MR. INNOCENT NWEKE & ORS V. THE INSPECTOR GENERAL OF POLICE & ORS
(2013)LCN/5900(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of February, 2013
CA/PH/160m/2009
RATIO
EVIDENCE: AFFIDAVIT EVIDENCE: AN OPPOSING PARTY HAS THE DUTY TO CONTROVERT FACTS IN AN AFFIDAVIT BY WAY OF A COUNTER AFFIDAVIT
“It is trite law that where facts provable by affidavit evidence are duly deposed to in an affidavit by a party to a suit, his adversary has a duty to controvert those facts in a counter affidavit if he disputes them otherwise such facts may be regarded as duly established. See NNPC & Anor. v. Famfa Oil Ltd. (2012) 2 LPELR 7812 SC.” Per ADAH, J.C.A.
APPEAL: ENLARGEMENT OF TIME: NECESSARY INGREDIENTS FOR ENLARGEMENT OF TIME
“Under the Rules of this Court 2011, Order 7 Rule 10(2) earlier cited, it is required that an application for enlargement of time within which to appeal be supported by an affidavit setting forth good and substantial reasons for failure to appeal within time prescribed and by grounds of appeal which prima facie show good cause why the appeal should be heard. These two parameters are, of necessity, the bedrock of every application for extension of time to appeal. These conditions have over the years been subjected to judicial scrutiny and have been settled as the basic requirements for consideration of an application for enlargement of time to appeal. In the case of Minister P.M.R v. EL (Nig) Ltd (2010) 12 NWLR (Pt.1208) 261, the Supreme Court held inter alia that:- It is settled law that for an Applicant to succeed in an, application under Order 3 Rule 4(2) of the Court of Appeal Rules) he must show the followings:- (a) Good and substantial reasons for the failure to appeal within the prescribed time and (b) Grounds of appeal which show good grounds why the appeal should or ought to be heard. It is also settled that both conditions must co-exist as it, is not sufficient to satisfy either of them.” Per ADAH, J.C.A.
APPEAL: EXTENSION OF TIME WITHIN WHICH TO APPEAL: EACH CASE HAS TO BE DECIDED ON ITS OWN PECULIAR FACTS AND CIRCUMSTANCES
“In determining application for extension of time within which to appeal, each case has to be decided on its own peculiar facts and circumstances. This is because the facts to be taken into consideration are inexhaustive. See Ikenta Best (Nig) Ltd v. Attorney General of Rivers State (2008) 6 NWLR (Pt.1084) 612.” Per ADAH, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
1. MR. INNOCENT NWEKE
2. MAXWELL NWEKE
3. KENNETH OKERE
4. FRANCIS NWEKE
5. GIFT OKERE Appellant(s)
AND
1. THE INSPECTOR GENERAL OF POLICE
2. THE A.I.G. ZONE 6 CALABAR
3. THE COMMISSIONER OF POLICE, R/S
4. UKONWA NWEKE
5. REGINALD NWEKE
6. CHIGOZIE NWEKE
7. DANIEL NWEKE
8. AZUBUIKE NWEKE
9. JOSEPH NWEKE
10. STEPHEN NWEKE
11. CHARLES NWEKE Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Lead Ruling): The Applicants by a motion on notice dated and filed on the 26th day of March, 2009 have sought for the following reliefs.
1. The Order of Court extending the time within which to file Notice and Grounds of Appeal against the Judgment of Hon. Justice A.W. Jumbo sitting at High Court No.16 Port Harcourt delivered on the 16th day of December, 2008 in suit No. PHC/431/2008 between Mr. Innocent Nweke, Maxwell Nweke, Kenneth Okere, Francis Nweke and Gift Okere Vs. The Inspector General of Police. The A.I.G. Zone 6 Calabar, The Commissioner of Police, Rivers State, Ukonwa Nweke, Reginald Nweke, Chigozie Nweke, Daniel Nweke, Azubuike Nweke, Joseph Nweke, Stephen Nweke and Charles Nweke.
2. An Order deeming the Notice of Appeal attached hereto and marked as EXHIBIT D as properly filed and served the proper filing fees having been paid.
3. AND for such further Order or Orders as this Honourable Court may deem fit to make in the circumstance.
The application is supported by a 17 paragraph affidavit deposed to by Dorothy Joel, a Litigation Assistant in the Chambers of the Learned Counsel for the Applicants. There are four Exhibits which are exhibits A, B, C and D, annexed to this affidavit. Exhibit A is the Certified True Copy of the Judgment delivered by Hon. Justice A.W. Jumbo of the Rivers State High Court, Port Harcourt Judicial Division on 16/12/2008. Exhibit B, is the application of the Learned Counsel for the Applicants to the Assistant Chief Registrar of the trial Court requesting for the CTC of the Judgment of the trial Court and it was dated 18th December, 2008. Exhibit C is another letter of request for the said judgment and it is dated – 3rd February, 2009. Exhibit D is the Notice of Appeal dated 16th March 2009 signed by Sir C.I. Enweluzo, Counsel to the Appellants.
This application was heard on 9th January 2013 by this Court. There is no counter affidavit from the Respondents contesting the facts in the affidavit in support of this application. It is trite law that where facts provable by affidavit evidence are duly deposed to in an affidavit by a party to a suit, his adversary has a duty to controvert those facts in a counter affidavit if he disputes them otherwise such facts may be regarded as duly established. See NNPC & Anor. v. Famfa Oil Ltd. (2012) 2 LPELR 7812 SC.
The law is therefore settled that deposition in an uncontroverted affidavit are deemed to be admitted and no the Court is entitled to rely on them as representing the true position of the facts deposed therein. See the case of Amgbere v. Sylva (2007) 18 NWLR (Pt.1065) 1 30 – 31.
In the instant case, the only evidence before the Court is the affidavit of Dorothy Joel the Litigation Assistance in counsel’s chambers. There is no counter-affidavit to challenge the depositions therein. It is therefore taken as deemed admitted on the facts.
The business of the Court in this type of a situation is to go through the affidavit before the Court and to see if the facts in the affidavit are substantial enough to enable the Court exercise its discretion as contemplated or conceived by this application. The deponent in paragraphs 5, 6, 7 -15 of the affidavit deposed as follows:
5. That the trial Court, Honourable Justice A.W. Jumbo delivered its judgment on the 16th day of December, 2009 wherein he held that the Applicants fundamental rights have not been breached. Attached and marked EXHIBIT A is a certified true copy of the said judgment.
6. That being dissatisfied with the Judgment of the said Honourable Justice A.W. Jumbo, the Applicants instructed us to appeal against the said Judgment.
7. That I am informed by Sir C. I. Enweluzo of Counsel and verily believe him that:
(a) He applied for the certified true copy of the judgment of the Court as far back the 18th day of December, 2008. The said application is attached hereto and marked EXHIBIT B.
(b) That having been instructed by the said Sir C.I. Enweluzo of Counsel, I went severally to the Court in order to collect the Judgment of the Court so that our said Counsel could get the full of the Judgment and know the area and/or part of the said judgment to appeal against.
(c) That most unfortunately, in all the days I went to the Court, I was told that the Secretary of the trial Judge was suspended from office as a result of some actions he took that was considered affront to civilized values and dispensation of justice.
(d) That I discovered upon further inquiry that the said secretary to the judge – as part of the disciplinary measures against him- was suspended and thereafter his appointment terminated.
(e) That it took almost two months for the said Secretary to be replaced with another Secretary.
(f) That in desperation, our said Sir C. I. Enweluzo of Counsel wrote another letter requesting that the enrolled Judgment of the Court be given to him. This he did to no avail. Copy of the said second letter is attached hereto and marked EXHIBIT C.
8. That I know as a matter of fact that when I eventually met with the new Secretary of the trial Judge, she claimed that she had not been handed over anything by the last Secretary, hence I reported back to the said C.I. Enweluzo of Counsel.
9. That the Judgment was eventually typed when our said Counsel went with me and complained to the trial judge (i.e. Justice A: W. Jumbo).
10. That on receipt of the said judgment of Court, our C.I. Enweluzo settled the necessary processes and handed over to me for filing and traveled to Calabar where the Knights Order he belongs to (i.e. the Knights of St Mulumba) were having an activity.
11. That there were many Court Processes to be filed and using my Discretion, I took the Processes I thought were most urgent.
12. That on reporting to our said C. I. Enweluzo when he came back on the 18th day of March, 2009, he expressed his dismay to the effect that the Notice of Appeal ought to have been filed latest on the 17th day of March, 2009 and that we were now out of time.
13. That being out of time by one day, we had no alternative than to settle this application and file seeking now the Court’s leave to extend time within which to file the said Notice and Grounds of Appeal.
14. That we very much regret the failure in filing this Notice of Appeal within time.
15. That now shown to me and marked EXHIBIT D is a copy of the said Notice of Appeal.
From the facts deposed to in this affidavit the judgment of the trial Court was delivered on 16th December 2008. See paragraph 5 of the affidavit. It further showed that on 18th December 2008 the Appellant made a formal request for the Certified Copy of the judgment. But could not get it from the Court. He made a further request as in Exhibit C for the said record of the judgment. When eventually the Applicant got it Mr. Enweluzo assigned his Litigation Assistant in the Chambers to have the notice of appeal filed, but as a result of a mix-up the Litigation Assistant could not file the notice until he discovered that he was late a day after the statutory time to appeal expired, hence this application.
The time expired on 17th March 2009 and this application seeking for extension of time was filed on 26/3/09. Order 7 rule 10(2) of the Rules of this Court 2001 provides that:
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.
In the instant application the Applicant has explained in the affidavit circumstances that accounted for his failure to file appeal on time. He has also put forward his grounds of appeal which are the three grounds clearly listed in Exhibit D.
In determining application for extension of time within which to appeal, each case has to be decided on its own peculiar facts and circumstances. This is because the facts to be taken into consideration are inexhaustive. See Ikenta Best (Nig) Ltd v. Attorney General of Rivers State (2008) 6 NWLR (Pt.1084) 612.
Under the Rules of this Court 2011, Order 7 Rule 10(2) earlier cited, it is required that an application for enlargement of time within which to appeal be supported by an affidavit setting forth good and substantial reasons for failure to appeal within time prescribed and by grounds of appeal which prima facie show good cause why the appeal should be heard. These two parameters are, of necessity, the bedrock of every application for extension of time to appeal. These conditions have over the years been subjected to judicial scrutiny and have been settled as the basic requirements for consideration of an application for enlargement of time to appeal. In the case of Minister P.M.R v. EL (Nig) Ltd (2010) 12 NWLR (Pt.1208) 261, the Supreme Court held inter alia that:-
It is settled law that for an Applicant to succeed in an, application under Order 3 Rule 4(2) of the Court of Appeal Rules) he must show the followings:- (a) Good and substantial reasons for the failure to appeal within the prescribed time and (b) Grounds of appeal which show good grounds why the appeal should or ought to be heard. It is also settled that both conditions must co-exist as it, is not sufficient to satisfy either of them.
It is most certain that these conditions are necessary because issue of delays is becoming nauseating and irksome as it is almost becoming a past time of practitioners to wait until time has run out before they start coming to bother the Court. This is, part of the reason we are having congestion in our cause lists. The law and the Rules governing appeals are not meant to decorate our statute Books, they are meant to be obeyed and meticulously followed. Responsibility is placed on the shoulders of litigants to walk the tight rope of the law. This responsibility is what distinguishes a party who is diligent from the one that is delinquent. It is the correlative responsibility of the Court to ensure that issues of delay are not lightly treated. That is why reasons advanced for delays must be convincing delays must be convincing enough before the Court is called upon to exercise its discretion in favour of the Applicants.
Moreover, when time has run out against the would be Appellant, the Court called upon to extend time within which to appeal should always bear in mind that the Respondent has a certain accrued right to the Judgment being appealed.
See J.I.C. v. R.L. Import & Export (1988) 7 SCNJ 93 at 106; Williams v. Hope Rising Voluntary Fund (1982) 1 – 2 SC 145 at 152 – 153; Finding v. Finding (1939) 3 All ER 173 at 176 – 177.
On the issue of annexing the grounds of appeal, the desirability is located in the Court having a bird eye view of what the Applicant/Appellant is complaining about. Adekeye JSC in the case of Minister, P.M.R. v. EL (Nig) Ltd (supra) said:
“The grounds of appeal are the reasons for considering a judgment or decision of Court wrong. The purpose of the grounds is to isolate and accentuate, for attack, the basis of the reasoning of the decision being challenged. It is furthermore meant to give notice to the Respondent of the errors complained of. The grounds of appeal filed and argued should address themselves to and consider the facts of each particular case. Saraki v. Kotoye (1992) 9 NWLR (Pt.264 page 156; Peters v. State (1992) 9 NWLR (Pt.265) page 323. Kalu v. Uzor (2006) 8 NWLR (Pt.981) page 66”
It is settled therefore that grounds of appeal provide the mirror through which the Court takes a peep at the appeal. See Ikenta Best (Nig) Ltd v. Attorney General Rivers State (2008) 6 NWLR (Pt.1084) 612.
I shall therefore carefully look at the affidavit and the grounds of appeal in this application to serve fully the interest of justice in this case.
Although, there is no counter-affidavit in this application, since it is an application seeking equitable relief, the Applicant needs to justify his application by putting forward facts and possibly figures that will convince the Court that this application should be granted.
The affidavit in support of this application was deposed to by Dorothy Joel the Litigation Assistant in the Chambers of the Applicant’s Counsel. He deposed that his own error was partly responsible for the failure to file within time in addition to the initial delay from the trial Court in releasing the copy of the Judgment.
In Minister, P.M.R. v. EL (Nig.) (supra), the Supreme Court held that:
“It is trite that inability to secure a copy of judgment or ruling generally is not a reason for failure to file an appeal within the time presented by law. Idris v. Audu (2005) 1 NWLR (Pt.908) page 612.”
The Court held further that:
It is not enough for the Applicant to merely state that he did not receive a certified copy of the judgment appealed against on time. The Applicant must further state the date when he made an application for the certified copy of the judgment and a copy of the letter for such application must be attached to the affidavit in support of the extension of time to appeal.
See also the case of Ayinla v. SCOA 20 NLR 154.
This was well explained in the affidavit and since there is no adverse fact controverting the deposition therein. I have no reason to disbelieve the facts deposed by the deponent. I have also looked at the three grounds of Appeal. They are all related to the enforcement of the fundamental right of the Applicants.
Fundamental Rights are rights that are not only basic to the citizens; they are rights that have been entrenched in Chapter IV of the 1999 Constitution of Federal Republic of Nigeria. These rights are sacrosanct and very important to everyone within the borders of Nigeria. These rights are moulded into freedom blocks that fence the citizen from forces of unbridled aggression, oppression, repression, and authoritarianism. Where these rights are to be enforced in Court the Court within reasonable limits must do all that is necessary to cause a flourishing of these rights. It is with due deference to this ideal my Lords, that I feel inclined to indulge the Applicant in this application for extension of time. Since it has to do with the fundamental right of the Applicants. I believe, it is substantial enough to grant the Applicants the indulgence to appeal out of time.
I hold therefore that this application is meritorious and it is hereby granted.
Time is therefore extended for the Applicants to file their appeal within seven days from today.
MOHAMMED LADAN TSAMIYA, J.C.A.: I have had the advantage of reading in draft the Ruling of my learned brother ADAH, J.C.A. As it was for the same reasons that I agreed that the application should be allowed. I adopt his reasons for the ruling as mine.
EJEMBI EKO, J.C.A.: The discretion we have been called upon to exercise in this application is the one under Order 7 Rule 10 of the Court of Appeal Rules, 2011. The applicant was late by one day to file his notice of appeal. The notice of appeal containing the grounds of appeal is Exhibit “D” to the supporting affidavit.
The grounds of Appeal in Exhibit “D” show good cause for the hearing of the appeal. The facts averred in the supporting affidavit stating the reason for delay suggest mistake or inadvertence of the solicitor’s chambers clerk. The facts are not challenged or controverted. They are accordingly taken as admitted and or established. I have no cause to disbelieve the deponent of the affidavit.
Order 7 Rule 10(1) Rules of this Court, 2011 and Section 24(4) Court of Appeal Act vest discretion in this Court to extend time for filing Notice of Appeal after the lapse of the time prescribed by Section 24 of the Court of Appeal Act. Rule 10(2) of the said Rules, however, requires the applicant not only to show that he has good cause for the appeal to be heard, but also good and substantial reason for the delay. Both conditions are conjunctive. The applicant has satisfied me in both. This application deserves to be and it is hereby granted.
I am in complete agreement with the ruling just delivered by my brother, S. J. ADAH, JCA. I hereby adopt the ruling including all consequential orders therein.
Appearances
V.N. AyoguFor Appellant
AND
Respondent absentFor Respondent
