HUSSEIN MANSOUR V. CARNCO FOODS (NIGERIA) LTD
(2010)LCN/3600(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of March, 2010
CA/L/25M/2009
RATIO
WORDS AND PHRASES: MEANING OF “IN CONNECTION WITH THE APPEAL”
The rules did not define what a relevant document is, however, the phrase “in connection with the appeal” under the rule connotes that all documents necessary to determine the complaints raised in the ground of Appeal should be in the Record of Appeal. Therefore, the record of appeal should be confined to all material documents to the Issues raised on appeal arising from the grounds in the Notice of Appeal. A good test in determining the nature of documents that should be described as relevant is to look at the document and ascertain if it will be necessary and relevant in the prosecution of the appeal. In doing so one is confined to the complaints in the Grounds of Appeal for guidance. See Adewoyin v. Adeyeye (1963) 1 S.C.N.L.R 91. PER REGINA OBIAGELI NWODO, J.C.A.
COURT: ATTITUDE OF COURT WHERE THE DELAY IN FILING THE NECESSARY PROCESS IS AS A RESULT OF MISTAKE OF COUNSEL
The Judicial attitude of court where the delay in filing the necessary process is as a result of mistake, negligence or inadvertence of counsel is liberal as the court will favourably exercise its discretion in favour of the Applicant.
In Tunji Bowaje v. Moses Adediwura (1976) 6 SC 143 at 147. The SC held per Bello JSC:
“This court would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction of the court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel”.
See also Akinyede v. The Appraiser (1971) 1 All N.R 162, Alagbe v. Abimbola (1978) 2 SC 39. However, it must be a clear genuine mistake of counsel and not one based on recklessness. The uncontradicted averment by the deponent that the counsel made a mistake is an acceptable reason. PER REGINA OBIAGELI NWODO, J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
HUSSEIN MANSOUR Appellant(s)
AND
CARNCO FOODS (NIG.) LTD Respondent(s)
REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Ruling): This is an application by Notice of Motion filed by the Applicant on 8/09/09 seeking for the following orders from the court:
“1. AN ORDER enlarging the time within which the Appellant may transmit the records of Appeal in Suit No. 10/701/2005 and pertaining to the Notice of Appeal dated 12th November, 2008 to the Court of Appeal.
2 AN ORDER deeming the records of Appeal already transmitted and served on the Respondent as duly transmitted and served.
3. SUCH FURTHER ORDER(S) as the Court may deem fit to make in the circumstance.”
In support of the application is an 11 paragraph affidavit reposed to by Chima Ahanatu, a litigation officer in the employment of Akinlawon & Ajomo Chambers.
The Respondent reacting to the affidavit filed a counter affidavit of 8 paragraphs on 12/10/09 deposed to by Mercy Omage, a legal practitioner.
The Applicant in response filed a reply Affidavit on 4/11/09. On the directive of this court to the parties the learned counsels filed the written addresses and exchanged same. On the 14th of January, 2010 during the hearing of the Motion dated 8 September, 2009 the learned counsel Mr. Ajomo adopted and relied on the Applicant’s written address and also the reply address filed on 4/11/09 and 18/11/09 respectively as his argument in support of the application.
Chief Agbamuche adopted the written address of the Respondent filed on 9/11/09 and urged the court to dismiss the application.
In the Applicant’s written address, the learned counsel Mr. Ajomo referred to paragraphs 6 – 9 of the supporting affidavit wherein the reason for the delay is averred too as ascribable to errors from the Appellant’s counsel. He referred to Bowaje v. Adediwura (1976) 6 SC 143 at 147. Learned counsel’s contention is that the court will readily exercise its discretion to extend time where the delay is as a result of the inadvertence of counsel. It is his further contention that the Applicant has a right to compile a record founded on the interlocutory decision alone.
Learned counsel argued that the decision complained of in the Notice of Appeal is that of 30th October, 2008, an interlocutory decision where the High Court ruled that it had jurisdiction to entertain Respondents counterclaim. He contended therefore that the appeal is not in respect of the final decision and the record must comprise only relevant documents in existence and utilized during the proceedings and not documents which came into existence subsequent to the decision appealed against such as the final decision of the 16th September 2009. He submitted that the final decision will be the subject of another record.
It is his submission that by order 8 rule 6 of the Court of Appeal Rules 2007, the Respondent, if he feels there are additional records which may be necessary in disposing of the Appeal is at liberty to compile and transmit such additional Record within 15 days of receipt of the main record of Appeal. He referred to Turaki v. Dalhatu (2003) F.W.L.R. (pt. 170) 1378 @ 1391.
In respect of transmitting the case file Mr. Ajomo contended that failure to transmit the case file cannot form the basis of an objection to acceptance of the Record as record of appeal is separate and distinct from the case file. He urged the court to grant their application.
Chief M. A. Agbamuche in the Respondent’s written address formulated four Issues for determination which reads as follows:
“ISSUES FOR DETERMINATION:
1. Whether Order 19 Rules 2 of the Court of Appeal Rules 2007 which provides for departure from this rule is the proper order to employ in a bid where an Appellant Applicant seeks to compile Record of Appeal out of time.
2. Whether the compiled documents exhibited satisfies the provisions of Order 8 Rules 7 and 10(1)(c) of the Court of Appeal Rules 2007 and can therefore be a Record of Appeal. And whether Record of Appeal that might have been sufficient for an interlocutory appeal will be sufficient where final judgment has been given in the same case.
3. Whether in the Affidavit in Support of his Motion, the Appellant/Applicant has advanced good and substantial reasons for his failure to compile the Record of Appeal within the prescribed time.
4. Whether a bundle of documents compiled without order or leave of this court after the time stipulated has lapsed is incurably defective”.
The learned counsel for the Applicant did not formulate Issues for determination. However, in his written submissions the Issues distilled were addressed. Therefore, for purposes of clarity and elucidation, I will determine this application by consideration of the four Issues formulated by the Respondent together.
Chief Agbamuche’s contention is that under Order 8 Rules 7 and 10(1)(c), the Applicant is under an obligation to compile and transmit the Record of Appeal when the Registrar fails to transmit the Record of Appeal within 60 days. Consequently, there is no room to apply for a departure from the rules as provided for under Order 19 Rules 2 of the Court of Appeal Rules 2007 as the applicant has done in this case. The cited Asol (Nig.) Ltd. v. Access Bank (Nig.) Plc. (2009) 10 N.WL.R. (pt. 1149) 283. It is his further contention that the Motion on Notice did not ask for as order enlarging the time to compile the record.
Learned counsel Mr. Ajomo’s submission is that it is a settled principle and practice that if a Relief is provided in any written law and claimed, it cannot be denied the Applicant simply because he has applied for it under a wrong law. He referred to Falobi v. Falobi (1976) 1 N.M.LR 169 @ 177. He concedes the application is brought pursuant to Order 19 Rule 2 of the Court of Appeal Rules rather than Order 7 Rule 10(1) of the Rules which covers provision for the relief sought.
The apex court in a catalogue of decided cases have settled the position of the law as regards applications seeking reliefs provided by a written law but under a wrong law. In the locus classicus case of Falobi v. Falobi (1976) 1 N.M.L.R. 169 @ 177.
The Supreme Court per Fatayi-Williams JSC held:
“In our view, if a relief or remedy is provided for by any written law (or by the common law or in equity for the matter) that relief or remedy, if properly claimed by the party seeking it, cannot be denied to the applicant simply because he has applied for it under the wrong law, to do so would be patiently unjust”.
It is therefore trite law that a mistake wherein an Applicant in an application refers to the wrong law in support of a motion should not bar the court from considering the merits of the application once there is a specific relief and procedure covered by the law. The submission of learned counsel for the Respondent in respect of reliance by Applicant on wrong law is purely technical in nature and this cannot override the courts duty to do substantial justice by looking at the merits of the case.
Furthermore, the nature of the reliefs sought in the Motion of the Applicant is explicit and clear. It is this reliefs that the court will look at and then consider the facts presented and determine whether to grant or refuse. Order 19 Rule 2 of the Court of Appeal Rules 2007 is on departure from the Rules of court. Departure envisages absence of specific provision. The nature of the Reliefs sought on the Motion paper is specifically covered by Order 7 Rule 10(1) of the Rules of this Court 2007. This Order 7 Rule 10(1) stipulates as follows:
“The court may enlarge the time provided 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 8 above”.
The Applicant seeks enlargement of time to transmit record having failed to comply with the specific period stipulated under the Rules. The Motion is therefore not incurably defective as submitted by learned counsel on the basis of wrong order cited. The merits of the application will be considered.
The learned counsel for the Respondent contended that the Applicant in the reliefs on the motion sought an extension of time for transmission of record alone excluding compilation of record. There is no doubt that Order 8 Rule 4 of the Rules of Court 2007 made provision for compilation and transmission of records of appeal. The period for compliance covers both compilation and transmission. Therefore the date of compliance starts running from date of transmission, once the Applicant compiles the record but does not transmit within 30 days he has to seek extension of time from the court. The rules used the phrase transmission within the stipulated time. Order 8 Rule 10(2) reads as follows:
“Where the record is compiled by the appellant under Rule 4 of this order, he shall transmit the record within the time stipulated for compilation and transmission by an appellant under Rule 4. The record shall be transmitted in compliance with Rule 10(1)”.
Consequently, the omission of the word compilation in the prayer should not affect the consideration of the merits of the application. The time prescribed within which to transmit record had lapsed and the present application is to enlarge time. It is only after compilation that one refer to transmission, therefore both compilation and transmission must be within 30 days as prescribed.
The learned counsel Mr. Ajomo submitted that in all cases pertaining to the compilation of the Records of Appeal, the Record must comprise only relevant documents in existence and utilized during the proceedings and not documents which came into existence subsequent to the decision appealed against such as the final decision of the court on 16th September, 2009. He referred to Adesina v. Adeniran (2002) F.W.L.R (pt 88) 948 at 953.
It is his contention that the Notice of Appeal is against the decision of the Learned trial Judge on Jurisdiction and the documents in the Record relate to the decision of the court on Jurisdiction. Thus, any transaction thereafter is irrelevant to the appeal on Jurisdiction. It is his submission that all the documents of which the Respondent referred to as not included in the Record is irrelevant He referred to Order 8 Rule 6 of the Court of Appeal Rules submitting that the respondent is, at liberty to compile additional record. He cited Turaki v. Dalhatu (2003) F.W.L.R. (pt.170) 1378 at 1391.
Chief Agbamuche referred to Order 8 Rule 7 of the Court of Appeal Rules on what should be in a Record of Appeal. It is his contention that Order 8 Rule 7 should be read together with Order 10 Rule 2(c) which provides that the file of the case in the court below contains all documents filed by the parties in connection therewith and should be part of the record. It is his submission that the absence of the Notice of Appeal against final Judgment of the court below, that is the final Judgment dated 16 September, 2009. No schedule of fees paid and the case file in the court below makes the record not complete. It is learned counsel’s submission that there must be an appeal against the final decision.
Order 8 Rule 7 of the Court of Appeal Rules 2007 sets out what every record of appeal shall contain. For purposes of emphasis I reproduce Rule 7 as follows:
“Every record of appeal shall contain the following documents in the order set out:-
(a) the index;
(b) a statement giving brief particulars of the case and including a schedule of the fees paid;
(c) copies of the documents settled and compiled for inclusion in the record of appeal;
(d) a copy of the notice of appeal and other relevant documents filed in connection with the appeal.”
(Underlined mine)
Under Order 8 Rule 7(d) all the Applicant need to compile is a copy of the Notice of Appeal if filed in the court below and other relevant documents filed in connection with the appeal.
The critical question is when a document is considered to be prescribed as documents in connection with the appeal. The rules did not define what a relevant document is, however, the phrase “in connection with the appeal” under the rule connotes that all documents necessary to determine the complaints raised in the ground of Appeal should be in the Record of Appeal. Therefore, the record of appeal should be confined to all material documents to the Issues raised on appeal arising from the grounds in the Notice of Appeal. A good test in determining the nature of documents that should be described as relevant is to look at the document and ascertain if it will be necessary and relevant in the prosecution of the appeal. In doing so one is confined to the complaints in the Grounds of Appeal for guidance. See Adewoyin v. Adeyeye (1963) 1 S.C.N.L.R 91.
I have looked at the document titled Record of Appeal filed on 03/09/09. The record contains an index of Reference, a statement of the pleadings of the parties, the motion, affidavits and counter affidavits, the written addresses of counsel, the Ruling of the court below and the Notice of Appeal filed 30 July 2009 against the Ruling delivered on 17 July 2009.
These records fall within the criteria stipulated under Order 8 Rule 7 of the Court of Appeal Rules. The final Judgment referred to by the learned counsel for the Respondent is not a relevant document to the hearing and determination of an interlocutory appeal based on Jurisdiction. Like the learned counsel Mr. Ajomo rightly submitted an Appellant is free to exercise his right of Appeal as regards any decision of the court below which he is minded to appeal against.
The Notice of Appeal in the instance case is only in respect of the interlocutory Ruling of the court not the final Judgment.
Therefore, a certified copy of the final Judgment cannot be an aid for the determination of an appeal against a Ruling based on Jurisdiction which decision precedes the final Judgment. If an appeal is against both the Ruling and Judgment then the certified copy of Judgment becomes a relevant document. The documents in the Record of Appeal are relevant to the determination of the Ruling of the court on Jurisdiction which complaints are stated in the Notice of Appeal.
In respect of transmitting the case file, the burden is on the Appellant when he transmits record to also transmit the case file. This duty does not affect the present application seeking for extension of time to compile and transmit the record of appeal which is the prayer before the court. It is after the extension of time is granted to an Applicant to transmit record that the requirement of transmitting with the case file arises.
The learned counsel for the Applicant submitted that the reasons for the delay in transmitting the records are contained in paragraphs 6 – 9 of the Supporting Affidavit.
It is the submission of Chief Agbamuche that there is no good and substantial reason for failure to compile the record of appeal within the prescribed time limit. I have carefully considered the averments in the affidavit and the counter affidavit in opposition. Any application for extension of time to do an Act within the time stipulated by the Rules must be based on cogent and substantial reasons. In paragraph 5, 6 & 7 of the affidavit the deponent averred as follows:
“5. This application was however filed outside the 60 days, that is to say, on the 23rd of January, 2009, because the Appellant was unable to obtain the Ruling appealed against for inclusion in the Records until about that time.
6. Based on a mistaken belief that the application was filed before the expiration of the 60 days, time limit. I am told this by Ibukun Ajomo one of our counsel. The Appellant made no effort to compile the Record privately and transmit to the Court of Appeal.
7. At the hearing in the Court of Appeal of 2nd June, 2009, the mistake was pointed out to the Appellant’s counsel.”
The Respondent in their 8 paragraph affidavit did not contradict nor controvert the averments of the Applicant in paragraphs 5, 6 & 7. The unchallenged facts in support of the application are deemed as admitted. One of the reasons proferred by the deponent for not transmitting record within the stipulated period is the inability to obtain the Ruling appealed against for inclusion in the Records. The question is whether this is an acceptable good reason. It is trite that the inability of Applicant to obtain a Ruling is not a good reason when seeking for extension of time to appeal or leave to appeal. FHA v. Aboshade (1998) 2 N.W.L.R. (pt.537) pg.177. The rationale is that Applicant should not wait to obtain a copy before he can file a Notice of Appeal on at least one ground and seek an amendment subsequently. The situation is different when the extension of time ought to compile and transmit record. The Ruling of the court below which forms the bedrock of the Appeal is a material document and must be available for compilation before the Record can be transmitted otherwise the record will be adjudged incomplete. Therefore, inability to obtain a copy of the Ruling which is a relevant document within the prescribed period to compile the record is a good reason in the circumstances.
The second reason for the delay is attributed to the Applicant’s counsel. The application for extension of time in the circumstance requires the Applicant to depose to special circumstances. One of those circumstances is where the delay in filing is due to the fault of counsel. The Judicial attitude of court where the delay in filing the necessary process is as a result of mistake, negligence or inadvertence of counsel is liberal as the court will favourably exercise its discretion in favour of the Applicant.
In Tunji Bowaje v. Moses Adediwura (1976) 6 SC 143 at 147. The SC held per Bello JSC:
“This court would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction of the court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel”.
See also Akinyede v. The Appraiser (1971) 1 All N.R 162, Alagbe v. Abimbola (1978) 2 SC 39. However, it must be a clear genuine mistake of counsel and not one based on recklessness. The uncontradicted averment by the deponent that the counsel made a mistake is an acceptable reason.
The Applicant has satisfied the requirement under the rules as it relates to transmission of record. The Record of Appeal has been filed and a deeming order sought. The record cannot be defective.
The application for enlargement of time once it succeeds the deeming order can be made once process has been properly filed. See Asol (Nig.) Ltd. v. Access Bank (Nig.) Plc (2009) 10 NW.L.R (pt. 1149) pg 289
From the foregoing, it is my firm view that there is merit in this application. I hereby order as follows:
1. Time is enlarged till today for the Applicant to transmit the Records of Appeal in Suit No. 10/701/2005 pertaining to the Notice of Appeal dated 12 November, 2008.
2. The Records of Appeal filed on 3/09/09 is deemed as duly transmitted and served.
I make no order as to cost.
PAUL ADAMU GALINJE, J.C.A.: I have read before now the ruling just delivered by my learned brother, Nwodo, JCA and I entirely agree with the reasoning contained therein and the conclusion arrived there at. A grant or refusal of the application herein is within the discretionary powers of the Court. This discretion must be exercised judiciously and judicially towards resolving the controversy between the parties once and for all. In order to resolve the conflict between the parties, steps must be taken to have the appeal heard and this will be possible only if the appeal is entered.
My learned brother has efficiently addressed all the issues raised in the application and I have nothing useful to add.
On the reasons well articulated in the lead ruling, which I adopt as mine, I too grant the application in terms of the motion paper.
IBRAHIM M.M. SAULAWA, J.C.A.: Having read before now, the lead ruling, just delivered by my learned brother, Nwodo, JCA, I cannot but concur with the reasoning and conclusion reached therein to the effect that the application has merit thus ought to be granted by this court.
Hence, I adopt the reasoning and conclusions reached in the lead ruling, and accordingly grant the application as prayed. I abide by the consequential orders therein contained.
No order as to costs.
Appearances
Mr. Ibekunle Ajomo with T. C. OrakwueFor Appellant
AND
Chief M. A. Agbamuche with Mrs. May-MbuFor Respondent
