HON. MINISTER OF AGRICULTURE AND WATER RESOURCES V. OLIVE COMPANY NIG.LTD
(2010)LCN/3653(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of March, 2010
CA/A/331/M/09, CA/A/61/M/09(R)
RATIO
PROCEDURE: WHAT IS THE PRACTICE OF THE COURT WHERE THERE ARE TWO OPPOSING APPLICATIONS
It is the practice of this court that where there are two opposing applications as in this case, where one motion seeks to terminate or dismiss the appeal like motion number CA/A/61M/09 and the other motion seeks to save the appeal by asking for extention of time to compile records of appeal like motion No CA/N331 M/09, it is trite that this court would deal with or hear the application for extention of time first so that the case or appeal will be disposed on its merits.
By this procedure, it means that the application for the dismissal of the appeal must abide by the result of the application for extention of time. Thus if the application for extention of time succeeds then the application for the dismissal of the appeal would be struck out. But if the application for extention of time does not succeed, then the application for dismissal would then be considered on its merits.
See the following cases:-
– Asol (Nig) Ltd Vs Access Bank (Nig) PLC (2009) 10 NWLR Part 1149 Page 283 at 295 and 296 Paragraphs H-B.
– Vice Chancellor A.B.U. Zaria v. Ado (1986) 3 NWLR Part 31 Page 684
– Nalsa & Team Associates Vs N.N.PC (1987) 8 NWLR Part 212 Page 652.
– S.C.O.A. Ltd Vs Bourdex Ltd (1987) 4 NWLR Part 65 at Page 489. PER JIMI OLUKAYODE BADA, J.C.A
COURT: REQUIREMENT FOR THE COURT TO EXERCISE ITS DISCRETION TO EXTEND TIME PRESCRIBED FOR DOING AN ACT
This court would readily exercise its discretion to extend times prescribed for doing an act, if it is shown to the satisfaction of the court that the failure of the party to do the act within the prescribed period was caused by the negligence or inadvertence of counsel.
In the instant case, I am satisfied that the failure of the Applicant to compile the record of Appeal within the prescribed period was due to the inadvertence of counsel. I am also of the view that mistakes of counsel should not be visited on his client.
I am fortified in my view going by the established precedents as enunciated in the following cases:-
– Muftttau Akinpelu Vs Ebunola Adegbore Part 429 Page 413 (Supra)
– Enyibros Food Processing Company Ltd Vs Nigerian Deposit Insurance Corporation (Supra)
-Ubene Vs Commissioner of Police (2005) Vol.2 WRN Page 135 Alagbe Vs Abimbola & others (1978) 2 S.C Page 39 PER JIMI OLUKAYODE BADA, J.C.A
JUSTICES
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
HON. MINISTER OF AGRICULTURE AND WATER RESOURCES Appellant(s)
AND
OLIVE COMPANY NIG.LTD Respondent(s)
JIMI OLUKAYODE BADA, J.C.A (Delivering the Lead Ruling): On 11/1/2010 when Motion Number CA/A/61M/09 came up in this court, the attention of the court was drawn to another pending motion with number CA/A/331M/09 between the same parties. This court there and then ordered that written addresses be filed in respect of the two applications.
It is the practice of this court that where there are two opposing applications as in this case, where one motion seeks to terminate or dismiss the appeal like motion number CA/A/61M/09 and the other motion seeks to save the appeal by asking for extention of time to compile records of appeal like motion No CA/N331 M/09, it is trite that this court would deal with or hear the application for extention of time first so that the case or appeal will be disposed on its merits.
By this procedure, it means that the application for the dismissal of the appeal must abide by the result of the application for extention of time. Thus if the application for extention of time succeeds then the application for the dismissal of the appeal would be struck out. But if the application for extention of time does not succeed, then the application for dismissal would then be considered on its merits.
See the following cases:-
– Asol (Nig) Ltd Vs Access Bank (Nig) PLC (2009) 10 NWLR Part 1149 Page 283 at 295 and 296 Paragraphs H-B.
– Vice Chancellor A.B.U. Zaria v. Ado (1986) 3 NWLR Part 31 Page 684
– Nalsa & Team Associates Vs N.N.PC (1987) 8 NWLR Part 212 Page 652.
– S.C.O.A. Ltd Vs Bourdex Ltd (1987) 4 NWLR Part 65 at Page 489.
CA/A/331 M/09
This is an application dated the 13th day of November 2009 and filed on the same date wherein the Applicant prayed for the following orders:-
1. An order of leave of this honourable court extending the time within which the Applicant can compile the records of all documents, exhibits and proceedings of the Federal High Court Abuja in Suit No. FHC/ABJ/CS/540/07 Between Olive Nig Ltd Vs Federal Ministry of Agriculture and Water Resources for use as the Records of Appeal.
2. An order of court deeming the compiled records of all documents, exhibits and proceedings of the Federal High Court Abuja in Suit No- FHC/ABJ/CS/540/07 between-Olive Company Nig Ltd Vs Federal Ministry of Agriculture and Water Resources annexed to the affidavit and marked as Exhibit “A” as the Records of Appeal.
The application is supported by an affidavit of 6 paragraphs, pertinent paragraphs of which are 4 (a) to (g) and 5 set out as follows:-
“4. That I was informed by Joseph Ochuko Tobi Esq. of Counsel in Chambers at Area 3 Garki, Abuja on 2nd November 2009 at about 12.30pm of the following facts which I verily believe to be true:
(a) That by the 2007 Rules of this Court, the Registrar of the court below has a duty to within 60 days after the filing of the Notice of Appeal compile and transmit the Records of Appeal to this court.
(b) That where after the expiration of 60 days after the filing of the Notice of Appeal the Registrar of the court below failed or neglected to compile and transmit the Records of Appeal, it becomes the responsibility of the Appellant to compile the Records of Appeal and transmit to this court within 30 days after the Registrar’s failure.
(c) That the Notice of Appeal was filed on the 30th December, 2008.
(d) That on 27th April, 2009 almost 4 months after the filing of the Notice of Appeal and efforts to get the lower court Registry to compile the Records of Appeal had failed;
Appellant through his Counsel inadvertently filed Motion No CA/A/103/M/09 to depart from the Rules under the former Rules of this court.
(e) That when the Motion came up for hearing and the provision of the 2007 Rules of this court was brought to the knowledge of Counsel, the said Motion No.CA/A/103/M/09 was withdrawn and accordingly struck out.
(f) That the Appellants are still desirous of prosecuting this Appeal and have compiled the records of all documents, exhibits and proceedings necessary for this appeal which it intends to use as the Record of Appeal. A copy of the bundle of documents referred to as ‘Record of Appeal’ shown to me is annexed and marked as Exhibit ‘A’.
(g) That the failure to compile the Record of Appeal within the stipulated time was not out of disrespect for the Rules of this court but due to inadvertence of Counsel.
5. That it would be in the interest of justice to allow this application.”
In opposition to the application, the Learned Counsel for the Respondent filed a Counter Affidavit of 10 paragraphs pertinent paragraphs of which are 2 to 9 set out as follows:-
“2. That I have been shown the affidavit of the Applicant and I hereby state that paragraphs 4 and 5 of the said affidavit failed to advance any reason whatsoever for the Applicant’s failure to compile the records within the prescribed time.
3. That the Applicant deliberately shut himself out by failing to compile the records of appeal within the time prescribed by law.
4. That the Applicant is not desirous of prosecuting any appeal.
5. That the Applicant did not give any reason at all, not to talk of a good and substantial reason, for his failure to compile the records within the prescribed time and therefore did not satisfy the condition prescribed by the rules.
6. That the respondent has suffered great hardship as it has been denied the fruits of his judgment for over two years since 17 August, 2007.
7. That the respondent will suffer more hardship if the application for extension of time is granted.
8. That the applicant is not serious about the prosecution of this appeal and is doing everything to frustrate the respondent.
9. That it will be in the interest of justice not to allow the Applicant’s application. ”
Written addresses were ordered in this application.
At the hearing the learned counsel for the Applicant referred to the application filed on 13/11/09.
He also referred to the written address filed on 4/2/2010, and he applied to adopt the said written address as his argument in urging the court to grant the application.
The Learned Counsel for the Respondent also referred to the counter affidavit filed on 11/1/2010 and the written address filed on behalf of the Respondent which he adopted in urging the court to refuse the application.
The issue formulated by the Learned Counsel for the Applicant in respect of this application is set out as follows:-
“Whether the Appellants/Respondent’s motion No CA/A/337/M/09 seeking for extention of time to compile records of appeal is one that ought to be granted.”
The Learned Counsel for the Respondent did not formulate any issue for determination, therefore this application shall be determined upon the issue as formulated by Learned Counsel for the Applicant.
The Learned Counsel for the Applicant relied on Order 7 rule 10 of the Court of Appeal Rules 2007 in bringing this application.
He also stated that the only obligation to be fulfilled by the applicant is affidavit evidence setting forth good and substantial reasons for failure to comply with Rules within the prescribed period. He also referred to the affidavit in support of the application where it was stated that the reason for the delay in compiling the record of proceedings was essentially the inadvertence of Counsel.
He then submitted that the sins of counsel should not be visited on a party.
He relied on the following cases:-
– Enyibros Foods Processing Company Vs Nigerian Deposit Insurance Corporation (2007) All FWLR Part 387 Page 793.
– Mufutau Akinpelu Vs Ebunola Adegbore & 30 others (2008) All FWLR Part 429 Page 473.
Learned Counsel finally urged this court to grant the application.
In opposition to the application the Learned Counsel for the Respondent referred to the 10 paragraphs counter affidavit filed on behalf of the Respondent. He also referred to Order 7 rules 1, 10 and Order 8 rule 4 of the Court of Appeal Rules 2007.
He argued that even though Order 7 rule 10 (2) relate only to an application for extention of time within which to appeal, but that the two conditions stipulated therein are applicable to every application for enlargement of time for doing of anything within a prescribed period. Learned Counsel for the Respondent submitted that no reason was given for the failure to compile records of appeal within the time prescribed by the law. He relied on the following cases:-
– Ascol Nig Ltd Vs Access Bank Nig Plc (Supra) Page 283 at 301 and 302 paragraphs F-B.
– Bowaje Vs Adediwura (1979) 6 SC Page 743 – Williams Vs Hope Rising Voluntary Fund Society (1982) 1 All NLR Part 284 Page 630.
– Olowookere Vs African Newspaper of Nigeria Ltd & others (1993) 5 NWLR Part 295 Page 583 at 596 and 601.
He also referred to the Notice of Appeal which he said contained only one ground. He submitted that the said ground of appeal is not a substantial and arguable Ground of Appeal.
He finally submitted that the applicant having failed to meet the conditions stipulated in Order 7 rule 10 of the Court of Appeal Rules 2007 is not entitled to grant of extention of time to compile records of appeal. He therefore urged that this application be dismissed.
In bringing this application, the Learned Counsel for the Applicant relied on Order 7 rule 1 and 10 of the Court of Appeal Rules 2007 which states as follows:-
“(1) Every application to the court shall be by notice of motion supported by affidavit and shall state the rule under which it is brought and the ground for the relief sought,
(10)(1) The court may enlarge the time prescribed by these rules for the doing of anything to which these rules apply except the filing of notice of intention not to contest an application under Rule I above.
(2) …”
This application under consideration is for leave of this court extending the time within which the applicant can compile records of appeal.
The applicant stated among others in the affidavit in support of the application that the failure to compile the Records of Appeal within the stipulated period was due to inadvertence of Counsel.
In this case the notice of Appeal was filed on the 30th day of December 2008. And pursuant to Order 8 rule 4 of the Court of Appeal Rules 2007, where at the expiration of 60 days after the filling of the notice of Appeal the Registrar has failed and or neglected to compile and transmit the record of appeal in accordance with the proceeding provisions of the rule, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the court within 30 days after the registrars failure or neglect.
It is true that the Applicant has failed to comply with the provisions of order 8 rule 4 of the court of Appeal Rules 2007 but he has applied for extention of time to enable him compile the records of appeal out of time.
According to the affidavit in support of the application, the failure to comply with the provisions of the rules was due to inadvertence counsel for the Appellant and not that of the appellant.
This court would readily exercise its discretion to extend times prescribed for doing an act, if it is shown to the satisfaction of the court that the failure of the party to do the act within the prescribed period was caused by the negligence or inadvertence of counsel.
In the instant case, I am satisfied that the failure of the Applicant to compile the record of Appeal within the prescribed period was due to the inadvertence of counsel. I am also of the view that mistakes of counsel should not be visited on his client.
I am fortified in my view going by the established precedents as enunciated in the following cases:-
– Muftttau Akinpelu Vs Ebunola Adegbore Part 429 Page 413 (Supra)
– Enyibros Food Processing Company Ltd Vs Nigerian Deposit Insurance Corporation (Supra)
-Ubene Vs Commissioner of Police (2005) Vol.2 WRN Page 135 Alagbe Vs Abimbola & others (1978) 2 S.C Page 39
In view of the foregoing I hold that there is merit in this application and it is hereby ordered as follows:-
1. Order as Prayed.
The time within which the applicant is to compile the records of all documents, exhibits and proceedings of the Federal High Court Abuja in Suit No- FHC/ABJ/CS/540/07 between Olive Company Nig. Ltd Vs Federal Ministry of Agriculture and Water Resources for use as the records of Appeal is hereby extended till today.
2. The compiled records of all documents, exhibits and proceedings of the Federal High Court Abuja in suit No-FHC/ABJ/CS/540/07 between Olive Company Nigeria Ltd Vs Federal Ministry of Agriculture and Water Resources annexed to the affidavit and marked as Exhibit “A” is deemed as the Records of Appeal in this case.
There shall be no order as to costs.
CA/A/61 M/90
This second application for an order dismissing the Notice and Grounds of appeal dated 24th December 2008 and filed on 30th December 2008 on grounds of Non-Compliance with the statutory period of compilation of Records of Appeal dated 11/3/2009 was filed on the same date.
In view of the fact that the application for extention of time within which to compile records of Appeal in this matter earlier treated succeeded, it is my view that it would be mere academic exercise going into the merits of this second application to dismiss the notice and grounds of appeal filed on the 30th day of December 2008.
In the circumstance, this application is hereby struck out.
There shall be no order as to costs.
MARY U. PETER-ODILI, J.C.A.: I have read in draft the Ruling of my learned brother, JIMI OLUKAYODE BADA JCA which decision and reasonings I agree with.
I have nothing else to add except to say I abide by the orders he made.
ABDU ABOKI, J.C.A.: I agree.
Appearances
MR JOSEPH TOBI with him are NELSON ORJI AND EDNA EJIKEWE for the Applicant/Respondent.For Appellant
AND
MR.C.U. EKOMARU with him is JUDE ESOMONLU for the Respondent/Applicant.For Respondent
