JOHN KENNEDY OPARA v. AJIBOLA PAUL & ORS
(2019)LCN/13295(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of May, 2019
CA/A/441/2018
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
JOHN KENNEDY OPARA Appellant(s)
AND
1. AJIBOLA PAUL
2. THE MINISTER OF THE FCT.
3. FEDERAL CAPITAL TERRITORY DEVELOPMENT AUTHORITY Respondent(s)
RATIO
WHETHER OR NOT A LITIGANT MUST NOT BE PUNISHED FOR THE ADMINISTRATIVE ERROR OF THE COURT AND ITS OFFICIALS
It is the exclusive responsibility or duty of the Court Registry and their staff to see that the application was properly attended to, including assigning motion number on it. There is presumption of regularity in the acts of the Court Section 150 (1) of the Evidence Act, 2011 provide:
?When any judiciary or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.” (Underlined mine for emphasis.)
In the case of Odubeko v. Fowler (1993) 7 NWLR (Pt.308) 537 at 555, the apex Court in this respect held that:
“In the absence of any evidence to the contrary, there is a presumption that things are rightly and properly done in accordance with the maxim Omina Praesumuntur Rite esse Acta see IRP (Nig) Limited v. Oviawe (1992) 4 NWLR (Pt. 183) 119 CA. See also Re Randle Nelson & Anor v. Akofiranmi (1962) 1 SCNLR 252 (1962) All NLR 130.”
The motion on notice filed by the Appellant on 27/2/18 is therefore deemed to be regularly filed and properly placed before the Court. The principle is established that a litigant must not be punished for the administrative error, incompetence, fault, mistake, negligence or sins of the court and its officials.
In Famfa Oil Limited v. A. G. Federation (2003) LPELR ? 1239 (SC) page 15, (2003) 18 NWLR (Pt. 852) 453, the Supreme Court, per Mohammed JSC stated succinctly that:
“It is wrong for a Court to punish a party for a mistake committed by the registrar of a Court.” See Akinpelu v. Adegbore (2008) 10 NWLR (Pt. 1096) 531 at 557, British American Tobacco (Nig.) Limited v. A G Ogun State (2013) LPELR 20674 at pages 31 – 34, paragraph F – A, Alia Hakimi & Anor v. Rabiu Kwakwaba & Anor (2016) LPELR – 40481 (CA). PER AKOMOLAFE-WILSON, J.C.A.
THE REQUIREMENT FOR THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME
The trite principle of law is that in order to justify the exercise of Court’s discretion in extending time, there must be some material in which to base the exercise of that discretion. Therefore, the main requirement for the grant of the application is for the applicant to show good and substantial reasons for the failure to file the statement of defense within the prescribed period. See N. A. Williams & Ors v. Hope Rising Voluntary Society (1982) 1- 2 SC 145, T. M. Limited v. S. Engineer limited (2009) 6 NWLR (Pt. 1136) 1 CA. PER AKOMOLAFE-WILSON, J.C.A.
WHETHER OR NOT THE SINS OF A COUNSEL SHOULD NOT BE VISITED ON THE LITIGANT
The settled principle of law backed by a long line of cases is that the sins of a counsel should not be visited on the litigant. The delay occasioned by the Appellant’s Counsel should not be visited on the client. SeeOgunbiyi v. Mustapha (1996) 4 NWLR (pt. 442) 337, Long John v. Black (1998) LRCN 3864 at 3893, Ogundoyin v. Adeyemi (2001) 9 NWLR (Pt. 730) 403, NEPA v. Savage (2001) 9 NWLR (PT. 717) 230; Dangote Gen. ile Products Limited & Ors. v. Hascon Associates Nig. & Anor (2013) LPELR – 2066s (SC). In Nwankwo v. Nwankwo (1993) LPELR – 2111 SC; (1993) 5 NWLR (Pt. 292) 281 at 2945C, the apex Court per Uche Omo, JSC held that:
“It is also trite that delays for which Counsel can be held responsible should not be laid at the doors of his client (appellant), it is also the principle observed by the Courts that very late applications for amendment of pleadings and other papers filed shall be granted so long as the interest of justice is thereby served vide Chief Ojah & Ors. v. Chief Ogboni & Ors (1976) 4 SC 65.” PER AKOMOLAFE-WILSON, J.C.A.
TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Federal Capital Territory, Abuja, delivered by Hon. Justice A. O. Otoluka on the 27th day of February, 2018.
The 1st Respondent as Plaintiff filed the suit against the 2nd and 3rd Respondents and the Appellant as 1st, 2nd and 3rd Defendants respectively seeking for the following reliefs:
1. A Declaration that the Plaintiff is the bonafide titleholder over plot No. 352 measuring about 2,823 square metres with file No. OG 11261 within Cadastral Zone B19 Katampe Extension District Abuja and that the said title is still valid and subsisting;
2. A Declaration that the demolition notice issue to the Plaintiff over the improvement to the Plot is illegal, unlawful, null and void;
3. An Order of perpetual injunction restraining the Defendants, their agents, privies etc. from removing and/or demolishing the Plaintiff’s house structures, trespassing, tempering with or disturbing in any manner whatsoever with the Plaintiff’s right and quiet enjoyment over plot No. 352 Katampe Extension District Abuja;
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4. An Order declaring the purported allocation of the plot to the 3rd Defendant as illegal, unlawful, null and void;
5. A Declaration that the Id Defendants forcible entry into the plot and chasing away of the Plaintiff’s workmen and labourers amounts to trespass;
6. A Order for the 3rd Defendant to pay the sum of Two Million Naira (N10,000,000.00) only to the Plaintiff as damages for trespass.
7. A Order compelling the 1st and 2nd Defendants to issue the Plaintiff a Certificate of Occupancy over the plot; and
8. An Order for the Defendants to pay the sum of Five Hundred Thousand Naira (N500,000.00) only being the cost of this suit to the Plaintiff.
The 1st Respondent filed along with the Writ of Summons and Statement of Claim a Motion on Notice for Interlocutory Injunction. On being served with the originating processes by substituted means (page 60-61 of the record), the Appellant filed an application for extension of time to enter appearance and for an order deeming the Memorandum of Appearance as duly filed and served. The application was duly granted by the lower Court (pages 85-94 and 399-408 of the record of Appeal).
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The Appellant also filed a Counter Affidavit in opposition to the 1st Respondent’s Motion for Interlocutory Injunction (pages 99 -118 and 410 -429 of the record of Appeal)
The 2nd and 3rd Respondents with the leave of Court filed Amended Statement of Defense and the 1st Respondent with leave of Court filed a reply and further Witness Statement on Oath to their Amended Statement of Defense.
The 1st and 2nd Respondents joined issues at the trial Court, called witnesses and adopted their respective trial addresses. On 12th February, 2018, the learned counsel for the 3rd Defendant (Appellant) informed the Court of the Appellant’s application which the Plaintiff’s counsel opposed on the ground that it had no motion paper and therefore incompetent. The learned trial Judge adjourned the suit for judgment to 27th February, 2018. On that day, the application was moved and refused and the Court gave judgment in favour of the 1st Respondent.
?Aggrieved, the Appellant filed a Notice of Appeal, dated 12th day of March 2018, containing four grounds (pages 478 -482 of the record of appeal). The Appellant also filed an Amended Notice of Appeal on the 6th of June
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2018, which was deemed as properly filed and served by this Court on the 10th day of December, 2018 respectively. In this Court, the Appellant and the 1st Respondent filed their respective briefs of argument. The 2nd and 3rd Respondents did not file any brief of argument in this appeal even though they actively participated in the proceedings at the trial Court.
The 1st Respondent also filed a motion on Notice on 12th December, 2018 praying for the following reliefs:
“An order striking out grounds 1, 5 and 6 of the Grounds of Appeal and issues formulated from them and also issue 3 of Appellant’s Brief of Argument filed on the 6th day of June, 2018 for being incompetent.”
The grounds for the application are:
a. Grounds 1, 5 and 6 and the issues distilled thereform did not flow from the judgment appeal against nor challenge the ratio of that decision.
b. The Appellant argued incompetent ground 1 together with ground 7 under issue 3.
The argument of this motion is at pages 3 – 7 of the 1st Respondent’s Brief of Argument. The Appellant in response filed a counter-affidavit and grounds for opposing the application on 23rd January,
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2019, mainly on the ground that issue of fair hearing, like jurisdiction is fundamental to all Court proceedings and as such, it is a substantial point of law which can be raised on appeal even for the first time, without leave of the Court. It is apt to consider this motion first before going into the merit of the appeal as it presents itself as a preliminary objection. The argument of the motion is at pages 3 -7 of the 1st Respondent’s brief of argument filed on the 12th of December, 2018 upon which the learned counsel for the Appellant formulated a sole issue for determination:
“Whether the Appellants (sic) Grounds 1, 5 and 6 and all issues formulated therefrom and issue 3 are not incompetent and liable to be struck out.”
It is counsel’s contention that grounds 1, 5 and 6 did not attack the ratio decidendi of the judgment appealed and that issues 1, 2, and 3 distilled from the incompetent grounds of appeal are themselves incompetent and liable to be struck out. Further that the Appellant having argued incompetent ground 1 with ground 7 under issue 3, ground 7 has been contaminated and liable to be struck out.
?
I have carefully considered the
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objection of the 1st Respondent. His application is for striking out grounds 1, 5 and 6 of the Appellants Notice of Appeal. The Notice of Appeal is at pages 478 to 482 of the Record of Appeal. A perusal of this Notice of Appeal shows clearly that there are only four grounds of appeal. There are no grounds 5 and 6 in this Notice of Appeal attacked by the first Respondent. Without much ado, the objection of the 1st Respondent is misconceived and it is hereby dismissed.
I will now consider the merits of the appeal. Four issues were formulated by the Appellant for determination which were adopted by the 1st Respondent namely:
1. Whether the Court will visit the mistake of the Court’s Registry on a litigant. (Distilled from Ground 1 and 5)
2. Whether there was substantial irregularity resulting in a miscarriage of justice when the learned trial Judge failed to consider and determine the Appellant’s application for extension of time to open its defense before entering judgment in the suit? (Distilled from Ground 6).
3. Whether in the circumstance of this case, the manner in which the Lower Court refused to hear the application of the Appellant
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as 3rd Defendant when he sought for extension of time to file statement of defense was not a clear violation of his constitutional right to fair hearing which inevitably renders the judgment of the lower Court null and void? (Distilled from Grounds 1 and 7)
4. Whether having denied the Appellant (3rd Defendant) the opportunity to defend the action by moving his motion dated 27th day of November, 2017 and filed on the 28th day of November, 2017, the N1,000,000.00 damages awarded by the trial lower Court was justified and/or made in accordance with the law? (Distilled from Grounds 2, 3 and 4).
On issue one, it was submitted that failure in inserting the motion number on the Appellant’s application for extension of time is not to be visited on the Appellant who had done all that was expected of him by paying the assessed fees and filing the motion. The Appellant, he argued, had no role to play in fixing the number on the motion paper. He relied on Alawode v. Semoh (1959) SCNLR 91. A litigant should not be punished for the sins of the Court or registry – Waziri & Anor v. Geidam & Ors (2016) 11 NWLR (Pt. 1523) 230 at 258, Shebah Exploration & Production Coy Limited v. Oxbow Concept Resources Limited
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(2018) LPELR – 44093 pages 8 – 9 (CA). Refusal of the Court to consider the application for extension of time quickly filed by the Appellant’s counsel when Appellant became aware that the matter had been adjourned for judgment on the ground that it had no motion paper, he argued, amounted to a serious error thus rendering the entire proceedings a nullity – Agbu vs. Agbu (2007)1 NWLR (Pt.1016) 432, Gitto Contruzioni Generali (Nig) Limited v. Inua (2017) LPELR – 43649 at pages 20 -21.
On issue two, it was submitted that a Court of law has no jurisdiction nor discretionary power to refuse to take any process before it, no matter how frivolous it might appear as it breaches the principle of fair hearing – Nalsa & Team Associates vs. NNPC (1991) All N.L.R. 297, General Electric Company v. Harry Ayoade Akande & 4 Ors 2012 3 SC (Pt iv) 74, Federal Airports Authority of Nigeria v. Wamal Express Service Limited (2011) 1 -2 SC (Pt 11) 93. Further that it is the duty of the trial Court to ascertain whether or not all the pending motions are dealt with before it
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considers the motion to enter judgment in default hence the Appellant cannot be blamed for failure to bring this application for extension of time to file the defense to the Notice of the trial judge – Ndika vs. Chiejina (2003) 1 NWLR (Pt. 802) 451. Failure of the trial judge to hear the Appellant’s pending application before a decision was taken against him occasioned a miscarriage of justice and liable to be set aside.
On issue 3, in the main, it was submitted that the Court below ought to have exercised its discretion in favour of hearing the Appellant’s pending application for extension of time so as not to trample upon Appellant’s fundamental right emphasizing that the real issue is whether the Court below had by its judgment delivered on 27th February, 2018 breached the right to fair hearing. He called in aid several authorities including Newswatch Communications Limited v. ALhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144, Agbapuonwu v. Agbapuonwu (1991) 1 NWLR (Pt.165) 33 at page 40, FAAN v. WES (Nig) Limited (2011) 8 NWLR (Pt. 1249) 219 at page 237, Ani v. Nna & Ors. (1996) 4 NWLR (Pt.440) 101 at 120, Adeyemi v. Ike – Oluwa Limited
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(1993) 8 NWLR (Pt. 309) 27. He added that a Court should neither be too slow nor be too fast as being in haste.
Issue 4 is on the award of N1,000,000.00 against the Appellant which he regarded as against the weight of evidence, the Court having denied the Appellant the opportunity to defend this action. It was argued that from the circumstances of this appeal, the delay to file the Appellant’s defense was occasioned by the Appellant’s counsel and arguing that the settled principle of law is that the sins of a delay by a counsel should not be visited on his client – citing Nwankwo v. Nwankwo (1993)LPELR – 2111 SC,NIPCO Plc. v. Hensmor Nigeria Limited & Ors (2011) LPELR – 9264. Concluding his submission, learned counsel submitted that a case which had been adjourned for judgment “can still be responded for further argument before judgment”; citing Mika’llu Agbu v. Agbu (2007) WRN (vol. 9) 195 at 204 -205.
Responding on issues 1 to 3, it was submitted that the Appellant’s submission in paragraphs 5.02 to 5.10 of his brief that the learned trial Judge failed to consider his application for extension of time to file his defense is
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totally misconceived having regard to pages 27 ? 32 of the supplementary record of appeal which showed that the application was taken but dismissed by a well considered ruling. He cited NIC Oil Network Services Limited & Ors v. Bamod Oil Nigeria Limited (2014) LPELR ? 24629 (CA) to submit that the Court is bound by the records of appeal. A party, he submitted, is not allowed to maintain on appeal, a different case from that pursued at the trial Court -Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (Pt. 608). Respondent’s counsel referred to pages 85-94, 99 -199, 203, 297 -403, 410 – 429 and 443 of the record of appeal to submit that the Appellant duly entered appearance, filed counter-affidavit in opposition to the 1st Respondent’s application for interlocutory injunction, represented by counsel on many occasions, and still refused to file his statement of defense, emphasizing that he cannot at this stage complain about denial of fair hearing. He called in support the case of Mathew Nwokocha v. Attorney General of Imo State (2016) 1 LPELR – 400 77 (SC.
On issue 4, it was submitted that the 1st Respondent led unchallenged
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evidence of trespass, supported by pleadings and therefore is entitled to the damages awarded, as it flows automatically on proof of trespass – Group Captain Ogah (rtd) 7 Anor v. Mallam Garba Ali Gidado & Ors (2013) LPELR ? 202 98 (CA), Osuji & Anor. v. Isiocha (1989) 3 NWLR (Pt. 111) 625. It was further submitted that the Appellant never challenged the question of damages awarded the 1st Respondent so the award of N1,000,000.00 is valid and subsisting – Ukachukwu v. PDP & 3 ors (2014) 17 NWLR (Pt 1435) 134 at 149. This Court was urged to dismiss the appeal.
I take issues 1, 2, and 3 together.
The grouse of the Appellant is on the procedure adopted by the learned trial Judge for the refusal on 12th February, 2018, to hear his application for enlargement of time to file his Statement of Defense and other processes in the suit on the ground that the motion paper had no number. His contention is that the Appellant was effectively shut out from presenting his defense and thereby deprived the Appellant of his right of fair hearing and which occasioned a miscarriage of justice. The response of the 1st Respondent is that the
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Appellant’s complaint is not supported by the record of appeal because the Appellant’s motion was in fact argued, considered by the learned Trial Judge and dismissed as lacking in merits. There is thus an issue of whether or not the Appellant’s application was considered by the trial judge before judgment was delivered in this action.
The record of appeal is the documentary account of what transpired in the Court. It is the reflection of the proceedings that took place in the Court below. The law is firmly established that parties and the Court are bound by the record of appeal. The record of appeal is also presumed to be correct and accurate until contrary is proved. See Onwuka v. Ononuju (2009) 11 NWLR (Pt. 1151) 174, Ojeme v. Momodu (1994) 1 NWLR (Pt. 323) 685 at 697.
I have examined the record of appeal and the Supplementary record of appeal. In the first place, I observed that the record of appeal is not properly paginated. A glance at page 449 shows that the contents therein do not flow into page 450. A close scrutiny at the foot of the pages of the record shows that after page 13, follows page 45, showing that pages 14 – 44 are missing.
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A close and painstaking observance of the supplementary record of appeal numbered as page 1 – 32 reveals that it supplies the missing pages in between the main record of appeal; even though pages 27, 28, 29, 30 and 31 are also not sequentially arranged. The irregular numbering of the records of appeal could cause some confusion in the understanding of what transpired in the Court below. Now, as rightly stated by the Appellant’s Counsel, on the 12th day February, 2018, one Darlingiton C. Anyande appeared for the 3rd Defendant (Appellant) and told the Court that he had a motion on notice for extension of time to file and serve the 3rd Defendant’s Statement of Defense, but the Court below refused to hear the motion for failure of the Court registry to insert a motion number on the motion paper. See paragraph 2.03 of the Appellant’s brief of argument. The records of proceedings of 12/2/2018, reproduced hereunder confirm the Appellant’s position.
12th DAY OF FEBRUARY, 2018
Plaintiff’s attorney present. Defendants absent
Obinna Ajoku for the Plaintiff with Ebizimo Dabo Darlington C. Anyanele for the 3rd Defendant.
Plaintiff’s counsel:<br< p=””
</br<
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The 1st and 2nd Defendants’ counsel was in Court but went to attend to an emergency.
Defense counsel:
The matter is slated for judgment but I have filed an application and I discovered that the secretary that went to file the motion omitted the motion number.
Plaintiff’s counsel:
The absence of the motion not having a number and it is incompetent before the Court, we ask for a date for the judgment.
Case is further adjourned to 27th February, 2018 for judgment.
(see pages 26 – 27 of the supplementary record of appeal)
It is clear from the proceedings of 27/2/2018 that the learned trial Judge acceded to the objection of the Plaintiff’s (1st Respondent) counsel and refused to take the application and instead adjourned the matter for judgment. Upon a calm perusal of the judgment of the trial Court at pages 452 – 477 of the record of appeal, it is observed that there was no mention or reference to the fact that the Appellant’s application was ever taken before the judgment was delivered. In fact the clear impression given by the learned trial judge is that the said application was never heard.
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Hear him:
?”Before the adoption of written addresses, the 3rd Defendant was last represented in Court on 10th day of March, 2016 by one Okanni Emmanuel, who held the brief of Isaac Anumudu. Thereafter, there was no appearance again for him, either in person or by counsel until the 12th day of February, 2018 when the matter first came up for judgment. One Darlington C. Anyanele appeared for the 3rd Defendant and told the Court that he had motion for extension of time to file and serve 3rd Defendant’s Statement of Defence. The Court could not however, hear the said motion as it was found not to have motion number and since the judgment was not ready on that day, the case was further adjourned to today for judgment.
(Underlining for emphasis)
(See page 459 lines 7 ? 18 of the record of appeal)
What followed immediately was the consideration of the written addresses of the Plaintiff, (1st Respondent) and the 2nd and 3rd Defendants’ written addresses for the determination of the judgment of which spanned from pages 452 -477 of the record of appeal. The Court did not refer to his considered ruling on the Appellant’s application for extension of time despite the fact
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that later, at pages 467 – 468 of the record, the learned trial Judge still made reference to his finding that the 3rd Defendant and his counsel stayed away from proceedings. Let me cull out the necessary except from the records:
“As noted earlier in the summary of the proceedings in this case, the 3rd Defendant was fully seised of this matter. He dully entered appearance to the suit through counsel and filed counter affidavit to the Plaintiff’s motion for interlocutory injunction. After ruling was delivered on the application for interlocutory injunction and the Plaintiff commenced his evidence in the case, the 3rd Defendant and his counsel stayed away from the proceedings. Upon all the hearing notice and subsequent Court processes served on them.”
Judicial notice can be taken of the procedure in the registry of a Court. It is the duty of the registry staff of the Court to assess and assign appropriate numbers to processes duly filed by litigants or their in counsel. It is not the duty of the litigant or his counsel to endorse anything on the process after it has been duly filed in Court. Unarguable, therefore , it was the responsibility of the registry officials to assign number to the motion filled by the Appellant for the application for enlargement of time to file his statement of defense. Evidence on the record shows that this motion was assessed and duly paid for by the appellant (See page 380 of the record of appeal).
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There was therefore nothing left for the Appellant to do in respect of the application duly filed before the Court. He had no role whatsoever to play in the assignment of a motion number on the motion paper. It is the exclusive responsibility or duty of the Court Registry and their staff to see that the application was properly attended to, including assigning motion number on it. There is presumption of regularity in the acts of the Court Section 150 (1) of the Evidence Act, 2011 provide:
?When any judiciary or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.” (Underlined mine for emphasis.)
In the case of Odubeko v. Fowler (1993) 7 NWLR (Pt.308) 537 at 555, the apex Court in this respect held that:
“In the absence of any evidence to the contrary, there is a presumption that things are rightly and
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properly done in accordance with the maxim Omina Praesumuntur Rite esse Acta see IRP (Nig) Limited v. Oviawe (1992) 4 NWLR (Pt. 183) 119 CA. See also Re Randle Nelson & Anor v. Akofiranmi (1962) 1 SCNLR 252 (1962) All NLR 130.”
The motion on notice filed by the Appellant on 27/2/18 is therefore deemed to be regularly filed and properly placed before the Court. The principle is established that a litigant must not be punished for the administrative error, incompetence, fault, mistake, negligence or sins of the court and its officials.
In Famfa Oil Limited v. A. G. Federation (2003) LPELR ? 1239 (SC) page 15, (2003) 18 NWLR (Pt. 852) 453, the Supreme Court, per Mohammed JSC stated succinctly that:
“It is wrong for a Court to punish a party for a mistake committed by the registrar of a Court.” See Akinpelu v. Adegbore (2008) 10 NWLR (Pt. 1096) 531 at 557, British American Tobacco (Nig.) Limited v. A G Ogun State (2013) LPELR 20674 at pages 31 – 34, paragraph F – A, Alia Hakimi & Anor v. Rabiu Kwakwaba & Anor (2016) LPELR – 40481 (CA).
The only reason deductible from the refusal of the learned trial judge to
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hear the Appellant’s application on 27/2/2018 was because there was no motion number on the motion paper. The learned trial Judge was wrong to have refused to hear the Appellant’s application on that day in question merely because of the absence of motion number on the process which was duly filed before the Court. This view is tantamount to technical justice, frowned upon by the Courts.
At this juncture, it is instructive to take into consideration the date of filing of this application for enlargement of time. It is restated that the record of appeal is sacrosanct for the determination of an appeal pending before an appellate Court. It is the backbone of an appeal. It is the gathering of all material recordings, documents and all that occurred in the Court where the appeal originated. The appellate Court will decide the issue placed before it based on the record of appeal duly prepared and transmitted to the appellate Court. The rationale is that an appeal is a re-hearing of a matter by considering the case based on the materials in the record of appeal. Every recording in the record of appeal is deemed material to the determination of the appeal. An
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appeal is therefore determined on the basis of the record placed before it. See Olorunyolemi & Anor v. Akhagbe (2010) LPELR- 2s97 (SC).
I have examined the supplementary record of appeal in this matter. It is clear from the record of appeal, though, misleadingly represented by the learned trial Judge in his judgment, that the learned trial Judge, in fact, heard argument on the Appellant’s application for extension of time to file defense and in his own wisdom, dismissed the application. See page 27 – 32 of the Supplementary record of appeal. This Court cannot close its eyes to this part of the record of appeal, irrespective of the misrepresentation made by the Court which gave the impression that the case was adjourned for judgment and judgment delivered after the motion was refused by the Court without ever hearing the motion itself “The Court could not however, hear the motion as it was found not to have motion number…… the case was further adjournd to today for judgment.” I am of the view that an appellate Court must take into consideration the totality of all the entries in the record of appeal for the just determination of the appeal pending
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before it.
Under issue 3, the Appellant has invited this Court to examine the facts as can be gleaned from the record of appeal and proceedings before the Court below and scrutinize whether the Appellant was not denied fair hearing. I intend to do that so as to do appropriate justice in this appeal. This discretionary power of the Court is very extensive so as to do justice in the suit before the Court. NPA v. Dr. Sama Ekpo Sama & ors (2016) LPELR – 40126 (CA) 23 -24, UBA Limited & ors. v. Nwora (1978) LPELR ? 340 (SC) page 12 Nigerian Society of Engineers v. Ozah (2015) 6 NWLR (Pt. 1454) 76 C.A.
All the Rules of Court provide for enlargement of time within which a person is required to file pleadings in any proceedings. See Order 20 Rule 3 of the FCT High Court, Civil Procedure Rule – which is in pari materia with Order 49 Rule 4 of it FCT High Court Civil Proceedings 2004 which provides:
This Court may, as often as it deems fit and either before or after the expiration of this time appointed by these Rules or by any Judgment or order of the Court, extend the time or adjourn for doing any act or taking any
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proceedings.”
The object of this Rule is to give the Court discretion to enlarge time in order to avoid injustice to either parties in the proceedings. The trite principle of law is that in order to justify the exercise of Court’s discretion in extending time, there must be some material in which to base the exercise of that discretion. Therefore, the main requirement for the grant of the application is for the applicant to show good and substantial reasons for the failure to file the statement of defense within the prescribed period. See N. A. Williams & Ors v. Hope Rising Voluntary Society (1982) 1- 2 SC 145, T. M. Limited v. S. Engineer limited (2009) 6 NWLR (Pt. 1136) 1 CA.
I have examined the Appellant’s application for enlargement of time within which to file his statement of defense and deem same as duly filed and served at pages 380 – 395 of the record of appeal. The reasons advanced by the Appellant for his delay are averred in paragraph 4 (a) – (e) of the affidavit in support of the application. It states:
“4. That I was informed by my Principal Isaac Anumudu Esq., on 24/11/2017, at about 10.00am in the office of the
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following and I verily believe him as follow:
(a) That the delay in filing the statement of defense in this suit is occasioned by the absence of the 3rd Defendant/Appellant who is our client, traveled out of the country for a long time for medical issues and just returned this week.
(b) That our client the 3rd Defendant/Applicant did not perfect our brief before traveling out of the country so as to put in a robust defense to the suit within time which led to the delay of filing this statement of defense.
(c) That it was not an act of neglect or disrespect to this Honourable Court for the 3rd Defendant/Applicant not to have file his defense before now, but due to our client’s health condition which led to his traveling out of the country.
(d) That there is a dire need for the 3rd Defendant/Appellant to file his Defense out of time.
(e) That the proposed Statement of Defense is herein attached to this Application and marked as EXHIBIT ?A’. ”
A calm consideration of the reasons advanced shows that the Appellant has deposed to good and substantial grounds to warrant the grant of the application. The major reason had been
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because the “Appellant did not perfect our brief before traveling out of the country so as to put in a robust defense to the suit within time which led to the delay of filing this statement of defense.”
The fault of the failure to file the Appellant’s Statement of Defence timeously, is obviously attributed to the fault of the Appellant’s Counsel. He failed to file the Statement of Defense because he had not been paid or fully paid. There is no evidence on record that this counsel communicated his refusal to file the statement of defense upon which he has been briefed.
I am fortified by this finding even from the written address written by the 1st Respondent’s Counsel in opposition to application for enlargement of time to file the statement of defense. He referred to the Appellant’s affidavits filed in support of application for extension of time to file his Memorandum of Appearance, filed on 8th October, 2012 and his counter- affidavit in opposition to the Plaintiff’s (1st Respondent) motion for interlocutory injunction on 30th November, 2012 which showed that the Appellant had briefed his counsel as far back as August, 2012 of all the necessary
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facts/materials upon which to file the Statement of Defence. For ease of reference, I will reproduce these depositions:
“That I was informed by 3rd Defendant, Mr. John Kennedy Opara, at our office being Plot 822 Emeka Anyaoku Street, Area II, Garki, Abuja on the 27th day of August, 2012, at about 1.30, and I verily believe his information to be true as correct as follows:
That I was informed by the 3rd Defendant, Mr. Kennedy Opara at our office, being Plot 822 Emeka Anyaoku Street, Area II Garki, Abuja on the 15th day of November, 2012 at about 11am, in the course of his briefing Mr. Isaac Anumudu and I verily believe his information to be true and correct as follows.”
Consequent upon these circumstances the 1st Respondent’s counsel then submitted thus:
“All we are trying to say is that all the facts and 3rd documents required by the Defendant/Applicant to file his defence had been made available since August, 2012 but he deliberately refused to comply with the rules of Court.”
(Paragraph 3.08 at pages 433 – 434 of the record of appeal)
The pertinent question is whether a party who supplied all the facts necessary to file
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his pleadings to his counsel can be regarded as deliberately refusing to file same within the required period. This only confirmed the fact, as self confessed by the Appellant’s counsel, that he refrained from filing the defence because the Appellant was out of the country and his brief had not been perfected but that as soon as the Appellant returned, he filed the application. All the processes filed by the Appellant evinced his intent to defend this action. As rightly submitted by Appellant’s Counsel, delay in filing the defence within the prescribed period was not occasioned by the Appellant himself but by the Appellant’s counsel.
The settled principle of law backed by a long line of cases is that the sins of a counsel should not be visited on the litigant. The delay occasioned by the Appellant’s Counsel should not be visited on the client. SeeOgunbiyi v. Mustapha (1996) 4 NWLR (pt. 442) 337, Long John v. Black (1998) LRCN 3864 at 3893, Ogundoyin v. Adeyemi (2001) 9 NWLR (Pt. 730) 403, NEPA v. Savage (2001) 9 NWLR (PT. 717) 230; Dangote Gen. ile Products Limited & Ors. v. Hascon Associates Nig. & Anor (2013) LPELR – 2066s (SC).
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In Nwankwo v. Nwankwo (1993) LPELR – 2111 SC; (1993) 5 NWLR (Pt. 292) 281 at 2945C, the apex Court per Uche Omo, JSC held that:
“It is also trite that delays for which Counsel can be held responsible should not be laid at the doors of his client (appellant), it is also the principle observed by the Courts that very late applications for amendment of pleadings and other papers filed shall be granted so long as the interest of justice is thereby served vide Chief Ojah & Ors. v. Chief Ogboni & Ors (1976) 4 SC 65.”
The Ruling of the trial Court on this application is at pages 28 – 32 of the supplementary record of appeal (not sequentially arranged). The reasons stated by the learned trial Judge for the dismissal of the Appellant’s application in my view are not justifiable. One of such reasons is the alleged long period of the delay “from 2012 to 2012 to 2018 6 years delaying the Court proceedings? (page 28 of supplementary record of appeal) Perusing the record of proceedings at the trial Court, it is obvious that the reason for the long delay of the suit from 2012 – 2018 was not wholly attributable to the Appellant. In the first place,
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the Appellant could not be served, hence the application for substituted service. (pages 78 – 89 of the record of appeal). Then, the case was transferred from the former Court to the Court of trial in September, 2014 (page 437 of the record of appeal). Further, as late as 28th February, 2016, the 3rd Defendant (Appellant) had not been served with hearing notice of the suit (pages 442 – 443). Even on 18/2/16 the trial Judge chastised the 1st Respondent (the Plaintiff) for not being diligent in prosecuting the case when he stated that:
“The Court has taking (sic) judicial notice of the age of this matter and the plaintiff (sic) failure to prosecute diligently.” (page 443 of the record of appeal)
Even on 25/5/2016, the 3rd Defendant (Appellant) along with other Respondents were not served with hearing notice. Appellant was also not served on 18/5/2017 (pages 18 -19 of the Supplementary record of appeal). All through the proceedings, it is only on two occasions that the Court recorded that the Appellant was served but not represented. See pages 2 and 25 of the supplementary record of appeal. There were also occasions in which the Court did
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not sit. In fact at page 29 of the supplementary record, the Court noted the fact that:
Unfortunately, the Court went on National assignment in 2015 on resumption, the matter was first heard on 9th December, 2015.” The findings of the Court that the “3rd Defendant on several adjournments were sic absent, despite the service of hearing notices.” (page 29 of supplementary record of appeal) is not borne by the record of appeal.” (Underlining for emphasis).
Further, one of the reasons why the Court refused the application was the remark of the learned trial Judge that the Appellant’s counsel did not rely on any of the depositions in the affidavit in support of the motion and held that:-
“This technical error not only goes to the root of the application and renders it incompetent.” (page 28 of the supplementary record)
However, contrary to this finding, the Appellant’s counsel while moving the motion relied on the affidavit. See page 30 of the supplementary record where he submitted that:
“The motion is supported by 7 paragraph affidavit deposed to by Anyanele Darlington …………”
The learned trial Judge also referred to what he
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termed “another blunder that cannot be redeemed” in that the Appellant’s counsel failed to request for an order lifting the foreclosure of the right of the Appellant and in conclusion therefore held that the “3rd Defendant’ counsel had deliberately failed to obey the procedural rules of this Court which are material to his case.” (page 31 of supplementary record of appeal)
At this junction, it is instructive to take into consideration the date of filing of this application for enlargement of time. It was dated 27th day of November, 2017; accompanied by the 3’d Defendant’s (Appellant’s) Statement on Oath. See pages 380 to 395 of the record of appeal. The cognizance of the date of filing this application is necessary as it shows that the Appellant’s application was in fact already pending in the Court before the final addresses were adopted. (See proceedings of 11/10//2017 when suit was adjourned for adoption of addresses at pages 20 – 25 of supplementary record). This further cements the fact that the Appellant all along had the intention to defend this suit. The application was pending in the Court before the case was adjourned for judgment.
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It is the responsibility of the Court to ascertain that there is no pending application in the Court’s file before embarking on any important decision such as adjourning the suit for judgment in default of pleadings of the 3rd Defendant (Appellant) when in fact there was an application for extension of time for the said pleadings to be admitted in Court.
I have taken all these pains to make these appropriate references to the proceedings at the trial Court for the exposition of the circumstances which led to the rejection of the Appellant’s application by the trial Court. In the light of the foregoing, it is clear to any discerning mind that the learned trial judge failed to exercise his discretion in favour of the Appellant to grant the extension of time prayed for in his application, based on the fault or neglect of the counsel of the Appellant. It is trite that a delay in taking necessary steps to file proceedings for which counsel can be held responsible, should not be laid at the doorstep of the litigant. The sins of the delay occasioned by the Appellant’s counsel in this appeal should not therefore be visited on the Appellant.
I am in agreement with the
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submission of the Appellant counsel, that the manner in which the lower Court refused to grant the application for extension of time to file his defence is a clear violation of his constitutional right of fair hearing. Section 36(1) of the Constitution of Nigeria, 1999 as amended provides:
“In the determination of his civil rights and obligation, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartially.”
Fair hearing means a fair trial, one conducted in accordance with all legal rules to ensure that justice is done to both parties. The crucial determinant of fair hearing is the necessity to afford the parties opportunity to conduct and present their cases to enable the Court determine all the issues in controversy. A party should not be driven from the seat of justice on technical reasons not due to his fault. Parties should be encouraged and allowed to put face up on the table their grievances and decide the merits of the case
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before it. Justice must not only be done, it must manifestly be seen to be done. In this bid, all parties must be given equal opportunities to conduct their cases in accordance with rules of Court without any hindrance. This Court will not dwell on the technicalities and mistakes of counsel to deprive the Appellant the opportunity to ventilate his grievances or defend his right before the Court. Even though the saying is that “Justice delay is justice denied.” It is also right and to acknowledge that just rushed is justice crushed. The Primary duty of a Court is to do substantial justice in all matters before it and this duty must not be subjugated on the platform of technical grounds. The law reports are replete with authorities on the admonition of the Courts to disperse justice to all parties before it.
Recently, the apex Court emphasized the duty of Court to do justice in the case of Alioke v. Oye (2018) 18 NWLR (Pt. 1651) 247 at 267;
“the duty if the Supreme Court is to do substantial justice, stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but is manifestly seen and duly
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acknowledged by all and sundry as justice both in content and con. Thus, even in cases where errors of omission or commission called blunders have been made, it is unjust to hold that because blunders have been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”
In Motoh v. Motoh (2011) All FWLR (Pt. 584) 33 at 118, stated that:
“I am of the opinion that the proper role of the law is to do justice between the parties before them. If there is any rule of law which impairs the duty of the Court then it is in the province of the law to do all he can legitimately do to avoid the rules so as to justice to the case before him. The Court in Nigeria exercises their dual role as a Court of law and of equity. A judge in such a system has a duty to enumerate the harsh content of the law, to put it in a colloquial language: the Court has a duty to pour water on the fire of law where it is equitable to do so.”
In this appeal, failure to file statement of defence was not due to any dilatoriness of the Appellant or his counsel, or deliberate non-observance of any rules
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of Court or fault of the Appellant, therefore equity demanded that the Court’s discretion ought to have been exercised in his favour. Refusal of the Court to grant the Appellant’s application is a wrong exercise of his discretion resulting into a miscarriage of justice. It is tantamount to breach of fundamental right of fair hearing as enshrined in the 1999 Constitution (as amended).
The right to fair hearing lies at the heart of adjudication, therefore, a finding that a party was denied fair hearing as in this appeal, nullifies the entire proceedings, including the judgment. The appropriate order to be made in the circumstance is a hearing de novo. See Okafor v. AG, Anambra State (1991) 6 NWLR (Pt 200) 659 at 678, Omokuwajo v. FRN (2013) 9 NWLR (Pt. 1359) 300 at 340.
In effect, this appeal is meritorious and it is allowed. I hereby set aside the judgment of FCT High Court, Abuja in FCT/HC/CV/2188/2012, delivered by Hon. Justice A. O. Otaluka on the 27th day of February, 2018 and make an order for retrial before another Honourable Judge of the FCT High Court.
?
Now, having regard to the conclusion and order made above, issue 4 has become otiose
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and it is hereby discountenanced.
Parties are to bear their respective costs.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in draft, the leading judgment of my learned brother AKOMOLAFE-WILSON JCA just delivered and I agree with his reasoning and conclusion.
It is obvious that the failure to grant the appellant an extension of time to file a statement of defence, by the trial Court, due to the fault of counsel, had occasioned miscarriage of justice and that has vitiated the Judgment. I also allow the appeal, set aside the Judgment of the trial Court, and Order a re-trial before the FCT High Court differently constituted.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, TINUADE AKOMOLAFE-WILSON, JCA. I agree with the reasoning, conclusions and orders therein.
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Appearances:
Paul AtayiFor Appellant(s)
Obina Ajoku with him, Daubry Ebizimoh for 1st RespondentFor Respondent(s)
Appearances
Paul AtayiFor Appellant
AND
Obina Ajoku with him, Daubry Ebizimoh for 1st RespondentFor Respondent
