TOTAL E & P (NIG.) LTD v. IHUAH & ANOR
(2021)LCN/15667(CA)
In the Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, July 14, 2021
CA/PH/172/2018(R)
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Between
TOTAL E & P NIGERIA LIMITED APPELANT(S)
And
1. CHIEF NWOKA IHUAH 2. MR. PETER IHUAH RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE APPLICABLE PRACTICE DIRECTION OF THE COURT OF APPEAL
It should also be noted that the applicable and subsisting Practice Direction of this Court is the COURT OF APPEAL (FAST TRACK) PRACTICE DIRECTIONS, 2014. The Practice Direction of 2013 was superseded by the (Fast Track) Practice Direction of 2014. Learned counsel should note that, even then, by the definition of a FAST-TRACK-APPEAL, the Practice Direction is only applicable in respect of:
(a) Debt appeals;
(b) Appeals pertaining to or connected with:
(i) Corruption;
(ii) Human trafficking
(iii) Kidnapping
(iv) Money laundering
(v) Rape; and
(vi) Terrorism
It also applies to:
“Appeals by or against such natural human rights, intelligence, law enforcement, prosecutional or security agencies such as the Economic and Financial Crimes Commission, Independent Corrupt Practices Commission, National Human Rights Commission, the State Security Service.” PER TSAMMANI,J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgement): This Judgement is in respect of a motion on Notice filed by the Appellant. The motion which was filed on the 06/3/2019 prays for the following reliefs:
1. An Order of this Honourable Court enlarging the time within which the Appellant/Applicant may transmit Record of Appeal in suit No. PHC/342/2017 pending in the High Court of Rivers State to the Court of Appeal.
2. An Order of this Honourable Court deeming the Records of Appeal transmitted in suit No: PHC/342/2017 pending in the High Court of Rivers State to the Court of Appeal as properly transmitted and served on the respondents now CA/PH/172/2018.
3. An Order of this Honourable Court staying the proceeding in suit No: PHC/342/2017 in the High Court of Rivers State pending the determination of Appeal No: CA/PH/172/2018 in Court of Appeal and such further Order(s) as the Honourable Court may deem fit to make in the circumstance.
The Grounds upon which the Application is predicated are as follows:
(a) The Registrar of the lower Court could not transmit the Record of Appeal within the stipulated time for transmitting an interlocutory appeal prescribed by the Rules of the Honourable Court.
(b) The Appellant could not also transmit the said record within time due to misconception of counsel that the Appellant had (30) days within which to transmit Record as the Court of Appeal Rules of 2016 had repealed the Court of Appeal Practice Direction of 2013; hence the Record was transmitted out of the stipulated time.
(c) That the proceedings of the lower Court cannot be going on side by side with this Court.
(d) That the proceedings of the lower Court should be stayed in order not to dissipate the purport for this appeal.
The motion is supported by an affidavit of eight (8) paragraphs deposed to by one Nseobong Nyong Essi, a litigation secretary in the chambers of Tri-Solicitors & Partners, Solicitors to the Appellant/Applicant. Attached to the Affidavit is a Judgment of this Court delivered on the 08/3/2018, and marked as Exhibit “A”. The Respondents did not file any Court-affidavit, but indicated to the Court that they were opposing the Application on grounds of law. Since the Application was opposed, parties were ordered to file and serve written addresses. The Appellant/Applicant’s written Address in support of the motion was filed on the 08/8/2019. Therein, the Applicant posited one issue for determination as follows:
“Whether this Honourable Court can grant our application having complied with the Rules of this Honourable Court.”
The Respondents’ written Address was filed on the 18/10/2019. Like the Appellant/Applicant, one issue was raised by the Respondents, as follows:
Whether the Appellant/Applicant has complied with the Rules of this Honourable Court and the conditions precedent for the grant of the reliefs sought in the notice of motion.
Upon being served the Respondents’ written Address, the Appellant filed Reply on points of law, on the 23/10/2019.
Now, arguing the Application, learned counsel for the Appellant/Applicant contended that the application is meritorious and should be granted on the grounds set out on the motion paper. That Appellant was unable to compile and transmit the record of appeal within the time stipulated by the Rules of this Court as learned counsel misconceived the Rules of this Court, 2016 has repealed the Court of Appeal Practice Direction of 2013 which was made pursuant to the Court of Appeal Rules, 2011. That such misconception occasioned the transmission of the Record of Appeal out of time.
Learned counsel for the Appellant/Applicant then contended that, the decision of this Court attached to the motion as Exhibit “A” has informed this application. The case of Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 643 was cited in support, and to urge us to hold that, the Appellant/Applicant has shown sufficient reason for filing the application. We were also urged to grant the application.
In response, learned counsel for the Respondents contended that, the reason given by the Appellant/Applicant for failing to compile and transmit the record of appeal within the time fixed by law, is not cogent and satisfactory. That, judicial discretion must at all times be exercised not only judicially but also judiciously based on the material before the Court. The case of Elias v. Ecobank Nig. Plc. (2019) 4 NWLR (Pt. 1663) 381 at 402 paras.D-H was then cited to submit that judicial discretion is always premised upon facts, and good and compelling circumstances. Learned counsel for the Respondent went on to submit that, ignorance of the law is not an excuse for anyone to seek to escape from liability. That in the instant case, the Appellant/Applicant claimed ignorance or inadvertence of the Rules of this Court which require filing of an application for enlargement of time to appeal upon expiration of the time prescribed for so doing. The case of Alloysius Akpaji v. Francis Udemba (2009) 6 NWLR (Pt.1138) 545 at 564 paras. E-F was then cited to submit that, it would be a different issue if the ignorance or inadvertence alluded to is that of a person without legal training. That in the instant case, the ignorance claimed is that of a legal practitioner and therefore inexcusable. It is therefore submitted that, the misconception or inadvertence alluded to the Applicant is, in law, not good and substantial reason to warrant the exercise of the Court’s discretion in favour of the Applicant. We were urged not to grant the relief for extension of time sought by the Appellant/Applicant.
In reply on point of law, learned counsel for the Appellant/Applicant cited the case of Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 643 to submit that, the cliché, ignorance of the law is not an excuse does not apply to procedural mistakes. That in the circumstances of this case, the case of Elias v Ecobank Nig. Plc (supra) is inapplicable in the determination of this application.
Before I proceed, if need be, I find it necessary, to first determine whether this application for extension of time, is necessary. I realize that the Appellant premised his application on Order 6 rule 1, 9 rule 1 and 20 rule 2 of the Court of Appeal Rules, 2016. I realize that save for Order 6 rule 1, Order 9 rule 1 and 20 rule 2 are inapplicable to an application of this nature. I realize also that, the Appellant brought this application under the misconception that he was out of time. Let me reproduce paragraph one (1) of the arguments of the Applicant where it is stated that:
“Your Lordships the Appellant’s counsel was not able to transmit the Record of Appeal within the time stipulated for transmitting interlocutory appeal as enshrined by the Rules of this Honourable Court in Order 6 Rule 12 of the Court of Appeal Rules, 2016, which he misconceived the rules of this Honourable Court that the Court of Appeal Rules of 2016 had repealed the Court of Appeal Rules, 2011. The aforementioned misconception of counsel to the Appellant occasioned the transmission of the Record of Appeal out of time, hence this application.”
No doubt, learned counsel has demonstrated by the reason adduced for bringing this application, that he lacks a grasp or comprehension of the Rules of this Court. The Order 6 rule 12 referred to by learned counsel is totally irrelevant to an application for extension or enlargement of time to compile and transmit record of appeal. It is only relevant to an application seeking to set aside a judgment or ruling of Court.
It should also be noted that the applicable and subsisting Practice Direction of this Court is the COURT OF APPEAL (FAST TRACK) PRACTICE DIRECTIONS, 2014. The Practice Direction of 2013 was superseded by the (Fast Track) Practice Direction of 2014. Learned counsel should note that, even then, by the definition of a FAST-TRACK-APPEAL, the Practice Direction is only applicable in respect of:
(a) Debt appeals;
(b) Appeals pertaining to or connected with:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(i) Corruption;
(ii) Human trafficking
(iii) Kidnapping
(iv) Money laundering
(v) Rape; and
(vi) Terrorism
It also applies to:
“Appeals by or against such natural human rights, intelligence, law enforcement, prosecutional or security agencies such as the Economic and Financial Crimes Commission, Independent Corrupt Practices Commission, National Human Rights Commission, the State Security Service.”
That being so, it is only interlocutory appeals arising from judgments relating to the subject matters listed above that will be governed by the Court of Appeal (Fast Track) Practice Direction, 2014. I have perused the record of appeal, I find that the subject matter of the dispute between the parties as disclosed by the Writ of Summons and statement of claim is on declaration of title to land, general damages and injunction. The claim has nothing to do with the subject matters covered by the said Fast Track Practice Direction of this Court, made in 2014. The claim and invariably the appeal is not by or against any of the persons mentioned in the said Practice Direction. That being so, the judgment of this Court delivered on the 08/3/2018 in Appeal No: CA/PH/432/2017 and attached to this application is inapplicable. At best, that decision would be said to have been decided per incuriam.
Having held as above, it is my view, most respectfully, that this appeal, though an interlocutory appeal must be governed by the Court of Appeal Rules, 2016. By Order 8 rule 1 of the Court of Appeal Rules, 2016.
“The registrar of the Court below shall within sixty days after the filing of a notice of appeal compile and transmit the Record of Appeal to the Court.”
Where the Registrar fails to compile and transmit the records within the sixty (60) days, the duty to do so shall fall on the Appellant; and it shall be performed within 30 days. In the instant case, the Notice of Appeal was filed on the 13/2/2018 and the record was compiled and transmitted to this Court within the time stipulated by Order 8 rules 1, 4 and 5 of the Court of Appeal Rules, 2016. In that respect, the record of appeal was compiled and transmitted to this Court within time and therefore competent. On that note, I find that this application seeking for extension of time to compile and transmit the record of appeal is not unnecessary. That relief sought on the motion paper is accordingly struck out.
I notice again, that the Appellant/Applicant did not say anything on the relief for stay of proceedings in the suit No: PHC/342/2017 which is now pending before the Rivers State High Court. The implication is that, that relief sought has been abandoned. It is accordingly struck.
Having found as above, it is my view that this application ought not to have been filed. It has been a waste of judicial time, as the Record of Appeal sought to be regularized was compiled and transmitted within time. The Application is accordingly struck out.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: The Ruling just delivered by my learned brother, Haruna Simon Tsammani, PJCA was served on me in draft, which I read through and convinced with the reasoning and conclusion arrived at.
The application in Motion on Notice filed by the Appellant/Applicant on the 6th day of March, 2019 is of no moment and cannot see the light of the day. It is therefore struck out as done in the lead Ruling. GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the lead Ruling just delivered by my Lord, the Hon. Presiding Justice, Justice Haruna Simon Tsammani. Court of Appeal in which the Motion on Notice filed by the Appellant on 6/3/2019 having been predicated on a gross misunderstanding of the applicable Rules of the Court of Appeal, 2016, was adjudged to be unnecessary and was consequentially struck out.
The lead Ruling had comprehensively dealt with the issues both parties set down for determination, and I really do not find it necessary to make any further additions to the said Ruling which in my view, has interpreted the provisions of our Rules so clear and so simple.
In view of the fact that no submission was made on the prayer seeking stay of further proceedings in the lower Court, the said prayer is deemed abandoned and was rightly discountenanced and struck out.
I agree with the said Ruling that application was unnecessary had the Appellant’s Counsel fully understood the provisions of the Court of Appeal Rules, 2016
The application is struck out by me too.
Appearances:
M. E Ugbeta; Eqa with him, A. U. Nwoko; Esq For Appellant(s)
S. U. Nwosu; Esq For Respondent(s)