GEORGE ADUMU & ORS v. THE STATE (2012)

GEORGE ADUMU & ORS v. THE STATE

(2012)LCN/5227(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of March, 2012

CA/PH/145M/2011

RATIO

STATUTORY PROVISION FOR FORMULATION OF ISSUES IN A BRIEF OF ARGUMENT IN APPEALS.

Order 18 Rule 3 [1] provides for formulation of issues in a brief of argument in appeals. This Order provides as follows:-
“3 – (1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.” The issues as provided for under Order 18 Rule 3 [1] must arise from the grounds of appeal. Where they do not arise from the grounds of appeal, they are liable to be struck out. See Lambert v. Nigerian Navy [2006] 7 NWLR [Pt.980] 514. Adejumo v. State [2006] 9 NWLR (Pt 986) 627, Sehindemi v. Gov. Lagos State (2006) 10 NWLR [pt. 987] 1. There is however no such provision with respect to motions. Order 7 Rule 1 of the Court of Appeal Rules 2011 provides as follows:- ” 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.” From the provision of Order 7 Rule 1, it is plain that an application filed before this court should be argued on the basis of the ground[s] for the reliefs sought and the affidavit in support of the motion. An applicant is not at liberty to set out grounds upon which he seeks relief and proceed to argue the application on issues which are at variance with the grounds upon which he is seeking reliefs. PER. PAUL ADAMU GALINJE, J.C.A.

PRACTICE AND PROCEDURE: APPLICATION FOR EXTENSION OF TIME TO APPEAL

JUSTICES:

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

GEORGE ADUMU & ORS – Appellant(s)

AND

THE STATE – Respondent(s)

PAUL ADAMU GALINJE, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated 18th March 2011 and filed on the 24th March 2011, the applicants herein are seeking for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal.
In addition, the applicants are asking this court to stay proceedings in charge/case no. PH/337/2010 now pending at the High Court of Rivers State sitting at Port Harcourt. In support of the motion on notice is a 36 paragraphs affidavit deposed to jointly by the applicants. Annexed to the affidavit are four notices of appeal and a copy of the ruling on a preliminary objection to the ongoing trial of the applicants at the lower court. Parties filed written addresses which they adopted at the hearing of this application.
Mr. A.R. Abdulrahman, learned counsel for the applicants, who also settled the Applicants’ written address formulated one issue only for determination of this application. This issue read as follows:-
“Whether the applicants have adduced sufficient materials so as to influence the undoubted discretion of this Honourable Court for an order granting them leave to appeal, extension of time within which to file notice and ground of appeal etc as prayed on the motion paper.”
Mr. Emmanuel C. Aguma, Learned counsel for the Respondent, who did not file a counter affidavit, filed a brief on the 15/7/2011 in reply to the Applicants submission on points of law. He formulated three issues for determination of the application.
These issues are:
1. whether this application is competent.
2. whether the applicants have placed sufficient material before this court to merit a grant of reliefs 1, 2 and 3 endorsed on the motion paper.
3. whether leave to apply for stay of further proceedings of the trial at the High Court [relief 4] or stay of proceedings ought to be granted.
In reaction to the Respondents written address, learned counsel for the applicants filed a reply on points of law.
Order 18 Rule 3 [1] provides for formulation of issues in a brief of argument in appeals. This Order provides as follows:-
“3 – (1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.”
The issues as provided for under Order 18 Rule 3 [1] must arise from the grounds of appeal. Where they do not arise from the grounds of appeal, they are liable to be struck out. See Lambert v. Nigerian Navy [2006] 7 NWLR [Pt.980] 514. Adejumo v. State [2006] 9 NWLR (Pt 986) 627, Sehindemi v. Gov. Lagos State (2006) 10 NWLR [pt. 987] 1.
There is however no such provision with respect to motions.
Order 7 Rule 1 of the Court of Appeal Rules 2011 provides as follows:-
” 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.”
From the provision of Order 7 Rule 1, it is plain that an application filed before this court should be argued on the basis of the ground[s] for the reliefs sought and the affidavit in support of the motion. An applicant is not at liberty to set out grounds upon which he seeks relief and proceed to argue the application on issues which are at variance with the grounds upon which he is seeking reliefs.

However application for extension of time to appeal can only be granted if the applicant has satisfied the conditions specified under Order 7 rule 10[2] of the Court of Appeal Rules 2011. Since the requirements to be satisfied have been provided in the rules of court, formulation of issues for determination of the application goes to no issue. In criminal cases a notice of application for extension of time to appeal is provided for under Order 17 rule 3 (1) of the Rules of this court. Where such notice is given in some cases such notice will be considered on the basis of Order 7 rule 10 (2) of the court of Appeal Rules.
In the present application, the Applicants failed and /or neglected to provide the grounds upon which they are seeking for relief. They cannot come strictly by Forms 6 and 7 under schedule 2 of the Rules of this court, since they are not convicts. Since this is a criminal case, their failure to set out the grounds upon which they seek relief will not constitute a bar to the hearing and determination of this application on the merit.
From the affidavit in support of the application and the proposed grounds of appeal, have the applicants met the requirements of Order 7 rule 10[2], of the Rules of this court? This order 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 prescribe period, and by grounds of appeal which prima facie show good cause why the appeal should be heard…,”
It is plain that for an applicant to succeed under Order 7 rule 10[2] of the rules of this court he must, satisfy conjunctively the following conditions-
1. He must set forth in the supporting affidavit good and substantial reasons why he failed to appeal
within the prescribed period. 2. His proposed grounds of appeal must prima facie show good cause why the appeal should be heard.
If the two requirements are not met together, the application for extension of time is liable to be dismissed.

In arguing the motion in the applicant’s written address which was filed on the 8th of June 2011, Mr. Abdulrahman, Learned counsel for the Applicants relied on all the paragraphs of the supporting affidavit, particularly paragraphs 6, 7, 8, 9,10 and 11 thereof and submitted that the applicants have shown and have deposed to good and substantial reasons why they failed to appeal within the prescribed period. Learned counsel ascribed the delay occasioned in bringing this appeal to the mistake of counsel who filed two notices of appeal within time that were declared invalid by this court. Learned counsel therefore pleaded that the applicants should not be punished for the mistake of counsel. In aid the authorities in Bewaji v. Adediwura (1976) 6 SC 143 at 147, Ahmadu v. Salawu (1974) (All NLR (Pt2) 3180 Akinyede v. The Appraiswer (1971) 1 NLR 162; Iroegbu v. Okworodu (1990) 6 NWLR [Pt. 159] 643, Doherty v. Doherty (1964) 1 All NLR 299 were cited and relied upon by learned counsel.
In a further argument learned counsel submitted that the proposed grounds of appeal annexed to the supporting affidavit as exhibit are challenging the jurisdiction of the lower court for admitting having jurisdiction for a pre-amnesty offences allegedly committed by them.
According to the learned counsel, the grounds of appeal raise matters of public importance that need to be pronounced upon by this court. In aid, learned counsel cited Iroegbu v. Okwordu [supra] at page 659 paragraph A-C, long John v. Black [1998] 6 NWLR (Pt.555) 524, FGN v. AIC Limited (2006) 4 NWLR [pt 970] 337, Ogoeje Ofo v. Ogoeje Ofo (2006) 3 NWLR (pt 966) 2005.
Still in argument, learned counsel submitted that their depositions at paragraphs 30, 31,,32,33,34 and 35 of their supporting affidavit are unchallenged as such same should be deemed as the truth of the matter. In aid learned counsel cited Malgit v. Dachen [l998] 5 NWLR [pt 550] 384, Adamu v. Akukalia [2005] 11 NWLR [pt 936] 263, Lagos State v. Purification Tech Nigeria Ltd [2003] 15 NWLR (Pt.845) 1.
In conclusion, learned counsel urged this court to grant the application.
For the Respondents who did not file a counter affidavit it is argued firstly that the application is incompetent because the motion paper is jointly signed by the four applicants and this runs foul of the provision of Order 17 Rule 4 of the court of Appeal Rules 2011.
Secondly that throughout the pendency of the notice of appeal filed on 12th July 2011 which was struck out on the 3rd March 2011, the Applicants did not compile and transmit record of appeal. This, according to the learned counsel is a clear violation of order 8 Rules 4 and 5 of the court of Appeal Rules 2011 and shows a clear lack of seriousness on the part of the applicants to pursue this appeal emphatically evidenced by the fact that the ruling exhibit 2 was only certified 7 days after the incompetent notice of appeal was struck out on the 3/3/2011. In a further argument on this score, learned counsel submitted that this application was brought 21 days after the incompetent “application was struck out, namely on the 24th day of March 2011 and within the same period the applicants were busy arguing their motion for stay of proceedings in the court below which was dismissed. Now the issues raised in the second run of the learned counsel’s submissions herein border on facts. Where a respondent intend to rely on facts in rebutting the averments raised in an applicant’s supporting affidavit, such facts must be set out in a counter affidavit. The learned counsel for the respondents did not file a counter affidavit, it follows therefore that the averments contained in the supporting affidavit have not been controverted.
For the argument of the respondents against the competence of the application, I hasten to say that the issue of the applicants signing the motion individually is not tenable as the present application to appeal out of time is not strictly a motion under Order 17 of the Rules of this court that provides for applications by persons convicted of a criminal offence. The present application though filed by persons undergoing criminal trial, is strictly asking, this court to determine whether the applicants fall into the category of persons affected by the Federal Government Amnesty that was extended to the militants in the Niger Delta Region of Nigeria. To that extent the application is not incompetent. The ruling against which the applicants are desirous of appealing to this court was delivered on the 1st of July 2010. The Applicants herein filed a notice of appeal on the 2nd of July 2010. This was clearly within the prescribed period and evidence that the Applicants did not sleep over their right to appeal. The ruling in which the applicant’s preliminary objection was overruled is a final decision resulting from an interlocutory application. The applicants therefore need no leave to appeal. What they require is just an extension of time to appeal see Ndikwe v. Chiejina (2002) 1 NWLR [pt 082] 451. Since this application is seeking for an extension of time to appeal against a decision where the liberty of a person is concerned, it falls under section 241(1) (f) [i] of the constitution of Nigeria 1999 which provides for appeal as of right.

I am therefore convinced that the applicants have scaled the first hurdle by setting forth good and substantial reason why they did not appeal within the prescribed period.
For the 2nd condition, it is submitted for the applicants that the two grounds of appeal filed by the applicants have shown that the applicants are challenging the jurisdiction of the Honourable court for admitting that it has jurisdiction to hear and determine an offence allegedly committed by them and for which amnesty had been granted by the Federal Government.
In his reply, Learned counsel for the respondent submitted that the grounds of appeal contained in the Applicants notice of appeal is challenging the ruling of the lower court in which it was held that the president of Nigeria cannot pursuant to section 175 of the 1999 constitution grant amnesty for any offence not legislated upon by National assembly. It is their further submission that the offence of murder for which the Applicants are charged is not one of the 69 items contained in the exclusive legislative list, as such the applicants cannot rely on S.175 of the constitution as a shield from trial for the offence for which they are charged.
Now from the way the Applicants and the respondents have opened their arguments on the 2nd leg of the conditions to be met before an application for extension of time to appeal could be granted, it will
appear they are already arguing the main appeal. This is not necessary at this stage. I also want to refrain from delving into the substantive matter that can be decided in the appeal at this interlocutory stage. I am of the firm view that the grounds of appeal prima facie show good cause why the appeal should be heard. Accordingly therefore I hold that the applicants have satisfied the conditions set out under Order 7 rule 10 (2) of the court of Appeal Rules 2011. According this application is granted as prayed.
The applicants are hereby granted 14 days within which they shall file their individual notice of appeal.
I make no order as to costs.

M. DATTIJO MUHAMMAD, J.C.A.: My learned brother Galinje JCA has adequately considered the arguments of parties regarding the application to which his lead ruling relates, Applicants seeking extention of time within which to appeal, it is trite, need to conjunctively satisfy two requirements: advance the reasons for their failure to appeal within the time prescribed by the law and show that their grounds of appeal are prima facie arguable. Where however the appeal is premised on the question of the lower court’s jurisdiction, reasons for the delay in not appealing within the stipulated period ceases to be an imperative, In the instant matter, appellant’s proposed notice of appeal appears to raise questions pertaining the lower court’s competence and because of the fundamentality of the issue that alone entitles the applicant to the reliefs they seek.
I further imbibe the more detailed reasons in the lead ruling in finding merit in the application and granting same.
Applicants are, as ordered in the lead ruling, to file their respective Notices of appeal within 14 days from today.

T.O. AWOTOYE, J.C.A.: I entirely agree.