Attorney-general of the Federation & Ors V. Usman Abubakar & Ors (2000)

LawGlobal-Hub Lead Judgment Report

IGE, J.C.A. 

Th

is is an application brought by the applicants pursuant to section 16 of the Court of Appeal Act, Order 7 rule 2; Order 6 rule 11 of the Court of Appeal Rules 1981 seeking the following orders:-
“1. An order directing a departure from the rules of this Honourable Court so that the appeals herein may be heard on the bundle of documents assembled by the appellants delivered herewith and marked as exhibit ‘X’ in the affidavit of Obiora Atuegwu Egwuatu.
2. An order consolidating the hearing of the appellants’ interlocutory appeals filed on the 1/4/99 and 11/5/99.
3. An order accelerating the hearing of the said appeals.
4. An order giving liberty to the respondents to file such additional papers as they may consider necessary.
5. An order directing that the appellants’ brief be filed within fourteen days and that the respondents’ brief shall be filed within fourteen days from the date the appellants’ brief is served on the respondents or within such longer period as the court may consider appropriate in the circumstances.
6. And giving such further order or orders as this Honourable Court may deem fit to make in the circumstances.”

In support of the application, the applicants have filed an affidavit consisting of 51 paragraphs sworn by one Obiora Atuegwu Egwuatu, a legal practitioner and attached a bundle of papers marked EXX as record of appeal.

Counsel for the appellants/applicants has argued that this is a proper case to grant a departure from the rules and that in view of the 2 rulings involved in the 2 appeals they should be heard together. He further submitted that the records sought to be used in this appeal are important and relevant to any or all other applications.

Mr. Osuala, Counsel for the respondents to this application has opposed the application without filing a counter-affidavit. He submitted that there was no need to file any counter-affidavit in view of his own application which he had filed on 17/4/2000. This he said was sufficient answer to the applicants’ application.

He then went on to argue that the appeal dated 31-3-99 and filed on 1-4-99 as well as the appeal dated 11-5-99 and filed on 11-5-99 and also the appellants’ applications dated 12-5-99 and filed on 12-5-99 and the applications dated 15-10-99 and filed on 15-10-99 should be dismissed for the following reasons:-
“1. That the respondents’ counsel had no authority to appeal in the lower court.
2. That counsel has no basis for him to file these papers in the Court of Appeal.
3. That the duty of public prosecution rests upon the Attorney-General of the Federation or lawyers from his department – see section 160(1)(2) & (3) of the 1979 Constitution and section 174 of the 1999 Constitution.
4. The counsel who filed the papers before this court is not from the office of the Attorney-General.”
To support this argument he cited the following cases: Comptroller of Nigerian Prisons Ikoyi v. Dr. Femi Adekanye & Ors. (1999) 5 NWLR (Pt. 602) 167 at 170; SC/73/1983 – judgment delivered on 18-10-84; Onwuka v. State (1970) 1 All NLR 159; Attorney-General of Western Region v. African Press Ltd. (1965) 1 All NLR 6; Rex v. Aiyeola 12 WACA p. 324; Awobotu v. The State (1976) 5 SC 49; (1982) 3 NCLR ps. 10 & 11; Halsbury’s Laws of England Vol. 11 4th Edition paragraphs 1529, 1530 and 1537 at pages 806, 807 and 810.

He also submitted that section 24(2)(b) of the Failed Bank Decree 18 of 1994 had not been complied with hence the applications should be dismissed in limine. Section 24(3) of the Decree he submitted is a bad law. He called the attention of the court to the letter dated 27-5-99 written by the former Attorney-General at pages 117 and 127 of the proposed ‘Records’. According to him the Attorney-General cannot issue that letter dated 15-4-99 and only brought to the notice of the court on 27-5-99.

In reply, Counsel for the applicant submitted that the objection to the appeals and applications is misconceived. According to him the objection touched on the grounds of appeal and should therefore be discountenanced as premature. Counsel referred to Order 3 rule 5 of the Court of Appeal Rules and the case of Effiong v. Ironbar (1998) 13 NWLR (Pt. 582) 367.

Usually, such an application for a departure from the rules of court is not generally opposed because it facilitates an accelerated hearing of an appeal. The procedure of compiling the records for an appeal can be so cumbersome that when a party volunteers to produce the records for the use of the Court of Appeal, it should be encouraged in the interest of speedy administration of justice. Order 3 rule 8 of the Court of Appeal Rules has spelt out the duties of the Registrar of the court below when an appeal is filed.
Order 3 rule 8 reads thus:-
“8(1) The Registrar of the court below shall after the expiration of the time prescribed for filing notice of address for service summon the parties before him to:
(a) Settle the documents to be included in the record of appeal;
(b) Fix the amount to be deposited by the appellant to cover the estimated cost of making up and forwarding the record of appeal;
(c) Fix the amount to be deposited by the appellant or secured by bond for the due prosecution of the appeal and the payment of any costs.”
After summoning the parties before him to settle the documents to be included in the records, the same registrar of the court below shall proceed to transmit the records compiled to the Court of Appeal after complying with the relevant rules of the Court of Appeal. See Order 3 rule 13. What a record of appeal should contain is specifically stated in Order 3 rule 9 of the Court of Appeal Rules.

It is after the registrar of the court below had completed his own duties of settling and compiling the records that he notifies the parties mentioned in the notice of appeal that the records have been forwarded to the registrar of the Court of Appeal.

There are also provisions in the Court of Appeal Rules which empower the court to accelerate hearing of the appeal by granting a departure from the Rules – see Order 6 rule 11. Order 6 rule 11 provides thus –
“11. The court may, where it considers the circumstances of an appeal to be exceptional, or where the hearing of an appeal ought to be accelerated in the interest of justice, waive compliance with the provisions of this Order in so far as they relate to the preparation and filing of briefs of arguments; either wholly or in part or reduce the time limits specified in this Order, to such extent as the court may deem reasonable in the circumstances of the case.”
From the above provisions, it is easy for one to see how cumbersome it is to get records of every appeal transmitted from the court below to the Court of Appeal. If a party can afford to compile the records of appeal on his own, he can take advantage of the provisions in our Rules by applying for a departure from the Rules of court. This is exactly what the applicant has done in this case.

An appeal has got to be entered before it can be considered. For an appeal to be considered or any application entertained in respect of an appeal, there must be a record of appeal duly prepared and transmitted to the court by the registrar of the court below or a record compiled by a party after obtaining an order for a departure from the Rules

In this case, the applicant has applied to the court to produce his own records of appeal in compliance with the provisions of the rules of court, can the respondent successfully oppose the application by raising a preliminary objection or by an application for an order dismissing the appeals and this particular motion filed on 15-19-99? The answer is NO because there is no appeal entered in this case yet. The application of the respondent cannot be taken or his objections heard in vacuo.
I agree with the submission of the learned Counsel for the applicant that the objection raised by counsel for the respondent is premature at this stage and should be discountenanced. Some of his submissions touch on the grounds of appeal involved in the main appeal hence it will be unwise to deal with them at this stage.
Any preliminary objection which the respondent’s motion filed on 17-4-2000 entails must wait until there is a proper record of appeal before the court. See the case of Effiong v. Ironbar (1998) 13 NWLR (Pt. 582) 367. The applicant’s prayers 1, 2, 3 & 4 are granted while prayer 5 is refused at this stage.
The order of this court reads as follows:-
1. The applicants are granted a departure from the rules. This appeal is to be heard on the bundle of documents attached to the motion papers and referred to as EXX in paragraph 4 of the affidavit in support.
2. The two interlocutory appeals filed by the appellants on 1-4-99 and 11-5-99 are hereby consolidated for the purpose of hearing.
3. The appeals are to be heard when all the briefs have been filed.
4. The respondents are at liberty to file such additional papers to EXX as they may consider necessary within 30 days from today.
5. Prayer 5 is struck out.

Motion filed on 17-4-2000 by the respondents is hereby struck out with N2,000.00 costs to the applicants.

Other Citations: (2000)LCN/0917(CA)