TARI VANDIGHI v. SEBASTINE HALE
(2014)LCN/7228(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of May, 2014
CA/YL/58/2013
RATIO
REQUIREMENTS OF THE LAW IN THE EXERCISE OF DISCRETION BY THE COURT
In law, the issue of how and when a Court is to exercise its discretion is admittedly not one subject to any hard and fast rules or indeed any strictly defined principles of law, as otherwise discretion will cease to be discretion.
It is perhaps for the above germane reason more than any other reasons that the Courts are very reluctant to wade into or intervene to interfere with the exercise of discretion of a Court lower to the Court being called upon to review the exercise of the discretion by the lower court.
In law therefore, all that is required of a court in the exercise of its discretion is that in so doing, its discretion must be exercised judicially and judiciously. It must be an application of common sense to the set of facts and circumstances before it. See E.F.P.C Ltd V. NDIC (supra) at Pp. 825 – 826.
However, an exercise of discretion must not be done arbitrarily or in misapprehension of the facts before the court or indeed in a clear misconception of the applicable law to the given set of facts and circumstances before the Court. See Onyali V. Okpala (supra) at P. 303, see also Obi Eze V. AG River State (supra) at Pp. 31 – 32. per BIOBELE ABRAHAM GEORGEWILL, J.C.A
WHETHER A DELAY IN APPLYING WITHIN TIME CAN EXCUSED
The law is well settled that once a good reason have been proffered and made out to explain and justify or rather excuse the delay in applying within time, the issue of the length of time would not be allowed to be a clog in the wheel of doing substantial justice to the parties, more particularly so where there is the issue of jurisdiction sought to be raised against the judgment sought to be appealed against. See Ogundimu V. Kasunmu (supra) at Pp. 215 – 216, where the Supreme Court emphatically pronounced on the issue of length of time of delay thus:
“The length of time of delay is immaterial in the grant of an application for extension of time within which to appeal if it shows good cause why the appeal should be heard”. per BIOBELE ABRAHAM GEORGEWILL, J.C.A
EVIDENCE: COURT CONSIDERATION OF WEIGHTY EVIDENCE
In law, the duty imposed on a trial court is perfectly discharged once in arriving at its conclusion and finding of facts, the court considers the totality of the respective cases of the parties on the evidence adduced before it in order to determine which evidence has weight and which has no weight. This was what the Court below did perfectly well and came to the right conclusion that while the Respondent’s evidence had weight, the Appellant’s evidence remained unsubstantiated and thus without any weight. See Mogaji V. Odofin (178) 4 SC 91 at P. 95. per BIOBELE ABRAHAM GEORGEWILL, J.C.A
WORDS AND PHRASES: JUDICIALLY AND JUDICIOUSLY
The phrase “Judicially and judiciously” as is frequently used in the issue of exercise of discretion in several decided cases as are replete in the law reports, connotes two broad categories of meaning; namely:
(a) One that requires exercise of Judgment or choice of alternatives in its performance as in one that requires use of discretion. This is what simply put is meant “Judicially”
(b) One dictated by sound Judgment. This is what simply put is meant by “Judiciously”.
See Blacks Law Dictionary 6th Edition pages 848 and 850.
Now, from the above two distinct but ultimate utilitarian meaning of the phrase “judicially and judiciously”, it is now well settled law that an exercise of discretion not based on sound Judgment on a given set of facts and circumstance is not an exercise of discretion judicially and Judiciously.
In law therefore, any exercise of discretion not made judicially and judiciously is an exercise that is both faulty and unsupportable and if challenged can rightly, without much ado, be set aside. See Onyali V. Okpala (supra) at P. 303 Obi Eze V. A G of River State (supra) at Pp. 31 – 32. per BIOBELE ABRAHAM GEORGEWILL, J.C.A
EVIDENCE: HE WHO ASSERTS MUST PROVE
The law is and has always been that he who alleges must prove. See Section 131 – 133 of the Evidence Act 2011. See Osawaru V. Ezeruka (1978) 6 – 7 SC 135 at P. 145, Umeojiako V. Ezenamuo (1990) 1 NWLR (Pt. 126) 250; Ugbo V. Aburime (1993) 2 NWLR (Pt. 273) 101; Coker V. Adetayo (1992) 6 NWLR (Pt. 249) 612; Salawa Motor House V. Lawal & anor (2000) FWLR (Pt. 3) 517 at P. 521.per BIOBELE ABRAHAM GEORGEWILL, J.C.A
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
TARI VANDIGHI – Appellant(s)
AND
SEBASTINE HALE – Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Adamawa State High Court Delivered on 14/6/2013 by H. Abdurahman J., extending time for the Respondent, as Applicant before the Court below, to appeal against the decision of the Upper Area Court Michika, Adamawa State delivered on 14/10/2008.
The Appellant who was dissatisfied with the extension of time granted to the Respondent to appeal against the said decision of the Upper Area Court and appealed to this Court on two grounds of appeal vide the Notice and Grounds of Appeal filed on 27/6/2013.
By a Motion on Notice filed on 13/2/2013 before the Court below, the Respondent as Appellant therein had prayed the Court below for the leave of Court to appeal out of time against the decision of the Upper Area Court Michika in Suit No. MCUNC/CCVF1/16/2006: Tari Vandighi V. Sebastine Hale delivered on 14/10/2008 in favour of the Appellant as Plaintiff against the Respondent as Defendant.
It would appear that some times on 31/10/2011, the Respondent as Applicant had filed a Motion on Notice in Suit No. ADSC/7M/2011 seeking the leave of the Adamawa State High Court to appeal against the said decision of the Upper Area Court Michika. However, that application was subsequently withdrawn and struck out. See pages 33 – 38 of the record of Appeal.
On 13/2/2013, the Respondent as Applicant approached the Court below once again by a Motion on Notice dated 12/2/2013 and supported by affidavit but filed on 13/2/2013 seeking the following prayers;
(1) An order of Court granting the Applicant leave to appeal out of time.
(2) An order of Court enlarging/extending time within which the Appellant shall file and serve his Notice of and Grounds of Appeal.
(3) An order of Court deeming the Appellant’s Notice and Grounds of Appeal already filed and served as properly filed and served, necessary fees having been paid. See Pages 3 – 30 of the Record of Appeal.
On 23/4/2013, the Appellant as Respondent before the Court below filed his counter affidavit in opposition to the leave to appeal out of time sought by the Respondent as Applicant before the Court below.
On 5/6/2013, the Application was heard by the Court below and in a considered ruling delivered on 14/6/2013, the Court below found in favour of the Respondent as Applicant therein and granted the reliefs sought.
It is against the decision of the Court below granting leave to the Respondent as Applicant to appeal out of time against the decision of the Upper Area Court Michika delivered on 14/10/2008, that the Appellant has approached this Court in this Appeal on two grounds, which without their particulars are as follows; namely
Ground One
The learned trial judge erred in law and denied fair hearing to the Appellant (Respondent before the High Court) when she held:
” As to the issue of forgery and lies, it is trite that forgery has to do with criminal intent and its mere mention does not suffice without proof which is with all intent and purpose be beyond reasonable doubt as such I have discountenanced with that averment as argued by Respondent’s counsel”.
Ground Two
The learned Judge erred in law in granting extension of time to the Respondent to appeal against the decision of the Michika Upper Area Court.
In the Appellant’s brief of argument filed on 13/9/2013, the Appellant formulated a sole issue for determination as touching on the two grounds of Appeal. On his part, the Respondent in the Respondent’s brief filed on 4/4/2014 and deemed properly filed on 14/4/2014 also raised one issue for determination as touching on the two grounds of Appeal.
The sole issue for determination formulated by the Appellant is:
“Whether the Honourable Judge was justified in disregarding the grounds of lies and forgery on account of which the Appellant as (Respondent) opposed the Respondent’s motion for extension of time to appeal, holding that the Respondent met the requirements of the law for the grant of extension of time to appeal in the circumstances of the Respondent’s application?”
On his part, the Respondent differed in his sole issue for determination which is;
“Whether the Court below properly exercised its discretion in extending time within which the Respondent herein could appeal against the Judgment of the Upper Area Court Michika?”
In the Appellant’s brief, learned counsel to the Appellant, Roland Emem Esq, submitted that in law an Applicant for extension of time must, in order to succeed, give good reasons why he did not appeal within time and also show that there are prima facie good grounds to be canvassed in the appeal. Counsel relied on Kotoye V. Saraki (1995) 5 SCNJ 1; Ibodo V. Enarofis (1980) 5 – 7 SC 42.
Learned counsel submitted further that good reasons can only mean reasons that are founded on truth and credible evidence but certainly not reasons that are concocted lies backed by forged and dubious documents.
Learned counsel submitted that on the affidavit evidence of the Respondent the main reason for the delay in filing the appeal was not the inadvertence of counsel to the Respondent but rather the alleged illness of the Respondent immediately after the judgment of the Upper Area Court Michika was delivered on 14/10/2008 and contended that Exhibit B, the Medical Outpatient card did not bear this reason out as it was issued on 16/4/2008 for a sickness allegedly treated in October 2008. He referred to page 19 of the record of Appeal.
Learned counsel also submitted that in an earlier application for leave by the Respondent he had exhibited yet another Outpatient Card issued in his name but as a female to be admitted in the Female Ward and contended that it was clear that the Respondent was lying and thus the Outpatient cards relied upon were not genuine. He referred to pages 31 – 38 of the Record of Appeal.
Learned counsel further submitted that the Medical Report in Exhibit B1 relied upon by the Respondent at the Court below was also not genuine but very doubtful as it was not dated or addressed to anybody and was also signed without any official stamp and yet the Court below evaluated such lies and forgeries and came to the conclusion that the Respondent met the requirements for the grant of the relief of extension of time when the Appellant had proved beyond reasonable doubt the lies and forgeries of the Respondent.
Learned counsel finally urged the Court to hold that the Court below erred in law in coming to the conclusion that the Respondent had proffered good reasons for not appealing within time against the judgment of the Upper Area Court Michika, when the reasons proffered were based on lies and forgery and prayed the Court to allow the appeal.
On his part, in the Respondent’s brief filed on 4/4/2014 but deemed properly filed on 14/4/2014, learned counsel to the Respondent M.P. Atsev Esq, submitted that from the Grounds of Appeal and the arguments canvassed in the Appellant’s brief, it is clear that the applicant is simply challenging the exercise of the discretion of the Court below and contended that in law the exercise of discretion can only be challenged where it is not exercised judicially and judiciously. Counsel relied on E.F.P.C. Ltd V. NDIC (2007) All FWLR (Pt. 367) 793 at Pp. 825 – 826.
Learned counsel to the Respondent submitted that the Court below exercised its discretion judicially and judiciously and thus cannot be faulted in that the allegation of lies and forgery made by the Appellant are criminal in nature but were not proved beyond reasonable doubt as required by law. Counsel relied on Bamikole V. Oladele (2011) All FWLR (Pt. 562) 1699 at P. 1715.
Learned counsel also submitted that the Appellant merely alleged such criminal wrong doings against the Respondent without proffering any iota of proof in support of such criminal allegations and contended that in law reliance cannot be placed on earlier motions already withdrawn and struck out before the Court in another application. Counsel relied on Bayel V. Ahemba (1999) SCNJ 223.
Learned counsel further submitted that one of the grounds of appeal for which leave was sought to appeal out of time was on jurisdiction and contended that in law a ground of jurisdiction is a prima facie good ground for which the leave of Court to appeal out of time is usually granted.
Learned counsel finally submitted that in law once an Applicant for leave to appeal out of time has satisfactorily explained the reason for the delay, the length of time of delay is immaterial and contended that the Right to Appeal is a Constitutionally guaranteed Right to the citizen and cannot be lightly denied on unsubstantiated allegations and prayed the Court to dismiss the appeal. Counsel referred to Section 241 of the Constitution of the Federal Republic of Nigeria 1999 as amended and relied on Ogundimu V. Kasunmu (2006) All FWLR (Pt. 326) 201 at Pp. 215 – 216; EFPC Ltd V. NDIC (supra) at P. 828.
Learned counsel also drew the attention of the Court to the Appellant’s Reply brief and submitted that the reference to S. 129 (6) of the Evidence Act 2011 was a new issue which should be discountenanced.
In the Appellants’ Reply brief filed on 22/4/2014, learned counsel to the Appellant submitted that the exercise of discretion by the Court below is not completely unfettered but is the application of common sense based on given set of facts and attendant circumstances and contended that an exercise of discretion based on misapprehension of facts and/or misconception of law cannot be allowed to stand in the interest of justice. Counsel relied on Ideozu & Ors V. Chief Ochoma & 2 Ors (2006) All FWLR (Pt. 308) 1183 at P. 1207; Onyali V. Okpala (2001) 1 NWLR (Pt. 694) 282 at P. 303, Obi Eze V. Rivers State Government & Anor (2001) 12 SC (Pt. II) 21 at Pp. 31 – 32.
I have taken time to go through the Record of Appeal. I have also taken time to review and consider the Grounds of Appeal and the respective sole issues for determination together with the submissions thereon by counsel to the respective parties in this appeal. I have also taken time to read through the decided cases relied upon by the respective counsel.
Now, upon an anxious consideration of all the above, particularly the facts and circumstances of this Appeal and the ruling of the Court below appealed against, I am of the view that the only issue for determination in this appeal is the sole issue as formulated by learned counsel to the Respondent, which in my view is more apt and indeed covers both the sole issue as formulated by learned counsel to the Appellant and the two grounds of Appeal and is thus preferable to the sole issue as formulated by learned counsel to the Appellant, which appears a little inelegant.
However, before proceeding to consider the merit of the appeal, there is the preliminary issue whether the Appellant’s Reply brief contained new issues which ought to be discountenanced as urged upon the Court by the learned counsel to the Respondent at the hearing of the Appeal on 28/4/2014.
Having taken time to go through the Appellants’ Reply brief, and having considered the submissions of counsel to the Respondent, it would appear and I so hold that there was indeed nothing in the Respondent’s brief that would call for the further reference to the provisions of S. 129 (6) of the Evidence Act 2011 as done in the Appellant’s Reply brief.
In my view, therefore, the issue of where a document tendered in evidence has one distinct meaning in relation to the circumstance to which it relates then such a document must be considered only according to such a circumstance to which it relates and thus no evidence intended to show some other meanings of such a document would be allowed is completely a fresh issue not arising from any submission on any issue canvassed in the Respondents’ brief.
The above view is in tandem with the provisions of the Rules of this Court providing for the Appellant’s Reply brief vide order 18 (5) Court of Appeal Rules 2011, thus:
“The appellant may also if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.”
Going by the above Rules of this Court a Reply brief is simply for the purpose of dealing with only new issues raised in the Respondent’s brief and not otherwise. A reply brief therefore, in my view admits of nothing more, nothing else and nothing less. See Ahmed V. Ahmed (2013) 41 WRN 1 at P. 32
I hold therefore, that the reference to and reliance on the provision of Section 129 (6) of the Evidence Act 2011 in the Appellant’s Reply brief to introduce the issue of distinct meaning of a document tendered in evidence is a new issue not in any way or manner flowing from the Respondent’s brief and therefore, not permissible in the Appellant’s Reply Brief. See Ahmed V. Ahmed (supra) at P. 63. See also Dairo V. Aderinoye (2013) 50 WRN 111 at P. 128.
Consequently, the reference to and reliance on Section 129 (6) of Evidence Act 2011 on distinct meaning of document and ruling out other meanings according to the circumstance to which it relates is hereby discountenanced as having no place in the Appellants’ Reply brief.
Now, this appeal is one which undoubtedly is an interlocutory appeal which requires the leave of Court under Section 242 (1) of the Constitution of Federal Republic of Nigeria 1999 as amended. In compliance with this provision of the Constitution of Federal Republic of Nigeria 1999 as amended, the Appellant sought and obtained the leave of the Court below on 22/6/2013 per A.D. Mammadi, J. see page 59 of Record of Appeal.
Having therefore, satisfied myself that this Appeal is properly before this Court in compliance with all due processes of law and upon fulfillment of all conditions precedent to the exercise of the jurisdiction of this court, let me now proceed to consider the merit of the Appeal.
The sole issue for determination in the appeal is simply:
“Whether the Court below exercised its discretion judicially and judiciously in granting the Application for extension of time to appeal against the Judgment of the Upper Area Court Michika delivered on 14/10/2008?.
In resolving the sole issue for determination on the facts and circumstances of this appeal and the grounds of appeal in challenge to the decision of the Court below, it is my view that the following salient questions call for answer, namely;
(a) Did the Respondent as Applicant before the Court below furnish sufficient good reasons for the delay in the application for extension of time to appeal against the judgment of Upper Area Court Michika?
(b) Did the Court below grant the leave to appeal out of time to the Respondent merely because the grounds of lies and forgery alleged by the Appellant were not substantiated by the Appellant.
(c) Did the Appellant substantiate the grounds of lies and forgery alleged against the Respondent before the Court below.
(d) Did the Court below fail to consider the submissions of counsel to the Appellant in its ruling of 14/6/2013 appealed against in this Appeal?
In my view, in the answer to the above questions lies the resolution of the sole issue of determination as to whether the Court below exercised it’s discretion rightly or wrongly in granting leave for the Respondent to appeal against the judgment of the Upper Area Court Michika delivered on 14/10/2008 in the month of June 2013, specifically on 14/6/2013?.
In law, the issue of how and when a Court is to exercise its discretion is admittedly not one subject to any hard and fast rules or indeed any strictly defined principles of law, as otherwise discretion will cease to be discretion.
It is perhaps for the above germane reason more than any other reasons that the Courts are very reluctant to wade into or intervene to interfere with the exercise of discretion of a Court lower to the Court being called upon to review the exercise of the discretion by the lower court.
In law therefore, all that is required of a court in the exercise of its discretion is that in so doing, its discretion must be exercised judicially and judiciously. It must be an application of common sense to the set of facts and circumstances before it. See E.F.P.C Ltd V. NDIC (supra) at Pp. 825 – 826.
However, an exercise of discretion must not be done arbitrarily or in misapprehension of the facts before the court or indeed in a clear misconception of the applicable law to the given set of facts and circumstances before the Court. See Onyali V. Okpala (supra) at P. 303, see also Obi Eze V. AG River State (supra) at Pp. 31 – 32.
It is perhaps in this sense that discretion, though seemingly and apparently open ended, is not utterly unfettered in the sense of a court exercising its discretion merely according to the whims and caprices or fancy of each Judge. No! it must be exercised judicially and Judiciously.
In E.F.P.C Ltd V. NDIC (supra), the trite position of the law on the exercise of discretion by the courts was more poignantly put in its proper con by the erudite law Lord law, Niki Tobi JSC, thus:
“An application for extension of time to file an appeal involves so much of discretionary power of the court hearing the Appeal. Where the discretion is exercised judicially and judiciously, the Supreme Court has no jurisdiction to question a discretion which is exercised judicially and judiciously.”
The Courts are therefore, very reluctant and do not make it an habit interfering unnecessarily with the exercise of the discretion of lower Courts even where painfully the discretion was exercised in a way in which the higher court would not have wished to exercise it if it were to do so, in so for as the lower court had exercised its discretion judicially and judiciously.
It is thus pertinent to pause at this juncture to consider briefly what is meant by the almost overused phrase; “Judicially and Judiciously”. When is the exercise of discretion said to be judicially and judiciously done? Sadly, not much definition of the words “Judicially and Judiciously” have been given in most decided cases, as in most cases it is its effects that are merely applied to the given set of facts and circumstances by the Courts.
The phrase “Judicially and judiciously” as is frequently used in the issue of exercise of discretion in several decided cases as are replete in the law reports, connotes two broad categories of meaning; namely:
(a) One that requires exercise of Judgment or choice of alternatives in its performance as in one that requires use of discretion. This is what simply put is meant “Judicially”
(b) One dictated by sound Judgment. This is what simply put is meant by “Judiciously”.
See Blacks Law Dictionary 6th Edition pages 848 and 850.
Now, from the above two distinct but ultimate utilitarian meaning of the phrase “judicially and judiciously”, it is now well settled law that an exercise of discretion not based on sound Judgment on a given set of facts and circumstance is not an exercise of discretion judicially and Judiciously.
In law therefore, any exercise of discretion not made judicially and judiciously is an exercise that is both faulty and unsupportable and if challenged can rightly, without much ado, be set aside. See Onyali V. Okpala (supra) at P. 303 Obi Eze V. A G of River State (supra) at Pp. 31 – 32.
Having therefore, averted my mind sufficiently to the succinct principles of the law on the exercise of discretion by the Courts, let me now consider whether the Court below had in its ruling of 14/6/2013 appealed against in this appeal exercised its discretion judicially and judiciously or not.
On the one hand, it is the contention of the Appellant’s counsel that on the given set of facts and circumstances before the Court below, it did not exercise its discretion judicially and judiciously in that its decision was not based on the logical conclusion inherent or derivable from the facts and circumstances as presented before it by the parties.
On the other hand, it is the contention of the Respondent’s counsel that given the set of facts and circumstance before the court below in the application for extension of time, it exercised its discretion both judicially and judiciously and which exercise cannot therefore, be faulted.
To resolve these opposing contentions, the starting point, in my view, is the Ruling of the Court below to see the real decision of the Court below against which this appeal was filed. In the ruling appealed against, the Court below had stated inter alia as follows at pages 52 – 53 of the Record:
“For an application of this nature to succeed the Applicant must satisfy the Court of the following:-
(i) That there is good and substantial reason for failure to appeal within time.
(ii) That there are prima facie grounds of appeal which shows cause the appeal should be heard.
… By the averment in paragraph 3(a) – (m) of the affidavit in support, show that it was the fault of the Applicant’s earlier counsel, which as rightly argued by S. J. Abul would not be vested (sic) on a litigant. I have nothing to the contrary in the counter affidavit of the Respondent that convinced me not to believe the averment in paragraphs 3(a) – (m) of the Applicant’s affidavit in support…
Even though at this stage it is not for me to dwell (sic) in the substantial appeal, but I find it imperative to mention the issue of jurisdiction, having regard to the circumstances of the application before me. That (sic) is also nothing in the counter affidavit that prevents me from starting (sic) that the two conditions afore stated for the grant of this application does co-exist and where it is agreed that they do, a court would readily exercise a discretion to grant extension of time to appeal, having satisfied that the two conditions co-exist accordingly…
As to the issue of forgery and lies, it is trite that forgery has to do with criminal intent and its mere mention does not suffice without proof, which is with all intent and purposes be beyond reasonable doubt, as such I have discountenanced with that averment as argued by Respondent’s counsel …”.
In the motion filed before the Court below, it is clear from the application shown at pages 3 – 30 of the Record of Appeal that the Respondent relied on the following grounds for the reliefs sought before the Court below, namely:
(1) Respondent’s ill health immediately after the Judgment of the Upper Area Court Michika was delivered on 14/10/2008.
(2) A staff of the High Court filed an appeal for the Respondent on his instruction to so do.
(3) In 2009, the said appeal was not listed for hearing before the High Court Appeal session at Michika.
(4) In 2010, Respondent briefed one Maxwell Pukuma Esq. to file a motion to seek leave to appeal against the said judgment.
(5) On 16/3/2012, the motion filed by Maxwell Pukuma Esq. was withdrawn without the Respondents knowledge and struck out for being defective.
(6) Respondent consulted his counsel to file another motion but it was discovered that the Counsel did not file the motion for leave to appeal against the said judgment out of time.
(7) Respondent had to brief another counsel that had prepared and filed the motion for leave to appeal out of time.
(8) Respondent is willing and ready to prosecute the appeal diligently if the leave sought was granted by the Court below.
On the other hand, the Appellant as Respondent in the Court below had strenuously and vehemently opposed the application on the following grounds at pages 31 – 38 of the Record of appeal.
(1) The Respondent was not ill.
(2) The Medical treatment Outpatient card was not genuine and was different from an earlier outpatient card used in an earlier application by the Respondent for leave to appeal out of time.
(3) The medical report was not signed by a Medical practitioner but by a villager.
Now, on the face of the above set of facts and circumstances of the application of the Respondent before the Court below, was the Court below right in its decision that the grounds relied upon by the Respondent constituted good and sufficient reason to warrant the grant of the leave sought by the Respondent?
It is also equally important to consider, on the face of the grounds of opposition to the reliefs sought by the Respondent by the Appellant, whether the Court below in its ruling appealed against considered the grounds of opposition put up by the Appellant or merely ignored them as alleged by the Appellant?
Where, it is found that the Court below did consider the grounds of opposition, then was the Court below right to hold that the grounds of opposition were not substantiated and proceeded to grant the application?
In an application seeking leave to appeal out of time, it is incumbent on the applicant to furnish the relevant and sufficient material, by way of affidavit evidence to satisfy the following two conditions, namely:-
(1) That there are good reasons for the delay.
(2) That the proposed ground of appeal discloses prima facie good grounds why the appeal should be heard.
See Kotoye V. Saraki (supra) at P. 1, Ibodo V. Enaforis (supra) at P. 51; Okereke V. James (2012) All FWLR (Pt. 641) 1464 at P. 1469.
Happily, both the Appellant and the Respondent, through their counsels’ respective submissions and also the Court below are ad idem on these two conditions for a successful application for extension of time to appeal. See page 52 of the Record of appeal.
In its ruling appealed against, the Court below found that the delay in the filing of the appeal against the judgment of the Upper Area Court Michika by the Respondent was occasioned by the fault or inadvertence of counsel instructed by the Respondent to so do on his behalf.
The Court below also found that one of the grounds of appeal as proposed against the judgment of the Upper Area Court Michika borders on Jurisdiction, which is a fundamental prerequisite for adjudication. The Court below also found, and quite rightly too in my view, that these two grounds of inadvertence by the Respondents’ counsel and the issue of jurisdiction, were not countered by the Appellant. In law, evidence that is unchallenged or uncontroverted by the other party is good to be acted upon by the Court. See Cameroon Airlines V. Mike Otutuizu (2005) 9 NWLR (Pt. 929) 202 at P. 207.
The Court below having, at pages 52 – 53 of Record of Appeal, averted its mind to the above grounds in the light of the requirements of the law in an application for extension of time to appeal, felt satisfied with these two grounds as proffered by the Respondent and proceeded to consider the ground of lies and forgery as raised in opposition to the application by the Appellant and came to the finding of facts and conclusion that the ground alleging forgery was criminal in nature but was not proved beyond reasonable doubt as required by law.
Having calmly considered the submissions of counsel to the respective parties as touching on the sole issue for determination as distilled from Grounds 1 and 2 of the Grounds of Appeal, and having considered same in line with the reasoning and decision of the Court below in the ruling appealed against and having borne in mind the succinct principles of law guiding the Court in cases of challenge to exercise of discretion by a lower Court, I am completely satisfied that the Court below was perfectly right in its findings and decisions reached in the ruling appealed against.
The reasoning of the Court below, in my finding is both impeccable and unimpeachable and cannot in any way or manner be legally faulted. It is legally sound in judgment and is thus a clear exercise of its discretion judicially and judiciously.
This Court as an appellate Court therefore, has no business, in my view, on the face of the just and fair exercise of the discretion of the Court below to intervene to tamper with or disturb the discretion so judicially and judiciously exercised by the Court below.
In coming to the above findings, I am satisfied that the reasons given by the Respondent were largely unchallenged and uncontroverted by the Appellant, who only challenged the ground of ill health and Outpatient treatment card relied also upon by the Respondent. This is good evidence and the Court below was thus legitimately right to have acted on it. See Cameroon Airlines V. Mike Otutuizu (supra) at P. 207
The grounds of inadvertence of counsel and issue of jurisdiction as raised in the proposed Notice and grounds of appeal alone, which were neither controverted nor challenged, in my finding constitute enough good reason and prima facie good ground of Appeal as rightly held by the Court below. This is so because in law facts not expressly denied or evasively denied are deemed as admitted and thus need no further proof. See Adike V. Obiareri (2002) 14 NWLR (Pt. 758)537.
On the ground of ill – health and medical treatment that was challenged by the Appellant, the onus, in my finding, shifted to the Appellant on the face of the copious evidence of the ill – health and treatment as deposed to by the Respondent, amounting clearly to prima facie evidence in favour of the Respondent. So, did the Appellant prove the allegation of forgery and lies against the Respondent?
The law is and has always been that he who alleges must prove. See Section 131 – 133 of the Evidence Act 2011. See Osawaru V. Ezeruka (1978) 6 – 7 SC 135 at P. 145, Umeojiako V. Ezenamuo (1990) 1 NWLR (Pt. 126) 250; Ugbo V. Aburime (1993) 2 NWLR (Pt. 273) 101; Coker V. Adetayo (1992) 6 NWLR (Pt. 249) 612; Salawa Motor House V. Lawal & anor (2000) FWLR (Pt. 3) 517 at P. 521.
An allegation bordering on forgery as alleged by the Appellant is undoubtedly criminal in nature and the standard of proof required is proof beyond reasonable doubt in line with the provisions of Section 135 (1) of Evidence Act 2011; which provides thus:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceedings, civil or criminal it must be proved beyond reasonable doubt.”
The above position of the law is so firmly established in our jurisprudence that is has become too elementary and common place to admit of any serious contrary contentions of law on its applicability. See Awosika V. State (2010) 8 NWLR Pt. 1198) 49; Archibong V. State (2006) 5 SCNJ 211; R V. Bamin (1946) 1 WACA 8; Bamikole V. Oladele (supra) at P. 1715.
The Onus was thus on the Appellant to show that the Respondent was guilty of the alleged offence of forgery and that must be proved beyond reasonable doubt in line with the provisions of Section 135 (2) of the Evidence Act 2011, which provides thus:
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it whether the commission of such act is or is not directly in issue in the action”.
Looking at the counter affidavit of the Appellant, it is clear that he made the issue of forgery very central to his opposition to the Respondent’s motion and thus carried the onus of proving it, if he is to succeed in his opposition based on such allegation of crime against the Respondent.
The Court below held that the Appellant who carried the onus of proof beyond reasonable doubt did not discharge that onus. It has been contended by the Appellant’s counsel in this Appeal that the Appellant discharged the onus of proof beyond reasonable doubt, by the depositions in his counter affidavit.
Honestly, I am at a loss to decipher the rational and factual or legal basis on which the Appellant’s counsel had contended that in the proceedings before the Court below the Appellant had made out a case of forgery beyond reasonable doubt against the Respondent.
On the record of Appeal, the Appellant did not furnish before the Court below any genuine document with which the allegedly forged document was to be compared with, safe the production of an earlier motion and its affidavit and Exhibits, which had since been withdrawn by the Respondent’s counsel and struck out by the Court below and thus no longer of any relevance or materiality in the consideration of the present application. See Bayel V. Ahemba (Supra) at P. 223.
The Appellant who alleged that the Medical report Exhibit B1 was signed by a villager neither called the said villager nor led any evidence from the Hospital Services Management Board disclaiming or impugning Exhibit B1, furnished by the Respondent as certificate of his ill health in the application before the Court below.
Honestly, looking at the bare allegations of the Appellant, could the Court below have held differently from what it held at page 53 of the record of appeal in the ruling appealed against that the allegation of forgery being criminal in nature was not proved beyond reasonable doubt by the mere mention of it?. I think not.
In my finding there was a complete absence of any of the elements of the offence of forgery in the counter affidavit of the Appellant as required by the Provisions of Sections 362, 363, 365 and 366 of the Penal Code, providing for the offences of forgery and its kindred offences.
In my finding therefore, the Appellant, safe for the bare and mere mentioning of the allegation of forgery and the futile attempt to rely on a court process in a motion already withdrawn by the Respondent’s counsel and struck out by the court below, offered no iota of credible evidence in proof of the allegation of forgery against the Respondent as could amount to proof beyond reasonable doubt as required by law. See Section 135 (1) and (2) of the Evidence Act 2011.
Indeed the opposition on the ground of allegation of forgery demonstrated to a large extent, in my view, a mere wishful thinking by the Appellant not grounded on any factual or legal basis. It was also very flimsy for the Appellant to merely say that a person who said he was ill was not ill and leave it at that and expect a court to come to a finding that such a person was indeed not ill merely because it was merely so alleged by the Appellant. In law, legal proof is beyond mere allegation or wishful thinking but is a function of credible evidence where the allegation is denied.
On the record of Appeal and having calmly gone through the respective cases of the parties and the ruling appealed against, I have come to the inescapable conclusion and I so hold that the Court below considered all the respective cases as put forward by the Appellant and the Respondent and indeed came to the proper finding that the application for extension of time was meritorious and that the allegation of forgery by the Appellant remained in the realm of mere allegation and was not proved beyond reasonable doubt as required by law.
The Court below in my view, carried out its duty very properly in assessing and considering the respective cases of the parties and indeed rightly exercised its discretion in favour of the Respondent judicially and judiciously. This Court therefore, in law lacks the legal basis and indeed the jurisdictional competence to intervene and interfere with such proper exercise of the discretion by the Court below. See EFPC Ltd. V. NDIC (supra) at Pp. 825 – 826.
In law, the duty imposed on a trial court is perfectly discharged once in arriving at its conclusion and finding of facts, the court considers the totality of the respective cases of the parties on the evidence adduced before it in order to determine which evidence has weight and which has no weight. This was what the Court below did perfectly well and came to the right conclusion that while the Respondent’s evidence had weight, the Appellant’s evidence remained unsubstantiated and thus without any weight. See Mogaji V. Odofin (178) 4 SC 91 at P. 95.
At any rate, the Court below having found that the grounds of inadvertence of counsel to the Respondent and the issue of jurisdiction constituted good reason and ground of appeal it was, in my view, immaterial even if the ground of ill health were not made out, as the decision to grant the application by the Court below on the grounds clearly made out by the Respondent was very proper and cannot be faulted as erroneously and furtively sought to be done by the Appellant in this Appeal.
In law, an applicant for extension of time to appeal does not need a horde of grounds or reasons as one solid good reason and ground of appeal which is un-impeached and credible can suffice.
However, I am aware and have taken notice of the unusually long period of time that had elapsed between the delivery of the judgment of the Upper Area Court Michika on 14/10/2008 and the delay in filing of the application on 13/2/2013, which was about 5 years after the delivery of the said judgment. Be that as it may, that alone without more cannot defeat the Application. I so hold.
The law is well settled that once a good reason have been proffered and made out to explain and justify or rather excuse the delay in applying within time, the issue of the length of time would not be allowed to be a clog in the wheel of doing substantial justice to the parties, more particularly so where there is the issue of jurisdiction sought to be raised against the judgment sought to be appealed against. See Ogundimu V. Kasunmu (supra) at Pp. 215 – 216, where the Supreme Court emphatically pronounced on the issue of length of time of delay thus:
“The length of time of delay is immaterial in the grant of an application for extension of time within which to appeal if it shows good cause why the appeal should be heard”.
Need I say anything more on this issue of the immateriality of the length of time of delay once good cause is shown? I think I dare not, the Supreme Court having as above spoken on the issue with finality.
On the whole therefore, I am inclined to agree with the submission of learned counsel to the Respondent that as much as it lies in the power of the court, nothing must be done lightly to stultify the Right of Appeal granted to the citizens of this great country of ours, Nigeria by the Constitution of Federal Republic of Nigeria 1999 as amended to appeal against decisions of Court (s) which they feel dissatisfied with as touching their rights and obligations under the laws of the land.
In EFPC Ltd. V. NDIC (supra) at P. 825, the Supreme Court restated this succinct principle at law in a very clear and easily understandable manner when it reechoed thus:-
“The right of appeal is constitutional as it is provided in the Constitution. It stands on the very height of the Appeals system by virtue of the fact that the Constitution provides for it. As a constitutional right cannot be granted if the applicant fails to adduce good and sufficient materials and reasons for the application, the Court will not hesitate to grant an application where there are sufficient material and reasons in the affidavit justifying the grant of the application.”
So, in my view, it was with the application before the Court below which supplied sufficient and largely unchallenged and uncontroverted good reasons justifying the grant of the application by the Court below, which decision to do so is on solid ground, both on point of law and the facts and thus cannot be faulted. I approve of the decision of the Court below on the given set of facts and circumstances in this appeal without much ado.
In the circumstances therefore, and based on the reasons, findings and the applicable principles of law contained above in this judgment, I hereby resolve the sole issue for determination in the positive in favour of the Respondent against the Appellant and hold firmly that this Appellant lacks merit and consequently, grounds 1 and 2 of the grounds of appeal fail.
In the result, this Appeal, which is liable to be dismissed, is hereby dismissed in its entirety for lacking in merit. The decision of the Court below, delivered on 14/6/2013 in suit No. ADSC/2M/2013: Sebastine Hale V. Tari Vandighi, is hereby affirmed.
There shall be cost of N50,000.00 against the Appellant in favour of the Respondent.
JUMMAI HANNATU SANKEY, J.C.A. This Appeal is a complaint against the decision of the High Court of Adamawa State delivered on 14-06-13 wherein it granted the Respondent an extension of time within which to file an appeal against the decision of the Upper Area Court, Michika in Adamawa State delivered on 14-10-08. The application was ardently contested and at the end of the day, the lower Court exercised its discretion in favour of the Respondent, as Applicant.
The Appellant’s main grouse is that, in spite of the allegations of lies and forgery made against the Applicant by the Appellant, as Respondent to the application in his Counter affidavit, the learned Judge discountenanced these grave issues and proceeded to grant the application. It was his position that, in view of these allegations, no good reasons were advanced by the Applicant for his failure to appeal within time.
I must firstly state without any fear of contradiction that the grant of an application of this nature is discretionary. It is also not exercisable in favour of an applicant with false and unreasonable grounds. See All Nigeria Peoples Party V Albashir (2010) 2 SCNJ 158. Some of the important factors to be taken into consideration before the grant or refusal of the application are:
(a) Good and substantial reasons for failure to appeal within the prescribed periods;
(b) Grounds of Appeal which prima facie show good cause why the appeal should be heard.
Both factors must co-exist for the application to succeed. An applicant however need not show that his grounds of appeal must succeed on appeal. He only needs to show that they are arguable. See Federal Housing Authority V Kalejaiye (2010) 12 SCNJ 191.
Where, however, the commission of a crime is directly in issue in any proceeding, whether civil or criminal, in this case, forgery, the alleged crime must be proved beyond reasonable doubt. See Eya V Olopade (2011) 5 SCNJ 98. Since it is the Respondent to the application before the Court below who asserted the commission of the offence of forgery, he has the burden of proving it by adducing sufficient evidence to establish same. Clearly, the affidavit evidence contained in the printed Record fell far short of the standard of proof required for an allegation of this nature, which is beyond reasonable doubt. Thus, the Court below acted quite rightly in refusing to dignify and clothe such a grave accusation, made without substance, with the toga of truth, such as to cause him to refuse the application.
It is not in doubt that the grant of an application for an extension of time to appeal the decision of a lower court involved the exercise of the discretion of the Court below, which discretion must to be exercised judicially and judiciously. The law and practice, as has been stated and re-stated in a multitude of decisions, is that for a person to approach a court with an application which seeks the court’s indulgence, such a person is duty bound to place sufficient materials before the court in order to assist the court exercise its discretion in his favour. Such discretionary exercise must be founded upon facts and circumstances presented to the court from which a conclusion governed by law will have to be drawn. It is also said that judicial exercise of discretion is not arbitrary or fanciful because it is done with sufficient, correct and convincing reasons. The guiding principle in the exercise of discretion is that, being judicial, it must at all times be exercised not only judicially but also judicially on sufficient materials. See Yar’adua V Lado (2011) 10 SCNJ 6; Duwin V Beneks (2000) 15 NWLR (Pt. 689) 66; Unilag V Aigoro (1985) 1 NSCC.
A careful perusal of the materials placed before the Court below via affidavit evidence, show that ample and sufficient materials were indeed placed before Court below in the Applicant’s application. The learned trial Judge seemed to be convinced by the evidence placed before the Court through the affidavits of the Applicant in whose favour the pendulum of the scale of justice tilted.
Judicial discretion is a sacred power which inures to a Judge. It is an armour which the Judge should employ judicially and judiciously in order to arrive at a just decision. Same should not be left to the whims and caprices of a party to the action. Discretion has been defined to mean ‘a power or right’ conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own Judgment and conscience, uncontrolled by the judgment and conscience of others. See State V Whitman R.I I, 431 A.2d 1229, 1233; Black’s Law Dictionary, Sixth Edition page 466. See also Pere Ajuwa V SPDC (2011) 12 SCNJ 596.
The Supreme Court has often reiterated that it does not condone a situation where an earlier decision is capable of fettering the exercise of judicial discretion. Judicial discretion is a vital tool in the administration of justice. See Ajuwa V SPDC Nig Ltd (supra); Adisa V Oyinwola (2000) 10 NWLR (Pt. 746) 116. In matters of judicial discretion, since the facts of two cases are not always the same, courts do not make it a practice to lay down Rules and principles to fetter the exercise of its discretion or the discretion of the lower courts. In matters of discretion, no one case is an authority for the other. Also, the fact that the appellate court would have exercised its discretion differently from that of the trial court is not sufficient reason to interfere with the exercise of discretion by the trial court. A court cannot be bound by a previous decision to exercise its discretion in a regimented way, because that would be, as it were, putting an end to discretion. See Nwadiogbu V Anambra/Imo RBDA (2010) 12 SCNJ 212; AG Rivers V Ude (2006) 17 NWLR (Pt. 1008) 436 @ 461; Okeke V Oroh (1999) 6 NWLR (Pt. 606); Akujinwa V Nwaonuma (1998) 13 NWLR (Pt. 583) 632 @ 647.
To put into perspective the almost sacredness and inviolability of the exercise of discretion by a court, Rhodes-Vivour, JSC, in NNPC V Clifco Nig. Ltd (2011) 4 SCNJ 107 stated as follows at page 127-128 of the Report:
“This Court will not interfere with the way a trial Court or the Court of Appeal exercises its discretion, but would be compelled to interfere if the discretion was wrongly exercised, or the exercise was tainted with some illegality or it is in the interest of justice to do so.”
It is my candid view that the Court below exercised its discretion judicially and judiciously in granting the application for the Respondent to exercise its constitutionally guaranteed right to appeal against the decision of the Upper Area Court, Michika, which he was dissatisfied with. Such a right should not be fettered or stultified in any way except for very good reason shown.
The Court below made an order granting the Respondent leave to appeal the decision of the Upper Area Court, Michika in the interest of justice. The order was clearly warranted in the prevailing circumstances.
For the above reasons, I agree with the conclusion of my learned brother, Georgewill, JCA, that the Appeal is devoid of all merit and should be dismissed. I order accordingly. I affirm the Ruling of the Court below and endorse the order on costs in the lead Judgment.
ADAMU JAURO, J.C.A.: I have read before now the judgment just rendered by my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA. I am in full agreement with the reasoning and conclusion reached therein, to the effect that the appeal is lacking in merit. I adopt same as mine and hereby dismiss the appeal.
I abide by consequential orders made, including that on costs.
Appearances
S.J. Wugira, Esq., holding the brief of R.C. Emem Esq.,For Appellant
AND
M.P. Atsev, Esq.,For Respondent
