ISIAKU NUHU v. USMAN ZAKARI & ANOR
(2019)LCN/13402(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2019
CA/J/407/2018(R)
RATIO
APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO COMPILE AND TRANSMIT RECORD OF APPEAL AS PROVIDED IN ORDER 6 RULE 9(1) AND (2) OF THE COURT OF APPEAL RULES, 2016
The applicant is seeking for enlargement of time to compile and transmit record of appeal to this Court as provided under Order 6 Rule 9(1) and (2) of the Court of Appeal Rules, 2016. Order 6 Rule 9 provides thus:
1. 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 any step or action under Order 16.
2. 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 prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.ADZIRA GANA MSHELIA, J.C.A.
AN APPLICANT HAS 90 DAYS WITHING WHICH TO COMPILE AND TRANSMIT RECORD OF APPEAL FROM THE HIGH COURT TO THE COURT OF APPEAL
By Order 8 Rule 1 and 4 of the Court of Appeal Rules, 2016 the applicant has 90 days to compile and transmit record of appeal to this Court. It is evident from this application that Applicant did not compile and transmit the Record of Appeal within the time stipulated by the rules hence this application. SeeEdiru v FRSC (2016) 4 NWLR (Pt.1502) 209 at 233 paras B-D.PER ADZIRA GANA MSHELIA, J.C.A.
APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO COMPILE AND FILE RECORDS IS GRANTED BY THE COURT BASED ON DISCRETION
The grant of this application involves a discretionary remedy, which must be exercised judicially and judiciously.PER ADZIRA GANA MSHELIA, J.C.A.
AN APPLICANT FOR ENLARGEMENT OF TIME MUST SHOW GOOD CAUSE IN AN AFFIDAVIT
Applicant must show by affidavit evidence that he has good and substantial reasons for failure to transmit the record of appeal within the prescribed period.PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
ISIAKU NUHU Appellant(s)
AND
1.USMAN ZAKARI
2.HARUNA MAI KAYAN MIYA Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Ruling): By a Motion on Notice dated 16/11/2018 and filed on 10/12/2018 the Appellant/Applicant sought for the following reliefs:
1. AN ORDER of this Honourable Court for extension of time within which to compile and transmit to this Honourable Court the Record of Proceedings of the High Court of Justice, Potiskum, Yobe State in Suit No. YBS/HC/PT/22CV/2014, between Ishaku Nuhu Vs Usman Zakari and Haruna Mai Kayan Miya, the time within which the external Appeal Registry of the High Court of Justice, Yobe State could compile and transmit record having expired.
2. AN ORDER deeming the clean Record of Appeal already transmitted to this Honourable Court on 22nd October 2018 is duly compiled, transmitted and served today. (A copy of the cover page is attached thereto as Exhibit A.
AND for such further order(s) as this Honourable Court may deem fit to make in the circumstances?.
The grounds upon which this application is predicated are as follows:
1. The Appellant/Applicant by order of this Honourable Court dated 26th June, 2018 filed his
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appeal on 29th June, 2018 and complied with all the conditions for the External Appeal Registry of the High Court of Yobe State to transmit the record within the statutory time.
2. That the External Appeal Registry of the High Court of Justice, Yobe State compiled and did not transmit the Record of this Appeal within the specified period until the 22nd day of October, 2018 notwithstanding they were adequately mobilized by the Appellant/ Applicant.
3. That the Record of Appeal has been transmitted and leave ought to be sought for and granted before the Record of Proceedings will be proper before this Honourable Court.
The Motion was supported by a 4 paragraph affidavit deposed to by Edward Abnon Litigation Assistant with the Taufiq Office. Another 4 paragraph further Affidavit was deposed to by same Edward Abnon and it was filed on the 25/03/2019.
When the Motion came up for hearing on the 12th March, 2019, H.N Onyekwere Esq. hold brief for I.M Attahir Esq. for the Appellant/Applicant. While N. Abdulsalam Esq. appeared for the Respondents. Mr. Onyekwere Esq. sought to move the application but Mr. Abdulsalam Esq. opposed same that the
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record does not reflect what transpired at the lower Court. Counsel also relied on the 9 paragraph Counter-Affidavit filed on the 21st February 2019. Since the application was contentious in nature parties were ordered by Court to file written addresses. The motion was adjourned to 06/05/2019 for hearing of the motion on notice filed on 10/12/2018 and adoption of written addresses.
When the motion came up for hearing on 06/05/2019 one Dennis Eze Esq. appeared for the Applicant. While the Respondent and their counsel were absent. The Registrar informed the Court that N. Abdulsalam Esq. was served through phone call No. 08138541304 on 25/04/2019 that the matter was coming up for hearing on 06/05/2019. While 1st Respondent was served on 12/03/2019 with hearing notice. The record also showed that Mr. Abdulsalam Esq. Counsel for the Respondents was in Court on 12/03/2019 when the matter was further adjourned to 06/05/2019 for hearing. Since there was evidence of proof of service on the Respondents and no reason advanced for their absence Applicant was ordered to proceed with the matter. Earlier on 12/03/2019 Applicant?s counsel was granted 14 days to
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file and serve his written address. While Respondents? counsel asked for 10 days upon being served with Applicants written address to file and serve their written address.
Learned counsel for the Applicant moved the Motion on Notice dated 16/11/2018 and filed on 10/12/2018. Counsel submitted that applicant complied with the order of Court made on 12/03/2019 and filed his written address on 25/03/2019. Counsel adopted the written address as their oral argument in support of the application dated 16/11/2018 and urged the Court to grant same.
The applicants written address contained one issue for determination thus:
Whether or not this Honourable Court can extend time within which to compile and transmit record of appeal in respect of decision of High Court of Yobe State in Suit No. YBS/HC/PT/22CV/2014.”
In arguing this issue learned counsel for the Applicant submitted that by virtue of Section 241(1a) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and Section 24(2) (a) of the Court of Appeal, Act 2004 the right to Appeal is constitutional and statutory. Reliance placed on ACN v INEC (2013) 5 SCNJ
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328 @ 355. Counsel submitted that Applicant complied with the condition and procedure by seeking and obtaining leave of this Honourable Court to Appeal out of time as provided for under Order 7 Rule 10(1) and (2) of the Court of Appeal Rules, 2016. Counsel further submitted that Record of Appeal is an Appeal. That without transmission of record of Appeal, an Appeal will be valueless. That opposing an application for transmission of record of Appeal out of time is as good as opposing the right to Appeal. Counsel submitted that it is apparent from the Exhibits attached to the Respondent?s Counter-Affidavit dated 21st February, 2019 that the Respondent?s problem is related to the content of the record and not its transmission out of time. That the law is settled that an appellate Court and parties to the appeal are bound by the record of appeal. See Audu v FRN (2013)1 SCNJ 111 @ 121-122. Counsel submitted that in the instant case, the appropriate step for the Respondents to rebut the presumption of genuineness of the record is not by opposing this motion. That the Court of Appeal Rules, 2016 has adequate guidance as to what a party having problem with
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the record of appeal as transmitted by the appellant should do. That Respondents should know what to do in the circumstances. He urged the Court to grant the application
.
Apart from filing the counter affidavit. Respondent did not comply with the order of Court made on 12/03/2019 to file written address within 10 days of receipt of Applicant?s written address. There was also no pending application for extension of time to regularize same. In short there was no written address filed by the Respondents and they did not appear in Court. In the circumstances the Court has no option but to consider only the written address filed by the Applicant. I have considered the submission of applicant?s counsel as contained in the written address, the affidavit in support of the application as well as the further affidavit. The counter-affidavit is also before the Court, so I read through same. The applicant is seeking for enlargement of time to compile and transmit record of appeal to this Court as provided under Order 6 Rule 9(1) and (2) of the Court of Appeal Rules, 2016. Order 6 Rule 9 provides thus:
1. The Court may enlarge the time provided
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by these Rules for the doing of anything to which these Rules apply except as it relates to any step or action under Order 16.
2. 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 prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.
By Order 8 Rule 1 and 4 of the Court of Appeal Rules, 2016 the applicant has 90 days to compile and transmit record of appeal to this Court. It is evident from this application that Applicant did not compile and transmit the Record of Appeal within the time stipulated by the rules hence this application. SeeEdiru v FRSC (2016) 4 NWLR (Pt.1502) 209 at 233 paras B-D. The grant of this application involves a discretionary remedy, which must be exercised judicially and judiciously. Applicant must show by affidavit evidence that he has good and substantial reasons for failure to transmit the record of appeal within the
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prescribed period. The applicants affidavit in support and the further affidavit contained reasons why he did not act timeously. It is pertinent at this stage to note some of the relevant paragraphs of the further affidavit, particularly paragraphs 3(a) (l), paragraphs 3(a) (l) provides:
3. That I was informed by Ibrahim M. Attahiru, Esq. of counsel in our office on 18th March, 2019 at 4: 30P.M in the course of briefing on this application and I verily believe his information to be true as follows:
a. The Applicant was the plaintiff before the trial High Court of Yobe State sitting at Postikum in two different suits. Suit No. YBS/HC/PT/21CV/2014 and Suit No. YBS/HC/PT/22CV/2014.
b. At the conclusion of the cases the trial High Court delivered its Judgment in the two suits against the Applicant on 6th February, 2017.
c. The Applicant filed Appeal No. CA/J/243/2017 against the Judgment in Suit No. YBS/HC/PT/22CV/2014.
d. The Applicant also filed Appeal No. YBS/HC/247/2017 against the Judgment in Suit No. YBS/HC/PT/21CV/2014.
e. This Honourable Court eventually heard and dismissed appeal No.
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CA/J/245/2017.
f. Appeal No. CA/J/243/2017 which is between the parties herein was eventually found defective and struck out.
g. The Applicant went back and put his house in order. He sought and obtained leave of this Honourable Court vide Motion No. CA/J/257M/M/2018 to Appeal out of time against the decision in Suit No. YBS/HC/PT/22CV/2014.
h. After obtaining the leave, the Applicant filed the instant Appeal No. CA/J/407/2018.
i. The Applicant now seeks for leave to compile and transmit the record of appeal out of time.
j. That the record of appeal which the Applicant now seeks for leave to transmit out of time is the same record of appeal in Appeal No. CA/J/243/2017 and was served on the Respondents vide Motion dated 15th August, 2017 and filed 11th September, 2017 which also sought for leave to transmit record out of time.
k. That the record of appeal is in possession of the Respondents since 2017.
l. That the content of Notice of Appeal in Appeal No: CA/J/243/2017 and Appeal No. CA/J/407/2018 is the same except that there are only two respondents in the matter.
The applicant had advanced good reasons
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in the further affidavit as to why he could not compile and transmit the record within the prescribed period. The Respondents in paragraph 6(d) of the counter affidavit admitted that the Court of Appeal heard and determined Appeal No. CA/J/245/2017 in Suit No. YBS/HC/PT/21CV/2014. This means the present appeal is yet to be determined as explained by the Applicant. The complaint of the Respondents are reflected in paragraph 6(e) and (f) of the counter-affidavit. The
