COMMISSIONER OF POLICE v. NWADIRU AGHOLOR
(2014)LCN/7319(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of June, 2014
CA/B/44C/2011
RATIO
COURT: DISCRETION OF THE COURT; WHETHER AN APPLICANT WHO IS SEEKING THE INDULGENCE OF A COURT HAS TO FURNISH THE COURT WITH SUFFICIENT MATERIALS ON THE BASIS OF WHICH IT CAN EXERCISE DISCRETION ONE WAY OR THE OTHER
It is trite that an applicant who is seeking the indulgence of a court has to furnish the court with sufficient materials on the basis of which it can exercise discretion one way or the other. See WILLIAMS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145 or (1982) 1 ALL NLR (PT 1) 1. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
APPEAL: APPLICATION OF TO TIME APPEAL; THE CRUCIAL FACTORS TO CONSIDER IN AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
In an application for extension of time to appeal, the crucial factors to take into consideration are whether there are good grounds for failure to appeal in time and whether there are good grounds of appeal. See OBA vs. EGBERONGBE (1999) 8 NWLR (PT 615) 485 or (1999) LPELR 1 at 7, FHA vs. ABOSEDE (1998) 2 NWLR (PT 537) 177 or (1998) LPELR 1 at 9 and NATIONAL INLAND WATERWAYS AUTHORITY Vs. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2008) 13 NWLR (PT 1103) 48 or (2008) LPELR 1 at 6. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: COURT’S DISCRETION; WHETHER AN APPLICATION FOR EXTENSION OF TIME TO APPEAL IS AN APPLICATION THAT SEEKS FOR DISCRETIONARY REMEDY AND THE DUTY OF THE COURT TO EXERCISE ITS DISCRETION JUDICIALLY AND JUDICIOUSLY
An application for extension of time, which is the application subject of the Ruling appealed against, is an application that seeks for a discretionary remedy. Like all judicial discretions, the discretion is exercised judiciously and judicially. An exercise of discretion is a liberty or a privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. See THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSG 156 at 168. In OLUMEGBON vs. KAREEM (2002) 34 WRN 1 at 8, Mohammed JSC stated:
“….judicial discretion would mean that they were to act according to the rules of reason and justice, not according to private opinion and according to law and not humour.”After an insightful consideration of the application and in exercise of its judicial discretion, the lower court found and held at page 33 of the Records that the Respondent had placed substantial materials before the court to enable the court determine the application; the lower court then proceeded to grant the application. It is hornbook law that a discretion properly exercised will not be lightly interfered with by an appellate court, even if the appellate court may have exercised the discretion differently. It is only where a court has exercised discretion under a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to injustice that an appellate court will interfere with the exercise of discretion in order to prevent the injustice. See OYEKANMI vs. NEPA (2000) 12 SCNJ 75 at 95 and T.S.A. INDUSTRIES LTD vs. KEMA INVESTMENTS LTD (2006) 2 NWLR (PT 964) 300.The Ruling of the lower court at pages 30 – 34 of the Records eloquently shows that in exercising its discretion the lower court gave due weight to relevant considerations; the manner or exercise of discretion was neither reckless, arbitrary, capricious nor whimsical. Being a proper exercise of discretion, an appellate court will not interfere: OLANIYAN vs. UNILAG (1985) 2 NWLR (PT 9) 599, BAKARE vs. ACB LTD (1986) LPELR 1 at 26 and UNION BANK vs. ASTRA BUILDERS (WEST AFRICA) LTD (2010) 5 NWLR (PT 1186) 1. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: COURT’S DISCRETION; THE SCOPE OF THE DISCRETIONARY POWER OF THE COURT
It’s a trite principle, that the courts as the custodians of the constitution, nay the rule of law, are imbued with sacrosanct and far-reaching fundamental powers to preserve, interprete and uphold the constitution and the laws made pursuant thereto, as may be enacted by the Legislature, Federal or State. See GADI VS MALE (2010) 7 NWLR (Pt.1193) 225 @ 266 paragraphs E – G.
Afortiori, the principle has equally been well settled, to the effect, that – The discretionary powers of the court are bound by rules and principles of law and not arbitrary capricious or unrestrained emotions. Judicial discretion implies that a court must act in accordance to rules, reason and justice. The court, in the exercise of its discretionary powers, must look at the materials placed before it by the parties and the effect such orders prayed for would have on the eventual disposal of the matter, See GADI VS. MALE (Supra) @ 289 paragraphs E – H. per. IBRAHIM MOHAMMED MUSA SAULAWA J.C.A.
JUSTICES:
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
COMMISSIONER OF POLICE – Appellant(s)
AND
NWADIRU AGHOLOR – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Respondent was one of five accused persons arraigned for trial before the Magistrates Court of Delta State, sitting at Agbor. The arraignment was on a two count charge of conspiracy and forcible entry contrary to Sections 517 and 81 of the Criminal Code. The trial at the Magistrates Court was protracted. lt lasted for about nine years. In the course of the trial at the Magistrates Court, three of the accused persons died. Only the Respondent and one other were alive to stand trial to the end. At the conclusion of the trial, the learned trial Chief Magistrate in a judgment delivered on 19th August, 1995 convicted the accused persons on Court II of the charge being the count of forcible entry. They were discharged on the count of conspiracy.
The accused persons were dissatisfied with the judgment of the trial Chief Magistrate. They appealed against the judgment to the High Court. The appeal was filed within time. The Appellant herein, which was the Respondent in the said appeal, filed a preliminary objection challenging the competence of the said appeal. In a Ruling delivered on 16th June, 2009, the High Court of Delta State upheld the preliminary objection and struck out the Notice of Appeal.
Subsequently, the Respondent herein applied to the High Court of Delta State in Suit No. HCY/29CM/2009 for leave to appeal and extension of time to appeal against the aforesaid judgment of the Magistrates Court, Agbor, Delta State. The said application was duly granted by the lower court on 20th July, 2010. The Appellant was dissatisfied with the decision of the lower court granting the application. It consequently filed an appeal against the said decision. The Ruling of the lower court is at pages 30 – 34 of the Records and the Notice of Appeal is at pages 35 – 36 of the Records of Appeal. Upon the compilation and transmission of the Records of Appeal by the lower court on 11th February 2011, Briefs of Argument were filed and exchanged by the parties.
The Appellant’s Brief of Argument which is dated 27th January, 2012 was filed on 30th January, 2012 pursuant to the order of the court made on 25th January, 2012. The Respondent’s Brief of Argument is dated 12th October, 2012, filed on 16th October, 2012 and deemed as properly filed on 3rd February, 2014. At the hearing of the appeal, A.C. Oluiji, Esq., learned counsel for the Appellant adopted the submissions in the Appellant’s Brief of Argument and he urged the court to allow the appeal. In the same vein, E. U. Nkwor, Esq., of counsel who appeared for the Respondent adopted the submissions in the Respondent’s Brief of Argument which was settled by Sir J.O. Ojobu, and he urged the court to dismiss the appeal.
Two issues were distilled as arising for determination in the Appellant’s Brief of Argument namely:
1. Whether the affidavit in support of the Respondent’s application for extension of time to appeal was competent in law (Distilled from ground one).
2. Whether the lower court properly exercised its discretion in granting the Respondent’s application for extension of time to appeal out of time when the affidavit in support of the said application was bereft of materials to sway the court in exercising the discretion sought in his favour (Distilled from ground two).
The Respondent equally formulated two issues for determination in his Brief of Argument as follows:
1. Whether the issue of Oath in the affidavit goes to the substance of the case?
2. Whether the Court of Appeal can disturb the exercise of the discretion of the court?
The issues for determination as distilled by the parties, though differently worded are in their true purport and essence in respect of the same issues arising from the two grounds of appeal. The issues as distilled by the Appellant is however more apposite and I adopt the said issues for the determination of this appeal.
ISSUE NUMBER ONE
Whether the affidavit in support of the Respondent’s application for extension of time to appeal was competent in law.
The Appellant’s contention is that the affidavit in support of the Respondent’s application before the lower court did not comply with the provisions of Section 13 and Schedule 1 of the Oaths Act in the sense that the affidavit did not include the deposition that it was deposed to by virtue of the provisions of the Oaths Act. It was submitted that where both the National Assembly and a State enact a law on the same subject matter, the law enacted by the National Assembly will take precedence over that of the State. The cases of OSENI vs. DAUDU (1994) 4 NWLR (PT.339) 390 ratio 12 and A-G OGUN STATE vs. A-G FEDERATION (1982) 1 – 2 S.C. 13 were cited in support. Relying on the case of N.N.B PLC vs. I.B.W. ENT. (NIG) LTD (1998) 6 NWLR (PT 554) 448 ratios 6, 7 and 8, the Appellant argued that the non-compliance with Section 13 and Schedule 1 of the Oaths Act rendered the Respondent’s affidavit incompetent and the motion to which the affidavit was attached consequently had no valid supporting affidavit and thereby became incompetent.
In reply, the Respondent submitted that the issue of the affidavit did not go to the substance of the case and that the fact that the affidavit was sworn before a Commissioner for Oaths was enough compliance. The Respondent maintained that the Appellant’s contention bordered on technicality which the Courts now lean against. The cases of ADEWUNMI vs. A-G EKITI STATE (2002) 9 LRCN 43 ratio 3 and NDUKWE vs. L.P.D.C (2007) 146 LRCN 804 ratio 11 were relied upon. The Respondent referred to Sections 109 – 120 of the Evidence Act 2011 and posited that once the said Sections are complied with, the affidavit is authentic for the purpose for which it was made.
RESOLUTION OF ISSUE NUMBER ONE
The disceptation on this issue is simply whether the affidavit filed by the Respondent at the lower court conforms to the stipulation in the Oaths Act on how an oath is to be taken. Sections 1, 13 and the First Schedule to the Oaths Act are relevant in this regard. They enact as follows:
“1. The oaths to be taken as occasion shall demand shall be the oaths set out in the First Schedule to this Act.”
“13. It shall be lawful for any commissioner for oaths, notary public or any other person authorized by this Act to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.”
Then the First Schedule to the Oaths Act which sets out the various oaths to be taken provides the following as the format for a statutory declaration:
“I……. do solemnly and sincerely declare that….and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of Oaths Act.”
Now the Respondent’s affidavit used at the lower court and which the Appellant seeks to impeach in this appeal is at pages 2 – 3 of the Records. In paragraph 16 which is on page 3 of the Records thereof, it is deposed as follows:
“16. That I make this Oath solemnly and conscientiously believing the content to be true and correct and in accordance with the oath Law, Laws of Bendel State of Nigeria 1976 as applicable in Delta State.”
The above paragraph, though not the ipsissima verbal of the First Schedule to the Oaths Act, is consistent with the provisions, intendment and general principles of the said First Schedule. The Appellant’s complaint seems to be that the affidavit is said to have been deposed in accordance with a State Law. Now, does this render the affidavit incompetent when it has not been shown that there is any inconsistency between the oaths Law applicable in Delta State and the oaths Act? Even though the superiority of an Act of the National Assembly over State legislation is beyond dispute, it seems to me that the case of OSENI vs. DAUDU (supra) relied upon by the Appellant is distinguishable from the facts of this matter.
In the said case there was an attempt to tender survey plans made on various dates in 1982 and 1983 in evidence. The said survey plans were not countersigned by the surveyor-General. By Section 3 of the Survey Law of Lagos State 1973, no survey plan shall be admitted in evidence in any court unless it bears the countersignature of the Surveyor-General. The said Section 3 of the Survey Law, 1973 was abolished by the Survey Edict No. 8 of Lagos State 1984 which no longer required the countersigning of a Survey Plan by the Surveyor-General before it could be admitted in evidence. So on the state of the Lagos State Survey Law of 1973 any plan made prior to 1984 would not be admitted in evidence unless it is countersigned by the Surveyor-General. However, there was the Survey (Amendment) Decree No. 34 of 1974, a Federal Legislation which provided that there was no need for a survey plan to be countersigned by the Surveyor-General before it could be admitted in evidence. Evidently, there was some inconsistency in this regard and Iguh. JSC held that Decree No. 34 of 1974 had effect throughout the Federation and that it had covered the field on the subject matter and was superior to the State legislation and therefore the Survey Plans made in 1982 and 1983 were admissible in evidence.
It does not seem that there is any inconsistency between the provisions of the Oaths Act and the applicable Oaths Law in Delta State in this regard and none has been pointed out to the court. The deposition in paragraph 16 of the Respondent’s affidavit before the lower court substantially conforms with the stipulation of the First Schedule to the Oaths Act. The deposition therein is quite different from the deposition in N.N.B. PLC vs. I.B.W ENTERPRISES (NIG) LTD (supra) relied upon by the Appellant. Where there has been substantial compliance with the stipulations in the First Schedule to the Oaths Act, as in the instant case, the affidavit is not incompetent. In LONESTAR DRILLING LTD vs. TRIVENI ENGINEERING & INDUSTRIES LTD (1999) 1 NWLR (PT 588) 622 which was decided after N.N.B. PLC vs. I.B.W ENTERPRISES (NIG) LTD (supra), Akintan, JCA (as he then was) stated as follows:
“In as much as I believe that there is need to comply with the provisions of Oaths Act, I believe that failure to use the exact words prescribed by the Act will not necessarily render an affidavit invalid. Rather, I believe that in deciding whether an affidavit should be declared invalid, it is necessary to examine the words used with a view to determine if there was in fact a substantial compliance with the requirement of the Act. In the instant case, I think that the deponent, by concluding the deposition with the words: ‘I depose to this affidavit in good faith’, he did not meet the exact wording prescribed in the Act. l, however, believe that there is substantial compliance with the requirement of the Act. I therefore hold that the objection raised is not enough to warrant or justify a total rejection of the affidavit.”
In any event, it would appear that an affidavit which ends with the declaration that it has been deposed to “in accordance with the oath law” as in the case at hand is not incompetent: A-G FEDERATION vs. BAYAWO (2000) 7 NWLR (PT 665) 351.
Accordingly, I am unable to agree with the Appellant that the Respondent’s affidavit before the lower court was incompetent. I am inclined to agree with the Respondent’s Counsel that the Appellants argument is another descent into the realm of undue technicality. The attainment of justice is generally no longer allowed or tolerated to be controlled by strict adherence to technicalities but rather to substance. See AFOLABI vs. ADEKUNLE (2004) 2 SCNLR 141 at 150 and EGOLUM vs. OBASANJO (2004) WRN 87 at 164. In NNEJI vs. CHUKWU (1988) 3 NWLR (PT 81) 184, Oputa, JSC (of most blessed memory) quoted with approval the dictum of Lord Penance in COOMBE vs. EDWARDS (1878) L.R. 3 P.D 142 as follows:
“The spirit of justice does not reside in formalities, or words, nor in the triumph of its administration to be found in successfully picking a way between the pitfalls of technicality. After all, the law is, or ought to be, the handmaid of justice, and inflexibility, which is the most becoming robe of law, often serves to render justice grotesque………if the choice is between legal technicality and justice, one ought to cast one’s lot with justice. But it is not all that simple for justice in our courts is, or ought to be, justice according to law……I will at anytime, anywhere case my lot for truth and justice rather than for mere formal objections.
…..Technicalities deal with legal forms but not necessarily with substance. The courts exist to do substantial justice. Rules of Court dealing with technical modes of procedure should be subservient to the dictates of justice. If therefore, observance of any rule will produce an obvious injustice, a court of justice will naturally prefer justice to the technicalities the rule imposes.…”
On my part, I equally cast my lot on the side of justice. A Court of law has a duty to discover the true intents of the law and do substantial justice accordingly, not formal or technical justice. A Court in its quest for justice must act within the dictates of reason. I would therefore resolve this issue number one against the Appellant. The affidavit in support of the Respondent’s application at the lower court for extension of time to appeal was competent in law.
ISSUE NUMBER TWO
Whether the lower Court properly exercised its discretion in granting the Respondent’s application for extension of time to appeal out of time when the affidavit in support of the said application was bereft of materials to sway the Court in exercising the discretion sought in his favour.
The Appellant submits that the affidavit of the Respondent before the lower Court was bereft of substantial reasons why discretion should be exercised in his favour. The cases of BANK OF BARODA vs. MERCANTILE BANK LTD (1987) 3 NWLR (PT 60) 233 ratios 4 and 6 and IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) 6 NWLR (PT 1084) 612 were referred to.
The Appellant contended that the Respondent’s affidavit did not state when he heard that the processes his counsel filed on his behalf were defective, or when the Notice of Appeal was struck out. The Appellant maintained that the date when the matter was struck out was important and ought to have been stated in the affidavit. The case of ALADEGBEMI vs. FASANMADE (1988) 3 NWLR (PT 81) 129 ratio 18 was relied upon. The Appellant pointed out that the lower court did not exercise its discretion judicially and judiciously and that in the circumstances the appellate court may interfere with the exercise of discretion by the lower court. The case of IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (supra) ratio 11 was cited in support.
The Respondent submitted in reply that an appellate court will not disturb the exercise of discretion by the lower court where the discretion was properly exercised. The case of OGOEJEOFO vs. OGOEJEOFO (2006) 135 LRCN 786 was referred to. The Respondent argued that the initial appeal he filed within time was struck out for being incompetent and that the reasons he advanced for seeking extension of time were adequate as found by the lower court. The Respondent maintained that the lower court properly exercised its discretion and that the appellate court therefore cannot interfere.
RESOLUTION OF ISSUE NUMBER TWO
In the prefatory part of this judgment, I stated that the Respondent had appealed against the judgment of the trial Magistrate within time. The said appeal was however defective and was struck out, thus necessitating the application before the lower court for extension of time to appeal, the time within which to appeal having expired. It is trite that an applicant who is seeking the indulgence of a court has to furnish the court with sufficient materials on the basis of which it can exercise discretion one way or the other. See WILLIAMS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145 or (1982) 1 ALL NLR (PT 1) 1.
In the affidavit in support of the application before the lower court, the Respondent deposed as follows:
“2. That this case was terminated at the Magistrate’s Court Agbor on 19th August, 2005.
3. That thereafter, our counsel filed an appeal against the said judgment to the High Court of Justice Owa-Qyibu.
4. That we instructed our lawyer to put in the appeal since we were dissatisfied against the earlier judgment of the said Magistrate’s Court.
5. That on reaching this court, we were astonished to hear that the processes filed by our counsel, Dr. C.Y.O. Adei was defective.
6. That for the defect, we had earlier complied with the filing within time.
7. That we ran out of time when the notice of appeal was struck out.
8. That the errors detected were completely not borne out of us but our counsel.
9. That we are still quite eager to lodge the appeal and prosecute same to finality.
10. That the judgment of the court is hereby annexed and marked Exh “A1”.
11. That the proposed notice of appeal is a/so annexed to this application and marked Exh “AP1”.
11(a) The grounds are strong, substantial and arguable.
12. That the ruling of the court which eroded our earlier appeal out is hereby annexed and marked Exh “AP2.” (See pages 2-3 of the Records)
The Appellant makes heavy weather of the failure by the Respondent to state the date when they heard that the appeal was defective and when the appeal was struck out as deposed to in paragraphs 5 and 7 of the affidavit. lt is no doubt correct that the dates were not supplied, but I am quick to point out that the date when the Respondent heard that the appeal was defective is not as material as the date when the appeal was struck out, which striking out is the confirmation that the appeal was indeed defective. Even though the Respondent did not state the date when the appeal was struck out in any paragraph of the affidavit, among the materials furnished to the lower court by the Respondent is the Ruling by which the appeal was struck out. This Ruling which was referred to in paragraph 12 of the affidavit and exhibited as EXHIBIT AP2 is an integral part of the Respondent’s affidavit. Clearly therefore the materials furnished before the lower court included the date that the appeal was struck out. Happily, the Appellant’s Counsel conceded in his brief that a court can take notice of processes in its file; therefore the lower court rightly made use of Exh. AP2 attached to the application in ascertaining the date when the appeal was struck out before arriving at the manner in which to exercise discretion on the application.
The Respondent exhibited his proposed Notice of Appeal as Exh. AP1 and he deposed that the grounds were strong, substantial and arguable. In an application for extension of time to appeal, the crucial factors to take into consideration are whether there are good grounds for failure to appeal in time and whether there are good grounds of appeal. See OBA vs. EGBERONGBE (1999) 8 NWLR (PT 615) 485 or (1999) LPELR 1 at 7, FHA vs. ABOSEDE (1998) 2 NWLR (PT 537) 177 or (1998) LPELR 1 at 9 and NATIONAL INLAND WATERWAYS AUTHORITY Vs. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2008) 13 NWLR (PT 1103) 48 or (2008) LPELR 1 at 6. Instructively, the Appellant did not file any counter affidavit at the lower court so the facts deposed to by the Respondent in support of the application were unchallenged and uncontroverted. The law enjoined the lower court to accept and give full weight and value to such unchallenged and uncontroverted affidavit evidence especially when the depositions therein were neither manifestly incredible nor unbelievable. See NEKA B.B.B. MANUFACTURING CO. LTD vs. ACB (2004) 2 NWLR (PT 858) 521 at 550-551 and LAWSON-JACK vs. SHELL (20021 12 MJSC 114 at 125.
An application for extension of time, which is the application subject of the Ruling appealed against, is an application that seeks for a discretionary remedy. Like all judicial discretions, the discretion is exercised judiciously and judicially. An exercise of discretion is a liberty or a privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. See THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSG 156 at 168. In OLUMEGBON vs. KAREEM (2002) 34 WRN 1 at 8, Mohammed JSC stated:
“….judicial discretion would mean that they were to act according to the rules of reason and justice, not according to private opinion and according to law and not humour.”After an insightful consideration of the application and in exercise of its judicial discretion, the lower court found and held at page 33 of the Records that the Respondent had placed substantial materials before the court to enable the court determine the application; the lower court then proceeded to grant the application. It is hornbook law that a discretion properly exercised will not be lightly interfered with by an appellate court, even if the appellate court may have exercised the discretion differently. It is only where a court has exercised discretion under a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to injustice that an appellate court will interfere with the exercise of discretion in order to prevent the injustice. See OYEKANMI vs. NEPA (2000) 12 SCNJ 75 at 95 and T.S.A. INDUSTRIES LTD vs. KEMA INVESTMENTS LTD (2006) 2 NWLR (PT 964) 300.The Ruling of the lower court at pages 30 – 34 of the Records eloquently shows that in exercising its discretion the lower court gave due weight to relevant considerations; the manner or exercise of discretion was neither reckless, arbitrary, capricious nor whimsical. Being a proper exercise of discretion, an appellate court will not interfere: OLANIYAN vs. UNILAG (1985) 2 NWLR (PT 9) 599, BAKARE vs. ACB LTD (1986) LPELR 1 at 26 and UNION BANK vs. ASTRA BUILDERS (WEST AFRICA) LTD (2010) 5 NWLR (PT 1186) 1.
Given the entire circumstances and from the totality of the foregoing, there is no justifiable legal basis on which to interfere with the exercise of discretion by the lower court. Issue number two is accordingly resolved against the Appellant.
CONCLUSION
To put a wrap on this judgment and to conveniently berth the same at the quays; the issues for determination having been resolved against the Appellant, the appeal is totally devoid of merit and it is only deserving of a dismissal. The decision of the lower court is affirmed and the appeal is hereby dismissed with N50,000.00 as costs in favour of the Respondent.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Of the two issues formulated by the Appellant in the brief of argument thereof, the second issue is most instructive. The second issue in question raises the fundamental question of whether or not the lower court had properly exercised its discretion in granting the Respondent application for extension of time to appeal out of time.
Having accorded an ample consideration upon the submissions of the learned counsel contained in their respective briefs of argument vis-a-vis the records of appeal, as a whole, there is every cogent reason for me to hold that the answer to that pertinent question is most inevitably in the affirmative. At page 34, lines 11 – 18, of the Record of Appeal, the lower court was recorded to have held thus:
I have examined all the exhibits referred to and the supporting affidavit and it is my view that the reference to the judgment as judgment made on 19th August, 2009 in the notice of appeal is obviously a typographical error especially in the face of the judgment, exhibit AP before the court. To strike out this application on this typographical error is to adhere to technicality which courts are enjoined not to do.
Not unexpectedly, the lower court came to the following inevitable conclusive effect:
In sum this application succeeds. Time is therefore extended by 7 days from today within which the Applicant can file his appeal the time allowed by the rules of court having expired.
I think, I cannot agree more with the above apt decision of the lower court. It’s a trite principle, that the courts as the custodians of the constitution, nay the rule of law, are imbued with sacrosanct and far-reaching fundamental powers to preserve, interprete and uphold the constitution and the laws made pursuant thereto, as may be enacted by the Legislature, Federal or State. See GADI VS MALE (2010) 7 NWLR (Pt.1193) 225 @ 266 paragraphs E – G.
Afortiori, the principle has equally been well settled, to the effect, that –
The discretionary powers of the court are bound by rules and principles of law and not arbitrary capricious or unrestrained emotions. Judicial discretion implies that a court must act in accordance to rules, reason and justice. The court, in the exercise of its discretionary powers, must look at the materials placed before it by the parties and the effect such orders prayed for would have on the eventual disposal of the matter, See GADI VS. MALE (Supra) @ 289 paragraphs E – H.In the instant case, it’s rather evident, that the lower court has admirably proved itself to have been properly guided by the foregoing trite fundamental principles in exercising the discretionary power thereof. Thus, the fact that the lower court has exercised the discretionary power thereof judicially and judiciously, is beyond question in the instant case.
What’s more, the Respondent’s 16 paragraphed affidavit contained at pages 2-3 of the Record of Appeal, has not been controverted by the Appellant at the hearing of the vexed motion. Exhibits A, AP1 & AP2 were annexed to the affidavit in support of the motion. Ironically, however, the Appellant did not deem it expedient to controvert the averments contained in the said affidavit. Yet, it is a well settled principle, that a fact averred in an affidavit, which is not denied or controverted by way of a counter-affidavit, is deemed to have been duly admitted. See BAN THOMAS HOTELS LTD VS. SEBI FURNITURE (1989) 5 NWLR (Pt. 123) 742; ONAGORUWA VS. IAMB (2001) 10 NWLR (Pt. 722) 742; OKOSI VS. THE STATE (1989) 1 NWLR (Pt. 100) 64; ONWUGBELU VS. EZEBUO (2013) LPELR – 20401 (CA); OWOSHO VS, JADA (1984) 7 SC 149 @ 163 – 164.
Hence, in the light of the foregoing reasoning, I have no hesitation in concurring with the far-reaching reasoning and conclusion reached in the lead Judgment just delivered by my learned brother, the Hon. Justice U.A. Ogakwu, JCA, to the effect that the instant appeal is totally devoid of merits. Thus, the appeal is hereby equally dismissed by me. I abide by the consequential order of costs of N50,000.00 awarded in favour of the Respondent.
HAMMA AKAWU BARKA, J.C.A.: I have had an opportunity of reading before now the lead judgment rendered by learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. Having read the record and the issues therein, and having closely followed the reasons and conclusions adumbrated in the judgment, I find them agreeable, and therefore adopt them as mine. The appeal lacks merit and I dismiss same.
The judgment of the lower court was right and hereby upheld.
Appearances
A. C. Oluiji, Esq., For Appellant
AND
E. U. Nkwor, Esq., (holding the brief of Sir J. O. Ojobu) For Respondent
