IGP & ORS v. ADOGA & ANOR
(2022)LCN/16844(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, July 15, 2022
CA/A/1008/M/2019(R)
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. INSPECTOR GENERAL OF POLICE 2. ACP PETER GANA 3. ASP GODIRI 4. INSPECTOR ONU APPELANT(S)
And
1. INALEGWU ADOGA 2. ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)
RATIO
THE POSITION OF LAW ON ENTERTAINING AN APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL
There is no arguing the legal position that this Court has the legal or judicial power of entertaining an application for the enlargement of time within which to appeal guided by the application of its discretion which it must exercise judicially and judiciously. In particular, Order 9 Rule (1) provides that the Court may enlarge the time provided by these rules for the doing of anything to which these rules apply, except as it relates to the taking of any step or action underOrder 16, and going by the guidance set out by Tobi JSC in Akinpelu vs. Adegbore & Ors (2008) LPELR – 354 (SC):
i. That the applicant has a right of appeal as of right and therefore does not require the leave of Court.
ii. The affidavit gives satisfactory reasons/explanation for the delay.
iii. The grounds of appeal shows good cause why the appeal should be heard.
iv. The justice of the case demands that the appeal be heard.
Where the above factors are married to the case at hand, and going by the clear grouse of the applicants contained in the application being that of lack of fair hearing, before the lower Court, and the judgment sought to be appealed on being a final judgment for which applicant does not need leave to appeal, furthermore, and from the uncontroverted affidavit in support, wherein applicant had adduced tangible reasons why he could not appeal within the prescribed time, this application is one which ought to be granted in the interest of justice. My attention has been drawn to the fact that it took about two years before the filing of this application from the date the judgment was delivered, that may be so, but as stated by Eko JCA in Amadi & Anor vs. Chief Obediah Wopara & Ors (2009) LPELR- 8348 (CA), the right of appeal is a constitutional matter, and Courts though minded to obey the rules, are more bound by the adherence to doing justice. I accept the argument that a denial of fair hearing where established vitiates the entire trial, and accordingly being a constitutional matter ought to be laid to rest by way of hearing the parties on appeal. PER BARKA, J.C.A
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): By this application filed on the 28th day of October, 2019, and brought pursuant to Section 15 of the Court of Appeal Rules 2010 as amended, Order 6 Rules 1 and 9 of the Court of Appeal Rules 2016 and under the inherent jurisdiction of the Court, the applicants, the Inspector General of Police, ACP Peter Gana, ASP Godiri and Inspector Onu, through their counsel prayed for the following orders:
i. An order of Court granting the appellants/applicants leave to apply for enlargement of time within which to file their notice and grounds of appeal against the judgment of the Federal High Court Abuja in Suit No. FHC/ABJ/CS/265/2013 delivered on the 27th March, 2018 coram: Hon. Justice Nnamdi O. Dimgba
ii. An order of Court extending the time within which the appellants/applicants may file their notice and grounds of appeal against the judgment of the High Court of Justice of Federal High Court Abuja in Suit No. FHC/ABJ/CS/265/2013 delivered on the 27th March, 2018: Coram Hon. Justice Dr. Nnamdi O. Dingba
iii. And such order or further orders as this Honourable Court may deem fit to make in the circumstance of this case.
The application is supported by a 15 paragraph affidavit deposed to by one Jonah Ati, the Litigation Secretary in the Legal/Prosecution section of the Nigeria Police Force, Force Headquarters Abuja. The material ground upon which the application is made is that applicants were denied fair hearing before the Court below, and paragraphs 4 – 10 of the affidavit being material to the application are reproduced thus:
3. …
4. That the 1st respondent obtained judgment against the appellant/applicants on the 27th of March, 2018 at the Federal High Court Abuja but the said judgment was not served on the appellants/applicants until on the 25th March, 2019 when the 2nd respondent drew the attention of the appellants to the garnishee proceedings filed against the appellants by the 1st Respondent.
5. That the Inspector General of Police, 1st appellant immediately directed that the matter be defended and consequent upon the directive of the Inspector General, a letter was written to the Federal High Court Abuja for certified true copies of the Court processes filed by the 1st respondent and on receipt of the processes it was discovered that judgment was entered against appellants/applicants since 27th March 2018, but same was not served on the appellants.
6. That it was also discovered from the certified true copies of all the processes filed in the case that the appellants were never served with any of the Court processes leading to the judgment being appealed against.
7. That the record of Court further revealed that the suit which was premised on detinue did not proceed to hearing before the judgment of special damages was awarded against appellants.
8. That having perused the judgment and all Court processes it was discovered that appellants/applicants were denied fair hearing and are also out of time to file notice of appeal hence this application for enlargement of time to appeal.
9. That a proposed notice of appeal which the appellants/applicants intend to file is annexed to this application and the appeal disclosed recondite and triable legal issues and has a very strong chance of success.
10. That the delay in filing the notice of appeal or bringing this application for enlargement of time is due to the facts explained above.
Exhibit A annexed to the motion papers is the proposed notice of appeal predicated on four grounds; the judgment of the lower Court was also annexed as Exhibit B, and in compliance with the extant rules of Court, applicants filed a written address on the 24th of February, 2022. When the appellant’s/applicants received the 1st respondents counter affidavit filed on the 23rd of February, 2021, appellants filed a further and better affidavit in support of the motion for leave to appeal, and the ruling of the lower Court delivered on the 29th of November, 2019 made in respect of a motion on notice before it filed by the 2nd – 5th respondents thereat, as well as the 6th judgment debtor/applicant hinged on the further affidavit.
The 1st respondent as alluded to earlier filed a counter-affidavit in expressing his opposition to the grant of the application in 18 paragraphs and deposed to by Inalegwu Adoga, the 1st respondent in person, and hinged on the application are the following documents:
i. A document titled Motion on Notice brought pursuant to Section 36 and 251 of the 1999 Constitution, Order 14 Rule 10, Order 19 Rule 4(2) and Order 48 Rules 4 of the Federal High Court Civil Procedure Rules 2009 and under the inherent jurisdiction of this Honourable Court, seeking in the main the setting aside of the judgment of the Court below in suit with No FHC/ABJ/CS/265/2003 delivered on the 27th of March, 2018, with the affidavit in support of the application.
ii. A document titled Notification of Court judgment in suit of Inalegwu Adoga vs. The Minister of Police Affairs and 5 Ors, suit with No. FHC/ABJ/CS/265/2003 delivered on the 27th of March, 2018
iii. Court order of the judgment received by the Federal Min of Justice on the 11th of February, 2019
iv. Form 49 also received by the Federal Ministry of Justice on the 4th of July, 2018
v. Three hearing notices allegedly received by the police on the 25/2/19, 25/2/2019, and 11/2/2019.
vi. 12 copies of a document all dated the 26th of June, 2019 by the 2nd – 5th defendants counsel Simon Lough seeking for an adjournment also annexed to the motion papers.
The 1st respondent also filed a written address in support of the counter-affidavit on the 23rd of February, 2021, and Paragraphs 2 – 8 being material to the case for the 1st respondent is also reproduced thus:
2. That the counsel to the appellants Simon Lough ACP, had a pending motion in the same matter with the same issue case No. FHC/ABJ/CS/265/2003 between Inalegwu Adoga vs. The Minister of Police Affairs, The Inspector General of Police, ACP Peter Gana, Mr. Godiri, Inspector Onu and the Attorney-General of the Federation urging the Federal High Court to set aside its judgment in this matter dated on the 27th of March, 2018.
3. That in the above motion mentioned in paragraph 2 of this affidavit, Simon Lough for the applicants also urged the Court to vary its order made on the 27th March 2018 on ground of lack of jurisdiction and non-service of writ of summons on the defendants, a copy of the motion dated 28th day of March, 2019 together with the attendant affidavit is attached as annexure A, A1.
4. That this motion of Appellants/applicants that is annexture A, A1 is still pending before the Federal High Court for determination on the same grounds, at the time Simon Lough filed this same application for enlargement of time and stay of execution before the appeal Court on the 28th October, 2019.
5. That the 1st respondent filed an 83 counter-affidavit in reply to the applicants/appellants motion before the Federal High Court which is still pending. This counter-affidavit of the 1st respondent dated 28th April, 2019 is attached as Exhibit b justifying the jurisdiction of the Court indicating proofs that the defendants were served and had appeared in Court and that there was fair hearing.
6. That both the motions of the applicants now applicant appellant and the 1st respondent’s counter-affidavit is still pending before the Federal High Court Abuja for determination.
7. That the appellants and their counsel evidently sensing the fatality of their motion jumped the gun and filed the application before the Court of appeal for stay of execution and enlargement of time to file appeal.
8. That the notification of the judgment was served on the appellants on the 9th of April 2018, 11th April, 2018, the judgment was also served on the applicants. These are Exhibits C, D and E, F, G, H also on 9th June, 2019, 25th February, 2019.
Yet in the further and better affidavit filed in support of the appellants’ motion on notice for leave to appeal, particularly paragraph 5 thereof, it was deposed that:
5. That contrary to paragraphs 2 – 14 of the 1st respondent’s counter-affidavit, the motion and all processes the 1st respondent mentioned in those paragraphs relate to garnishee proceedings which has already been dispensed with by the Federal High Court. A copy of the ruling of the Federal High Court is annexed as IGP 1.
Having therefore studied the processes filed and adopted by the learned counsel, a sole issue determines the application before the Court, and it is whether the application is grantable in the circumstance.
Mr. Lough for the applicants moving his application, submitted that an application of this nature must exhibit a good cause for failure to appeal within the time allowed by the rules and cited the case of FBN Plc vs. Amanyi (2020) 14NWLR (pt. 1743) 158 AT 182 in that regard. He submitted that from the deposition in the affidavit in support, and the exhibits hinged thereto, the conditions for the grant of the application had been met, further submitting with respect to the filing of the Notice of Appeal out of time, contending that such is only possible where the leave of Court is sought and obtained by virtue of Order 6 Rules 1, 2 and 9 of the Court of Appeal Rules 2021 and referred to the decision of Long John vs. Blakk (1998) 6 NWLR (pt. 555) 525 and Charles Ekeiloanya vs. Hon. Chike Anyaonu (2003) NWLR (pt. 819) 259 AT 272. He harped on the need for the Court to always exercise its discretion towards the attainment of justice, and to thereby grant the application. The case of Ekuma vs. Silver Eagle Shipping Agencies Ltd (1987) 4NWLR (pt. 64) 472 was further cited in support of the legal position.
In urging the Court to hold that Court business is not for the indolent, and thereby dismiss the application, Mr. Adoga posits that paragraphs 2, 3, 4, 6, 7, 9 and 11 of the counter-affidavit are self-explanatory, contending that this particular application was filed before the lower Court, which application is yet to be determined, positing that applicants jumped the gun by filing the instant application. He argued that by paragraph 8, of the counter-affidavit, the 1st respondent had shown that applicants were served with the notifications of the lower Court’s judgment on the 9th and 11 of April, 2018, which is 12 days after the delivery of the judgment as against the 25th of March, as contended by the applicants, and argued that it took the applicants one year and seven months to bring the instant application, whereas by paragraph 12, 13 and 17 of the counter-affidavit, it was clearly shown that the instant application is the same with what is before the lower Court and still pending, and that by paragraph 15 and 16 also of the counter-affidavit seeks to show that applicants raised malicious falsehood against the 1st respondent. He urged the Court to peruse Exhibits A and A1 with a view at discovering the frivolity of the application, and thereby dismiss the same.
It should be noted that the 2nd respondent is heard as not opposing the application.
This Court faced with a similar application, held that for an application for extension of time to appeal to succeed, the applicant must show to the Court that the delay in bringing the application is neither willful or inordinate, and further that there are good or substantial reasons for the applicant’s failure to appeal within the prescribed period, and further still that there are grounds which prima facie show good cause why the appeal should be heard. See Customary Court of Appeal Benue State vs. Abura Tsegba & Ors (2010) LPELR-4009 (CA), Ogbogoro vs. Omenuwoma (2005) 1 NWLR (pt. 906) 1, Okere vs. Nlem (1992) 4 NWLR (pt. 234) 132. The consideration of the issues above listed must be done against the backdrop that rules of Court must prima facie be obeyed and in justifying the exercise of its discretion to grant an extension of time to appeal out of time, there must be some concrete materials upon which to base such exercise of discretion. See Olatunbosun vs. Texaco (Nig) Plc (2012) 14 NWLR (pt. 1319) 200, Williams vs. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145.
To that extent and by virtue of Section 6 Subsection 9 (2) of the rules governing this Court, every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failing to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard when time is so enlarged, and a copy of the order granting such enlargement shall be annexed to the Notice of Appeal.
A sober examination of the affidavit evidence made in support of this application, is to convince this Court to believe that the judgment sought to be appealed against was not brought to the notice of the applicants at the stage it was being heard before the lower Court, and by so doing denied fair hearing; and being out of time to appeal as demanded by the rules, and desirous of appealing the judgment obtained in their absence, thus the instant application. This is borne from the affidavit evidence by way of affidavit in support of the motion on notice.
The 1st respondent sought to contend otherwise in the counter-affidavit, insisting that by their paragraphs 2, 3, 4, 5, 6, 8, 9, 10, 11, 12 and 13 of the counter-affidavit, applicants were not only aware of the pendency of the suit before the lower Court which culminated to the judgment sought to be appealed on, but that applicants filed a process before the lower Court seeking for prayers identical if not the same with the prayers now before the Court. This necessitated the Applicants filling a further and better affidavit which negated the assertion, rather contending that the process filed before the lower Court by the 1st respondent was in respect of garnishee proceedings which have since been determined, evidenced by Exhibit IGP 1 annexed to the further affidavit. I have in the circumstance closely and minutely examined the pieces of evidence adduced from the affidavit for and against, and examined the documents hinged on the processes, and do with humility agree that the process alluded to by the 1st respondent and for which the various exhibits were filed in support, actually in respect to the garnishee proceedings for which a ruling was delivered on the 29th day of November, 2019. I am strengthened in so holding by the fact that this particular assertion by the applicants in their further affidavit was neither denied nor countered by way of a further counter-affidavit, thus deemed accepted as the truth thereof. See Chief Stephen Nwanko Okonkwo vs. Dr Patrick I. Okolo (2016) LPELR – 40931 (CA):
“the appellants have not denied the deposition in paragraph 5 of the further affidavit… by not denying this deposition of facts, they are deemed by law to have admitted the specific facts narrated therein.” See also Akiti vs. Oyekunle (2018) LPELR – 43721 (SC).
The position of the law is that when in a situation in which facts are provable by affidavit, one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts and where such a party fails to do so, or controvert such facts, the facts may be regarded as duly established. See Agbaje vs. Ibru Sea Foods Ltd (1972) 5SC 50 AT 55, Alagbe vs. Abimbola (1978) 2SC 39 AT 100, Edem vs. Akamkpa LG (1999) LPELR – 10076 (CA).
There is no arguing the legal position that this Court has the legal or judicial power of entertaining an application for the enlargement of time within which to appeal guided by the application of its discretion which it must exercise judicially and judiciously. In particular, Order 9 Rule (1) provides that the Court may enlarge the time provided by these rules for the doing of anything to which these rules apply, except as it relates to the taking of any step or action under Order 16, and going by the guidance set out by Tobi JSC in Akinpelu vs. Adegbore & Ors (2008) LPELR – 354 (SC):
i. That the applicant has a right of appeal as of right and therefore does not require the leave of Court.
ii. The affidavit gives satisfactory reasons/explanation for the delay.
iii. The grounds of appeal shows good cause why the appeal should be heard.
iv. The justice of the case demands that the appeal be heard.
Where the above factors are married to the case at hand, and going by the clear grouse of the applicants contained in the application being that of lack of fair hearing, before the lower Court, and the judgment sought to be appealed on being a final judgment for which applicant does not need leave to appeal, furthermore, and from the uncontroverted affidavit in support, wherein applicant had adduced tangible reasons why he could not appeal within the prescribed time, this application is one which ought to be granted in the interest of justice. My attention has been drawn to the fact that it took about two years before the filing of this application from the date the judgment was delivered, that may be so, but as stated by Eko JCA in Amadi & Anor vs. Chief Obediah Wopara & Ors (2009) LPELR- 8348 (CA), the right of appeal is a constitutional matter, and Courts though minded to obey the rules, are more bound by the adherence to doing justice. I accept the argument that a denial of fair hearing where established vitiates the entire trial, and accordingly being a constitutional matter ought to be laid to rest by way of hearing the parties on appeal.
In arriving at my decision to either grant or refuse the application, I took great pain scrutinizing the judgment of the lower Court in the matter, exhibited as Exhibit B, contained in three pages, where judgment was entered in default of the appellants entering appearance, which reliefs included an award of special damages, and of the firm view that the justice of the case demands that the application be granted and it is so granted. Pursuant thereto I grant the following orders:
i. That time is hereby extended to the applicants within which applicants may file their notice and grounds of appeal against the judgment of the Federal High Court Abuja in suit with No. FHC/ABJ/CS/265/2013 delivered on the 27th of March, 2018.
ii. Applicants are granted 14 days from today within which to file their Notice of Appeal before the Court below.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the ruling just delivered in Court by my learned brother, Hamma Akawu Barka, JCA.
I am in agreement with the reasoning and conclusion that the application has merit and should be granted. I accordingly grant the application. I abide by the consequential orders as made therein.
DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to read in draft the lead judgment of my learned brother, HAMMA AKAWU BARKA, JCA just delivered. The crux of this application filed on 28/10/2019, the Applicants are seeking for an order of this Court granting leave to the Applicants to file their Notice of appeal out of time and to file a Notice of appeal against the judgment of the Federal High Court in Suit No. FHC/ABJ/CS/265/2013 delivered on 27/03/2018.
I have perused the Affidavit supporting the application as well as the proposed Notice of Appeal and the four grounds raised therein and attached as Exhibit ‘A’. Essentially, the complaints of the Appellants/Applicants from the Affidavit evidence and proposed grounds of appeal centred on fair-hearing against the decision of the lower Court. In otherwords, by the affidavit evidence and Exhibit A, the Applicants had explained the reasons for the delay in bringing the instant application.
Thus, I therefore subscribe to the finding and conclusion in the lead judgment that this application filed on 28/10/2019 has merit and it is accordingly granted. The Applicants to file their Notice of Appeal against the judgment of the lower Court in Suit No. FHC/ABJ/CS/265/2013 delivered on 27/03/2018 within 14 days from today at the Court below.
Appearances:
S.A. Lough, (SAN), with him, I.M. Chieshe, and D. Nnenga, For Appellant(s)
Inalegwu Adoga, – for 1st Respondent
U.F. Gobir, – for 2nd Respondent For Respondent(s)
