Nigeria Police Force & Ors. V. Mrs. Ijeoma Onu & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

ADZIRA GANA MSHELIA, J.C.A.

The applicants by a Motion on Notice dated and filed same date 19th day of May, 2005 sought for the following orders:-

1. AN ORDER granting the appellants/applicants enlargement of time within which to seek leave to appeal against the ruling of the Federal High Court in suit No. FHC/L/CS/238/04 dated 13th May, 2004.
2. AN ORDER granting the appellants/applicants leave to appeal Against the ruling of the Federal High Court in suit No. FHC/L/CS/238/04.
3. AN ORDER enlarging the time within which the appellant may file appeal against the ruling of the Federal High Court dated 13th May, 2004 in suit No. FHC/L/CS/238/04.
4. AN ORDER staying further proceedings in suit No. FHC/L/CS/238/04 pending the hearing and determination of the appellants’/applicants’ application for enlargement of time to appeal to this Honourable Court against the ruling of the Federal High Court dated 13th May, 2004.

The application is supported by 18 paragraph affidavit and four paragraph further affidavit. Exhibit ‘A’-‘F’ are attached to the supporting affidavit. 1st and 2nd respondents did not file counter-affidavit. Likewise 3rd respondent.

I wish to note that the initial application was taken on 18/09/06 but counsel were recalled to further address the court on the competency of the affidavit in support of the application. The further address was taken on 12/02/07. It is appropriate to resolve this aspect first before delving into the merit of the application. Learned counsel for the applicant Mr. Amaechina submitted that the Affidavits filed in support of the application are competent. There are two affidavits one was filed on 19/5/2005 while the further affidavit was filed on 22/02/06. It was his contention that the main affidavit was deposed to by litigation officer and by paragraph 2 he made report based on the information he received. Paragraph 4 according to him disclosed the Police Officer he received the information from one Francis Ehilere. Learned Counsel conceded that paragraph 5 did not state the identity of Chike Okwesa. He said paragraph 6, 8, and 9 relates to paragraph 5. Counsel referred to Exhibit ‘B’ the Ruling of the lower court and contented that the said Ruling showed Chike Okwesa was counsel in the matter at the lower court representing 7th Respondent Mrs. Adaeze Nwuba. Chike Okwesa is also representing 3rd Respondent in this application. Counsel contended that the affidavit substantially satisfies the requirement of the law. He relied on the cases of Atanyi Farms Ltd v. N A C B Ltd 2003 4 N.W.L.R (Pt. 810) 427 at 454 – 455 and Lone Star Drilling Limited v Triveni Engineering and Industry (1999) 1 NWLR (Pt. 588) 622 at 628 – 629 to buttress his submission. He urged the court to accept the affidavit as it is.

On the part of the 1st and 2nd respondents Mr. Ezeokeke submitted that the affidavit in support of the motion dated 19/05/05 is grossly incompetent. Counsel submitted that the averments in the affidavit violates the Provisions of Evidence Act with respect to hearsay. He referred to sections 86, 88 and 89 of the Evidence Act 1990. It is trite that every affidavit should contain statement of facts and circumstances through which a witness deposes either of his own personal knowledge or from information which he believed to be true. Counsel referred to paragraphs 7, 9, 11, 12, 13 and 15 of the affidavit in support and contended that the deponent deposed to facts which are clearly not within his personal knowledge and he did not state his source of information. According to him these averments violates S.86 Evidence Act being hearsay which cannot be cured. He urged the court to expunge the paragraphs. Counsel further submitted that when a person deposes to belief he should do so in accordance with S.88 And 89 of the Evidence Act. He relied on the case of Noverties Farmer Services Incorporated, & Anor v Swissco Nigeria Limited & Anor 2004 Vol.2 NWLR (Pt. 856) 28 at 35 to buttress his submission. Counsel also referred to paragraphs 5, 6, 8 and 14 of the affidavit in support and contended that deponent only deposed to facts but did not show any belief in those facts. He referred to S.88 and 89 of the Evidence Act and contended that it is an incurable defect. Paragraph 4 was not left out. He said the deponent made attempt to state informant but did not give reasonable particulars of informant as to time and place. In the light of the above counsel urged the court not only to discountenance the offending paragraphs but to strike out the whole affidavit. He relied on F.M.G v Sani (No.2) 1989 Volume 4 NWLR (Pt. 117) 624 ratio 16 and Momodu vs Momodu 1986 volume 5 NWLR (Pt.46) 649 to buttress his submission. It was his contention that when the offending paragraphs i.e, 4, 5, 6, 7, 8, 9, 11, 12,13, 14 and 15 are struck out or declared worthless nothing will remain to sustain the affidavit in support of the application. He said invariably the affidavit will remain hollow and empty deserving nothing other than complete dismissal. Counsel urged the court to dismiss the motion on notice dated 19/5/05 with substantial costs or in the alternative it be struck out.

Chike Okwesa counsel to the 3rd Respondent associated himself with the submission of Mr. Amaechina applicants counsel. Counsel urged the court to take note of the fact that this is an affidavit in support of an application for extension of time within which to appeal against an order that was made without service of the motion paper. That fact have not been denied or controverted by 1st and 2nd Respondents. He said the fact of no service was not denied which is a clear infraction of S.36 of the Constitution of the Federal Republic of Nigeria i.e. the right to fair hearing, before any order is made. Learned counsel contended that the affidavit may be found to be defective but S.84 of the Evidence Act enjoins the Court to permit the use of the affidavit in the interest of Justice. He relied on the case of Falae v. Obasanjo No.1 (1999) 4 N.W.L.R (Pt. 599 435 at 440 to buttress his submission. He said even though the affidavit is defective the important thing is to do substantial justice. He referred to paragraph 11 of the affidavit. Counsel urged the court to grant the application.

For ease of reference and emphasis I will reproduce the various paragraphs of the affidavit complained of by the 1st and 2nd respondents. Paragraphs 4, 5, 6, 7, 8, 9, 11, 12, 13, 14 and 15 read as follows:-

“4. The Police Officer that led investigation of the Criminal complaint lodged by the 3rd respondent in this appeal against the 1st and 2nd respondents herein Mr. Francis Ehilere informed me and I verily believe him as follows:-

(a) In the course of their investigation they discovered that the 2nd respondent herein was or had been operating under a false name which is Mr. Ikechukwu Onovo Igwe and they suspected that he has criminal motives for so doing.

(b) The said 2nd respondent herein has obtained for himself a Nigerian passport issued to him under the false name of Ikechukwu Onovo Igwe.

(c) Upon becoming aware of this fact, the 3rd respondent herein through her counsel filed an application at the trial court seeking to strike out the name of the 2nd respondent herein from the proceeding, among others.

(d) In reaction to said application, the 2nd respondent herein, who had originally instituted this action in the name of Eric Onu hurriedly filed an application in the proceedings at the trial court on 12th May, 2004 to amend his name by adding the words “Also known as referred to as Mr. Ikechukwu Onovo Igwe”.

(e) The said application was not served on the Appellants/applicants herein but was heard and granted by the learned trial High Court despite the opposition of same by counsel to the 3rd respondent herein on 13th May, 2004.

(f) That after they discovered in the course of investigation that 2nd respondent had two International passports under different names, they planned to prosecute him under the appropriate law and were making preparation for that when the 2nd respondent made the said application which was granted without notice to us.

5. Nnaemeka Amaechina, Esq., counsel representing the appellants informed me that it was only after he discussed this case with Mr. Chike Okwesa Esq on 22nd June, 2004 that he brought to his notice the fact that such application for amendment was filed, heard and granted by the trial judge without notice to the applicants.
6. He further informed me that after studying the situation, he considers it necessary to appeal against the said decision and so advised appellants.
7. I am aware that the Police investigation of the issue of the 2nd applicant/respondent’s use of false name or (sic) identify to obtain a Nigerian International Passport is continuing and will result in his criminal prosecution in a court of law.
8. The said counsel advised the appellants that it is necessary to thrash out every technical issue or finding made by the trial court in regard to his real names which may stand in the way of effective prosecution of the said 2nd respondent eventually.
9. I verily believe that the 1st and 2nd respondents are very crafty persons whom are seriously suspected of fraud and dishonesty and it is therefore necessary to remove every clogg they may put to avoid their effective prosecution.
10. Appellants investigation has also shown that the 1st and 2nd respondents are in the habit of procuring false documents. For instance in their prosecuting of this suit, they made false medical reports to buttress a false claim that they were tortured by the police. Copies of the said false medical reports are attached and marked as Exhibit ‘C’ and ‘D’ respectively.
11. Upon verifying with the authorities of the Lagos State University Teaching Hospital, Ikeja, the said purported medical reports were proved to be forged. A copy of our letter and their letter of reply to that effect are hereby attached and marked Exhibits E and F respectively.
12. I know as a fact that it was as a result of the facts stated in paragraphs 7 to 15 above that the appellants failed to lodge an appeal against the said ruling of 13th May, 2004 within the prescribed time.
13. Nnaemeka Amaechina, Esq informed me that it is necessary to seek the leave of this Honourable Court to appeal out of time and also an order staying further proceedings in this case at the trial court.
14. I verily believe that except order of stay of execution is granted the trial court will proceed and determine finally the case to our prejudice based on the interlocutory finding made by the trial court on 2nd respondent’s name.”

The contention of 1st and 2nd respondents counsel is that these paragraphs of the affidavit reproduced supra offends the provisions of S.86, 88 and 89 of the Evidence Act. The relevant sections are reproduced hereunder as follows:-

“86. Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.

88. When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
89. When such belief is derived from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant and the time, place, and circumstances of the information. The above provisions of Sections 86, 88 and 89 of the Evidence Act, deal respectively with the need to state in an affidavit the grounds for belief of facts derived from any source other than the deponent’s personal knowledge, and the need to give the name of the deponent’s informant when such belief is derived from another person. See Flour Mills of Nigeria Ltd vs R.I Osian (1968) 2 All NLR 13 and N.I.D.B vs Fembo (Nig) Ltd 1997 2 NWLR (Pt.489) 543 at 560.

I have carefully examined the paragraphs of the affidavit complained of by 1st and 2nd respondents counsel. In paragraph 4 it is obvious that the information contained therein was derived from source other than the personal knowledge of the deponent and he did disclose his source of information and belief in compliance with S.88 and 89 of the Evidence Act. By paragraph 2 of the affidavit deponent averred that depositions contained in the affidavit are based on his personal knowledge and information he received. Paragraph 4 is therefore based on his personal knowledge and information he received from the Police Officer Mr. Francis Ehilere. What a deponent is under a duty to show in order to satisfy the requirements of S.88 and 89 of the Evidence Act is the source of information. And that is a source which can be verified if there is a need to verify it. See Atanyi Farms Ltd v NACB Ltd (2003) 4 NWLR (Pt.810) 427 at 454- 455 paragraphs H-C. In my opinion, the deponent in this case has clearly stated the source of his information in paragraph 4 as required by S. 88 and 89 of the Evidence Act. Similarly, in paragraph 5 deponent disclosed his source of information. The source can be verified if there is need to verify it. Nnaemaka Amaechina Esq., the informant is counsel representing the appellants/applicants in this application. Furthermore in paragraph 2 deponent clearly stated that the facts deposed to are based on his personal knowledge and information he received. When paragraph 5 and 2 are read together one would not hesitate to say that deponent has substantially complied with the requirements of Sections 88 and 89 of the Evidence Act. As regards paragraphs 6, 7, 8, 9, 11, 12, 13, 14 and 15 of the affidavit, I entirely agree with the submission of counsel to the 1st and 2nd respondents that the deponent did not disclose his source of information and belief as required by Sections 88 and 89 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990. The paragraphs referred to supra are therefore defective. The position in law is that any paragraph of an affidavit which offends against any of these provisions may be struck out by the court. But if it is not struck out, then the court may refuse to attach any weight to it. See Flour Mills of Nigeria Ltd vs Osian supra page 13 and Federal Military Government v SANI (No.2) 1989 4 NWLR (Pt.117) 634 at 638 paragraph D. The nature of the defect in my humble opinion cannot be cured by invoking S.84 of the Evidence Act as submitted by both counsel to applicants and 3rd respondent. For ease of reference and emphasis Section 84 is reproduced hereunder as follows;-

“S.84. The court may permit an affidavit to be used, notwithstanding it is defective in form according to this Act, if the court is satisfied that it has been sworn before a person duly authorized.”

It is clear from the provision itself that it is intended to save only affidavits that are defective “in form” and not those that are defective in substance. In the instant case the defect affects the substance and not the form. In the result I hold that the defective paragraphs of the affidavit are worthless and no weight will be attached to the said paragraphs while determining the merit of this application.

I now consider the merit of the application. In the course of his submission applicants’ counsel applied to withdraw prayer 4. Without much ado same is struck out.

As regards prayer 1-3, 1st-2nd respondents counsel contended that same is incompetent on the ground that applicant used the word “enlargement” instead of “extension”. Resort to Oxford Advanced Learners Dictionary 6th edition showed that the two words convey similar meaning. Enlargement is defined as “the process or result of something becoming or being made larger”. While extension is defined as “an extra period of time allowed for something”. From a careful examination of available authorities, it is clear that both the apex and this court have been using the word “enlargement” and “extension” interchangeably in considering applications of this nature. Order 3 Rule 4(1) (2) of the Court of Appeal Rules 2002, being the relevant provision, under consideration, as couched, refers to the word “enlargement of time”. It is therefore my humble opinion that the use of the word “enlargement of time” instead of “extension of time” will not render the application incompetent as contended by 1st and 2nd respondent’s counsel. The contents of the prayers as couched are clear and unambiguous. I do not find it necessary to belabour the issue. Without much ado, I hold that the application is competent.

The main reason why applicants are seeking leave to appeal against the ruling of the Federal High Court Lagos in Suit No. FHC/L/CS/238/04 delivered on 13/05/04 is because the trial court heard and granted 2nd respondent’s application to amend his name without the motion on notice being served on the applicants as parties in the suit. The reason why applicants’ could not appeal within the prescribed period are as deposed to in paragraphs 4(e) and 5 of the affidavit in support. Paragraphs 4(e) and 5 have earlier been reproduced for ease of reference.

Section 25 of the Court of Appeal Act Cap 75 Laws of the Federation 1990 which is relevant to the application and which also prescribed the period within which the applicants are required to have filed their notice and grounds of appeal reads;-

“25(1). Where a person desires to appeal to the Court of Appeal he shall give notice of appeal of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.

(2). The period for the giving of notice of appeal or notice of application for leave to appeal are –

(a). In an appeal in civil cause or matter fourteen days Where the appeal is against interlocutory decisions and three months where the appeal is against a final decision.

(b). In an appeal in a criminal cause or matter ninety days from the date of the decision appealed against.

(3). Where an application for leave to appeal is made in the first instance to the court below a person making such application shall, in addition to the period prescribed by sub-section (2) of this section, be allowed a further period of fifteen days from the date of the determination of the application by the court below, to make another application to the Court of Appeal.

(4). The Court of Appeal may extend the period prescribed in subsection (2) and (3) of this Section.”

Order 3 rule 4 of the Court of Appeal Rules 2002 which lays down the conditions to be satisfied by an applicant in order to succeed in application such as the one at hand also states:-

“4(1). The court may enlarge the time provided by these rules for the doing of anything to which these rules apply,

4(2). Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged copy of the order granting such enlargement shall be annexed to the notice of appeal.”

It is quite clear from the affidavit in support of this application and on the face of the application itself that the motion on notice dated 19-05-05 was filed in court on same date 19-05-05. The ruling of Lower Court against which the applicants are asking for extension of time, and leave to appeal against was delivered on 13-05-04. The fact that there was a delay by the applicants in filing their appeal against that ruling having regard to the periods prescribed under subsection (2) of Section 25 of the Court of Appeal Act is therefore obvious.

It is now settled that for an applicant seeking the relief of extension of time within which to appeal pursuant to Order 3 Rule 4 of the Court of Appeal Rules to succeed in this court, the applicant must satisfy the following conditions:-

1. Establish by affidavit evidence good and substantial reasons for failure to appeal within the prescribed to period; and
2. Exhibit notice of appeal containing grounds of appeal which prima facie show good cause why the appeal should be heard.

These conditions must also be satisfied conjunctively for the application to succeed. See In Re: Adewumi & Ors (1988) 3 NWLR (Pt.83) 483 and Co-operative and Commerce Bank (Nigeria) Ltd vs Emeka Ogwuru (1993) 3 NWLR (Pt.284) 630. – In the present application the reasons given by the applicants in their affidavit for their failure to appeal within the prescribed period are contained in paragraphs 4 (d), (e) and 5 of the affidavit in support. The reason given by the applicants was that the motion on notice filed by 2nd respondent which was heard and granted by the lower court was not served on the applicants. That is to say 2nd respondent was allowed to amend his name without giving applicants opportunity of being heard on the issue. The ruling was delivered on 13-05-04 and they became aware only on 22nd June, 2004. By paragraph 3 of the further affidavit applicants brought a similar application but same was struck out on 16th May, 2005. They filed the present application on 19th May, 2005. It was contended by 3rd respondent’s counsel Mr. Chike Okwesa that the issue of non service of the motion on notice filed by 2nd respondent before the lower court which was heard and granted was not controverted by 1st and 2nd respondents. I agree with Mr. Okwesa that 1st and 2nd respondents did not file any counter-affidavit in this application. In the absence of any counter-affidavit, it is trite that a respondent is deemed to have admitted all the averments deposed to in the affidavit supporting the motion – See Alagbe v Abimbola (1978) 2 SC 39 and Nigerchin Ind. Ltd v Oladehin (2006) 13 NWLR (Pt. 998) 536 at 549 paragraphs C – D. The ruling of the trial court marked as exhibit ‘R’ and attached to the affidavit in support clearly showed that applicants did not participate in the application filed by 2nd respondent Mr. Eric Onu before the trial court. It is worthy to note the observation of the learned trial judge at pages 1 and 2 of the ruling. The trial judge stated as follows:-

“————- I have heard Festus Kayamo counsel for the 2nd applicant move his motion seeking the leave of this Hon. Court to amend the motion on notice and all other processes in this suit by inserting immediately after the name of the 2nd applicant the following words in parenthesis (also known and referred to as Mr. Ikechukwu Onovo Igwe).

Chike Okwesa of counsel for the 7th respondent in replying opposed the application but did not file a counter-affidavit………..”

Throughout the ruling the learned trial judge did not indicate appearance of applicants in this matter and no mention of whether they were served or not with the motion papers. Apparently only Chike Okwesa counsel to the the respondent Mrs. Adaeze Nwuba now 3rd respondent in this application was in court on 13-05-04 when the motion for amendment was taken and granted by the trial court. Since applicants were not served with the motion papers they would not be expected to know what transpired in court on 13-05-04 let alone to file their appeal within the prescribed period of 14 days being interlocutory appeal. From the averments in paragraphs 4(d), (e) and 5 of the affidavit in support, it is crystal clear that applicants have offered good and substantial reasons for the delay in filing appeal within the prescribed period.

The second condition to be satisfied is predicated on the grounds of appeal. The notice of appeal marked as exhibit ‘A’ is attached to the affidavit in support as exhibit ‘A’ and same is referred to in paragraph 10. Applicants filed three grounds of appeal. The grounds of appeal read as follows;-

“1. The learned trial judge (sic) and in law in granting the 2nd applicant/respondent’s application for amendment of his name dated 12th day of May, 2004. Particulars of error a-c supplied.

2. The learned trial judge erred in law in granting the application of the 2n applicant/respondent’s interlocutory application to that effect. Particulars of error (a – d) supplied.
3. The learned trial judge erred in law in grating the application of the 2nd applicant/respondent for the amendment of his name when the said application was not served on the appellants herein nor were they otherwise given notice of it.

Particulars of error

a. The hearing and granting of the said application without service of it on the appellants breached their right to fair hearing.

b. Failure to serve the said application rendered the order of the trial court granting same nugatory.”

The question now is whether the grounds of appeal show good cause why the appeal should be heard. Ground 3 in particular raised the issue of jurisdiction. Where service of process is required, failure to serve such process is a fundamental vice and it affects the jurisdiction of the court. See Eke vs Ogbonda 2007 All FWLR (Pt.351) 1456. The service of a process on a party where it should be served or its service in the manner in which it should be served is one of the fundamental conditions precedent to the exercise of jurisdiction by a court. See Management Enterprises Ltd v Otunsanya (1987) 2 NWLR (Pt.55) 179.

As to whether a ground show good cause why appeal should be heard the supreme court in Obikoya v Wema Bank Ltd (1989) 1 NWLR (Pt.96) 157 had defined such ground of appeal as being a ground which raises substantial issue of fact and law for the consideration of the appellate court. The apex court per Obaseki JSC at page 178 had this say;-

“A ground of appeal showing good cause why an appeal should be heard is a ground which raises substantial issues of fact and law for the consideration of the court. It is a ground which cannot be dismissed with a waive of the hand or as totally lacking in substance. It is a ground which evokes a serious debate as to the correction of the decision of the court below. It is aground which taxes the intellect and reasoning faculties of the appeal judges. It is a ground which in not frivolous. ”

Looking at the grounds of appeal contained in the applicants proposed notice of appeal attached to the affidavit as Exhibit ‘A’, I am of the considered view that the appeal should be heard. Issue of jurisdiction is so fundamental that it cannot be dismissed with a waive of the hand or described as frivolous. From what I have been saying above the conclusion is that applicants have satisfied both conditions and are entitled to the exercise of courts discretion in their favour.

In the result, I find that the facts averred in paragraphs 4 (d);( e); 5 and 10 of the affidavit have sustained this application despite the fact that I did not attach any weight to the defective paragraphs reproduced supra. In other words, I find this application meritorious and same succeeds. I hereby grant the reliefs sought as follows:-

(1) Time is extended to today for the applicants to seek leave to appeal against the Ruling of the Federal High Court Lagos in suit NO.FHC/CS/238/04 dated 13th May, 2004.

(2) Leave is also granted to the applicants to appeal against the said Ruling of the lower court.

(3) Time is also extended for the applicants to file their Notice of Appeal. The Notice of Appeal shall be filed and served within 15 days from today and same shall be in terms of the proposed Notice of Appeal marked Exhibit’ A’ attached to the affidavit in support of this application.

Parties to bear own costs.

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Other Citations: (2007)LCN/2354(CA)