HON. JUSTICE M.B. GOJI v. DAVID A. GARNVWA
(2019)LCN/13218(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of May, 2019
CA/YL/159/2017(R)
RATIO
APPEAL: WHETHER LEAVE IS REQUIRED TO APPEAL A FINAL JUDGMENT
From the amended Notice of Appeal which I reproduced above it is crystal clear from the opening paragraph, Grounds 1, 2 and 5 that the Appellant/Respondent intends to Appeal against the final Judgment of the Adamawa State High Court delivered on 19th June, 2017 and not interlocutory ruling/decision. In such circumstances the law is trite that he does not require any leave of this Court to Appeal against the final Judgment of the lower Court.
See APARA V. OGUNBONA & ORS. (2018) LPELR 46015(CA).PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
HON. JUSTICE M. B. GOJI Appellant(s)
AND
DAVID A. GARNVWA Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Lead Ruling): By a Motion on Notice brought pursuant to Order 6 Rule 1, Order 7 Rule 6 and Order 8 Rule 9 of the Court of Appeal Rules 2016, prayed for the following reliefs: –
1) An order striking out the Records of Appeal in the substantive Appeal number CA/YL/159/2017 between HON. JUSTICE M.B. GOJI V. DAVID A. GARNVWA on ground of incompetence.
2) An order striking out the substantive Appeal number CA/YL/159/2017 between HON. JUSTICE M.B.GOJI V.DAVID A. GARNVWA on grounds of incompetence and lack of jurisdiction. Alternatively:
3) And for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.
The grounds for the application as contained in the application are:-
1) The notice of Appeal complains only of the final decision of the trial Court delivered on the 19th June, 2017, whilst grounds 1, 2 and 5 of the amended Notice of Appeal are complaining against the interlocutory decision of the lower Court which has been filed out of time but incorporated in the amended Notice of Appeal without an order for extension of time or the
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trinity prayers having been first granted by this Honourable Court.
2) That grounds 2 and 5 of the grounds of Appeal in the amended Notice of Appeal are complaints by the Appellant/Respondent against the exercise of discretion by the learned trial judge.
3) The Record of Appeal which was personally re-compiled and re-transmitted to the registry of this Honourable Court by the Appellant/Respondent is not certified by the Registrar of the High Court as the true and correct record of proceedings conducted by the trial Court in Suit number ADSY/33/2011.
4) Several pages of the Record of Appeal and documents contained therein are incorrectly and improperly compiled by the Appellant/Respondent.
The application has in its support an affidavit of ten paragraphs. The Applicant placed reliance on the paragraphs of the supporting affidavit. In opposition to the grant of the application the Appellant/Respondent filed a Counter affidavit of 27 paragraphs. For a clear vision in the consideration of this application, I will recast verbatim paragraphs 4(a), (b), (c), (d), (e), (f), (g), (h) and (i) of the supporting affidavit:-
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4 (a) That whilst Exhibit A (the amended Notice of Appeal) complains only of the final decision of the learned trial judge delivered on the 19th day of June, 2017, Grounds 1, 2 and 5 of the said Exhibit are complaining against interlocutory decisions of the trial judge which he made years and months before his final decision.
(b) That in addition Grounds 2 and 5 in the amended Notice of Appeal are both complaints by the Appellant/Respondent against the exercise of discretion by the learned trial judge.
(c) That the Appellant/Respondent is out of time in filing the said Grounds 1, 2 and 5 of the Grounds of Appeal..
(d) That the said Grounds 1, 2 and 5. were incorporated into Exhibit A by the Appellant/Respondent without an order for extension of time or the trinity prayers?
(e) That the said grounds 1, 2 and 5 of the Grounds of Appeal?. are incompetent in law
(f) That the Record of Appeal was personally re-compiled and transmitted to the Registry of this Honourable Court by the Appellant/Respondent.
(g) That the Record of Appeal is not certified by the Registrar of the High Court?.
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(h) That several pages of the Record of Appeal and documents contained therein are incorrectly and improperly compiled by the Appellant/Respondent.
(i) That the Record of Appeal is incompetent in law.?
Grounds 1, 2 and 5 cited in the supporting affidavit in Exhibit ?A? (amended Notice of Appeal) reads:-
AMENDED NOTICE OF APPEAL
TAKE NOTICE that the Appellant being dissatisfied with the final decision of the High Court of Justice Adamawa State delivered on 19/06/2017 do hereby appeal to the Court of Appeal upon grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4.
GROUNDS OF APPEAL
GROUND 1
The learned trial Judge erred in law when he denied the Appellant the right to fair hearing by refusing the Appellant to put up his defence and this occasioned miscarriage of justice.
GROUND 2
The learned trial judge erred in law when he refused the application by learned Counsel to the Appellant for an adjournment in order to cross examine the Respondent who as the whole witness testified as PW1 and this occasioned miscarriage of justice.
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GROUND 5 (ADDITIONAL)
The learned trial judge erred in law when he refused the application to disqualify himself for real likelihood of bias when there were sufficient facts in the Applicant?s affidavit in support of his application for doing so.
However at paragraphs 9, 10, 11, 12 (a), (b), (c), (d), (e), (f), 13 (a), (b), (c), (d), (e), (f), (14), (20), (23), and (26) of the counter affidavit reads:-
(9) ?That I know as of fact that the Respondent/Applicant on 23rd March, 2011 commenced a civil action for declaration of title against the Appellant/Respondent before the High Court of Justice of Adamawa State (the lower Court).
(10) That on 19th June, 2017 the lower Court entered final Judgment against the Appellant/Respondent and the said Judgment was timeously appealed to this Honourable Court on 30th June, 2017 vide a Notice of Appeal containing three grounds of Appeal.
(12) (a) That the Appellant/Respondent?s amended Notice of Appeal is against the final Judgment of the lower Court delivered on 19th June, 2017 and not interlocutory rulings or decisions.
(b) That the Appellant/Respondent did not require any leave of this Court to appeal
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against the final Judgment of the lower Court which Appeal was filed within time.
(c) That though grounds 1, 2, and 5 of the amended Notice of Appeal relate to happenings during trial at the lower Court, they directly impacted on the final Judgment of the lower Court which occasioned miscarriage of justice and against which the Appellant/Respondent has appealed.
(d) That grounds 1, 2 and 5 relate to the Constitutional Right of Fair Hearing of the Appellant/Respondent breached by the lower Court.
(e) That the original Notice of Appeal against the final Judgment of the lower Court was filed within time on 30th June, 2017 with grounds 1 and 2 while ground 5 was added as additional ground with leave of this Court obtained on 16th January, 2018.
(f) That the Appellant/Respondent does not require leave to Appeal against a Judgment which affected his Constitutional Right of Fair Hearing.
(13) (a) That at the trial of this case together with the two sister cases were heard and closed on 26th April 2017 different from 27th Aril 2017 which the Registry informed counsel to the Appellant/Respondent.
(b) That the Appellant/Respondent filed an
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application to enable him open his defence in the matter but the application was not entertained by the lower Court.
(f) That based on these facts the Appellant/Respondent believes his Constitutional Right of fair hearing has been denied which ground one covers.
(14) That I know as a fact that the Record of Appeal was originally compiled by the Appellant and transmitted to this Honourable Court on 28th September, 2017 as the Registry of the lower Court could not compile same within 60 days as required by the Rules of this Court.
(20) That paragraphs 3(e) and 4(f) of the Respondent/Applicant?s affidavit are not true as the Record of Appeal was recompiled and transmitted by the Registry of the trial Court.
(23) That counsel to the Appellant/Respondent later discovered that the Record of Appeal was not certified by the Registry of the trial Court.
(26) That the Registry of the lower Court acknowledged its mistake of not certifying the Record of Appeal earlier transmitted to this Court on 23rd February, 2018 and has now recompiled, certified and transmitted to this Court a certified Record of Appeal on 7th June, 2018.
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Having set out the materials available in this application urging the Court to grant the reliefs sought on the one part, and on the other for the Court to refuse grant; it behoves on me therefore to consider the said materials alongside the well entrenched principles that must be borne in mind when a Court is accosted with prayers and submissions as I have before this Court.
From the amended Notice of Appeal which I reproduced above it is crystal clear from the opening paragraph, Grounds 1, 2 and 5 that the Appellant/Respondent intends to Appeal against the final Judgment of the Adamawa State High Court delivered on 19th June, 2017 and not interlocutory ruling/decision. In such circumstances the law is trite that he does not require any leave of this Court to Appeal against the final Judgment of the lower Court.
See APARA V. OGUNBONA & ORS. (2018) LPELR 46015(CA). Ground 1 specifically is complaining of the Appellant?s breach of Constitutional Right to Fair Hearing. On the deposition in Paragraphs 4 (f) and (g) of the affidavit in support of the application that the Record of Appeal was personally re-compiled and transmitted to
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the Registry of the lower Court and not duly certified; at Paragraphs 14 and 26 of the counter affidavit it was deposed to that it was when the Registrar of the lower Court could not compile and transmit the Record within 60 days that the Appellant compiled and transmitted the Record to this Honourable Court on 28th September 2017. That a certified Record of Appeal has been recompiled and transmitted to this Court on 7th June 2018.
After a thorough appraisal of the Motion on Notice filed on 11/04/2018 and the Counter Affidavit filed on 7/06/2019, I find that the application clearly lacks merit as the circumstances which should naturally propel a Court especially an Appellate one such as the present in granting the application are not in existence; and this Court is loath to venture into an area or route which neither the Constitution nor the necessary legislations and judicial principles have provided for. It is accordingly dismissed. Parties to bear their costs.
CHIDI NWAOMA UWA, J.C.A.: I read before now the Ruling delivered by my learned brother Abdullahi Mahmud Bayero, JCA. I agree that the application is lacking in merit and also dismiss same.
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JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the lead ruling just delivered by my learned brother Abdullahi M. Bayero JCA.
I agree with my learned Brother that the application has no merit and should be dismissed. It is accordingly dismissed by me.
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Appearances:
I. A. Mobolaji, Esq.For Appellant(s)
J. A. Oguche, Esq.For Respondent(s)
Appearances
I. A. Mobolaji, Esq.For Appellant
AND
J. A. Oguche, Esq.For Respondent
