PTE. VICTOR JONAH v. THE NIGERIAN ARMY
(2015)LCN/7786(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of February, 2019
CA/J/214C/2018(R)
RATIO
COURT: COURT’S DISCRETION; THE FACTORS THAT GOVERNS THE QUESTION OF EXERCISE OF DISCRETION
Let me quickly say that it is a familiar and settled concept that the question of exercise of discretion is governed by several factors. The factors are not constant but changes with changing circumstances and facts. They cannot be said to be immutable and applicable for all times. Hence the Court cannot be bound by previous decisions to exercise its discretion in a particular way so as not to put an end to the exercise of discretionary power. A judicial discretion ought to be founded upon facts and circumstances presented to the Court and from which the Court will draw a conclusion governed by the law. Generally it must be exercised honestly and in the spirit of the statute otherwise the act done will not fall within the dictate of the law. For the foregoing,see the following cases. IBEGWURA ONDU AZUBUIKE V. PDP & ORS. LPELR (2014) SC 476, HALIRU V. FRN. (2008) ALL FWLR (PT. 425) 1697 AT 1726 ? 1727., IDEOZU V. OCHOMA (2006) 4 NWLR (PT. 970) 364. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.
PRACTICE AND PROCEDURE: THE NEED FOR AFFIXING OF STAMP; THE PURPOSE OF THE NEED FOR AFFIXING STAMP AND WHO BEARS THE PUNISHMENT FOR THE FAILURE TO DO THE SAME
The need for affixing stamp in my view is to ensure that legal practitioners pay their subscription promptly to their association and to prevent non professionals from parading themselves and acting like legal practitioners. Where therefore, legal practitioner fails to comply with this code of conduct, it will be unjustitiable to punish the client. See OGBUANYINYA V. OKUDO (NO 2) (1990) 4 NWLR (PT.146) 551 at 560 ? 571. I also agree with the Applicants? counsel that the shortcoming can be remedied if the application is granted and before the filing of the notice of Appeal. See TODAY?S CARS LTD V. LASACO ASSURANCE PLC & ANOR (2016) LPELR 41260 AND EMECHEBE V. CETO INT?L (NIG) LTD. (2018) 11 NWLR (PT. 1631) 520 at 534. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.
PRACTICE AND PROCEDURE: AVERMENTS IN A AFFIDAVIT OF A PARTY; THE EFFECT OF THE FAILURE OF A PARTY TO CHALLENGE THE AVERMENTS IN AN AFFIDAVIT OF A PARTY
The law is trite that averments in an affidavit of a party which are neither challenged nor controverted by his adversary are deemed admitted and the Court must act on those undisputed averments as the truth of the fact deposed to. See NEKA B.B.B. MANUFACTURING CO LTD VS. ACB (2004) 2 NWLR (PT. 858) 521at 550 ? 551 LAWSON JACK V. SHELL (2002) 12 MJSC 114 at 125, OKONKWO V. KPAJIE (1992) 2 NWLR (PT. 226) 633, OGOEJEOFO.V. OGOEJEOFO (2006) 3 NWLR (PT. 966) 205, SENATOR ABUBAKAR SADDIQ YARDUA & ORS V. SENATOR ABDU UMAR YANDOMA & ORS (2014) LPELR ? 24217. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.
JUSTICES
TANI YUSUF HASSAN 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
2013NA/69/0646 PTE. VICTOR JONAH Appellant(s)
AND
THE NIGERIAN ARMY Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Lead Ruling): By way of a motion on notice brought pursuant to Section 6 (a) & (b) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), Section 183 of the ARMED FORCE ACT, 2004 and the inherent jurisdiction of this Court, the applicant is seeking for the following Order:
(1) An Order of this Honourable Court extending time within which the Appellant/Applicant may apply for leave to appeal against the judgment of the said General Court-Martial sitting at 7 Division Nigeria Army, Maiduguri, Borno State delivered on 24th day of March 2017 and confirmed on 30th June, 2017.
(2) AN ORDER of this Honourable Court granting leave to the Appellant/Applicant to appeal against the Judgment of the General Court-Martial sitting at 7 Division Nigeria Army, Maiduguri, Borno State delivered on 24th day of march 2017 and confirmed on 30th June, 2017.
(3) AN ORDER of this Honourable Court extending time within which the Appellant/Applicant may file an Appeal out of time against the Judgment of the General Cout-Martial sitting at 7 Division Nigeria Army Maiduguri, Borno
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State delivered on 24th day of March, 2017 and confirmed on 30th June, 2017.
(4) AND FOR SUCH FURTHER or other Orders as the honourable Court may deem fit to make in the circumstance.
The grounds upon which the application is predicated are:
(1) That due to the incarceration of the Appellant/Applicant in the Military police guard room, access was not given to the Appellant/Applicant to reach out to him Counsel when the confirmation of his sentence was conveyed by the confirming authority.
(2) That it was weeks later after the appellant/Appellant had been taken to the Nigeria Prison, Maiduguri that he could through the welfare department of the said prison, contact his lawyer and informed him of the confirmation of the sentence/Judgment of the General Court-Martial.
(3) The leave of this Honourable Court ought to be obtained before the judgment of the Court below could be appealed against.
(4) That the Applicant is out of time to seek leave of this Court to Appeal against the judgment of the Court-Martial and as such the order of this Court to extend time for the said leave is required.
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The application is supported by an affidavit of six paragraphs sworn to by James Jonah, a brother of the applicant and the certified true copy of the Judgment of the Court Martial marked as Exhibit ?A? and the proposed notice of appeal marked Exhibit B.
In response, the Respondent filed a counter affidavit of five paragraphs opposing the application.
Written addresses were ordered by this Court and filed by respective Counsel. The applicant?s written address was filed on 1st November, 2018 and that of the Respondent was filed on the 7th November, 2018.
The gist of the fact leading to this application is that the applicant a private soldier with service number 2013NA/69/0646 serving at Unit Bn and attached to 26 TF Bde Gwoza was arraigned before the General Court Martial which sat at 7 Division Nigerian Army Maiduguri Borno State on a three Counts charge for having unlawful carnal knowledge of Miss Hauwa Mohammed who and is said to be below the age of 16 years. He pleaded not guilty. He was tried, found guilty and sentenced to two years imprisonment on Count two, discharged and acquitted on Counts one and three respectively.
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The judgment of the trial General Court Martial was confirmed by the confirming authority as provided by Section 141 (2) and 152 (1) (a) of the Armed Forces Act on 30th day of June, 2017.
The applicant is desirous of appealing against his conviction and sentence. Being out of time to appeal hence this application upon which this ruling is predicated.
Parties were ordered to file their written address. In the applicant?s address he distilled the following issues for determination.
(1) Whether the grounds of appeal discloses recondite issue to be tried.
(2) Whether the Appellant signed the Notice of Appeal himself.
(3) Whether failure to affix seal and stamp renders the applications incompetent as to refuse the grant thereof.
In his own written address, the respondent distilled the following lone issue for determination:
?Whether the Appellant/Applicant?s application for extension of time to file an appeal is not incompetent.”
I have carefully read and compared the respective issues put forward by Counsel for the determination of this application. Looking at the three issues forwarded by the applicant,
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it is my view that the questions posed in the three issues would be answered by the sole question posed in the sole issue formulated by the Respondent which questions the competence of the application by the Applicant. For this reason, I adopt the sole issue formulated by the Respondent for the determination of this application. i.e.
“Whether the Appellant?s/Application for extension of the time to file an appeal is not incompetent.?
The argument of the applicant in support of the application is that the grounds of appeal are recondite and substantial. He referred to paragraph (a) of the particulars of errors to ground (Two) in the proposed Notice of Appeal which boarders on the right to fair hearing denied to the applicant by the Court Martial and which violated the provision of Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999. (as amended). He cited the case of MUSA V. STATE (2017) 4 NWLR (PT. 1555) 187 AT 207 PARA (C-D).
To this, he argued that the Court martial failed to ask the Applicant the language that he understands. This constitutes a breach to the applicant?s fundamental right to fair hearing.
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He relied on the case of AKEEM V STATE (2017) 18 NWLR (PT. 1597) 311. He contended that the issue of fair hearing is so cardinal as to guarantee the Applicant?s fundamental right. To deny the applicant of the right is to make a mockery of our judicial system. He added that if the issue of fair hearing is not recondite, he would not know what would be. Next is his argument on whether or not the applicant signed the Notice of appeal – as contended in paragraphs (d) and (e) of his Counter affidavit that the proposed Notice of Appeal was not signed by the Appellant himself because ?it is radically different from an earlier signature that he appended on his former, similar application.? He also attached Exhibit ?AR? to support his purported assertions. He submitted that the Respondent was trying to overeach the Court. He added that the Respondent is not an expert in signature so as to ascertain which signature belong to the Appellant. He added that there is no law in the Country that prescribes that a person can not have more than one signature. He argued that the complaint that the appellant did not personally sign the proposed
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Notice of Appeal as required is misleading. He submitted that if assuming the Applicant did not sign the propose notice, such will be inconsequential having regard to Order 17 Rule 4 (1), (5) & (6) of the Court of Appeal Rules 2016 which allows his legal representation to sign on his behalf. He relied on the case of OKWUOSA V. GOMWALK (2017) 9 NWLR (PT. 1570) 259 at 279 PARAS C ? D.
On the issue of whether failure to affix seal and stamp will render the application incompetent as to refuse the grant thereof. He submitted that failure to affix the seal and stamp does not invalidate the application. He said it is at best an irregularity which can be remedied by affixing the stamp and seal. To declare that such a process is incompetent will be taking technicality too far. He relied on the case of EMECHEBE V. CETO INT?L (NIG) LTD (2018) 11 NWLR (PT. 1631) 520 at 534 PARAS D ? E. He contended that the Respondent?s counter affidavit is a ploy to deny the Applicant an opportunity to be heard. He added that the depositions are spurious and should not be considered by the Court. He urged the Court to grant the application.
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On the part of the Respondent, it is submitted that the law is trite that an application for extension of time within which to appeal is not granted as a matter of course but at the discretion of the Court and which discretion should be exercised judicially and judiciously. He cited in aid the case of FRINAM NIG. SERVICES LTD V. UKUEKU (2006) 7 WRN 82. He submitted that the applicant has not placed the required material before the Court to warrant the exercise of the discretionary powers. He argued that the law requires the applicant to show good and substantial reasons for his failure to appeal within time. He contented that the only reason advanced for the delay is contained in paragraphs 3 (b) of his supporting affidavit. In the said paragraph, it is posited that the applicant was denied access to his lawyer when the judgment of the lower Court was confirmed on 30/7/2017. He submitted that the averment constitutes an hearsay and inadmissible by virtue of Section 38 of the Evidence Act 2011 (as amended). He argued further that the law requires the applicant to have grounds of appeal which prima facie, shows good cause why the appeal should be heard.
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He concluded that the applicant has failed to satisfy this requirements. It is not in the law that the lower Court ought to have asked the applicant the language he understood during trial. He added that the law is that the applicant ought to have quickly drawn the attention of the Court to the fact that he did not understand the language of the Court and the Court would have immediately got an interpreter for him free of charge. He submitted that ground five of the proposed ground of appeal is inherently weak and does not show good cause. Hence the two main requirements in an application for extension of time i.e. good and substantial cause reason for failure to appeal within time, and grounds of appeal which prima facie, show good cause why the appeal should be heard, have not been satisfied by the applicant in this application. He relied on the case of UNIVERSAL INSURANCE CO. LTD V. OSEMNENGIE & ORS (2006) 9 WNR 191 and EKUNOLA V. CBN (2006) 9 WRN 57 where the Court reiterated that these two conditions must co-exist and the Court must be satisfied on those two requirements before granting an application of this nature.
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He argued that the constitutional right of appeal is premised on the existence of disputable issues and that parties should obey the rules of Court especially those rules on extension of time to appeal. He relied on the following cases. EKUNOLA V. CBN (2006) 9 WRN 57 AND OGUNDIMU V. KASUNMU (2006) 41 WNR. 1. He argued that judgment was delivered on 24th March, 2017 and the application for enlargement of time was filed on 16th May, 2018 a period of one year and two months. He said the delay is inordinate and unreasonable, and it smacks of lack of seriousness and diligence on the part of the applicant. He added that undue delay may be fatal to the application even though length of delay is sometime immaterial. He referred to the case of MESAGAN V. GOVERNMENT OF ONDO STATE (2005) 12 WRN 98, GARBA V. UMMUANI (2013) 50 WRN 172., NOGA HOTELS INT?L V. NICON HOTELS LTD (2007) 41 WRN 125, PDP V. BALLANTYNE (2012) 17 WRN 85. Again, he argued that under Order 17 Rule 4 (1) of the Rules of this Court, a Notice of Appeal in Criminal cases must be signed by the Appellant himself and not by his legal practitioner except where under Rules (5) and (6) he is of unsound mind or a body corporate.
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He argued that the Notice of appeal was not signed by the Appellant. The signature on the notice is radically different from that of the accused which are on his former applications. He cited the case of UWAZURIKE V. A.G. FEDERATION (2007) 40 WRN 79. In addition to this he contended that the failure of the applicant to affix the mandatory NBA stamp/seal to the proposed Notice of Appeal, and his failure to first submit the proposed Notice of appeal for assessment as such, before he later got it assessed as an exhibit are all fatal to his application. He argued that the attempt to ?hammer? on the issue of fair hearing as a recondite or ?substantial issue? is of no moment. He relied on the case of AKEEM VS. STATE (2017) 49 WRN 1. Still on issue of fair hearing he concluded that dwelling extensively on the issue of fair hearing at this stage is unavailing. He added that the Court is not expected to delve into substantive issue at an interlocutory stage of proceedings. He relied on the case of BULLET INT. LTD. V. OLANIYI (2016) 42 WRN 28.
Finally he argued that the submission by the learned Counsel to the applicants that the Respondent are
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frantically trying to frustrate the grant of this application is erroneous. This he said is a recourse to the sentiment of the Court rather than strictly complying with the rules of the Court as reiterated in CHIEF OF ARMY STAFF V. ISAH (2017) 18 WRN 57. He referred to the case of ORIANZI V. A. G. RIVERS STATE (2017) 14 WRN 1. Where the apex Court said that justice done according to Law and not sentiments. The applicant should seek justice through the law and not through sentiment. He urged the Court to dismiss the application in the interest of Justice.
I have carefully read and considered all the processes filed for and against this application. With reference to the sole issue, the question that I consider germane in the circumstance of this application is whether or not the Court can grant the application.
By this application, the applicant is calling on the Court to exercise its discretion in his favour having regard to the fact contained in his supporting affidavit.
Let me quickly say that it is a familiar and settled concept that the question of exercise of discretion is governed by several factors.
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The factors are not constant but changes with changing circumstances and facts. They can not be said to be immutable and applicable for all times. Hence the Court cannot be bound by previous decisions to exercise its discretion in a particular way so as not to put an end to the exercise of discretionary power. A judicial discretion ought to be founded upon facts and circumstances presented to the Court and from which the Court will draw a conclusion governed by the law. Generally it must be exercised honestly and in the spirit of the statute otherwise the act done will not fall within the dictate of the law. For the foregoing,see the following cases. IBEGWURA ONDU AZUBUIKE V. PDP & ORS. LPELR (2014) SC 476, HALIRU V. FRN. (2008) ALL FWLR (PT. 425) 1697 AT 1726 ? 1727., IDEOZU V. OCHOMA (2006) 4 NWLR (PT. 970) 364.
Haven said this, I will look at the issues raised by the Respondent which in nature constitutes an objection to the competence of the application.
They are:
(a) Whether the grounds of appeal are recondite and substantial.
(b) Delay in filing the application (i.e. from March 2017 when the decision was delivered and May 2018 when the application was filed).
(c) That the applicant did not personally sign the Notice of Appeal)
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On the first issue dealing on whether or not the grounds of appeal are recondite, care has to be taken in going into the root of this ground of objection so as not to delve into the substance of the appeal. I am saying this with regards to the particulars to the grounds of Appeal which in substance is complaining of lack of fair hearing. See the particulars to grounds 1 & 2. In my view, they are premised on the rights of an accused person guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. It is trite that the Constitution is the grund norm and from which all other laws derive their source. On that note, I have no hesitation in coming to the conclusion that those grounds prima facie are grounds of law traceable to the provision of the 1999 Constitution of the Federal Republic of Nigeria. I will on that note decline to comment as both Counsel did in their respective brief on issue of right of an accused person to an interpreter or whether or not the Court ought to ask the accused the language he understands or whether
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it is the accused who should tell the Court the language he understands. Those are the issues to be determined in the appeal if granted the leave to appeal out of time.
What is next is the issue of signature. A quick look at Annexure ?B? which is the proposed notice of appeal reveal that a signature is appended in the column reserved for the signature of the Appellant. It therefore suggest prima facie that the said Notice and ground of appeal was signed. The question as to whether or not it is the Appellant who signed it will be a matter of evidence. See Section 93 of the Evidence Act 2011. Again I will restrict myself from commenting on the authenticity or otherwise of the signature. But stick to the fact that can be seen i.e. that a signature is appended on the column provided for the Appellant. On that note it could be said that the requirement and condition prescribed under Order 17 Rule 4 of the Rules of this Court is prima facie complied with.
I now come to the issue of stamp or seal. I have looked at the proposed notice of appeal.
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There is nothing suggesting the presence of any stamp or seal. What then is the consequence of this? In order to find an answer to this question the provision of the Rules of professional conduct for legal practitioners 2007 has to be examined. Rules 10 of the provision prescribe that the Nigeria Bar Association stamp and seal should be affixed on every document to be signed and filed by a legal practitioner. Where such is not done, such document will be deemed as not been properly signed or filed. The submission of the applicants Counsel on this is that it is an Omission on the part of the Counsel and the omission can be treated as mere irregularity. In this circumstance, the Appellant can not be said to be blame worthy. He has played his part by giving his brief to the Counsel who put together his complaint against the trial in the Notice of Appeal. His Counsel is the professional who should authenticate any process he deem necessary to pursue the bid of his client. The need for affixing stamp in my view is to ensure that legal practitioners pay their subscription promptly to their association and to prevent non professionals from parading themselves and acting like legal practitioners. Where therefore, legal practitioner fails to comply
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with this code of conduct, it will be unjustitiable to punish the client. See OGBUANYINYA V. OKUDO (NO 2) (1990) 4 NWLR (PT.146) 551 at 560 ? 571. I also agree with the Applicants? counsel that the shortcoming can be remedied if the application is granted and before the filing of the notice of Appeal. See TODAY?S CARS LTD V. LASACO ASSURANCE PLC & ANOR (2016) LPELR 41260 AND EMECHEBE V. CETO INT?L (NIG) LTD. (2018) 11 NWLR (PT. 1631) 520 at 534. Again in this circumstance, it can be seen as a mere omission because the same legal practitioner has the seal on his written address. The situation here can be distinguished from where the notice of appeal is filed without the seal. But for now the absence of the seal is on the Annexture christened Exhibit ?B?: Therefore, this does not affect the competence of the application. Accordingly I overrule the three grounds and hold that the application is competent before the Court.
?
What is next is the issue of delay in filing the application. The contention here is that the judgment of the General Court Martial was delivered on 24th day of March 2017 and confirmed on 30th June
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2017, but the application was not filed till June 2017. The response of the Applicant to this is contained in his deposition in paragraphs 3 (a) & (b) of the supporting affidavit which reads.
PARAGRAPH 3
?That I was informed by Victor Jonah (Applicant) in the maximum prison Maiduguri on 20th September, 2017 at about 10.00am and I verily believe him to be true as follows.
(a) That the Applicant was convicted by the General Court Martial sitting at 7 Division Nigerian Army, Maiduguri on 24th March 2017. The photocopy of the certified true copy of the judgment of the said judgment is hereby attached as Exhibit ?A?.
(b) That due to the fact that the Applicant was denied access to his lawyer when the said judgment was confirmed on 30th July, 2017, the applicant could not bring the application at the stipulated time allowed by the provisions of the Armed Forces Act 2004.”
?
I have read again and again the counter affidavit by the Respondent. In no where is there any averment denying the deposition of the applicant on the forgoing cause of delay. The law is trite that averments in an affidavit of a party which
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are neither challenged nor controverted by his adversary are deemed admitted and the Court must act on those undisputed averments as the truth of the fact deposed to. See NEKA B.B.B. MANUFACTURING CO LTD VS. ACB (2004) 2 NWLR (PT. 858) 521at 550 ? 551 LAWSON JACK V. SHELL (2002) 12 MJSC 114 at 125, OKONKWO V. KPAJIE (1992) 2 NWLR (PT. 226) 633, OGOEJEOFO.V. OGOEJEOFO (2006) 3 NWLR (PT. 966) 205, SENATOR ABUBAKAR SADDIQ YARDUA & ORS V. SENATOR ABDU UMAR YANDOMA & ORS (2014) LPELR ? 24217.
In the light of the foregoing, I have no hesitation in believing the applicant that due to his confinement, he could not contact his Counsel on time and hence the delay in filing the application. If that is so, I am also of the view that the averment in paragraph 3 of the supporting affidavit of the applicant herein before reproduced is sufficient to exercise the Court?s discretion in favour of the Applicant.
I therefore answer the sole question in the negative and resolve the sole issue against the Respondent. That is to say that the application for extension of time to file appeal is not incompetent.
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Accordingly, the application is granted in the following terms, and the objection thereto is overruled and dismissed.
(1) Time is extended for the Appellant applicant within which he may seek leave to appeal against the judgment of the General Court Martial sitting at 7 Division Nigeria Army, Maiduguri, Borno State delivered on 24th day of March, 2017 and confirmed on 30th June, 2017.
(2) Leave is granted to the Appellant/Applicant to appeal against the said judgment.
(3) Time is extended for the Appellant/Applicant to appeal against the said judgment.
(4) Appellant/Applicant to file the Notice of Appeal within 14th days from today the 15th day of February 2019.
There shall be no order for cost.
TANI YUSUF HASSAN, J.C.A.: I read before now the Ruling just delivered by my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA, I agree with the reasoning granting the application for leave to appeal against the judgment of the General Court Martial. I also overrule the objection and dismiss same.
BOLOUKUROMO MOSES UGO, J.C.A.: I am of the same opinion; I also grant the application and abide by the consequential orders contained in the leading judgment.
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Appearances:
P. J. Rimman, Esq. holding the brief of Jack Iyioku, Esq.For Appellant(s)
Y. M. Mikah Esq. holding the brief of Dr. Ndagi MusaFor Respondent(s)
Appearances
P. J. Rimman, Esq. holding the brief Jack Iyioku, Esq.For Appellant
AND
Y. M. Mikah Esq. holding the brief of Dr. Ndagi MusaFor Respondent
