Arma Ya’u Abdullahi & Sons Ltd. Anor V. Fha Homes Ltd (2005)
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RHODES-VIVOUR, J.C.A.
This is a ruling on an application filed on the 1st of April, 2005 by the appellants/applicants praying the court for an order re-listing two motions struck out on the 21st of February, 2005. They are:
(a) Motion No: CA/A/168/M/04 dated 3/11/04 and filed on 15/11/04;
(b) Motion No: CA/ A/168/M/04 dated 4/11/04 and filed on 17/11/04.
The application is supported by a 4-paragraph affidavit. Annexed thereto are documents marked exhibits A, A1, B and C.
The respondent did not file a counter-affidavit. Neither side filed briefs of argument. Both counsels addressed us orally on the 26th of May, 2005.
Learned counsel for the appellants/applicants, A. D. Abdullahi, Esq. referred the court to paragraph 3 of the affidavit in support to explain his absence from court on the 21st February, 2005, the day his motions were struck out.
Relying on Lauwers Import Export v. Jozebson Ind. Ltd. (1988) 3 NWLR (Pt. 83) p. 429, he observed that his absence from court was due to mistake of counsel, contending that the respondent could not be prejudiced by the grant of this application.
Opposing on points of law, learned counsel for the respondent, N. A. Obina, Esq. observed the application to be novel in that it is wrong for the application to be brought under no rule; neither is there any grounds as required by Order 3 rule 3(1) of the Court of Appeal Rules.
He submitted that under the rule this court can only relist an appeal struck out but cannot relist an application for extension of time to appeal. Relying on Mobil (Nig.) Production Unlimited v. Monokpo (2003) 18 NWLR (Pt. 852) p. 436, he contended that a motion cannot sustain another motion. Continuing his submissions, learned counsel observed that the court lacks jurisdiction to extend prayers as contained in the motion paper. Further reference was made to Nig. Air-force v. Shekete (2002) 18 NWLR (Pt. 798) p. 129.
Concluding his submissions he observed that the applicant does not meet the requirement for relisting since he failed to explain why he was not in court on the 21st of February, 2005, the day the application was struck out.
In a brief reply, learned counsel for the appellant/applicants observed that not stating the rule under which the application was brought will not stop the court from the reliefs sought.
The records of this court for the 21st day of February, 2005 are clear. Motion No. CA/A/168/M/04 dated 3/11/04 and filed on 15/11/04 was struck out. Motion No. CA/A/168/M/04 dated 4/11/04 and filed on 17/11/04 is thus irrelevant to this proceeding. It was not struck out. It shall remain pending.
Order 3 rule 3(1) of the Court of Appeal Rules stated that:
“Every application to the court shall be by notice of motion supported by affidavit and shall state the rule under which it is brought and the ground of the relief sought.”
On the face of the motion on notice before the court, no rule and no ground is stated. An application must comply with the provisions of Order 3 r. 3(1) of the Court of Appeal Rules for it to be described as well prepared. Counsels are enjoined to comply strictly with the said provisions at all times but failure to comply would not deny the applicant a hearing. There is no hard and fast rule that the order and rule must be stated on the motion paper, although it is desirable that they be so stated. The provisions of Order 3 r. 3(1) of the Court of Appeal Rules are of mere desirability and not essentiality.
That is to say, it should be regarded as a procedure to be taken but failure to take it does not, and ought not to render such non-compliance fatal.
See Hall V.C. in Re Barker’s Estate (1879) 10 Ch. D p. 162.
This reasoning is premised on the fact that courts are set up to do substantial justice between the parties that come before them for the settlement of their disputes and in so doing rules of court must at all time be interpreted by Judges to prevent undue adherence to technicalities. See Ogunbi v. Kosoko (1991) 8 NWLR (Pt. 210) p. 511; Panache Communications Ltd. v. Aikhomu (1994) 2 NWLR (Pt. 327) p. 420.
I am satisfied that the appellants/applicants are entitled to be heard notwithstanding non-compliance with Order 3 rule 3(1) of the Court of Appeal Rules.
The prayers sought for on the motion on notice struck out by this court on the 21st of February, 2005 are for the following orders:
(1) An order extending the time within which the appellants/applicants may seek leave to appeal against the judgment of High Court of the Federal Capital Territory No.5 delivered by Hon. Justice U. I. Bello dated 29/6/04.
(2) An order granting leave to the appellants/applicants to appeal against the judgment of High Court of the Federal Capital Territory, Abuja No. 5 delivered by Hon. Justice U. I. Bello dated 29/6/04.
(3) An order extending the time within which the appellants/applicants may appeal against the judgment of High Court of the Federal Capital Territory, Abuja No.5 delivered by Hon. Justice I. U. Bello dated 29/6/04.
Order 1 rule 2 of the Court of Appeal Rules defines appeal to include an application for leave to appeal.
In the light of the definition, this court has jurisdiction to relist this application since its main prayer is for leave to appeal.
The principles to be considered when dealing with an application to relist an appeal or as in this application, an application extending time to seek leave to appeal, were stated by the Supreme Court in Doherty v. Doherty (1964) 1 All NLR p. 299 to include the following:
(a) The reasons for the applicant’s failure to appear before the court when the case was heard;
(b) Whether there had been undue delay in making the application so as to prejudice the other party;
(c) Whether the other party would be prejudiced or embarrassed by an order for a new trial so as to render it inequitable to re-open the case; and
(d) Whether the applicant’s case is manifestly insupportable.
The primary and pivotal question is whether the appellants/applicants and their counsel are able to explain in detail why they were absent from court on the 21st day of February, 2005.
Paragraphs 3 (d), (e), (f) and (j) of the affidavit in support explain in detail why the appellants/applicants and their counsel were not in court on the 21st day of February, 2005.
Learned counsel for the appellants/applicants A. D. Abdullahi, Esq. went on the Muslim pilgrimage and returned on 17/2/05, a Thursday. In his absence, he instructed Safiya Jubril, Esq., a legal practitioner to handle the motion on his behalf. He returned to work on Monday the 21st of February, 2005, only to be informed by Safiya Jubril, Esq. that due to pressure of work she was unable to go to court on 21/2/05. The appellants/applicants were also not informed that their motion was coming up for hearing on 21/2/05.
The position of the law is that where facts deposed to in an affidavit have not been controverted by a counter-affidavit such facts must be taken as true provided the said facts are not frivolous and, or contrary to reason. See Alagbe v. Abimbola (1978) 2 SC p. 39; Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) p. 774; Soy Agencies v. Metalum Ltd. (1991) 3 NWLR (Pt. 177) p. 35.
A. D. Abdullahi has explained why he was absent from court on 21/2/05 and has supported his explanation with relevant pages of his passport to show beyond doubt that he was indeed abroad. These facts together with the reasons advanced for the absence of the appellants/applicants from court on 21/2/05 remain unchallenged in the absence of evidence to the contrary before the court.
In the circumstances, I am satisfied that the unchallenged depositions in the affidavit in support earlier alluded to are detailed and reasonable enough to exculpate A. D. Abdullahi, Esq. and his clients from being absent in court on 21/2/05.
I now turn to the cases relied on by learned counsel for the respondent in support of his submissions.
On whether a motion can sustain another motion, learned counsel relied on Mobil (Nig.) Production Unlimited v. Monokpo (2003) 18 NWLR (Pt. 852) p. 446.
In this case, quite a number of issues fell for consideration and determination, but of interest is the fact that the respondents filed a notice of cross-motion. In it they sought an order to dismiss the 2nd appellant’s motion and to enter final judgment against the 2nd appellant.
I fail to see the relevance of this case. First, a notice of cross-motion is unknown in any of our Civil Procedure Rules. There may be cross-appeal, but definitely not notice of cross-motion.
Secondly, in this application the applicants filed a motion wherein they sought to relist their motion struck out by this court.
Indeed Order 3 rule 3(1) of the Court of Appeal Rules is clear that all applications to the Court of Appeal shall be by notice of motion, and that is precisely what the appellants/applicants did in this case. Mobil (Nig.) Production Unlimited v. Monokpo (supra) is thus unhelpful for the point of law learned counsel for the respondent canvasses.
Nig. Airforce v. Shekete (2002) 18 NWLR (Pt. 798) p. 129 explains in detail the distinction or difference between a prayer for leave to appeal and a prayer for leave for extension of time to appeal and the grave consequences of not seeking leave to appeal where required.
In the application the appellants/applicants want relisted, they seek extension of time to seek leave to appeal, leave to appeal and extension of time to appeal. At this stage, it is premature to hold the view that the court lacks the jurisdiction to extend prayers as contained in the motion paper. An applicant may seek to move prayer No.1 and abandon prayer No.2 or No.3.
This argument is best reserved for when and until the motion struck out by this court on 21/2/05 is heard.
Opekun v. Sadiq (2003) 5 NWLR (Pt. 814) p. 475 explains the principles to be considered for relisting an appeal, and the circumstances that would give rise to abuse of court process.
I find the authority helpful to the appellants/applicants and not to the respondent.
There is indeed merit in this application and it is hereby granted. It is ordered that motion No. CA/A/168/M/04 dated 3/11/04 and filed on 15/11/04 struck out by this court on 21/2/05 is hereby restored to the cause list of this court.
There shall be no order as to costs.
Other Citations: (2005)LCN/1754(CA)
