FEDERAL REPUBLIC OF NIGERIA v. MURTALA ADAMU
(2018)LCN/11901(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
RATIO
COURT AND PROCEDURE: EXERCISE OF JUDICIAL DISCRETION
“It is pertinent to stress here that the Supreme Court has stated in several decisions that it is not right to visit the parties with punishment arising out of mistakes or inadvertence or negligence of counsel. It follows that in such a case, the Court is not estopped in the exercise of its discretion, which requires the Court to exercise its powers judicially and judiciously. See Ibodo & Ors Vs Enarofia & Ors (1980) NSCC 195, Doherty Vs Doherty (1964) 1 ALL NLR 299 and C.B.N. Vs Ahmed (2001) 5 SC (Prt. 11) 146 at 164. In Yesufu Vs Co-operative Bank Ltd (1989) 6 SC (Prt 1)139 at 162, it was held that the dominant consideration in an application for enlargement of time to appeal is that there is a good cause why the appeal must be heard. Thus, the discretion will be exercised where applicants shows good cause that the appeal ought to be heard, the length of delay in such circumstance will be immaterial. See also Alagbe Vs Abimbola & Ors (1978) 2 SC 39.” PER FREDERICK OZIAKPONO OHO, J.C.A.
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Lead Ruling):
By a motion on notice brought pursuant to Order 6 Rules 1 & 2; Order 17 Rules 2 & 3(1) of the Court of Appeal Rules 2016 and the inherent powers of the Court, the Respondent/Applicant prayed this Court for the following Reliefs;
1. An order extending time for the Respondent/Applicant to file a cross appeal against the judgment of the Federal High Court in Case No. FHC/GS/19C/2015 delivered on 12/5/2017.
2. An order deeming the Notice of Cross Appeal dated 7/12/2017 filed separately as duly filed and served.
3. Subject to (1) & (2) above, an Order deeming the Cross-Appellant’s Brief of Argument filed separately and served alongside this application as duly filed and served.
4. And for such further or other Order(s) as the Court may deem fit to make in the circumstances of this application.
The Grounds upon which this Application was brought are as follows;
a. The Respondent/Applicant herein was the defendant in case No. FHC/GS/19C/2015 in which judgment was delivered by the Federal High Court Gusau, division on the 12/5/2017.
b. In the said judgment, the Court below, inter alia, found the Respondent/Applicant guilty of the offence of engaging in private business while in the public service contrary to Section 6(b) of The Code of Conduct Bureau and Tribunal Act, CAP. C15 Laws of the Federation of Nigeria 2004 and sentenced him to a term of 6 months imprisonment with an option of payment of 200,000 fine.
c. The Respondent/Applicant is dissatisfied with the said decision and is desirous of challenging same before the Court of Appeal.
d. Time allowed for filing a notice of cross appeal by extant Rules of this Court has lapsed.
e. In the supervening period the Appellant/Respondent in furtherance of an appeal filed on 10/8/2017 has caused the records of appeal to be transmitted to the Court of Appeal to enable their appeal to be heard.
f. It is expedient for the Respondent/Applicant to seek/obtain an order of extension of time to cross appeal the decision of the Court below and have same consolidated for hearing with the appeal of the Appellant/Respondent to avoid delay.
g. Interest of justice.
The application has in its support an Affidavit of three (3) paragraphs. There is also a further affidavit of six (6) Paragraphs with one annexure marked as an Exhibit. There is yet a Further and Better Affidavit of five (5) paragraphs with no annexure. The Applicant placed reliance on the paragraphs of the supporting affidavit, further affidavit and further and better affidavit together with their annexure. The Applicant, however abandoned prayer three (3) on the face of the motion papers and urged this Court in the interest of justice to speedily hear this motion while acting under its inherent powers.
In opposition of the grant of this motion, the Appellant/Respondent filed a counter affidavit of 14 paragraphs on 1st February, 2018. The Appellant/Respondent also filed a written address on the 24th day of January, 2018 in opposition of the grant of the motion on notice. In arguing this Application learned Applicants Counsel IBRAHIM ABDULLAHI ESQ., nominated a sole issue for the Courts determination thus:
Whether the Applicant is entitled to the grant of the reliefs sought?”
On the part of the Respondent, an issue was also nominated for the determination of this Application thus;
Whether the Appellant/Applicant has placed sufficient materials before this Court to enable it exercise its exceptional power and discretion in his favour In the determination of this Application, it is important to note that the issues nominated by the parties for the determination of this Application are clearly the same except for reasons of semantic. Therefore, this Court shall conduct its analysis on the question of whether the Applicant is entitled to the grant of the reliefs sought, which is another way of saying whether the Applicant placed sufficient materials before this Court to enable the Court exercise its discretion in its favour.
SUBMISSIONS OF COUNSEL;
APPLICANT;
In arguing this issue, learned Applicants Counsel submitted that the essence of this application is to seek the opportunity to be given the right of fair hearing by being afforded the opportunity to be heard by appealing against the judgment of the Court below. Counsel referred to the entirety of paragraphs 2 of the supporting affidavit,the further affidavit and the Further and Better Affidavit. Counsel further submitted that it is within the discretion of this Court to grant an application of this nature and which discretion is to be exercised judicially and judiciously having regards to the peculiar nature of the case before it. Counsel cited the case of NITEL PLC vs. ICIC LTD (2009) 16 NWLR (PT. 1167) 356 AT 387 RATIO 21.
It was further submitted by Counsel that by Sections 241 & 242 of the Constitution of the Federal Republic of Nigeria 1999, the Applicant has the right to prosecute an appeal before this Court and also to have his appeal heard on the merits. Counsel cited the case of ENGINEERING ENTERPRISE vs. ATTN-GEN. OF KADUNA STATE (1987) 2 NWLR (PT. 57) 381.
Counsel therefore contended that in the exercise of its judicial powers, this Court should adhere to constitutionality in the consideration of an application as in the instant case should and the need not to place a clog to the Constitutional Right of Appeal of the Applicant. On the prerequisite for enlargement of time, Counsel argued that the Court of Appeal in IMPRESIT BAKOLORI PLC vs. ABDULAZEEZ (2003) 12 NWLR (PT.834) 307 AT 322, per I. T. MUHAMMAD, JCA (As he then was) at paragraphs D – H had this to say on the subject;
The fundamental requirements for the grant of such as application are as follows:
(a) Good and substantial reason for the failure to appeal within the period prescribed and
(b) Grounds of appeal which prime facie show good cause why the appeal should be heard.
Counsel referred Court to the cases of FRANCIS & ORS vs. CITEC INT’L ESTATE LTD & ORS (2011) 6 NWLR (PT. 1243) 278 AT 283-284; KATOL INV. LTD vs. UACN PD & CO PLC (2011) 16 NWLR (PT. 1273) 211 AT 224. Similarly, see the provisions of Order 6 Rule 9 (2) of the Rules of this Honourable Court 2016.
The argument of Counsel is that the entirety of Paragraph 2 of the supporting affidavit, the Further and Better Affidavit has shown the reasons why the Applicant did not appeal within time and that this is essentially placed at the door steps of the inadvertence and or mistake of Counsel engaged by the Applicant in the prosecution of the main appeal and the proposed cross-appeal. It is further argued that the categories of factors that constitute special circumstances are never closed. He said that for instance, it has been held that mistake of Counsel qualified as such special circumstance; that the Court would readily exercise its discretion to extend the period prescribed for doing an act if it is the view of the Court that the failure by a party to do the act was caused by the negligence or inadvertence of his Counsel. Counsel cited the cases of OSINUPEBI vs. SAIBU (1982) 7 SC 104; DOHERTY vs. DOHERTY (1964)1 ALL NLR 299; AHMADU vs. SALAWU (1974) 11 SC 43; BOWAJE vs. ADEDIWURA (1976) 6 SC 143; and AKINPELU vs. ADEGBORE (2008) 10 NWLR (PT. 1096) 531, 555.
The rationale for this, Counsel argued is that, mistakes of Counsel cannot be visited on his client when he is a novice in the law and Counsel is an expert. According to Counsel, the depositions in the Further and Better Affidavit have shown that the Applicant relied on the expertise of his Counsel in the prosecution of his proposed Cross-Appeal; that apart, Counsel stated that it has been deposed to in the Further and Better affidavit that the Respondent stands to lose nothing by the grant of the application more so,that the Respondent has equally appealed against the acquittal of the Applicant on the ten (10) count charges for which the Applicant was hitherto arraigned before the Court below.
What is more, Counsel also argued that the Respondent has responded to the cross-appeal of the Applicant by filing a Respondent’s brief to same and that it would amount to a miscarriage of justice if the application of the Applicant is refused or the mistakes of his Counsel are visited on the Applicant. Counsel cited the case of IROEGBU vs. OKWORDU (1990)21 NSCC (PT. 111) 377 where the Supreme Court per AGBAJE, JSC (as he then was) stated thus;
…where there is the probability of miscarriage of justice, an application for extension of time should be granted.”
The emphasis of Counsel is that since the Applicant have shown reasons why he did not appeal within the time stipulated by law, the length of the delay in filing the application may not be considered material as was held in the case of NIPCO PLC vs. HENSMOR (NIG) LTD (2011) 23 WRN P. 140 AT 156 LINES 10 – 25 RATIO 3; BINTUMI vs. FANTAMI (1998) 13 NWLR (PT. 518) 264 and UNION BANK OF NIG PLC vs. NDACE (1998) 3 NWLR (PT. 541) 331.
On the issue of good and substantial Grounds of Appeal, it is submitted for the Applicant that a panoramic perusal of Exhibit A annexed to the Further Affidavit shows that the Applicant amongst others is contesting the propriety of the decision of the Court below and by extension the jurisdiction of the Court below to convict him under a law for which the Court has no jurisdiction to entertain but rather the Code of Conduct Tribunal. As far as Counsel is concerned, this is a very weighty issue, which goes to the root of the judgment and competence of the Court below and therefore substantial and good grounds of appeal. He further argued that Exhibit A therefore shows good and substantial cause why the application should be granted. Counsel referred to the cases of IBODO vs. ENAROFIA (1980) 5-7 SC. 42 and CO-OPERATIVE AND COMMERCIAL BANK (NIG) LTD vs. EMEKA OGWURU (1993) 3 NWLR (PT. 284) 630.
According to learned Counsel, what the Applicant craves for is the right to be heard by giving an opportunity of appealing against the decision of the Court below. Counsel argued that for fair hearing to be said to be accorded to both parties in a matter, not only must equal opportunities to present evidence, to cross-examine witnesses and do all those things that are part of the trial of the case, but equally, for the Court to take such into consideration before it arrives at a just decision including Appeal. See the cases of WHYTE vs. JACK (1996) 2 NWLR (PT. 431) 401 AT 443 and WOMILOJU vs. ANIBIRE (2010) 4 SCNJ 243 AT 253.
In respect of the Counter affidavit of the Respondent, Counsel submitted that it did not in any way show prejudice that will be suffered by the Respondent but rather supports the fact of inadvertence of Counsel representing the Applicant and thence necessitating that such mistakes should not be placed at the door steps of the Applicant. He also submitted that by the grant of this application, the Respondent shall not be prejudiced as it is the law that the constitutional rights of parties should be upheld and that no Court is to put a clog on the exercise of such constitutional rights. Arising from the foregoing, Counsel urged this Court to resolve the lone issue formulated for the determination of the Court in favour of the Applicant.
RESPONDENT:
Counsel for the Respondent told Court that the Respondent filed a 14 paragraph counter affidavit on the 1st February, 2018 wherein the Respondent controverted most of the Respondent/Applicant’s claims and pointed out that no Exhibit, whether marked “A” or not was attached to the Respondent/Applicant’s supporting affidavit. He argued that the application which was to be heard on 1st February, 2018 could not go on that day and that the Applicant took undue advantage of the adjournment of the day to file a “Further Affidavit” on the 15th March, 2018 and annexed the purported “Notice of Cross Appeal” dated 7/12/2017 to it.
Counsel told Court that the application eventually came up for hearing on the 26th March, 2018 whereupon the Court listened to Counsel on both sides briefly regarding the application and realizing the contentious nature of the application, the Court ordered the filing of Written Addresses by Counsel. Counsel contended that despite joining of issues and the commencement of oral hearing of the application prior to the adjournment and the order for filing written addresses the Respondent/Applicant went ahead and filed a “Further and Better Affidavit”on 6th April, 2018 and now wants to introduce fresh facts and build up his case all over again.
This Court is further informed that the Appellant/Respondent is vehemently opposing the application for extension time to cross-appeal and that the opposition is premised on both issues of facts and points of law. He said that in doing so, there is filed unto Court a 14 paragraphs counter affidavit deposed by one Musa Isah, a legal practitioner and a member of staff of the EFCC, the prosecuting/investigating agency of the Appellant/Respondent. In arguing their opposition to the grant of the motion, Counsel told Court of their reliance on all the depositions in their 14 paragraphs counter affidavit, particularly paragraphs 4, 5, 7, 8, 12(iii) & (vi) and 13 thereof as well as the record of appeal transmitted in the main appeal.
As part of the argument of Counsel in opposition, he raised what he termed preliminary point of law in that the Respondent/Applicant filed a “further and better affidavit” on the 6th April, 2018 after he said issues had been joined and hearing of the application had commenced, without the leave of the Court first sought and obtained.
Counsel submitted that the filing of the further and better affidavit by the Respondent/Applicant at that particular point in time is a serious breach of the rule of fair hearing and all known rules of procedure. It was further submitted that the said affidavit is liable to be struck out or discountenanced by this Court, in the circumstance. Counsel cited the case of NNB. PLC vs. SANNI (2001) 7 NWLR (PT. 713) 544 and urged this Court to reject the Respondent/Applicant further and better affidavit filed in this Court on the 6th April, 2018.
Counsel argued in the alternative that in the event that Court overrules the objection raised on the validity of the of the filing of the further and better affidavit, that the content of the affidavit is incompetent for offending the provisions of the Evidence Act, 2011. According to Counsel most of the averments therein are arguments, conclusions, and relate to extraneous matters. He referred to paragraph 5 (wrongly numbered as 4(a), (d), (e), (f) & (g) of the said further and better affidavit in this regard.
He said that the averments offend the provisions of Section 115(2) of the Evidence Act, 2011. See BAMAIYI vs. STATE (2001) 2 NWLR (PT. 698) 435 AT 981. In the circumstance, Counsel urged this Court to strike out the offensive paragraphs. On the other hand, he said that paragraph 4(a) of this latest affidavit contradicts paragraph 2(d) of the original affidavit in support and that one must give way to the other.
In arguing his opposition to the grant of the substantive motion, Respondents Counsel submitted that the Applicant has not placed sufficient materials before this Court to enable it exercise its power and discretion in his favour. He said that this assertion is supported by the depositions in the Respondents counter affidavit, which he said have countered and controverted each of the depositions in the Applicant’s supporting affidavit.
Counsel argued that there are two fundamental conditions which an applicant for extension of time to appeal must satisfy i.e. (a) good and substantial reasons for failure to appeal within the prescribed period; and (b) grounds of appeal which prima facie show good cause why the appeal should be heard.
He further argued that these conditions must co-exist in that both must be satisfied simultaneously before the application is granted. Counsel cited the cases of IMPRESIT BAKOLORI PLC vs. ABDULAZEEZ (Supra) AT 330; MIDLAND GALVANISING PRODUCT LTD vs. OSIRS (2015) 8 NWLR (PT. 1460) 29 AT 46 PARAS B-F. The submission of Counsel is that in the instant case, neither of the two conditions was satisfied. In the circumstance and in light of the above decision, he further argued that it is immaterial what issues are being raised on appeal.
Counsel referred to the paragraphs of the Applicant’s Supporting affidavit and submitted that those averments are not enough to sustain the application, but conceded, however, that it is only paragraphs 2(d),(h) & (m) of the supporting affidavit deposed by one Jamilu Aliyu Sokoto on 26th January, 2018 that are relevant and made a feeble attempt to satisfy the twin requirements of the application and which Counsel argued that the Respondent effectively countered in their paragraphs 5, 7, 8, 9, 10, 11, 12(i), (ii), (iii), (iv), (v) & (vi) in its counter affidavit deposed to by Musa Isa, a legal practitioner and member of the prosecuting team.
It was also contended that the Respondents counter affidavit neutralized some other claims of the Applicant in his supporting affidavit, for instance, paragraphs 9 and 10 of the counter affidavit, which he said controverted paragraph 2(d) of the supporting affidavit,ditto paragraphs 5 and 8 of the counter affidavit, which also neutralized paragraph 2(m) of the supporting affidavit. Finally, Counsel contended that paragraph 12(i) countered the paragraph 2(h) of the supporting affidavit.
Counsel also drew attention of the Court to additional salient new facts which the Respondent supplied in paragraphs 7, 11 and 12(iii), (iv),(v) & (vi) of the counter affidavit, contradicting the Applicant’s feeble explanations and untenable justifications for his failure to appeal within ime. According to Counsel, the implication of this is that the Applicant woefully failed to satisfy the twin requirements for the grant of the application. He said that even without a counter affidavit by the Respondent, the Applicant’s supporting affidavit does not supply enough materials before this Court to enable it exercise its discretion in his favour.
Counsel cited the case of F.G.N vs. A.I.C. LTD (2006) 4 NWLR (Pt. 970) 337 AT 362 PARAS. E- F.
On the proposed grounds of appeal as contained in the said document, Counsel argued that no serious or recondite points of law were raised by the Applicant. He said that Ground 2 on the document is not even a ground of law. He submitted in addition, that Ground 1, which alleges lack of jurisdiction on the part of the trial Court only confuses jurisdiction with judicial power. He contended that there is nothing arguable or spectacular about the proposed cross-appeal. Counsel urged this Court to refuse the Application and dismiss same.
In his reply learned Applicants Counsel responded to the contention of the Respondent in respect of the further and better affidavit of the Applicant said to have been filed after hearing had commenced and that same would prejudiced the Respondent. The submission of Applicants Counsel in this regard, is that hearing of the instant application had not closed and that in addition, the further and better affidavit of the Applicant was not filed after the closure of the addresses of parties so as to prejudice the Respondent.
He said that the case of N.N.B. PLC vs. SANNI (2001) 7 NWLR (PT. 713) 544 cited by Counsel to the Respondent is distinguishable from the instant case of the Applicant in that in the said case, the further affidavit filed was filed after the closure of the addresses of Counsel hence the justification of the Court to make the pronouncements alluded to by the Respondent in its written address.
In any event, Counsel argued that the further and better affidavit serves as an answer to the counter affidavit. Counsel cited the case of KAYODE vs. APC & ORS (2014) LPELR-23092(CA) AT 58, Paras. E-F where this Court per SANUSI, JCA stated thus:
It is the law that a Further and Better Affidavit provides information not available in the main affidavit. It also provides a reply to a counter affidavit. See the case of SENTINEL ASSOCIATED CO. LTD vs. SGBN LTD (1992) 2 NWLR (PT 224) 495.”
It was further argued by Counsel that even where an affidavit is filed when arguments had begun (which is not the case here), an affidavit and or further and better affidavit filed can be used by the Court.
Counsel cited the case of NWEKE vs. ORJI (1989) 2 NWLR (PT. 104) 484, where this Court in answering the question whether it is at all times forbidden to use an affidavit filed after argument on the motion has begun, had this to say:
RATIO 4:
If the position were to be that once a party objected to the use of further affidavit after argument has opened, the affidavit cannot be used, that will unjustifiably curtail the discretion of the Court contrary to the interest of justice”.
RATIO 7:
The Court has the discretion of allowing affidavits to be received at any time during argument, and may, in this as in all other cases regulate its own proceedings, and admit affidavits after the case have opened, if it should appear that the justice of the case requires it.”
To that extent, Counsel contended that the further and better affidavit as filed is competent and does not suffer from any virus because it was not filed after the closure of addresses but before argument of Counsel are closed.
As to the effect that the paragraphs 4a, 4d, 4e, 4f & 4g of the further and better affidavit of the applicant offends Section 115(2) of the Evidence Act, 2011 on the grounds that they are arguments, conclusions and relate to extraneous matters, Counsel contended that the Respondents only made a vague assertion without tying each of the purported paragraphs and showing which one of them is a conclusion, legal argument or extraneous matter in the circumstance. Counsel, however, submitted that none of the Applicants paragraphs are arguments, conclusions or relates to any extraneous matters and as such the case of BAMAIYI vs. STATE (Supra) cited by Counsel to the Respondent does not avail the Respondent.
In respect of the contention of Respondent that no cogent reasons are adduced in support of the application for extension of time to file cross appeal, Counsel submitted that this is a general rule that admits an exception in matters dealing with appeal arising from constitutional issues and matters relating to jurisdiction. He cited the case of UKWU vs. BUNGE (1997) 8 NWLR (PT. 518) 527, 541 where the Court held the view that an issues bothering on jurisdiction of Court raises a constitutional question and which explains why such an issue can be raised at any time and howsoever and once raised as a ground of appeal, there is no longer the need to consider the reason for the delay in filing application for extension of time within which to appeal.
On the contention of the Respondent in paragraph 4.7 of its written address to the effect that the Notice of Cross Appeal dated 7/12/2017 was attested to by one Misbahu Salaudeen Esq., without an NBA Stamp/Seal affixed therein and therefore incompetent, Counsel submitted that at this interlocutory stage, it is not the main appeal that is argued and Courts are always enjoined to resist the temptation of pronouncing on the merits of an appeal at an interlocutory stage. He said that what the Respondent is calling upon this Court to do is a hearing of the merits of the substantive appeal at interlocutory stage which is not permitted in our legal system; that it is a long-standing principle of Court pronounced in numerous decided cases that a Court must be cautious in its judgment at an interlocutory stage not to make pronouncement or observations on the facts, which might appear to predetermine the main issue or issues in the proceedings yet to be concluded by the Court. Counsel cited the case of ZENITH BANK PLC vs. JOHN (2013) ALL FWLR (PT. 672) 1742 AT 1763 PARAS B- D.
However for the purposes of argument in the very unlikely event that this Court disagrees with Applicants position, Counsel submitted that Misbahu Salaudeen Esq., is not the Cross Appellant and never signed same as one; that the Cross Appellant is Murtala Adamu who personally signed the said Notice of Cross Appeal and that Mishahu Salaudeen Esq., signed as a witness to the signing of the Notice of Cross Appeal. Counsel argued that there is no law that where a legal Practitioner signs as a witness, he must attest an NBA Stamp and Seal on same to confer validity on same and that there is therefore nothing that makes the Notice of Cross Appeal incompetent.
Still on this issue, it is further submitted by Counsel for the Applicant that in the Supreme Court case of NYESOM vs. PETERSIDE (2016) LPELR-SC.1002/2015, the Supreme Court explained the purport of its earlier decision in YAKI vs. BAGUDU (2015) ALL FWLR (PT. 810) 1026 that processes filed which did not carry the stamp and seal of Counsel did not thus render them incompetent.
Counsel further cited the case of DG, DICN & ANOR vs. DINWABOR & ORS (2016) LPELR-41316(CA), where this Court per ABIRU, JCA at p. 16, Paras. A-E stated thus:
The first is on the effect of non-compliance with the provisions of Rule 10 (1), (2) and (3) of the Rules of Professional Conduct 2007, which came into operation in 2015, requiring legal practitioners to place their stamp and seal approved and issued by the Nigerian Bar Association on all legal documents, including Court processes, prepared by them. The present position of the Supreme Court on the point is that non-compliance is a mere irregularity that can be redeemed by a party and that it does not render the Court process incompetent – MEGA PROGRESSIVE PEOPLES PARTY vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION (NO. 1) (2015) 18 NWLR (PT. 1491) 207 and, NYESOM vs. PETERSIDE (2016) LPELR-SC. 1002/2015 where the Supreme Court explained the purport of its earlier decision in YAKI vs. BAGUDU (2015) ALL FWLR (PT. 810) 1026. The fact that the processes filed on the present application did not carry the stamp and seal of Counsel did not thus render them incompetent.”
Aside from the arguments canvassed above, Counsel further argued that if the Respondent feels so strongly about the affixing of a stamp/seal on the Notice of Cross Appeal (which is not even a requirement under the law in respect of a Notice of Cross Appeal personally signed by an Appellant), a Court of law is enjoined to call on Counsel to affix a seal on same if he has one. According to Counsel this approach can be had recourse to at any stage of the proceedings including even for the very first time on Appeal. Thence in the case of OKAFOR vs. NWEKE (2007) 10 NWLR (PT. 1043) SC 521, in resolving a similar issue herein, he said that the Apex Court per ONNOGHEN, CJN held as follows:
The provisions of the Rules, I must repeat, are not a substitute for the substantive law on the matter that is why non-compliance thereto renders the document involved/concerned voidable not void or a nullity. In the circumstances, it is only fair to the client, the legal profession and in the interest of justice that the legal practitioner involved be given opportunity to prove his call to Bar and enrolment at the Supreme Court of Nigeria by affixing his seal to the document involved at any stage in the proceedings including appeal or whenever an objection to the authenticity of the document is raised under the provisions of the said Rules of Professional Conduct, 2007.
From the foregoing, Counsel further argued that it is clear that the Notice of Cross-Appeal filed by the Applicant is competent in law.
In reply to the contention of the Respondent in paragraph 4.13 of its written address to the effect that Applicant was negligent on the grounds that since he knew he ought to personally sign his notice of Cross-appeal personally, that ought to put him on guard to have done so within the statutory period,to this, Counsel submitted that Counsel to the Applicant is the master in the conduct of the Applicant’s case and should not be dictated to by the Applicant as to how to conduct the appeal. He cited the case of ADEWUNMI vs. PLASTEX NIGERIA LTD. (1986) LPELR- 164(SC), where the apex Court per UWAIS, JSC at Pp. 34-35, Paras. A-C stated thus:
There is no doubt that a Counsel is duty bound to present his clients’ case with utmost devotion. But such devotion must be coloured with professional discretion.
In other words, Counsel must be the master in the conduct of his client’s case and should not be dictated to by his client as to how to conduct the case…
Finally, Counsel urged this Court to discountenance with the arguments of the Respondent Counsel and grant the application of the Applicant as prayed.
At paragraphs 2(a) to (n) of the affidavit in support of motion of the Respondent/Applicant, the Applicant deposed to the following facts;
(2) That on 24/1/2018 at about 11.00am at our office premises in the course of my duties as litigation Clerk I was informed by Mr. E. I. Ogiza Esq. of lead counsel for the Respondent/Applicant in Appeal No. CA/S/134C/2017 and I verily believe him as true as follows:-
(a) That the Respondent/Applicant herein was the Defendant in Case No. FHC/GS/19C/2015 in which the Federal High Court, Gusau Division hereinafter referred to as the Court below delivered judgment on 12/5/2017.
(b) That by the said judgment the Court below, inter alia, found the Respondent/Applicant guilty of the offence of engaging in private business while in the public service and sentenced him to Six months imprisonment with an option of 200,000.00 (Two Hundred Thousand Naira) fine.
(c) That the Respondent/Applicant has since paid the 200,000.00 (Two Hundred Thousand Naira) fine in compliance with the terms of the said judgment.
(d) That the Respondent/Applicant had since the day judgment was delivered expressed his dissatisfaction with his conviction and instructed counsel to obtain a copy of the said judgment and give him an objective assessment of the viability or otherwise of an appeal against the said judgment.
(e) That in the meantime the Appellant/Respondent being also dissatisfied with the acquittal by the said judgment of the Respondent/Applicant on the 10 counts charge of offences contrary to Section 15 of the Money Laundering (Prohibition) Act 2011, as amended brought by the Appellant/Respondent, had filed a notice of appeal and caused the records of appeal to be transmitted to the Court of Appeal in furtherance of same in consequence of which the appeal has been entered before this Court as Appeal No. CA/S/134C/2017.
(f) That the records of appeal in this case were transmitted to this honourable Court on 25/8/2017 and the Appellant/Respondent was thereafter obliged to file its brief on or before 8/9/2017.
(g) That the Respondent/Applicant’s copy of the records of appeal incorporating the said judgment has been received by counsel.
(h) That after carefully studying the said judgment, the Respondent/Applicant is now satisfied that reasonable grounds exist for challenging his conviction and has now instructed counsel to pursue a cross appeal against same before the Court of Appeal Sokoto Division.
(i) That meanwhile the time within which to give notice of appeal and or cross appeal against the said judgment has since 25/8/2017 lapsed hence this application for extension of time to do so.
(j) That a similar application dated 9/10/2017 was filed before this honourable Court, but was withdrawn and struck out by Court due to errors appearing on the face of the said application.
(k) That another application dated 7/12/2017 was filed before this honourable Court, but was erroneously withdrawn by the Respondent/Applicant’s counsel and struck out by the Court on 16/1/2018 under the mistaken belief that the Appellant/Respondent had since filed its brief of argument.
(l) That indeed no brief has yet being filed for the Appellant/Respondent in this appeal.
(m) That the grounds on which the Respondent/Applicant wish to appeal his conviction are as contained in the Notice of Cross-Appeal dated 7/12/2017, given under the Respondent/Applicant’s hand and served on the Registrar of the Court of Appeal a copy of which is attached here and marked as Exhibit A.
(n) That Appellant/Respondent shall not be prejudiced by the grant of this application.
In its reply to the averments of the Respondent/Applicants supporting Affidavit, the Respondent/Appellant filed 14 paragraphs Counter Affidavit, excerpts of which are reproduced here from paragraphs3 to 13 as follows;
(3) That I have seen and read the Respondent/Applicant’s Motion on Notice dated 24th January, 2018 together with its supporting affidavit and wish to state that some of the averments in the supporting affidavit are incorrect, irrelevant and misleading.
(4) That the Appellant/Respondent specifically denies paragraphs 2(d), (f), (h), (i), (k), (l) (m), (n) & (o) of the supporting affidavit.
(5) That I have studied the judgment convicting the Respondent/Applicant and have found that no reasonable ground exists for a cross-appeal.
(6) That contrary to the deposition in paragraph 2(m) of the supporting affidavit, there is no any document attached to the said supporting affidavit at all whether marked as Exhibit A or not.
(7) That I have equally studied a purported ‘Notice of Cross Appeal’ dated 7th December, 2017 and have found that it has the name and signature of counsel to wit: Misbahu Salaudeen Esq., and that it has no NBA stamp/seal of Counsel affixed to it.
(8) That further to the foregoing paragraph 7, I have found that the purported ‘Notice of Cross Appeal’ dated 7th December, 2017 contains only two grounds of appeal; the first one does not raise any serious issue of law and the other one only raise issue of fact that is not borne by the record already transmitted to this Court.
(9) That contrary to the deposition in paragraph 2(d) of the supporting affidavit, I know as a fact that the Respondent/Applicant did not express any dissatisfaction with the judgment of the trial Federal High Court.
(10) That further to the foregoing paragraph, I am aware that the Respondent/Applicant did not take any steps to obtain a copy of the judgment.
(11) That in the case of the Appellant/Respondent in pursuit of its grievance with the judgment of the trial Court, we immediately applied for a CTC of the judgment and same was made available to us as far back as 16th June, 2017.
(12) That I am informed by the lead Appellant/Respondent’s counsel M. S. Abubakar, Esq. in his office at No. Fomella Street, Abuja on 31st January, 2018 at about 1130 hrs which information I verily believe to be true and correct as follows:
i. That contrary to the deposition in paragraph 2(h) of the supporting affidavit, there is no any reasonable ground for challenging the Respondent/Applicant’s conviction by the trial Court.
ii. That contrary to the deposition in paragraph 2(i) of the supporting affidavit, the time for appealing against the conviction of the Respondent/Applicant had lapsed since 10th August, 2017.
iii. That the Respondent/Applicant has not advanced any reasonable reason why he did not appeal within the statutorily prescribed time.
iv. That the Respondent/Applicant who is now an ex-convict is still occupying the office of the Executive Chairman of Zamfara State Universal Basic Education Board (ZASUBEB).
v. The Respondent/Applicant’s application is only meant to legitimize the continued stay of the applicant in office as the Executive Chairman of ZASUBEB which he has refused to vacate despite his conviction and sentence by the trial Court.
vi. That the Respondent/Applicant is unnecessarily delaying the hearing of this appeal by filing the present application and two similar applications previously which were both struck out by this Court.
vii. That contrary to the deposition in paragraph 2(1) & (k) of the supporting affidavit, the Appellant/Respondent has filed its Appellant’s Brief of Argument since last year and same has been acknowledged by this Court on 16th January, 2018 whereby the Court adjourned the appeal to 1st February, 2018 for hearing.
(13) That it will not be in the interest of justice to grant this application and that the Appellant/Respondent will be seriously prejudiced by its grant.
The Respondent/Applicant also filed a Further and Better Affidavit to the Supporting Affidavit, ostensibly in answer to the averments made by the Appellant/Respondent in its Counter Affidavit as follows;
3. That I had earlier deposed to an affidavit on the 26th of January, 2018 in support of the application to which this further and better affidavit relates and that some facts were inadvertently omitted in the supporting affidavit from the information’s that was relayed to me by Messrs E. I. Ogiza of Counsel.
4. That part of the information’s that was inadvertently omitted in furtherance to paragraph 2d of the supporting affidavit was that:
a. When the Applicant expressed his dissatisfaction over his conviction and instructed his counsel to obtain a copy of the judgment, counsel to the Applicant whom the Applicant placed reliance on in the prosecution of his appeal inadvertently forgot to file an omnibus ground of appeal as a signification of his hitherto expression of the dissatisfaction of his conviction and having paid for the services of counsel.
b. That it was the inadvertence of counsel to the Applicant that caused the delay in filing the Applicant’s cross-appeal within time up to the time that the applicant’s application for extension of time within which to appeal was filed before this Honourable Court.
5. That on the 28th day of March, 2018 J. C. Shaka of counsel informed me at the office at about 6:00pm of the following facts the truth of which I verily believed to be true as follows:
a. That contrary to paragraphs 7 & 8 of the counter affidavit of the Respondent, Misbahu Salahudeen Esq., is not the Cross Appellant in the Cross Appeal sought to be filed and the Cross Appeal personally signed by the Applicant needs no stamp and seal of the Nigeria bar Association to be affixed.
b. That the grounds of appeal filed challenge the entirety of the propriety of the conviction of the Applicant and thence contains good grounds of appeal.
c. That contrary to paragraphs 9, 10 & 11 of the counter affidavit of the Respondent, the applicant instructed his counsel to do the needful but arising from pressure of work and inadvertence, the applicant counsel could not file the necessary process to commence the appeal process of the applicant.
d. That the inadvertence of counsel should not be visited on the Applicant more so that the decision of the Court below sought to be appealed against is a criminal appeal which effects is enormous on the public and private life of the applicant.
e. That contrary to paragraphs 12 (i) to 12(iv) of the counter affidavit of the Respondent, the applicant is merely trying to exercise a right vested on him by law.
f. That further to the above, the Respondent has nothing to lose if the Applicant is given the opportunity to cross appeal against the decision of the Court below when the respondent itself is equally appealing against the decision of the court below discharging and acquitting the applicant on 10 count charges framed against the applicant at the Court below and the Respondent has filed its Respondent Brief in answer to the Cross Petition of the Applicant.
g. That the Applicant should not be penalized for the fault, mistake or inadvertence of his Counsel because the primary object of the Courts is to decide the rights of the parties on the merit and not to punish them for procedural mistakes made in the conduct of the cases by Counsel.
h. That the Appellant/Applicant is desirous of prosecuting his cross-appeal to its logical conclusion if given the opportunity.
The settled position of the law is that in an Application for extension of time to Appeal, the Applicant must explain the cause of the delay for so doing in addition to giving cogent reasons why the Notice of Appeal was not filed within the statutory period. That is, within the time prescribed by the Court of Appeal Rules. Apart from these, he is required to show that he has an arguable ground and not a frivolous Appeal. Although he is not expected to show that he his Appeal will succeed, he is nevertheless required to show that he has good grounds of Appeal with reasonable prospects of influencing the minds of the Court of Appeal Justices in his favour. See the Case of HOLMAN BROS. (NIG.) LTD vs. KIGO (NIG) LTD & ANOR (1980) 811 SC. 43 where the apex Court per UDO UDOMA, JSC had this to say on the subject;
In principle, when dealing with an Application for leave to Appeal, an Applicant is not required to show that the Appeal would succeed if leave were granted. It is sufficient to show a prima facie case that the Court from whose decision leave to Appeal is sought, has committed an error of law,or has failed to exercise its discretion judicially or has based the exercise of such discretion on wrong principles.”
See also the cases of IROEGBU vs. OKWORDU (1990) NWLR (PT. 159) 643.
In this instant Application, there is no doubt that the Applicant succeeded not only in satisfying the Court as to reasons given for the delay in filing its Appeal within the time prescribed by the Rules, but also in succeeding to show good and substantial grounds of Appeal. To begin with, at paragraphs 4 (a), (b) and 5 (c) and (d), of the Applicants Further and Better Affidavit, the Applicant attributed the problem of delay in filing its Notice of Appeal on time as prescribed by the Rules of this Court to the fault of Counsel who inadvertently forgot to file after instructed to do so. The settled position of the law is that the sins of Counsel are seldom visited on the client for obvious reasons. Where the mistakes or inadvertence complained of are genuinely shown to be the result of action of Counsel, the Court is enjoined to sympathetically show clear understanding in being lenient rather than making the client pay dearly for the sins of Counsel.
It is however not the same thing where a Counsel was apparently professionally negligent or tardy in the handling of the case of his client and failed to remedy the situation, then the Client cannot be absolved from any or omission by the Counsel. See EMMANUEL vs. GOMEZ (2009) 7 NWLR (PT. 1139) 1. That however cannot be said to be the same thing with the facts of this Case, where Counsel realizing the mistake or inadvertence in failing to Appeal within the time prescribed by the Rules has taken steps to Appeal by the filing of the necessary applications for that purpose. See the cases of OGUNDOYIN vs. ADEYEMI (2001) 9 NWLR (PT. 730) 403; NEPA vs. SAVAGE (2001) 9 NWLR (PT. 717) 230; CBN vs. AHMED (2001) 11 NWLR (PT. 724) 369.
On the question of whether there are disclosed good and substantial grounds of Appeal, the contention of the Applicant is that the grounds already raised in support of the cross-appeal are constitutional issues and matters relating to the question of Jurisdiction of Court. Counsel cited the case of UKWU vs. BUNGE (1997) 8 NWLR (PT. 518) 527, 541 where the Court held the view that an issues bothering on jurisdiction of Court raises a constitutional question and which explains why such an issue can be raised at any time and howsoever and once raised as a ground of appeal, there is no longer the need to consider the reason for the delay in filing application for extension of time within which to appeal. I simply, on the score of this reason, find myself unable to agree with the Respondent that the Applicant herein failed to furnish or reveal arguable grounds of Appeal in the processes filed seeking extension of time to Appeal. See the decision of this Court in STERLING BANK PLC vs. B. OLABODE JOHNSON (2011) LPELR-4983 CA where AGBO, JCA had this to say on the subject;
Where the proposed grounds of Appeal complains of want of Jurisdiction and it prima facie appears so, it may not be necessary to inquire into the reason for the delay in bringing the appeal as want of jurisdiction is always a good and substantial reason why an appeal should be heard. See UKWU vs. BUNGE supra.”
On the contention of the Respondent to the effect that the Notice of Cross Appeal dated the 7-12-2017 was attested to by one Misbahu Salaudeen Esq., of Counsel who did not affix an NBA Stamp/Seal affixed thereon and therefore that the said Notice of Appeal is thereby rendered incompetent, in agreement with learned Applicants Counsel after carefully perusing the said Notice of Appeal, it is clear that the said Misbahu Salaudeen Esq., is not the Cross-Appellant and never signed same as one as Counsel it is obvious that he signed the Notice of Appeal as a witness, while the Cross Appellant, one Murtala Adamu signed the said Notice of Cross Appeal personally. Also in agreement with learned Applicants Counsel, there is no law that where a legal Practitioner signs as a witness, he must attest affix an NBA Stamp and Seal on same to confer validity. There is therefore, nothing that makes the Notice of Cross Appeal in the instant Appeal incompetent and I so hold.
On the contention of the Respondent that paragraphs 4a, 4d, 4e, 4f & 4g of the further and better affidavit of the Applicant offends Section 115(2) of the Evidence Act, 2011 on the grounds that they are arguments, conclusions and relate to extraneous matters, it is clear that the Respondents did not show which of these paragraphs is a conclusion, legal argument or extraneous matter.
Apart from this, the fact that a few paragraphs of a supporting affidavit are considered defective only attracts the sanction of having the paragraphs struck out and no more but does not in the least suggest that the remaining paragraphs of the Affidavit cannot be relied upon. See BANQUE DE L AFRIQUE OCCIDENTAL vs. ALHAJI BABA SHAFADI ORS (1963) NNLR 21.
On the charge which relates to the Applicant filing of its further and better affidavit after the commencement of hearing of the Application, it is important to note that hearing of the instant application had not closed and that in addition, the further and better affidavit of the Applicant was not filed after the closure of the addresses of parties so as to prejudice the Respondent contrary to the assertion of the Respondent. It is important to note that the authority of N.N.B. PLC vs. SANNI (Supra) cited by the Respondent would have been Applicable on all fours if the Further and Better Affidavit of the Applicant had been filed after the closure of addresses of Counsel. However, in the instant case, was not filed after the closure of the filling of written addresses by Counsel. I am therefore in agreement with learned Applicants Counsel that the further and better affidavit as filed is competent and does not suffer from any virus because it was not filed after the closure of addresses.
To this end, this Application has merit and it is accordingly allowed. Time is therefore extended until today for the Applicant to file its Notice of Cross Appeal and to serve same on the Respondent herein within the next fourteen (14) days from the date hereof. There are no orders as to cost.
HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in advance, the lead ruling just rendered by my learned brother, Frederick O. Oho, JCA I agree with the reasoning therein and the conclusion that the applicant has justified the grant of the reliefs sought for in the pending application.
The application is accordingly granted. I also subscribe to the orders mode therein.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had a preview of the ruling of my learned brother, Frederick O. Oho, JCA just delivered.
I agree with him that the prayers of the applicant be granted as prayed except Prayer No. 3.
The appellant was convicted by the Federal High Court sitting in Gusau, in charge No.:FHC/GS/19C/2015 for engaging in private business while still in the public service wherein he was sentenced to six (6) months imprisonment or a fine of N200 (Two Hundred Naira) in lieu of imprisonment. The applicant was however discharged and acquitted on the charge of money laundering.
It was against the said discharge and acquittal that the respondent herein appealed to this Court, while the applicant cross-appeal albeit belatedly. The extant application is to regularize the cross-appeal. The law is settled that where a party has failed to comply with the provisions of the enabling rules of Court and is seeking the exercise of the Courts discretion to enlarge the time within which to comply, he is invoking the exercise of the judicial discretion of the Court. See Order 6 Rule 9 (1) of the Court of Appeal Rules, 2016. To enable the Court to exercise its discretion to grant the application to enlarge the time provided by the Rules for doing anything to which the rules apply, Order 6 Rule 9 (2) provides as follows:
Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie shows good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
The decision appealed against is a final judgment in a criminal matter. Accordingly, notice of appeal must be given within 90 days from the date of the delivery of the judgment. See Section 24 of the Court of Appeal Act 2004.
The judgment of the trial Court was delivered on 12/5/2018 but the extant application was filed on 26/1/2018, a period of more than four months out of time. Thus, in order to move the Court to exercise its discretion to enlarge the time within which to appeal where applicant has not complied with the requirement of Section 24 of the Court of Appeal Act, 2004 the applicant is required to support the application with:-
(a) An affidavit setting forth good and substantial reasons for failure to appeal within the period prescribed.
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard.
The affidavit in support of the application deposed in paragraph 4 (a), (b), (c) and (d) of the Further and Better Affidavit in support of the application already reproduced in the lead judgment attributed the delay to inadvertence of counsel.
It is pertinent to stress here that the Supreme Court has stated in several decisions that it is not right to visit the parties with punishment arising out of mistakes or inadvertence or negligence of counsel. It follows that in such a case, the Court is not estopped in the exercise of its discretion, which requires the Court to exercise its powers judicially and judiciously. See Ibodo & Ors Vs Enarofia & Ors (1980) NSCC 195, Doherty Vs Doherty (1964) 1 ALL NLR 299 and C.B.N. Vs Ahmed (2001) 5 SC (Prt. 11) 146 at 164.
In Yesufu Vs Co-operative Bank Ltd (1989) 6 SC (Prt 1)139 at 162, it was held that the dominant consideration in an application for enlargement of time to appeal is that there is a good cause why the appeal must be heard.
Thus, the discretion will be exercised where applicants shows good cause that the appeal ought to be heard, the length of delay in such circumstance will be immaterial. See also Alagbe Vs Abimbola & Ors (1978) 2 SC 39.
The proposed grounds of appeal in the instant case provides as follows:-
Ground 1
The learned trial judge erred in law when he held as follows:-
”Now on the act of the Defendant in engaging in private business while still in public service which the Defendant has admitted in his testimony, it is an offence as rightly submitted by counsel for the prosecution. The said act or conduct of the defendant contravenes the provision of Section 6 (b) of the Code of Conduct Bureau and Tribunal Act Cap. C15 Laws of the Federation of Nigeria 2004 and also Part 1, Paragraph 1 of the 5th Schedule to the Constitution 1999 (as amended).
I have considered the defence put up by the Defendants counsel in that regard and I do not agree with him on that point. Because no matter the reason or explanation, once it is proved that the Defendant did not engage in private business while still in the public service, it becomes an offence and evidence so far adduced before the Court has proved that.
By the provision of Section 223 of the Administration of Criminal Justice Act, where a defendant is charged with one offence and evidence prove another offence or lesser offence, the Court can convict him on that offence which is proven.
Accordingly, the defendant is found guilty and convicted of the offence of engaging in private business while still in public service as defined under Section 6(b) of the Code of Conduct Act (Supra).
Particulars of Error
a. The learned trial judge misconceived and misapplied the provision of Section 223 of the Administration of Criminal Justice Act.
b. The jurisdiction which the Court below has to convict a defendant for an offence not charged within the contemplation of Section 223 of the Administration of criminal Justice Act supra is limited to cases where the offence disclosed by the evidence before the Court is similar to the offence alleged/charged.
c. The offence for which the Defendant before the Court below was convicted i.e. engaging in private business while in public service is by no means similar to any of the offences alleged in the 10 counts charge, as amended, before the Court.
d. The offence of engaging in private business while in the public service under Section 6(b) of the Code of Conduct Bureau and Tribunal Act Cap. C15 Laws of the Federation of Nigeria 2004 is within the exclusive jurisdiction of the Code of Conduct Tribunal.
e. The learned trial judge/Court below therefore wrongly assumed jurisdiction to convict the defendant of the offence of engaging in private business while in the public service under Section 6(b) of the Code of Conduct Bureau and Tribunal Act Cap. C15 Laws of the Federation of Nigeria 2004.
Ground 2
The decision of the Court below is perverse there being no evidence that the Defendant before the Court was at all material times a public officer. In Holman Bros. (Nigeria) Ltd. Vs Kigo & Anor (1980) 8 – 11 SC 47 at 62-63, Sir. Udo Udoma, JCS said:-
In principles when dealing with an application for leave to appeal an applicant is not requires to show that the appeal is granted.
It is sufficient to show that the appeal would succeed if leave is granted. It is enough to show a prima facie case that the Court from whose decision leave to appeal is sought committed an error of law, or has failed to exercise its discretion judicially; or has based the exercise of such discretion on wrong principles.
Having regard to the above grounds of cross-appeal and the facts disclosed in the affidavit evidence, I am satisfied that the application is meritorious and should be allowed. I too grant the applicant fourteen days from today to file the said notice of cross-appeal.
Appearances:
IBRAHIM ABDULLAHI ESQ.For Appellant(s)
M. S. ABUBAKAR ESQ., (DCLO. EFCC) with AISHA IBRAHIM
ESQ., (SLO. EFCC); SALIHU SANI ESQ., (SLO. EFCC)For Respondent(s)
