MR. DAVID SAGUA NKUE v. ENGR. HAPPY BIEBELE WAKAMAR & ORS
(2019)LCN/13312(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 21st day of May, 2019
CA/PH/178M/2018(R)
JUSTICES
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
MR. DAVID SAGUA NKUE Appellant(s)
AND
ENGR. HAPPY BIEBELE WAKAMAR & 4 ORS Respondent(s)
RATIO
REQUIREMENTS FOR AN APPLICANT SEEKING LEAVE TO APPEAL OUTSIDE THE PRESCRIBED PERIOD
An applicant seeking for leave to appeal outside prescribed period requires to seek for the trinity prayers i.e. extension of time within which to apply for leave to appeal, leave to appeal and extension of time within which to appeal. By Order 6 Rule 7 of the Court of Appeal Rules 2016, the application for leave to appeal from a decision of lower Court shall contain the notice of motion, a certified true copy of the decision of the Court below sought to be appealed against, a copy of the proposed grounds of appeal and where leave has been refused by the lower Court, a copy of the order refusing leave. The applicant has exhibited the Judgment of the lower Court sought to be appeal against and marked same as Exhibit 1, a copy of the notice and grounds of appeal, and a certified true copy of the Judgment of this Court in CA/PH/227/2014 – MR. DAVID SAGUA NKUE V. ENGR. HAPPY BIEBELE WAKAMAR & ANOR. PER LAMIDO, J.C.A.
WHETHER OR NOT A PUBLIC DOCUMENT REQUIRES CERTIFICATION
The law is well settled that a public document requiring certification must be so certified before any value can be ascribed to it. Where the document is not certified at all, that non certification has robbed same of any evidential value. See WEST AFRICAN OIL FIELD SERVICES LTD V. GREGORY (2019) LPELR 47292; SHAGAYA & ANOR V. USENI & ORS (2015) LPELR 25822 and BANKOLE V. BANKOLE (2012) LPELR 7988. PER LAMIDO, J.C.A.
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated 26th June 2018 but filed on 28th June 2018, the applicant prays the Court for the following orders:-
1. An order of this Honourable Court extending time within which the applicant may seek the leave of this Honourable Court to appeal against the decision of the High Court of Rivers State, Nchia Judicial Division in Suit No NHC/4/57/2004 ? Engr. Happy Biebele Wakama & Anor V. Mr. David Sagma Nkue delivered on 8th April 2013 Coram: Honourable Justice S. O. Iragunima.
2. An order of this Honourable Court granting leave to the Applicant to the appeal against the decision of the High Court of Rivers State, Nchia Judicial Division in Suit No NHC/4/57/2004 ? Engr. Happy Biebele Wakama & anor V. Mr. David Sagma Nkue delivered on 8th April 2013 Coram: Honourable Justice S. O. Iragunima.
3. An order for extension of time within which to file Notice and Grounds of appeal against the decision of the High Court of Rivers State, Nchia Judicial Division in Suit No NHC/4/57/2004 ? Engr. Happy Biebele Wakama & Anor V.
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Mr. David Sagma Nkue delivered on 8th April 2013 Coram: Honourable Justice S. O. Iragunima.
4. And for such further orders as this Honourable Court may deem fit to make in the circumstances of this appeal in the interest of doing substantial justice;
The applicant states the grounds for making the application. It is supported by a 13 Paragraph affidavit with 5 annexure.
Upon being served, the respondent did not file any counter affidavit and did not even appear at the hearing of the application. The application?s counsel Isah Seidu, Esq moved the motion in terms and urge the Court to grant the application as prayed.
?
The brief facts leading to this application are that on 8th April 2013, the High Court of Rivers State Nchia Judicial Division in Suit No NHC/4/57/2004 entered Judgment in favour of the respondents and being aggrieved, the applicant appealed against the said decision on 4th July 2013. Upon the compilation and transmission of the record of appeal on 21st March 2014, counsel for the appellant then, did nothing to regularize the compiled record which was transmitted out of time and on 27th April 2018 this Court struck out the
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appeal on ground of failure to compile and transmit record within the time prescribed by law. As a result of that decision, the applicant is out of time and can only file his appeal upon a grant of the trinity prayers. Counsel relied on UGBOAJA V. AKITOLA – SOWEMIMO (2008) 16 NWLR (PT 1113) 278 and urge the Court to grant the application as prayed.
It is to be understood that the applicants appeal was struck out by this Court on 27th April 2018 on the ground that the record of appeal was compiled and transmitted outside the period stipulated by Order 8 Rules (1) and (4) of the Court of Appeal Rules, 2016. The issue is whether an appeal that is dismissed for failure to compile and transmit record of proceedings can be re-filed against in other words, the issue for determination is whether the applicant?s reliefs are grantable in view of Order 6 Rule 7 of the Court of Appeal Rules 2016.
It is to be noted that upon a calm perusal of the Judgment of the lower Court sought to be appealed against, it can be seen that the said judgment has not been certified as required by Order 6 Rule 7 of the Court Of Appeal Rules. It is not in dispute that exhibit 1 which is the Judgment of the Court below is a public document within the meaning and purview of Section 102 of the Evidence Act 2011 which provides that ?the following documents are public documents (a) documents forming the official acts or records
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of the official acts of (i) the sovereign authority; (ii) official bodies and tribunals; or (iii) public officers, Legislative, Judicial and Executive. Whether of Nigeria or elsewhere and (b) public records kept in Nigeria of private document?. Therefore a copy of a Courts Judgment is secondary evidence which may be given in certain circumstances. Section 89 of the Evidence Act provides that:
(89) secondary evidence may be given of the existence, condition or contents of a document when ?
(a) —————
(b) —————
(c) —————
(d) —————
(e) The original is a public document within the meaning of Section 102.
(f) The original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria, to be given in evidence.
A copy of the Judgment of the Court below annexed must be certified in compliance with Section 104 of the Evidence Act and it is only after the certification of the document in accordance with Section 104 that the contents of such public document or parts of the public document may be produced in proof of the contents of the public
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document or parts thereof. See Section 105 of the Evidence Act; ARAKA V. EGBUE (2003) LPELR 532; NUHU V. SALEH & ORS(2014) LPELR 24616 and GAU V. GAU (2014) LPELR 24199. The Judgment of the Court below annexed to this application has not been certified by any officer authorized to do so. It is not in compliance with the provisions of Section 89, 103,104 and 105 of the Evidence Act and Orders 6 Rules 7 of the Court of Appeal Rules 2016.
The law is well settled that a public document requiring certification must be so certified before any value can be ascribed to it. Where the document is not certified at all, that non certification has robbed same of any evidential value. See WEST AFRICAN OIL FIELD SERVICES LTD V. GREGORY (2019) LPELR 47292; SHAGAYA & ANOR V. USENI & ORS (2015) LPELR 25822 and BANKOLE V. BANKOLE (2012) LPELR 7988. In the application at hand, since there are clear infractions of the provisions of the Evidence Act and Order 6 Rules 7 of the Court of Appeal rules on certification of exhibit 1, it follows therefore that the application before us is not brought in line with the law and procedural rules.
?In the circumstances,
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the application before us is incompetent for failure to certify the Judgment of the lower Court sought to be appealed against. On this ground alone, the application is devoid of any merit and it is liable to be and is hereby struck out. Consequently, CA/PH/178m/2018 is hereby struck out and the miscellaneous appeal No. is hereby deleted.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft the judgment delivered by my learned brother Abubakar Muaza Lamido, JCA.
I agree entirely with the reasoning and conclusion reached therein by my learned brother.
The absence of certification on the face of any public document such as Exhibit 1 herein annexed to the affidavit in support of instant motion, Impugns the authenticity of the said document. The provisions of Order 6 Rule 7 of the Court of Appeal Rules, 2016 makes it imperative that any application for leave to appeal against the decision of a lower Court ?shall? be accompanied by:
(b) a certified true copy of the decision of the Court below sought to be appealed against.
?By reason of the foregoing, the motion before us which is devoid of a certified
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true copy of the judgment of the lower Court incompetent. The said motion No. CA/PH/178M/2018 is hereby struck out and the miscellaneous Appeal No. deleted.
No order as to costs.
MOHAMMED MUSTAPHA, J.C.A.: I had the preview of the lead Ruling just delivered by my learned brother ABUBAKAR MUAZU LAMIDO JCA.
The Application lacks merit and it is hereby struck out. I abide by the consequential Orders in this appeal.
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Appearances:
Isah Seidu, EsqFor Appellant(s)
For Respondent(s)
Appearances
Isah Seidu, EsqFor Appellant
AND
For Respondent
