used for the appeal, but rather extended the time for the record of the appeal to be compiled and transmitted to the Registry of the Court by the Appellant/Applicant
In fact the Appellant/Applicant did not exhibit a copy of the record of appeal transmitted on 20/10/2010 in the motion for extension of time, but only “the front page of the said record” and so the record was not shown to be before the court to enable it consider whether to order for a deeming of the record in exercise of its discretion to grant the omnibus prayer of the motion paper.
I must emphasise that until the record of the appeal was transmitted in accordance with and is directed by the court or the court in its discretion orders that the record of appeal said to have been transmitted outside the prescribed time on the 20/10/2010 be deemed, there would be no record before the court which would be used for the hearing of the appeal.
In the absence of record of compliance by the Appellant/Applicant with the order of the court to compile and transmit the record of appeal by the end of business on the date of the order, the later order of 26/6/2011 that he should regularize the record of appeal, cannot by any stretch of reasonable imagination, be said to have re-opened the issue of the compilation and transmission of the record of appeal decided on the 9/11/2010. If anything, the later order was a polite way of reminding the Appellant/Applicant that he was yet to comply with the earlier order to compile and transmit the said record. It was to support and not to change the earlier order directed at the Appellant/Applicant to regularize the record of the appeal by transmitting it by the end of 9/11/2010.
On the facts and in the circumstances of the Appellant/Applicant’s case, it does not lie in his mouth to suggest that the court had no power to make the order of 29/6/11 for him to regularize the record of the appeal and he should commend rather than condemn the court for providing him with the undeserved further opportunity to put his house in order and properly enter the appeal before the court about a year after the notice of appeal was filed by him.
Although the learned counsel had alleged that the order of 29/6/11 did not comply with the Rules of Court, he made no attempt to refer to any of Rules of the Court which says that the court cannot insist that a party at whose instance an order was made had to comply with it. The argument that the order of 29/6/2011 changed the earlier order extending time for the Appellant/Applicant to compile and transmit the record of the appeal is not only grossly misconceived but apparently insipid and therefore not tenable.
All the authorities cited in respect of the argument have no bearing whatsoever with the facts of the Appellant’s case and so provide no support for him.
From the affidavit evidence as well as the copies of the court orders made on 9/11/2011 and 29/6/2011 attached thereto, the prayer for the court to set aside the latter order for alleged non-compliance with the Rules is nothing but an abuse of the court process by party who has refused to comply with and obey competent orders of the court specifically directed at him. The said prayer is dismissed.
However all the above said, I am inclined for the reasons set out in the lead ruling, to agree that in order to avoid further waste of time and resources in the hearing of the appeal, the court should under the omnibus prayer of the motion, allow the record of appeal transmitted on 20/10/2010 to be used for the determination of the appeal with an order that the Respondent shall file the Respondent’s brief within fourteen days from today.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the ruling just delivered by my learned brother Joseph Tine Tur, JCA. I agree with him that the era of technicalities is far gone. We shall at all times strive to do substantial justice in all cases. Justice shall not be murdered at the alter of technicalities.
I agree with the fuller reasons reached by my learned brother in the lead judgment. I also abide by all consequential orders.

Appearances

CHARLES DUKE WITH CHIGOZIE ONWUASOMBA & DEREK OBIKEFor Appellant

AND

CHIEF G.A. UDOUSORO WITH H.N. USIM ESQ.For Respondent