EYITAYO v. KAZEEM (2020)

EYITAYO v. KAZEEM

(2020)LCN/14315(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Thursday, June 11, 2020

CA/IL/143/2019(R)

Before Our Lordships:

Ahmad Olarewaju Belgore Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Between

ADEJOKE EYITAYO APPELANT(S)

And

ALIYU OLAYIWOLA KAZEEM RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURTS DO NOT SPECULATE

This means the Court is bound to speculate in the circumstances of the instant application. Meanwhile, it has been held times without number that the Courts do not speculate as speculation has no place in our Courts. Essentially, neither the parties nor the Court, is permitted or entitled, to speculate anything. See:IKENTA BEST (NIG.) LTD V. AG RIVERS STATE (2008) LPELR-1476 (SC); AWOLOLA V. GOVERNOR OF EKITI STATE & ORS. (2018) LPELR-46346 (SC). PER ONYEMENAM, J.C.A.

THE LAW REGULATING THE CERTIFICATION OF PUBLIC DOCUMENTS

The law regulating the certification of public documents is as set out in Section 104 of the Evidence Act, 2011 and it provides as follows;
104(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in Subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.”PER ONYEMENAM, J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The Appellant/Applicant, via a Motion on Notice filed on 8th November, 2019, prayed this Court for the following:
1. AN ORDER for an extension of time within which the Appellant Counsel shall compile and transmit the Record of Appeal in respect of an appeal dated and filed on 22nd March, 2019 to the Court of Appeal Ilorin.
2. AN ORDER deeming the already compiled and transmitted Record of Appeal to the Court of Appeal Ilorin as properly compiled and transmitted In accordance with the rules of this Honorable Court.
3. AN ORDER deeming the compiled and transmitted record as properly served in the circumstance on the respondents’ counsel.

The application was brought pursuant to Order 6 Rules 1 & 9 (1); Order 8 Rule 4 and; within the Inherent jurisdiction of this Court.

The application is supported by a five paragraph affidavit deposed to by one Toba Stephen Ajibola. The Applicant averred that he filed a Notice of Appeal on 22nd March, 2019 against the Judgment of the trial Court delivered on 11th March, 2019 by S. M. Akanbi, J. The Applicant stated that he wrote a

letter dated 29th March, 2019 to the Deputy Chief Registrar, Appeal section of the High Court for Compilation of Records which was received by the Deputy Chief Registrar on 3rd April, 2019. He deposed that when the record were not compiled as requested, he wrote a second letter of reminder on 17th May, 2019; through his counsel. He further averred that he was informed that the Presiding Judge was on election petition duties; as such the case file which was in his office could not be assessed for the purpose of compiling the Record. He stated that by the time the case file was made available to him, the time prescribed for compilation and transmission of the Record had elapsed. The Record of appeal was thereafter compiled and transmitted on 8th November, 2019 which is outside the 3 months mandatory period prescribed by the Court of Appeal Rules, 2016. The Applicant therefore seeks the leave of this Court to compile and transmit the Record out of time; and to deem the already compiled and transmitted Record of Appeal as properly compiled, transmitted and served in the circumstance. Attached to the Applicant’s affidavit are Exhibits-A, B and C which are the

Applicant’s letter to the Registrar of Court for the certified true copy of the Judgment to enable him prepare his Notice of Appeal; letter dated 29th March 2019 to the Deputy Chief Registrar Appeal section of the High Court for Compilation of Records; and letter of Reminder dated 17th May, 2019, respectively.

The Respondent filed a counter affidavit of six paragraphs on 25th November, 2019, urging the Court to strike out the Applicant’s application for not satisfying the requirements of the law on proper certification of public documents. In the counter affidavit deposed to by one Soliu Olarewaju Akeem, the Respondent stated that the Applicant’s affidavit evidence does not disclose any compelling reason for the grant of the application as the Applicant did not show that he mobilized the Registry within time and compilation was not done. He averred that the Applicant did not pay the appropriate fee for certification of the said Record and that certification fees for each of the several processes and documents making up the Record ought to have been separately paid for. He further deposed that certification of a payment receipt dated 22nd

March 2019 which is a private document emanating from the custody of the Applicant is invalid in law. Also, that the record of proceedings at the trial Court was not properly certified by any officer of the Court as required by Section 104 (1) & (2) of the Evidence Act to reflect that it is the correct copy. He stated that the accuracy and reliability of the Record as compiled by the Applicant’s counsel from his personal records cannot be guaranteed and urged the Court to refuse the application.

Both parties further filed written addresses as ordered by this Court on 19th February, 2020. The Respondent distilled two issues for determination In his written address filed on 26th February, 2020 to wit:
1. Whether the Applicant has placed cogent, convincing facts and sufficient materials before the Court to sway it to exercise its discretion in her favour.
2. Whether the Record of Appeal as compiled by the Applicant was properly certified as required by law to warrant the grant of an order deeming same as properly compiled and transmitted.

The Applicant raised three issues for determination in his written address filed on 4th March,

2020 to wit:
1. Whether the Respondent’s objection to the Competency of the Appellant/Applicant’s application raised through paragraphs 3 subparagraphs (b-j) of the Respondent’s Counter-Affidavit and the written Address in Support of the said Counter-Affidavit is an abuse of Court’s process having been unsupportable by law and therefore liable to be struck out
2. Considering the Circumstances of the Appellant/Applicant’s compilation and transmission of the Record of Appeal, through her Counsel, M. A. Bello Esq of Deji Gbadeyan & Co. Whether the Appellant/Applicant is entitled to the exercise of the Court’s discretion in her favour and as such be granted all her reliefs claimed in the Application.
3. Whether the Record of Appeal already compiled and transmitted to the Court of Appeal is not properly and duly certified pursuant to the relevant laws or statutes.

The issues formulated by both parties are the same, save for the Applicant’s issue 1. I will determine the application on the two issues raised by the Respondent and the Applicant’s 1st issue. The Applicant’s 1st issue will be

resolved as issue 1.

SUBMISSIONS ON ISSUE 1
“Whether the Respondent’s objection to the Competency of the Appellant/Applicant’s application raised through paragraphs 3 sub-paragraphs (b-j) of the Respondent’s Counter-Affidavit and the written Address in Support of the said Counter-Affidavit is an abuse of Court’s process having been unsupportable by law and therefore liable to be struck out.”
Mr. Bello argued for the Applicant that it is an abuse of Court process for the Respondent herein to raise objections to the competence and validity of the Applicant’s application through paragraph 3 sub- paragraphs (b-j) of his Counter Affidavit and file his Court ordered Written Address to be in support of the objections in the said paragraph 3 sub-paragraphs (b-j). He submitted that the Court has no jurisdiction to hear and determine questions raised through any Court process that is procedurally incompetent having not derived its foundation in law. He therefore urged the Court to strike out the entire paragraph 3 of the Counter Affidavit which raised extraneous matters, legal argument, objection, prayer and conclusion and so

also the written address in its support. He relied on: Order 6 Rule 8(1); Section 115 (1) and (2) of the Evidence Act; BAMAIYI V. THE STATE & ORS (2001) LPELR-731 (SC) PAGE 26-27 PARAGRAPH F-D; AG ANAMBRA STATE V. AG FEDERATION (2007) LPELR-603 SC.

RESOLUTION OF ISSUE 1
The issue under consideration bothers on whether the Respondent could validly raise a preliminary objection against the Motion on Notice of the Applicant filed on 8th November, 2018. Before I delve Into the merits of the issue, I want to state categorically that the Respondent in his counter affidavit did not raise any preliminary objection. The deposition in the counter affidavit will therefore not be considered from the standpoint of raising a preliminary objection but shall be put through the ideal test of the provisions of Section 115 of the Evidence Act that govern affidavit evidence. The Respondent in his address raised what could be labeled a preliminary objection. Without going into the competence of the Respondent’s alleged Preliminary Objection as argued by the Applicant, I will resume with the determination of the propriety of a preliminary objection in

applications or motions arising in the course of proceedings as the instant motion on notice.
On this, I shall simply abide by the Court’s decision in EGWU V. MAINSTREET BANK LTD (2017) LPELR 43395 (CA), where His Lordship, Onyemenam JCA, said:
“Order 10 of the Court of Appeal Rules provides for Preliminary Objection in an appeal. As argued by the Appellants Learned Senior Counsel there is no place for preliminary objection in Notice of Motions in the Court of Appeal Rules. By the Order referred to, a preliminary objection is an objection to the hearing of an appeal that, if upheld, would render further proceedings before the Court impossible or unnecessary. Preliminary Objection does not seek to address issue(s) or delve into the merits of the appeal nor seek to determine any aspect of the merits of the appeal.
Accordingly, a preliminary objection is to be filed only when there is a fundamental defect in the Appellants process in an appeal as its purpose is to terminate an appeal, principally on ground of incompetence. CLEMENT ODUNUKWE VS. DENNIS OFOMATA & ANOR. (2010) LPELR SC 294/2003; NDIGWE VS NWUDE (1999) 11 NWLR (Pt. 626) 314;

NEPA Vs ANGO (2001) 15 NWLR (Pt.737) 627. By the nature and purpose of preliminary objection, the procedure is only adopted for the hearing of an appeal and not for any other process. In other words, preliminary objection cannot be raised in normal interlocutory applications which come up in the usual conduct of the business of the Court. ZENITH BANK PLC VS CHIEF ARTHUR JOHN & ANOR (2015) LPELR 24315 (SC); SPDC Vs. AMADI (2011) 14 NWLR (Pt. 1265) 157. Seeking to terminate a notice of motion by way of preliminary objection is unknown to our rules of Court. Such practice has been held by the Apex Court to be outside the contemplation of Order 2 Rule 9 of the Supreme Court Rules, which is akin to Order 10 of the Court of Appeal Rules. It is therefore my view that the preliminary objection raised by the Respondent in challenge of Applicants notice of motion, is not proper in law and as such incompetent.”
See also: ZENITH BANK PLC VS JOHN & ORS (2015) LPELR 24315 SC; SPDC VS AMADI (2011) 14 NWLR (PT.1266) 157 AT 192, DOWELL SCHLUMBERGER (NIG) LTD & ORS V. ANIEKAN & ANOR (2018) LPELR-44811 (CA); NWAIGWE & ANOR VS AMAECHI & ORS

(2017) LPELR 43080 (CA); SPDC VS OGOLO & ORS (2016) LPELR 41307 (CA); ADEJUMO VS OLAWAIYE (2014)12 NWLR (PT. 1421) 252.
Flowing from the above decision, I hold that a party cannot be allowed to raise a preliminary objection in this Court to the hearing of a Motion, as there is no provision in our Rules for that. The Court’s Rules rather provides for a preliminary objection to the hearing of an appeal by Order 10 Rule 1 of the Court of Appeal Rules, 2016. A party is expected to file a Counter affidavit, to oppose a given motion or oppose same on points of law, when argued. By the principle of fair hearing any application properly brought before the Court must be heard on its merits and determined one way or the other. See: OTAPO V. SUNMONU (1987) 2 NWLR (PT. 58) 587 S.C.; AMADI V. THOMAS APLIN & CO. LTD. (1972) 4 Sc 205; (1972) ALL NLR 413.

On whether paragraph 3 of the counter affidavit offends the Evidence Act, let me note that: an affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge, information or belief. It must contain only those facts of which the maker or deponent has

personal knowledge or which are based on information which he believes to be true. In the latter case, he must also state the grounds of his belief; and state the name and full particulars of his informant. No legal arguments, conclusions or other extraneous matters must be included. See: Section 115 of the Evidence Act. Any paragraph of an affidavit which offends against any of these provisions may be struck out by the Court, but if it is not struck out, then the Court should attach no weight to it. See: BANQUE DE L’AFRIQUE OCCIDENTALE V. ALHAJI BABA SKARFADI & ORS (1963) NNLR 21; HORN V. RICKARD (1963) 2 ALL NLR 41, (1963) NNLR 67; JOSIEN HOLDINGS LTD & ORS V. LORNAMEAD LTD & ANOR (1995) LPELR- 1634 (SC); AG ANAMBRA STATE V. AG FEDERATION (2007) LPELR-603 SC.
The Respondent herein has urged the Court to strike out the entire paragraph 3 of the Counter Affidavit which he alleged raised extraneous matters, legal arguments, objections, prayers and conclusions. The general rule as to the admissibility of an affidavit is that every affidavit used in the Court shall contain only statements of facts and circumstances to which the witness

deposes either of his own personal knowledge or from information which he believes to be true, and shall not contain extraneous matters by way of objection, prayer, or legal argument or conclusion. Thus, in an application where a Court is called upon to exercise its discretion or to decide an issue based on the affidavit evidence before it, it is duty bound to evaluate the affidavit evidence before reaching a decision one way or the other. See: Section 115 of the Evidence Act, 2011; EMEKA V. CHUBA-IKPEAZU & ORS. (2017) LPELR-41920 (SC); OKPONIPERE V. STATE (2013) LPELR-19931 (SC); F. G. N & ANOR V. A. I. C. LTD (2005) LPELR-6152 (CA).
The Supreme Court, per Uwaifo, JSC, laid down the test for determining whether an Affidavit contains extraneous matter in the case of BAMAIYI V. STATE & ORS (2001) 8 NWLR (PT. 715) 270 thus:
“The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the Affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the Court. If it is, then it is likely to be either an

objection or legal argument which ought to be pressed in oral argument, or it may be a conclusion upon an Issue which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a Statement of facts and circumstances which may be deposed to in an Affidavit, it therefore means that prayers, objections and legal arguments are matters which may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in Affidavit evidence; while conclusions should not be drawn by witnesses but left for the Court to reach.”
This position of law was stressed by Dongban-Mensem, JCA (as he then was) in ABANA V. OBI & ORS (2004) LPELR-7428 (CA) wherein His Lordship stated thus:
“Depositions in an affidavit which leaves one asking the ‘how’, ‘why’, ‘when’ and ‘who’ of facts deposed to offends the provisions of

Section 87 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990.”
See also: AKINBAJO V. OLOWOLAYEMO & ORS (2016) LPELR 41946 (CA); AHMED & ORS V. CBN (2013) LPELR 20744 (SC); MILITARY GOVERNOR OF LAGOS STATE & ORS V. OJUKWU & ANOR (1986) 1 NWLR (PT.18) 621.
The effect therefore is that, where any paragraph of an Affidavit offends Section 115 of the Evidence Act, 2011 it should be struck out, or if not struck out, it should be ignored or discountenanced as having no evidential value.

I have carefully perused the contents of the entire paragraphs of the Respondent’s Counter Affidavit deposed to by Soliu Olarewaju Akeem. I am of the view that paragraph 3 (b), (c), (d), (e), (f), (s), (h), (i) and (j) offend the provisions of Section 115(2) of the Evidence Act, 2011. The paragraphs are highlighted hereunder,
b. By Order 8 Rule 1 of the Court of Appeal Rules 2016, the applicant has sixty (60) days to compile and transmit the Record of Appeal to the Court of Appeal after filing the Notice of Appeal and in case of default on the part of the Registrar, the Applicant has additional Thirty (30) days to compile

and transmit the Record of Appeal by virtue of Order 8 Rule 4.
c. In effect, the Applicant has a maximum time of 90 days to compile and transmit the Record of Appeal.
d. It is the duty of the Applicant to show serious intention to prosecute the appeal by mobilizing the Registry of the lower Court for compilation of record but the Applicant failed and neglected to do the needful in order to stall the execution of the judgment of the lower Court.
e. The affidavit in support and exhibits attached does not disclose any compelling reason for the grant of the application as the Applicant has not shown that he mobilized the Registry within time and compilation was not done.
f. The Certification fees for each of the several processes and documents making up the record of appeal ought to be separately paid for.
g. It is obvious from page 314 of the Record complied by the Appellant that she did not pay the appropriate fee for certification, of the said Record.
h. The certification of a payment receipt dated 22nd March 2019 which is a private document emanating from the custody of the appellant is invalid In law.
i. The accuracy and

reliability of the Record as complied by the Appellant counsel from his personal records cannot be guaranteed since same was compiled by the counsel and merely taken to the lower Court to be stamped as a certified true copy.
j. The record of proceedings at the trial Court was not properly certified by any officer of the Court as required by Section 104 (1) &(2) of the Evidence Act to reflect that it is the correct copy from the Lower Court.

Sub-Paragraphs (b), (c), (d), (f), (g), (h), (j) clearly consist of legal arguments and/or objections which are not fit for a witness either in oral testimony or in Affidavit evidence. The averments stated therein, in my view, are issues that need to be pressed by counsel via oral argument. As for sub-paragraphs (e) and (j), I hold they are outright conclusions which is in the province of the Court either to make a finding or to reach a decision upon through its process of reasoning.

I therefore agree with the Applicant’s counsel, that paragraph 3 of the Respondent’s Counter Affidavit is offensive to Section 115 of the Evidence Act. Paragraph 3 of the Respondent’s Counter affidavit Is

hereby struck out.
Accordingly, issue 1 is resolved in favour of the Applicant.

SUBMISSIONS ON ISSUE 2
“Whether the Applicant has placed cogent, convincing facts and sufficient materials before the Court to sway it to exercise its discretion in her favour.”
The Respondent’s counsel, G. O. Osagbemi Esq., relied on the depositions contained in the counter affidavit save for paragraph 3(f) in arguing that prayer one on the motion paper is incompetent and as couched, for failure to provide the necessary materials upon which the Court can determine the merit or otherwise of the prayer. He noted that the prayer lacks the requisite details of the suit being appealed against, including the suit number and the particulars of the parties. He contended that the Notice of Appeal and copy of the judgment ought to have been exhibited in the application so as to determine whether there is a competent appeal upon which the Record of Appeal is being compiled. That the failure of the Applicant to attach the Notice of Appeal renders the application incompetent and liable to be struck out, Learned counsel noted that an application for

extension of time is not granted as a matter of course hence the affidavit in support must be convincing. Furthermore, that the reasons adduced by the Applicant in his affidavit evidence for not compiling and transmitting the record within time does not accord with good reasoning. He argued that the Applicant failed to show that he mobilized the Registrar for compilation of record of appeal after writing Exhibit B and also failed to supply his source of information regarding the averment that the case file was in the office of the learned trial Judge as such it could not be assessed. He relied on L.O. YEMOS NIG. LTD AND ANOR V. UNITY BANK PLC (2017) ALL FWLR (PT 873) PG.1653 AT PG 1675 PARAS C-F. He urged the Court to refuse the application.

The Applicant’s counsel, in his response, submitted that the sole authority relied on by the Respondent in his argument deals with extension of time within which to file a defence under the undefended list procedure and therefore not applicable to the extant application. Mr. Bello noted that Order 6 Rule 9 of the Court of Appeal Rules deals with substantial reasons on why an application for enlargement of time

should be granted notwithstanding its non-Compliance within time. He urged the Court to discountenance the argument of Respondent’s counsel and resolve the issue in the Applicant’s favour.

RESOLUTION OF ISSUE 2
The Applicant’s application was brought under Order 6 Rules 1, and 9 (1); and Order 8 Rule 4 of the Court of Appeal Rules, 2016. The referred rules of the Court for ease of understanding provides thus:
Order 6 Rule 1:
“Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.
Order 6 Rule 9 (1):
“The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
Order 8 Rule 4
Where at the expiration of 60 days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transmit the Record of Appeal in accordance with the preceding provisions of this Rule, it shall become mandatory for the Appellant to compile the records of all

documents and exhibits necessary for his appeal and transmit to the Court within 30 days after the registrar’s failure or neglect.

The combined reading of these Rules permit the Appellant to compile and transmit the Record of Appeal within 30 days after the Registrar of the lower Court has failed to compile the same within 60 days after the filing of the notice of appeal; and to bring an application for extension of time to compile and transmit Record of Appeal when he is out of time to compile and transmit within the provided 30 days after the 60 days allowed the Registrar had lapsed. Furthermore, the application he shall bring for extension of time must be by notice of motion supported by affidavit and stating under which Rule it is brought and the ground for the relief sought. Based on the foregoing, the application brought by the Appellant herein is competent to the extent that it is by notice of motion with a supporting affidavit and grounds for the reliefs sought. However the Respondent’s contention is that the prayers as couched are bereft of necessary particulars upon which the Court can determine the merit of the prayers. I do agree

with the Respondent’s counsel that the Applicant’s prayers are inelegant having failed to supply the necessary particulars that could make the Court grant the prayers as prayed. The two prayers in the Applicant’s application are devoid of relevant particulars. The prayers ought to contain details like the Suit number appealed against, the parties in the suit and the date the judgment was delivered in the main; to enable the Court make specific order. I must note that the Court does not make the order “Ordered as prayed or Granted as prayed” as a slogan. The Court can only order as prayed when a prayer in an application has supplied the necessary details that any one reading it along the order; “granted as prayed” will not be in doubt what the Court has granted. Without the names of the parties, the Suit number and the date of the delivery of the Judgment at least; not only can the Court not grant the prayers as prayed but the Court would have to go on a voyage of discovering necessary materials to make an order which would not be vague. This is more so as the Notice of Appeal which could supply the vital Information is

not yet before the Court neither was it attached to the affidavit. Accordingly, both the Respondent and the Court by the manner the Applicant couched his prayers are meant to figure out the appeal, “filed on 22nd March, 2019 to the Court of Appeal Ilorin” in respect of which the Applicant seeks extension of time to compile and transmit Record of Appeal since it may not be only one appeal that was filed on the given date. This means the Court is bound to speculate in the circumstances of the instant application. Meanwhile, it has been held times without number that the Courts do not speculate as speculation has no place in our Courts. Essentially, neither the parties nor the Court, is permitted or entitled, to speculate anything. See:IKENTA BEST (NIG.) LTD V. AG RIVERS STATE (2008) LPELR-1476 (SC); AWOLOLA V. GOVERNOR OF EKITI STATE & ORS. (2018) LPELR-46346 (SC).

Let me note that, had the Applicant herein in the circumstances of this application annexed either the judgment or the Notice of Appeal, then both the Court and the Respondent would have had a process to quickly look into for the necessary materials. For what I have said so

far, I hold that the prayers of the Applicant as couched are inelegantly framed. Howbeit, since the Respondent was not misled by the economy of the particulars presented in the prayers by the Applicant, as he ably filed a counter affidavit on facts relating to the right parties, Suit number and the correct date the trial Court’s judgment was delivered. In the interest of justice and to ensure the appeal is heard on its merits, the Court would be minded not to withhold the exercise of its discretion in favour of the Applicant.

Then again on this issue is the Respondent’s contention that the Applicant’s application lacked cogent and convincing facts in the supporting affidavit. The Respondent relied on the Court’s decision in L. O. YEMOS NIG. LTD & ANOR V. UNITY BANK PLC (2017) ALL FWLR (PT. 873) 1653. The Court on the quality and standard of facts and materials required to be placed before the Court in an application for extension of time, in L. O. YEMOS NIG. LTD & ANOR V. UNITY BANK PLC (2017) ALL FWLR (PT. 873) 1653 at 1675 paras C – F; Per Onyemenam, JCA held:
“The powers of a Court to grant an extension of

time for a party to carry out an act he is out of time by the rules of a Court or statute to do is discretionary. It is equity stemmed and as such guarded by the equitable principle that he who comes to equity must come with clean hands. See Ifelodun Local Government v. Bello (2012) 4 NWLR (Pt. 1289) 17. It is never granted as a matter of course, but judiciously and judicially, considering relevant facts placed before the Court without allowing extrinsic or extraneous matters come to play in the decision, ensuring the material (facts) relied on for the grant agree with the principles of law while bearing in mind that the rules of Court were first and foremost made to be obeyed, and as such once there is no breach of the rule, the judge without leaning to his sentiments, his whims and caprices or allowing his hunch sway him will only rely on cogent, verifiable compelling reasons to make him step out of the straight jacket of the rules to grant the application out of time.”
See further pages 1677-1678 paras. H- E
“From the affidavit evidence in support of the appellant’s application, it does appear to me that the appellants lost sight

of the fact that the grant of their application was not as of right; that in law, they were obligated to explain the delay in filing their notice of intention to defend and the affidavit showing defence on its merits. In my view, the appellants did not supply flesh to the skeletal reason they adduced from filing out of time. Since rules of Court are meant to be obeyed, the appellants needed to adduce enough material facts upon which the trial Court would have based its exercise of discretionary power in extending the time for them to take the procedural step as required in law. It is my opinion that the appellants/affidavit of fact lacked the necessary particulars that could convince and sway the mind of trial Court to exercise its discretion in their favour. I therefore hold that the affidavit evidence failed to advance cogent and convincing reasons to justify their delay in briefing their counsel and their subsequent out of time to take the required procedural step. Accordingly, since there is no sufficient explanation for the delay, the time-honoured rule that no indulgence should be given in matters of exercise of discretionary power of Court in

situations such as this was rightly followed by the trial Court. See N.L.C. & Anor. v. P.M.B. Ltd (2012)15 NWLR (Pt. 1324) 505.”
Applying the decision above to the facts deposed to in the Applicant’s affidavit in support of his application for extension of time to compile and transmit Record of Appeal. Of utmost importance is paragraph 3 (a – h) where the Applicant explained away and in great details the necessity for her application under consideration. Exhibits B and C attached to the Applicant’s affidavit were not countered which means indeed the Applicant timeously wrote to the Deputy Chief Registrar Appeal Section of the High Court for compilation of Record of Appeal, and followed up with a reminder when the Registry of the trial Court was not forthcoming with the compilation of the Record. The argument of the Respondent that the Applicant failed to show that he mobilized the Registrar of the Court below to compile the record cannot hold in the face of the provisions of Order 8 Rule 18 (2) of the Court of Appeal Rules, 2016. Permit me to reproduce the said Rule hereunder:
Rule 18(2) Where the Appellant has not deposited

the amount fixed by the registrar to cover the cost of compilation and transmission of the record of Appeal as provided in Rule 2(b) of this Order, the registrar of the Court below shall certify such fact to the Court, which may suo motu order that the appeal be dismissed either with or without costs, and shall cause the parties to be notified of the terms of the order;
Provided that the Court shall only act on the certification by the registrar at the expiration of the thirty days allowed for the appellant to compile Record of Appeal prescribed by Rule 4 of this Order.” By this Order, it is the Registrar that will state and bring to the notice of the Court that the Applicant failed to deposit the amount fixed by him to cover the cost of compilation and transmission of the Record of Appeal as provided in Rule 2(b) of this Order. Such certification from the Registrar can only be relied upon or acted on by the Court at the end of the 30 days allowed the Appellant to compile and transmit Record. Therefore it is not for an Applicant as in the instant application to prove that he had paid the deposit as fixed by the Registrar by providing his

receipt of payment. Where as in this case that the Registrar did not certify to the Court that the Applicant did not pay deposit fixed for the compilation and transmission of Record; it is deemed that the Applicant did pay but the Registrar failed to compile and transmit the record.
Again on the source of the information at paragraph 3 (g), that the case file was in the office of the learned trial Judge who was away on election petition assignment and so could not be accessed; at Paragraph 3 of the affidavit, the deponent deposed to the source of his information and that in my view satisfied the provision of the Evidence Act on the source of information. By the depositions made in paragraph 3 therefore, I hold that the Applicant has placed good, cogent and convincing reasons before and to the satisfaction of the Court to entitle him to the grant of extension of time to compile and transmit Record of appeal outside the time stipulated by the Rules of this Court.
I accordingly resolve Issue 2 in favour of the Applicant.

SUBMISSIONS ON ISSUE 3
“Whether the Record of Appeal as compiled by the Applicant was properly certified as required by law

to warrant the grant of an order deeming same as properly compiled and transmitted.”

On this issue, the Respondent’s counsel submitted that it is only proper certification that can guarantee the integrity and correctness of the Record compiled and transmitted to the Court by the Applicant. He referred to Section 104 (1) (2) of the 2011 Evidence Act in arguing that the Applicant failed to meet the requirements of the law and the application is bound to fail. He noted that only pages 298, 313 and 314 of the Record relating to the judgment of the trial Court and two revenue receipts, respectively, were properly certified in accordance with Section 104(2) of the Evidence Act. That the consequential effect is that there is no Record of appeal before the Court as the three page documents does not suffice for a Record of appeal. He further noted that the record of proceedings of the trial Court which is very essential to the determination of the merit of the appeal was not properly certified and is equally riddled with typographical errors which renders it unreliable as it is capable of misrepresenting the true state of affairs of what transpired at

the trial Court. He submitted that the requirements of law on certification are cumulatively mandatory and partial compliance as done by the Applicant herein cannot be waived by the Court nor dismissed as a mere formality by the Applicant. In conclusion, he urged the Court to refuse the application and strike out the record of appeal for being improperly compiled and transmitted. He relied on AGBAI V. INEC (2009) ALL FWLR PT (449), PG 549 @ 607 PARAS F.G; TABIK INVESTMENT LTD V. GUARANTY TRUST BANK PLC (2011) ALL FWLR (PT 602) PG 1592 @ 1607 PARAS G-H.

Learned counsel for the Applicant submitted that the Respondent’s argument on the issue of certification is misplaced. He noted that the Applicant’s counsel paid the necessary fees as prescribed by Order 56 Rule 8 Kwara State High Court Rules and a receipt issued to that effect and properly certified by one Zulfa Adesola Jimba, dated 7th November 2019 and signed accordingly. He reproduced Section 104 of the Evidence Act, 2011 and Order 8 Rule 9 of the Court of Appeal Rules 2016 in arguing that a document presented for certification, whether bulky or a single document, is treated as a document

presented for Certification. That there is no provision for penalty for late compilation and transmission of Record in the Court of Appeal Rules 2016 contrary to Respondent counsel’s argument. He noted that where the Record of Appeal was not timeously compiled and transmitted within the stipulated period of 90 days, the Respondent had the option to apply for the Appeal to be dismissed under Order 8 Rule 18 which the Respondent herein failed to do. In conclusion, he urged the Court to dismiss the Respondent’s objection and resolve the issues in favour of the Applicant. He relied on AFOLAYAN V. MIKE ADIMOHA ESQ (2020) 1 NWLR PART 1706, 558 AT 579-580.

RESOLUTION OF ISSUE 3
The law regulating the certification of public documents is as set out in Section 104 of the Evidence Act, 2011 and it provides as follows;
104(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as

the case may be.
(2) The certificate mentioned in Subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.”
On the mandatoriness of the provision reproduced above, the apex Court per Onnoghen JSC held thus in TABIK INVESTMENT LTD & ANOR V. GUARANTY TRUST BANK PLC (2011) 17 NWLR (PT. 1276) 422 (SC) page 17-18 para D:
“It is clear from the above provision that the word “shall” is used at strategic positions in the section of the enactment to demonstrate the mandatory nature of the provision. It is not in doubt that a person seeking to take advantage of the provision and the officer entrusted with the responsibility of ensuring that the person takes advantage of same have to comply specifically with the above provisions to achieve the required legal effect. Any failure to comply with any aspect of the requirements either by the party seeking the advantage or the officer in charge of conferring same renders the exercise

ineffective. The provision itself is very clear and unambiguous and does not need any interpretation.”
It therefore follows that the conditions contained in Section 104 of the Evidence Act are mandatory and must be complied with, to wit:
1. The necessary fees must be paid for certification;
2. There must be an endorsement or certificate indicating that it is a true copy of the document in question;
3. The endorsement or certificate must be dated and signed by the officer responsible for the certification with his name and official title.
The processes involved in certifying public documents cannot be taken for granted. The act of certification is fundamental to every public document, if it is intended to be admitted into evidence in a judicial proceeding because certification clothes such public documents with authenticity and credibility. The word “certify” and its essence was explained by the apex Court in S. A. ADEYEFA & ORS V. BELLO BAMGBOYE (2013) LPELR 19891 (SC), where Fabiyi, JSC said, to wit:
“…Certify, put simply, means to authenticate or vouch for a thing in writing. It may also be said to

mean to attest as being true or as represented…”
See also: UDO V. STATE (2016) LPELR-40721 (SC); NWABUOKU & ORS V. ONWORDI & ORS (2006) LPELR-2082 (SC); PATRICK ARIRIGUZO KSM V. DR. SYLVANUS AMAECHI (2014) LPELR 22829 (CA); TEKOBO V. ADEGBITE (2012) LPELR 7937 (CA); AHMED & ORS V. CENTRAL BANK OF NIGERIA (2013) LPELR 20744 (SC).
By the provisions of Order 8, Rule 9 of the Rules of this Court;
“Every Record or additional Record of Appeal compiled by a party to an appeal must be certified by the registrar of the lower Court. Provided that it shall not be necessary for copies of individual documents to be separately certified but the registrar of the Court below shall certify as dorrect each copy of the record transmitted In accordance with these rules.” (underlining mine for emphasis)
For the avoidance of doubt, registrar or registrar of the Court below was defined in Order 1 Rule 5, to mean “the registrar or other administrative staff (anyhow so called) of the Court below”.
I have carefully set out the components of the provisions of Section 104 of the Evidence Act on certification and its application even

as fully expressed by Order 8 Rule 9 of the Court of Appeal Rules, 2016; whereupon I have examined the Record of appeal compiled and transmitted by the Applicant in this case in its light. I especially note the last page of the Record which carries a certification made on 7th November 2019 by one Zulfa Adesola Jimba, the Litigation Secretary who signed and affixed the High Court stamp accordingly. I do not agree with the Respondent counsel’s argument that the certification done on the last page of the Record was only for the Revenue Receipt attached therein. The said receipt as only a part of the Record and also happens to be the last page of the said Record. The documents that make up the Record were certified as a whole on page 314, which is the last page, the necessary fees having been paid for which suffices as Certification of all the pages of this entire Record. See: Order 8 Rule 9 of the Court of Appeal Rules, 2016. I am of the view as I have not been shown any law or rule to the contrary, that it does not matter whether the certification was done on the front page or the last page of the Record as long as the necessary requirements as laid down

in Section 104 of the Evidence Act, 2011 were complied with. This is most importantly, as all the pages of the Record were stamped “Certified True Copy” by the officer. I therefore hold that the provisions of Section 104 of the Evidence Act, 2011 were duly satisfied in the certification of the Record of Appeal that has already been compiled and transmitted by the Applicant in this case.
I accordingly resolve Issue 3 in favour of the Applicant.

Having so resolved the issues, I wish to reiterate that the grant of a prayer for extension of time is entirely at the discretion of the Court and it is expected to be guided by fairness and equity in the exercise of Judicial discretion. Substantial justice always mandates a Court of law to determine rights or parties before it on merits. See: DANTATA & SAWOE CONSTRUCTION LTD V. EGBE (1993) 4 NWLR (PT. 287) AT 335; EDE & ANOR V. MBA & ORS (2011) LPELR-8234 (SC); NATIONAL INLAND WATERWAYS AUTHORITY V. SPDC (NIG) LTD (2011) LPELR- 1964 (SC). It is for this reason that I have painstakingly considered all the issues raised in this application. Finally, I am minded of granting this

application which I hold has merits. Motion on Notice filed on 8th November, 2019; in Appeal No: CA/IL/M.143/2019; praying for extension of time for the Applicant to compile and transmit the Record of Appeal etc., is hereby granted.
It is ordered that:
1. Time is hereby extended for the Applicant to compile and transmit the Record of Appeal in respect of an appeal filed on 22nd March, 2019 against the decision of the High Court of Kwara State, holden at Ilorin in Suit No: KWS/150/2016; Between Mr. Aliyu Olayiwola Kazeem V. Mrs. Adejoke Eyitayo delivered on 11th March, 2019; the time allowed by the Rules for the compilation and transmission having elapsed.
2. The Record of Appeal already compiled and transmitted by the Applicant to this Court on 8th November, 2019 is deemed properly compiled and transmitted today, 11th June, 2020.
3. No order as to cost.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of a preview of the Ruling just delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. I agree with His Lordship that the application be allowed.

I allow the application and abide by the consequential Orders contained in the

lead Ruling, including Order as to Cost.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had a preview of the lead ruling just delivered by my Noble Lord, UCHECHUKWU ONYEMENAM, JCA. I entirely concur with the reasoning and conclusion arrived at in granting the orders sought in the application of the appellant/applicant. I have nothing useful to add to the well-considered ruling. I too accordingly grant same. I abide by the order made on costs.

Appearances:

O. S. GBADEYAN, with him, M. A. BELLO For Appellant(s)

O. OSAGBEMI For Respondent(s)