FRN v. USENI & ORS (2020)

FRN v. USENI & ORS

(2020)LCN/14856(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, December 14, 2020

CA/YL/70CN/2020(R)

RATIO

JUSTICE: ATTITUDE OF THE COURTS TO TECHNICALITIES

The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to now pursue the course of substantial justice. See Makeri Smelting Co. Ltd. vs. Access Bank (Nig.) Plc. (2002) 7 NWLR (Pt. 766) 447 at 476-477. The attitude of the Court has since changed against deciding cases on mere technicalities.
The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because a blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. See also Ajakaiye vs. Idehia (1994) 8 NWLR (Pt. 364) 504 Artra Industries Ltd. vs. N.B.C.I. (1997) 1 NWLR. (Pt. 483) 574, Dakat vs. Dashe (1997) 12 NWLR (Pt. 531) 46 and Benson vs. Nigeria AGIP Co. Ltd. (1981) 5 S.C 1. PER BAYERO, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

1. MARK BAKO USENI 2. HASSAN A. ABUBAKAR 3. JOHN D. ALI RESPONDENT(S)

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): By a motion on notice brought pursuant to Order 6 Rule 9(1) of the Court of Appeal Rules, 2016, and the inherent powers of this Court, the Appellant/Applicant prays for the following:
1) An order for extension/enlargement of time within which the Appellant/Applicant may transmit and file Record of Appeal out of time.
2) An order deeming as properly filed and served the Record of Appeal having been separately filed and served on the Respondents.
3) And for such further order(s) as the Honourable Court may deem fit to make in the circumstances of this case.
The grounds upon which the application is based are:
1) That the Appellant/Applicant is out of time within which transmit the Record of Appeal in this case.
2) That the Appellant/Applicant would need an Order of this Honourable Court for extension of time within which to file and transmit the Record of Appeal to this Court.
3) That the Appellant/Applicant would need an Order of this Honourable Court to deem as properly filed and served the Record of Appeal in this case having been separately filed and served.

4) That the failure to file and serve the Record of Appeal within the stipulated time by the Appellant/Applicant is not deliberate but due to the challenges faces by the Registry of the trial Court.
5) That the Appellant/Applicant duly filed its Notice of Appeal as wells as the motion for leave within the stipulated time.
6) That immediately after the motion of leave was granted by the trial Court, the Appellant/Applicant had accordingly mobilized the Registry of the trial Court with the necessary bill of fees that will enable it transmit the record within the stipulated time.
7) That the trial Court’s registry informed the Appellant/Applicant that it was difficult facing/finding the complete record of the cased file hence the delay in compiling and transmitting the record.
8) That they could not trace the complete case file until around July, 2020 during which Covid-19 protocols and restrictions were still enforced.
9) That the Record of Appeal is now, duly compiled, transmitted and served separately on the Respondent.
10) That the Appellant/Applicant is very serious, desirous and willing to prosecute this Appeal to its

logical conclusion.
11) That it is necessary to seek order for extension of time as well as the deeming order to enable the Appellant/Applicant proceed with the Appeal
12) That it will be in the best interest of justice to grant this Application.

Learned Counsel to the Appellant/Applicant Abubakar Aliyu Esq., submitted that the application is supported by a sixteen Paragraph affidavit duly deposed to by one Sa’adu Abdulrahman a staff of EFCC, No. 4 EFCC Street, Gombe Zonal Office. According to Counsel, no counter affidavit has been filed by the Respondents as such the averments in the supporting affidavit are deemed admitted. He urged the Court to grant it. In his reply on points of law, the Respondent’s Counsel Ibrahim Effiong Esq., submitted that by Paragraph 13 of the Practice Directions, 2014 of this Court, the Appellant/Applicant ought to have compiled and transmitted the Record within 30 days from the 18th March, 2019, the date when the Notice of Appeal was filed. That the motion is not seeking leave to compile and transmit the record but to transmit the record only; that the word to compile is missing from Prayer 1.

As regards to Prayer 2, Counsel submitted that there is nothing to be deemed before this Court as the prayer ought to be to deem the compiled and transmitted record. He referred to Paragraph 13 (7)(i) of the Practice Directions of this Court 2014 and the case of Abah vs. Monday & Ors. (2015) LPELR-24712 (SC), and urged the Court to dismiss the Appeal.

In his response, the Appellant’s/Applicant’s Counsel stated that the case of Abah v. Monday (Supra) is cited out of context. He urged the Court pursuant to Section 122 of the Evidence Act, 2011 to take judicial notice of Paragraphs 7, 9, 10 and 11 of the supporting affidavit and Paragraphs 4, 6, 7 and 8 of the grounds of the application and grant the application.

The requirement for the grant of an application for extension of time to compile and transmit the record are good and substantial reasons for the failure to compile and transmit the record within the prescribed period – See Order 6 Rule 9(1) of the Rules of this Court, 2016. At Paragraphs 7, 9, 10 and 11 of the supporting affidavit to the application it was deposed to. Thus:
7) “That the failure to file and serve

the Record of Appeal within the stipulated time by the Appellant/Applicant is not deliberate but due to the challenges faced by the Registry of the trial Court”.
9) “That immediately after the motion for leave to appeal was granted by the trial Court, the Appellant/Applicant accordingly mobilized the Registry of the trial Court with the necessary bill of fees that will enable it transmit the record within the stipulated time”.
10) “That the trial Court’s registry informed the Appellant/Applicant that it was difficult tracing/finding the complete record of the case file hence the delay in compiling and transmitting the record”.
11) “That the trial Court’s registry could not trace the complete case file until around July, 2020 during which COVID 19 protocols and restrictions were still enforced.”
From the Paragraphs of the supporting affidavit as reproduced above, the Appellant/Applicant has shown good and substantial reasons for the failure to compile and transmit the record of Appeal in time. The substance of the 1st and 3rd Respondents’ Counsel’s reply on points of law is

that prayer 1 as contained in the motion paper is incompetent for omitting the word to ‘compile’, rather it only states an order for extension of time within which the Applicant may ‘transmit’ and file the record of Appeal; and that there is nothing to be deemed as prayed for in relief 2. Counsel further referred to Paragraph 13 (7) of the Court of Appeal (Fast Track) Practice Directions, 2014 and the case of Abah vs. Monday & Ors. (2015) LPELR-24712 (SC) and urged the Court to dismiss the Appeal.
For clarity purposes Paragraph 13 (7) of the Practice Directions of this Court, 2014 provides thus:
“If the Registrar has failed to compile and transmit the records under 13(1) above and the Appellant has also failed to compile and transmit the records in accordance with 13 (3), the Respondent may by notice of motion move the Court to dismiss the Appeal.”
In the instant Appeal, the Record of Appeal was compiled and transmitted to this Court on 11/09/2020 but out of time, hence the present application by the Appellant/Applicant to regularize the Record. Paragraph 13 (7) of the Practice Direction is therefore

inapplicable and does not support the argument and position of the Counsel to the 1st and 3rd Respondents. As regards the case of Abah vs. Monday (Supra) referred to by Counsel, that case is distinguishable from the instant because in that case Record of appeal was transmitted from the trial Federal High Court to the Abuja Division of this Court on the 10th day of July, 2013. Appellant’s brief of argument and Reply brief were filed on 31st July, 2013 and 13th September, 2013 respectively.
After the transmission of the Record of Appeal and the filling of briefs aforesaid, the Appellant’s Counsel became aware of the then Court of Appeal Practice Direction 2013 and hence filed an application on 4/11/13 inter alia, seeking to regularize the said processes which were transmitted and/or filed outside the time prescribed by the said Court of Appeal Practice Direction 2013. The Appellant’s counsel in Paragraphs 10 and 11 of the affidavit in support of the said motion on notice stated that the said lapses occurred due to his inadvertence as he was not aware of the said Practice Direction. The 1st Respondent’s counsel who was also then not aware of the said

Practice Direction followed suit by filing an application to regularize his brief of argument which had been filed in accordance with the Court of Appeal Rules 2011.
On 12th December, 2013 when the matter came up for hearing, this Court observed that the motion was defective as the Appellant failed to indicate the suit number of the matter in the trial Federal High Court with respect to prayer No. 1 dealing with the Record of appeal and hence, the Appellant’s counsel sought for the leave of this Court to withdraw the said motion. Appellant’s counsel applied for an adjournment to enable him take steps to regularize the said processes.
The 1st Respondent’s counsel opposed the Appellant’s application for adjournment and instead applied for the dismissal of the appeal under Order 8 Rule 18 of the Court of Appeal Rules, 2011. The 1st Respondent’s counsel made the application orally. This Court nevertheless dismissed the Appellant’s appeal for failure to transmit record of appeal within the prescribed time pursuant to Order 8 Rules 4 and 5 of the Court of Appeal Rules, 2011. The Appellant being dissatisfied with the ruling of the this Court, filed an appeal

against same to the Supreme Court.
On the other hand in this Appeal, learned Counsel to the 1st and 3rd Respondents grouse is on the failure of the Appellant’s/Applicant’s Counsel to insert the word ‘compile’ in prayer 1 of the application. That the failure to insert that word shows that the record of Appeal was not compiled in law and that there is nothing to be deemed in Prayer 2 of the application.
The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to now pursue the course of substantial justice. See Makeri Smelting Co. Ltd. vs. Access Bank (Nig.) Plc. (2002) 7 NWLR (Pt. 766) 447 at 476-477. The attitude of the Court has since changed against deciding cases on mere technicalities.
The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because a blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. See also Ajakaiye vs. Idehia (1994) 8 NWLR (Pt. 364) 504

Artra Industries Ltd. vs. N.B.C.I. (1997) 1 NWLR. (Pt. 483) 574, Dakat vs. Dashe (1997) 12 NWLR (Pt. 531) 46 and Benson vs. Nigeria AGIP Co. Ltd. (1981) 5 S.C 1. As I stated earlier in this ruling, the record of Appeal has been compiled and transmitted to this Court albeit out of time. The omission by learned Appellant/Applicant’s Counsel to insert the word ‘compile’ in prayer 1 should not be a ground to refuse the application. The arguments of learned 1st and 3rd Respondents’ Counsel are therefore discountenanced. The application is therefore granted as follows:
1) Time is extended till today for the Appellant/Applicant to compile and transmit the Record of Appeal to this Court out of time.
2) The compiled and transmitted Record of Appeal to this Court of 11/09/2020 is deemed as properly compiled and transmitted today.

CHIDI NWAOMA UWA, J.C.A.: I agree.

JAMES SHEHU ABIRIYI, J.C.A.: I agree.

Appearances:

ABUBAKAR ALIYU, ESQ. For Appellant(s)

A. EFFIONG, ESQ. – for 1st & 3rd Respondents For Respondent(s)