THE ATTORNEY-GENERAL OF RIVERS STATE V. DAR.AL.HANDASAH (SHAIR AND PARTNERS)
(2011)LCN/4579(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of May, 2011
CA/L/424M/2004
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISION OF ORDER 8 RULE 20 OF THE COURT OF APPEAL RULES 2007 AS IT RELATES TO THE CIRCUMSTANCE UNDER WHICH THE COURT WILL EXERCISE ITS DISCRETION TO RESTORE AN APPEAL EARLIER DISMISSED
Order 8 Rule 20 of the Rules of Court provides thus: “An Appellant whose appeal has been dismissed under this Rule may apply by notice of motion that his or the appeal be restored and any such application may be made to the Court, who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit’. The power to restore an appeal earlier dismissed is discretionary and the discretion must be exercised judicially and judiciously. The applicant therefore has the onerous responsibility of placing enough materials before the court to warrant the exercise of the discretion in his favour. See E.F.P. Co. Ltd. v. N.D.I.C. (2007) 9 NWLR (Pt.1039) 216 and Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 153. The operative words for the exercise of such a discretion under the aforementioned Rule reproduced above is “for good and sufficient cause”. Once an applicant shows good and sufficient cause as to why the appeal should be restored, the discretion will be exercised in his favour. In determining good and sufficient cause, the reason for the applicants failure to compile and transmit the record of appeal within the stipulated time is a major factor to be considered. Of course other subsidiary factors like delay in making the application and whether restoring the appeal will prejudice the respondent can be taken into consideration. See the general guidance made by the apex court on the requirements to be considered in the case of Nigerian National Supply Co. Ltd. v. Establishment Sima of Vaduz (1990) 7 NWLR (Pt. 164) 526 at 536. PER ADAMU JAURO. J.C.A.
ADMITTED FACTS: WHETHER UNCONTROVERTED REASONS WILL BE ADMITTED AS TRUE
The reasons adduced having not been effectively controverted are deemed admitted as true. See Unibiz Ltd. v. C.C.L. (Nig.) Ltd. (2005) 14 NWLR (Pt.944) 47. PER ADAMU JAURO. J.C.A.
JUSTICES:
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
THE ATTORNEY-GENERAL OF RIVERS STATE – Appellant(s)
AND
DAR.AL.HANDASAH (SHAIR AND PARTNERS) – Respondent(s)
ADAMU JAURO. J.C.A. (Delivering the Lead Ruling): The applicant herein by an application filed on the 7th May, 2010 prayed this court for the following reliefs:-
1. An order restoring appeal No. CA/L/424M/2004 the Attorney-General River State Vs. Dar-al Handasah (Shair and Partners) which was dismissed on 23/11/09 under order 8 Rule 18 of the Court of Appeal Rules 2007 for failure to compile and transmit record occasioned by counsel’s inadvertence.
2. An order extending the time within which the Appellant/Applicant may compile and transmit the Record of Appeal in respect of this appeal.
3. An order deeming the Record of Appeal annexed herein us Exhibit ‘1’ already compiled and transmitted by the Appellant/Applicant to this Honourable Court as having been properly compiled and transmitted.”
In moving the application Mrs. N.C. Iroegbu DCL Ministry of Justice Rivers State, stated that the application was brought pursuant to Order 7 Rules (1) and 10 (1), Order 8 Rules 4, 10(2) and 20 of the Court of Appeal Rules 2007 and the inherent jurisdiction of the court. Learned counsel further stated that the application is supported by an affidavit of 26 paragraphs with 10 annextures marked exhibits ‘A’ to ‘J’ and a further affidavit of 20 paragraphs with one annexture. Learned counsel relied on all the paragraphs of the affidavit and the exhibits, particularly exhibit ‘1’ the compiled record of appeal. Learned counsel contended that cogent reasons had been given for the delay in compiling record which included the appeal of the respondent against the ruling of this court giving the applicant leave to appeal. Learned counsel argued that the record of appeal has been compiled and the present application also seeks for extension of time to transmit the record. Learned counsel urged the court to discountenance the counter affidavit filed by the respondent and grant the application.
In opposing the application, Mr. G.I. Ikokwu leading I.A. Chukwu Esq stated that they filed a counter affidavit of 34 paragraphs on 7th July, 2010- Learned counsel conceded that the lapses of counsel should not be visited on the litigant, but in this case both the counsel and the party/litigant are one and the same person. Learned counsel therefore argued that where there is a fault, the counsel who is as well the party must take responsibility. In support of the aforementioned submission reference was made to the case of Allen v. Alfred Melpaine (1968) 1 All ER 543 at 547. Learned counsel further argued that there was inordinate delay on the part of the applicant and therefore urged the court to refuse the application. In a short reply, learned counsel for the applicant submitted that the case cited by the respondent is not applicable to this case as the applicant has shown good and substantial reasons for the delay.
It is clearly not in dispute that the notice of appeal herein was dismissed by this court on 23rd November, 2009 for failure to compile and transmit record within the prescribed time. See the ruling of this court dated 23rd, November 2009 attached to the counter affidavit of the respondent as exhibit ‘A” The dismissal of the notice of appeal was therefore made pursuant to Order 8 Rule 18 of the Court of Appeal Rules 2007, which provides thus:
“If the registrar has failed to compile and transmit the Records under Rule 1 and the Appellant has also failed to compile and transmit the Records in accordance with Rule 4, the Respondent may by notice of motion move the Court to dismiss the appeal”.
The applicant is now back to court seeking for the restoration of the notice of appeal earlier dismissed and extension of time within which to compile and transmit record of appeal. The application was brought pursuant to Order 8 Rule 20, Order 7 Rules 1 and 10 of the Court of Appeal Rules 2007. Order 8 Rule 20 of the Rules of Court provides thus:
“An Appellant whose appeal has been dismissed under this Rule may apply by notice of motion that his or the appeal be restored and any such application may be made to the Court, who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit”.
The power to restore an appeal earlier dismissed is discretionary and the discretion must be exercised judicially and judiciously. The applicant therefore has the onerous responsibility of placing enough materials before the court to warrant the exercise of the discretion in his favour. See E.F.P. Co. Ltd. v. N.D.I.C. (2007) 9 NWLR (Pt.1039) 216 and Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 153. The operative words for the exercise of such a discretion under the aforementioned Rule reproduced above is “for good and sufficient cause”.
Once an applicant shows good and sufficient cause as to why the appeal should be restored, the discretion will be exercised in his favour. In determining good and sufficient cause, the reason for the applicants failure to compile and transmit the record of appeal within the stipulated time is a major factor to be considered. Of course other subsidiary factors like delay in making the application and whether restoring the appeal will prejudice the respondent can be taken into consideration. See the general guidance made by the apex court on the requirements to be considered in the case of Nigerian National Supply Co. Ltd. v. Establishment Sima of Vaduz (1990) 7 NWLR (Pt. 164) 526 at 536.
What then are the reasons for the delay by the applicant in failure to compile the record of appeal within the time prescribed by law. Paragraphs 4 to 18 of the affidavit in support of the application averred as follows:
“4. That on 15/12/2005, the Appellant/Applicant filed his Notice of Appeal at the registry of the lower Court against the judgment of Honourable Justice Moni Fafiade delivered in favour of the Respondent in default of Appellant’s Appearance and defence. Copy of the said Notice of Appeal attached as Exhibit ‘A’ and judgment as Exhibit “B.
5. That consequent upon paragraph (4) above, the Appellant/Applicant immediately followed up the Appeal by contacting the Registrar of the Court below of the need to compile and transmit the Record of Appeal within statutory period.
6. That particularly between December, 2005 and November 2006, the Appellant/Applicant directed his staff one Kinako Duudu, on executive to go to Lagos High Court Appeal Registry to monitor and coordinate the progress of the compilation by the Registrar of the Appeal division. Copy of letters dated 26-08-2005 and 09-12-05 annexed as Exhibit C & D respectively.
7. That I am informed by the said Kinako Duudu and I verily belief him thus:
a. That he made concerted efforts at his visits to the lower Court to get the Appeal Registrar to compile the Records of Appeal to no avail.
b. That at one of his visits sometime in April, 2006 he was informed by one L.A. Bakare, Esq who was the then Appeal Section Registrar at the lower Court that they were looking for the case file and that the Appellant should exercise patience.
c. That he also paid personal visits to the Archive Department, where one Mr. EHI the then officer in charge, informed him that it would take time to locate the case file.
8. That alarmed by the delay of the Registrar of the Court below to compile and transmit the record of Appeal to this Court the Appellant on 22/11/2006 formally complained to the then administrative judge at the lower then administrative judge at the lower Court, Hon. Justice Akande. Copy of the letter is annexed as Exhibit ‘E’.
9. That the lower Court did not reply the letter herein referred us Exhibit ‘E’.
10. That the Appellant/Applicant thoroughly alarmed at the events in paragraph 7, 8 and 9 again dispatched his staff the said Kinako Duudu to Lagos and especially the Court below to urgently and physically follow-up Exhibit ‘E’ with a view to ensuring urgent compilation of the Record of Appeal, This was sometime in January 2007. Again the Registrar at the Court below pleaded that the case file has not been located to enable him compile and transmit the record of Appeal.
11. That I am informed by our N.C. Iroegbu, Esq, Director Civil Litigations, and I verily believe her that she erred in judgment in assuming that as o result of events in paragraphs 6, 7, 8, 9 and 10 she did not need to compile Appellant’s record of Appeal.
12. That while the events in paragraphs 6, 7, 8, 9 und 10 above were taking place, the respondent appealed to the Supreme Court against the Ruling of this Court which said appeal was dismissed on 4-10-2006. Copy of Supreme Court Ruling annexed as Exhibit ‘F-F2’.
13. That I am further informed by our N.C. Iroegbu, Esq, Director Civil Litigation and I verily believe her that she further erred in thinking that the compilation period of the Record of Appeal will also be affected by the period of the Respondent’s Appeal to the Supreme Court which lasted for l(one) year.
14. That between February 2007 to September 2009, the appellant assigned one Nelson T. Didia, Esq to prosecute this appeal on his behalf, while our N.C. Iroegbu Esq, was assigned to the Election Petition tribunal.
15. That in early February,2007 the said Nelson.T. Didia sustained a fatal motor accident on his way to Lagos in a bid to comply with paragraph (14) above. He became paralyzed from neck down and later died in September 2009.
16. That the above unfortunate events in paragraphs 14 and 15 above further delayed the compilation of the Records of Appeal as the Appellant’s case file was erroneously thought to have been lost.
17. That I am aware that on 8-11-2009 our N.C. Iroegbu, Esq, Director Civil Litigations in desperation formally complained again to the Honourable Chief Judge Lagos State about the missing Court’s case file. Copy of letter dated 18-11-2009 annexed as Exhibit ‘G’.
18 That consequent upon paragraphs 17 above, the Honourable Chief Judge Lagos State ordered that a temporary file be opened and granted leave to Appellant to use Certified True Copy of his bundle of documents to compile the Records of Appeal. This was sometime in mid-November, 2009.
The respondent on the other hand filed a counter affidavit of 34 paragraphs in opposition to the application. Paragraphs 4, 7, 8, 9, 16, 17, 18, 19 and 20 of the counter-affidavit, which I find relatively germane to the application are hereby reproduced thus:
4. That the record of the appellants from 1997 to 2009 is strewn with a pattern of deliberate inconsistency, inefficiency, distortion of facts, professional laziness and ineptitude, dilatory tactics and contemptuous averments manifesting great disrespect to the Honourable Court.
7. That, paragraphs 5, 6, 7, 8 and 10 of the said affidavit of 7th May, 2010 in support are manifestly vague and inadequate.
8. That if the Rivers State Ministry of Justice had enlisted the services of a senior private legal practitioner in Port Harcourt or Lagos since 1998 or even 2002 the appeal would not have lasted 12 years thus embarrassing and denying justice to the respondent.
9. That the first delay admitted by the appellant was when the matter came to their knowledge in 2002 they compiled documents and applications to be filed and gave same to a non legal staff who came in Lagos and dumped the application with the Lagos High Court in 2003 and it was not until 2005 that they took another opportunity to apply to appeal and their time was extended, by 21 days only to be abused until 2009.
16. That the Appellant’s delay in compiling the records and transmitting same to this honourable court after four years is deliberate and an attempt to deny the Respondent the fruit of its judgment obtained in the trial court on the 1st day of June, 1998 which is now twelve years.
17. That it is in the interest of justice that this application be refused since it is obvious that the Appellant/Applicant was not desirous of prosecuting the Appeal and only insists on embarrassing the respondent since it is an arm of government.
18. That the said Appeal was filed on the 22nd December, 2005, over seven years after the judgment in 1998 without records of appeal.
19. That the Respondent will further be prejudiced if this application is granted.
20. That the Respondent is no longer domiciled in Port, Rivers State and the project which is the subject matter of this suit has been completed by other parties”.
The further affidavit countered the averments in the counter affidavit and further stated that the grounds of appeal are a challenge to the jurisdiction of the lower court.
A summation of the reasons given by the applicant for the inability to compile and transmit the record within the stipulated time are as follows:
(i) Inability of the registry of the lower court to trace the docket of the case.
(ii) Accident and eventual death of the counsel handling the case.
(iii) Mistake or error of counsel.
(iv) Appeal by the respondent to the Supreme Court against the ruling of this court granting leave and extension of time to appeal by the applicant.
The counter affidavit of the respondent has not satisfactory countered the above reasons. The stand of the respondent to the above reasons is that the paragraphs are vague and inadequate. Paragraph 7 of the counter affidavit is further reproduced.
“7. That, paragraphs 5, 6, 7, 8 and 10 of the said affidavit of 7th May, 2010 in supports are manifestly vague and inadequate”.
The reasons adduced having not been effectively controverted are deemed admitted as true. See Unibiz Ltd. v. C.C.L. (Nig.) Ltd. (2005) 14 NWLR (Pt.944) 47. The above reasons having not been effectively countered, I find them as constituting good and sufficient cause to warrant the exercise of the discretion in favour of the applicant.
Furthermore exhibit ‘I’ attached to the application is the compiled record of appeal which the applicant is also seeking for extension of time to transmit. The court obviously cannot close its eyes to the compiled records. See U.B.A. v. Nwosu (1978) 11 – 12 SC 1. Interest of justice therefore demands that extension of time be granted for the transmission of the record, so that the appeal can be heard and determined on the merit. The application has merit and is hereby granted in terms of the prayers contained in the motion paper.
Consequently it is hereby ordered as follows:
i. That the notice of appeal dated 22nd December, 2005 earlier dismissed by this court on 23rd November, 2009 under Order 8 Rule 18 of the Court of Appeal Rules 2007, is hereby restored.
ii. The applicant is hereby granted extension of time today within which to compile and transmit record of appeal in respect of this appeal
iii The record of appeal already compiled and annexed as exhibit ‘I’ is deemed properly compiled and transmitted as the record of appeal in this appeal
The sum of N10,000 is hereby awarded as costs in favour of the respondent.
RAPHAEL CHIKWE AGBO, J.C.A: I have had the privilege of reading before now the ruling written by my learned brother Jauro, JCA and I agree completely with both his reasoning and conclusions. I agree that the dismissed appeal be returned to the cause list pursuant to Order 8 Rule 20 of the Court of Appeal Rules 2011 and that the record of appeal already transmitted be deemed properly compiled and transmitted.
I abide by the order for costs contained in the lead ruling.
IBRAHIM MUHAMMED MUSA SAULAWA, J.C.A.: I was privileged to have read, before now, the draft of the lead-ruling just delivered by my learned brother, the Honourable Justice Adamu Jauro, JCA. The reasoning and conclusion thereby reached in the said ruling, to the effect that the application is meritorious, are in accord with mine.
In the absence of anything tangible to add thereto, I too hereby grant the application in question as prayed. I abide by the consequential orders therein including that of costs of N10,000 awarded in the Respondent’s favour.
Appearances
Mrs. N.C. Iroegbu D.C.L; Min. of Justice, Rivers State; For Appellant
AND
G.I. Ikokwu Esq;
I.A. Chukwu Esq; For Respondent
