Malam Hassan Alh. Saidu & Anor V. Malam Bukar Haruna Pelo Ola (2016)
LawGlobal-Hub Lead Judgment Report
JOSEPH TINE TUR, J.C.A.
I tagged this determination ?Decision? by virtue of the provisions of Section 294(2)-(4) and Section 318(1) of the Constitution which defines a ?decision? to means, ?in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.? A ?Ruling? is omitted in the definition of ?decision? under Section 318(1) of the Constitution (supra). What the framers of the Constitution omitted should not be inserted by trial Judges (Section 294(1)) or Justices of the Supreme Court or the Court of Appeal (Section 294(2)-(4) of the Constitution (supra).
In Davies vs. Powell (1737) Willes, 46, Willes, C.J. once held at page 51 that, ?When the nature of things changes, the rules of law must change too.?
In Jurisprudence, 4th edition by R.W.M. Diaz appears the following passage at page 196:
?This is a truism in that the legislature and within limits, the Courts should change rules to keep the law abreast of
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change. The question under review is whether changed conditions may deprive a case of its law-quality
The provisions of the Constitution are supreme and have binding effect on every person or authority in Nigeria. Any law or rule that is inconsistent with the provisions of the Constitution, to that extent is void. See Section 1(1) and (3) of the Constitution (supra). I have the liberty to tag this determination an ?opinion? or a ?decision? as provided under Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. In Packer vs. Packer (1953) 3 All E.R. 127 Denning, L.J., held at page 129 as follows:
?I am not inclined, however, to stand out for a strict construction of an Act of Parliament if reason and good sense point to a different construction. But in this case reason and good sense go hand in hand with the strict construction.?
In Deduwa & Anor. vs. Okorodudu & Ors. (1976) 1 NMLR Alexander, C.J.N. defined the word ?determination? at pages 243-244 as follows:
?We gave careful consideration to the argument of Chief
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Williams and Dr. Odje. First of all, in order that we should not find ourselves pursuing an academic exercise we had to satisfy ourselves as to whether or not the so-called ?ruling or determination? of the High Court was a judicial ?decision? or ?determination? within the meaning of Section 117(7) of the Constitution. This provision reads as follows:
?In this section ?decision? means, in relation to the High Court of a territory, any determination of that High Court and includes without prejudice to the generality of the foregoing provisions of this subsection, a judgment, decree, order, conviction, sentence (other than a sentence fixed by law) or recommendation.?
More light is thrown on the meaning of the words ?decision? and ?determination? in the case of The Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, C.J.N. in giving the ruling of the Court said at page 432:
?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means
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?a bringing or coming to an end? or ?the mental action of coming to a decision,? or ?the resolving of a question.?
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ?determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme) Court, we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.
Section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that:
?(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other justice who delivers a written opinion.
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may pronounced or read by any other Justice whether or not he was at the hearing.
(3) A decision of a Court consisting of more than one
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Judge shall be determined by the opinion of the majority of its members.
(4) For the purpose of delivering its decision under this section, the Supreme Court; or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sit for that purpose.?
Section 318(1) of the Constitution (supra) defines a ?decision? to mean, ?in relation to a Court, or any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.? A ?ruling? is omitted from the definition of ?decision?. I have decided to tag this determination ?Decision? as provided under these constitutional provisions, bearing in mind the Supremacy of the Constitution (supra) under Section 1(1) and (3) of the 1999 amended Federal Constitution.
The number of appeals and motions listed for hearing per day, per week, per quarter and per year put together will show the number of ?decisions? or ?opinions? Justices of the Supreme Court or the Court of Appeal renders which constitutes the ?determination? of these appellate
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Courts the National Judicial Council ought to consider in assessing not only the quality but the quantity of their output/performance in administering justice. Only then will society appreciate the workload of the Supreme Court, the Court of Appeal and other superior Courts of record in Nigeria.
I shall now consider this application on the merit.
The remedies claimed by the appellants/applicants are set out in the motion on notice filed on 8th March, 2016 as follows:
?(a) Extension of time within which to seek leave to appeal against the judgment of the Borno State High Court, Maiduguri delivered in its appellate jurisdiction on 3rd December, 2015 in suit No.BOHC/BU/CVA/1/12 ? Malam Hassan Alh. Saidu & Anor. vs. Malam Bukura Haruna Pelo Ola.
(b) Leave to appeal on grounds of facts and mixed law and facts against the aforesaid judgment.
(c) Extension of time within which to file the Notice and Grounds of Appeal on grounds facts and mixed law and facts against the aforesaid judgment in terms of the attached Proposed Notice and Grounds of Appeal.
(d) AND FOR SUCH further order(s) as this Honourable Court may deem fit
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to make in the circumstances.?
The application is verified on the sworn Oath of Hafsat Ali, Litigation Secretary in Al-Adala Chambers representing the applicants/appellants. I have referred to the applicants as also ?appellants? because of the provisions of Section 30 of the Court of Appeal Act, 2004 which defines ?appeal? and ?appellant? as follows:
?30. In this Act, unless the con otherwise requires:-
?Appeal? includes an application for leave to appeal;
?Appellant? means any person who desires to appeal or appeals from a decision of the Court below or who applies for leave to so appeal, and includes a legal practitioner representing such as person in that behalf.?
See Williams vs. Mokwe (2005) 7 SCNJ 318 where Kalgo, JSC held at pages 331 to 332 as follows:
?By Section 31 of the Court of Appeal Act, an ?appellant? is defined to mean ?any person who desires to appeal or appeals from a decision of the Court below or who applied for leave to appeal, and includes a legal practitioner representing such a person in that
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behalf.? By filing the motion for leave to appeal in the trial Court on 28th July, 1994, the day the judgment was delivered by that Court, the respondent was definitely desirous of appealing against it to the Court of Appeal. He was therefore an ?appellant? within the meaning of Section 31 of the said Act. It is not in dispute however that the respondent though not a party to the case then filed its appeal on 28th July, 1994 before the actual leave to do so was granted by the Court of Appeal. At that stage, the appeal was no doubt a nullity. However, being an ?appellant? at that time and having filed its notice of appeal without leave, which is no doubt void it then filed its application for leave to appeal in the Court of Appeal and in prayer 3 asked for order deeming the notice and grounds of appeal it filed earlier as properly filed in order to regularize the filing of the notice of appeal. This in my view, makes it unnecessary for the requirement of a separate prayer for enlargement of time to appeal in the circumstances of this case. Therefore the Court of Appeal having granted the 2nd respondent?s prayer for leave to
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appeal without any objection by the appellant the Court was perfectly entitled, in my view, to grant the 3rd prayer deeming the notice of appeal filed on 29th July, 1994 by the 2nd respondent as properly filed in this case. And although it has retrospective application, the order was only intended to regularize the filing of the notice of appeal carried out on 28th July, 1994. The case of Cooperative Bank of Eastern Nigeria Ltd. (supra) cited by the appellant in support of the submission that the grant of leave by the Court of Appeal cannot be retrospective, is a Court of Appeal decision not binding on this Court, and is not in all fours with the instant appeal. In the Cooperative Bank?s case there was an application for extension of time to appeal, but in this case there was none, as the respondent, on filing the application on 28th July, 1994, became an appellant by law and had earlier filed its notice of appeal though not regular, as no leave to appeal was then granted to it. When the Court of Appeal granted the leave to appeal and deemed the notice of appeal as properly filed, the appeal was regularized which has, of course, retrospective
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effect.?
In an application seeking leave to appeal against the decision of a High Court of Justice in exercise of its supervisory or appellate jurisdiction, the first port of call is Sections 240 and 242(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered read together with Section 24(1)-(4) of the Court of Appeal Act (supra) and Order 7 Rules 10(1) and (2) of the Court of Appeal Rules, 2011. I shall consider these provisions in due course. This application should have been filed in the Court below. The appellant asserts that the application was filed in the Court below but could not be moved until the three months within which to appeal had expired. In that case the decision withdrawing or striking out the application by the Court below should have formed part of the documents in this application. That is not so.
In an application of this nature, Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered is authority that it is after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an
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oral hearing of the application? that ?the Court of Appeal may dispose of any application for leave to appeal from any decision of? a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to? a High Court from any other Court See Section 242(1) of the Constitution (supra). Order 7 Rule 7 of the Court of Appeal Rules, 2011 provides that:
?7. The application for leave to appeal a decision of a lower Court shall contain copies of the following items, namely:-
(a) Notice of motion for leave to appeal (Form 5)
(b) A certified true copy of the decision of the Court below sought to be appealed against;
(c) A copy of the proposed grounds of appeal; and
(d) Where leave has been refused by the lower court, a copy of the order refusing leave.?
The word ?decision? is not defined in the Rules (supra). But the draftsman employed ?decision? in Section 242(1) which is defined in Section 318(1) of the Constitution (supra) as follows:
?318(1) In this Constitution, unless it is otherwise expressly provided or the con
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otherwise requires:-
“Decision” means, in relation to a Court, any determination of that Court and includes judgment decree, order, conviction, sentence or recommendation.?
Any determination of the Court of first instance or of the lower Court may, depending on the facts and circumstances of each appeal or application to appeal, etc, be a relevant document, likewise exhibits any of the Court below relied upon in arriving at a determination of the matters in controversy.
Order 8 Rules 7-10 of the Court of Appeal Rules, 2011 provides as follows:
?7. Every record of appeal shall contain the following documents in the order set out:-
(a) The index;
(b) A statement giving brief particulars of the case and including a schedule of the fees paid;
(c) Copies of the documents settled and compiled for inclusion in the record of appeal;
(d) A copy of the notice of appeal and other relevant documents filed in connection with the appeal.
8. The registrar or the appellant in compiling the record shall endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not
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relevant to the subject matter of the appeal and generally to reduce the bulk of the record as far as practicable, taking special care to avoid duplications of documents and unnecessary repetition of headings and other merely formal parts of documents; but the documents omitted to be copied shall be enumerated in a list at the end of the record, but where part or parts only of any lengthy documents are directly relevant to the subject matter of the appeal it shall be permissible to omit to copy such part of the document as are irrelevant to the subject matter of the appeal nor necessary for the proper understanding of the part or parts that are so relevant.
9. Every record or additional record of appeal compiled by a party to an appeal must be certified by the registrar of the lower Court.
Provided that it shall not be necessary for copies of individual documents to be separately certified but the registrar of the Court below shall certify as correct each copy of the record transmitted in accordance with these Rules.
10(1) Where the record is compiled by the registrar under Rule 1 of this order, he shall transmit the record within the time
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stipulated for compilation and transmission under Rule 1. The record shall be transmitted together with:
(a) A certificate of service of the notice of appeal;
(b) Twenty copies of the record.
(c) The docket or file of the case in the court below containing all papers or documents filed by the parties in connection therewith, to the Registrar of the Court.
(2) Where the record is compiled by the appellant under Rule 4 of this order, he shall transmit the record within the time stipulated for compilation and transmission by an appellant under Rule 4. The record shall be transmitted in compliance with Rule 10(1).
(3) The registrar of the court below or the appellant as the case may be shall also Cause to be served on all parties mentioned in the notice of appeal, a notice that the record has been forwarded to the Registrar of the Court who shall in due course enter the appeal in the cause list.?
An examination of this application will show that the applicants gave notice to rely on the decision of the lower Court and proposed Notice and Grounds of Appeal. But the two documents per se do not constitute the ?record of
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the proceedings? within the contemplation of Section 242(2) of the Constitution (supra) which the Court of Appeal has to consider to determine whether the interests of justice require or do not require an oral hearing of the application. For the Court of Appeal to form an opinion that the interests of justice do not require an oral hearing of the application or not, the decision of the Court of first instance and of the lower Court, etc, have to be examined from the contents of the records as defined under Order 7 Rule 7(a)-(d) and Order 8 Rule 7 to 10(1)-(3) of the Court of Appeal, Rules, 2011. As things now stand, the ?record of proceedings? are incomplete.
My understanding is that Section 242(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered is designed to summarily dispose of applications seeking leave to appeal against the decisions of the Courts below that are frivolous and vexatious, or have no chance of success if leave is granted and the appeal is heard on the merit. The intention of the legislature is expressly stated in Order 7 Rule 10(1) and (2) of the Court of Appeal Rules, 2011 which
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provides as follows:
?10(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.
(2) Every application for an enlargement of time within 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 a copy of the order granting such enlargement shall be annexed to the notice of appeal.?
In Words and Phrases Legally Defined Vol.5 (S-Z) page 141 appears the following passage:
?New Zealand: (Section 6 of the Mental Health Amendment Act, 1935 (N.Z), provides that leave of a Judge shall not be given to bring certain proceedings, civil or criminal unless the Judge is satisfied that there is ?substantial ground? for the contention that the person sought to be proceeded against had acted in bad faith or without reasonable care.) ?It was not, after all, for the appellant to
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prove good faith: the onus was upon the respondent to show that there is substantial ground for the contention that the person against whom it is sought to bring the proceedings has acted in bad faith or without reasonable cause. To my mind, substantial ground cannot be said to be shown unless it appears that the material relied on is such as to afford a reasonable prospect of success at a trial.? See Angland vs. Payne, (1944) N.Z.L.R. 610, C.A., per Myers, C.J., at page 625; also reported (1944) G.L.R. 266, 269.?
In Mensa Akuamankra vs. Paul & Anor. decided by the Privy Council on 12th July, 1927 (reported in Privy Council Judgments (1841-1973) by Olisa Chukura, SAN, Viscount Haldane stated at page 178 as follows:
?Their Lordships have given careful consideration to the arguments in this case and are in a position to dispose of the appeal. It is a case involved in a good deal of obscurity, and it is important that their Lordships should, if possible, have had before them the judgment of the Court of Appeal, reviewing that of the Court of first instance. But owing to the fault, as it has been put, of the appellant, however, much
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that fault may be excusable, he did not appeal in time. The Court of Appeal refused to entertain the appeal, and, when the matter was considered, they would not give the necessary leave to appeal to His Majesty in Council. Then the case came here, and special leave to appeal was granted, because their Lordships? principle is to do justice according to substance as well as to form. It, after hearing the arguments, they had been satisfied that there was a strong prima facie case of the Judge who tried the case having come to a wrong decision, they might have sent the case back to the Court of Appeal. But they are not so satisfied. As their Lordships have said, the case is one involved in considerable obscurity, but they are not prepared to differ from the decision of the learned Judge who tried the case, and as they have not, through the appellant?s fault, had the assistance of the Court of Appeal, they see no alternative, on the principles on which they exercise justice, but humbly to advise His Majesty to dismiss this appeal.?
?If upon a consideration of the record of proceedings there was a strong prima facie case that the decision of
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the Court of first instance was wrong in law or on the facts yet, the lower Court affirmed that decision, and it is further established there was a miscarriage of justice, this Court would readily list the written application seeking leave to appeal for oral hearing and cause the processes to be served on the respondent/Counsel. Order 3 Rule 13 and Order 4 Rule 9(1) and (2) of the Court of Appeal Rules (supra) reads:
?13. The sitting of the Court and the matters to be disposed of at such sittings shall be advertised and notified in such manner as the President may direct:
Provided that the Court may in its discretion hear any appeal and deal with any other matter whether or not the same has been advertised.
9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such orders as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong a miscarriage of
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justice has been thereby occasioned.?
Applications brought pursuant to Section 242(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 are to be treated as the substantive appeal hence the definition of ?appeal? and ?appellant? in Section 30 of the Court of Appeal Act, 2004. Order 3 Rule 13 and Order 4 Rule 9(1) and (2) of the Rules (supra) is further authority that applications of this nature are to be summarily disposed of upon a consideration of the record of proceedings if it is not in the interests of justice to list same for an oral hearing.
Section 242(1) and (2) of the Constitution (supra) is an exception to the provisions of Order 7 Rules 1-3 of the Court of Appeal Rules, 2011. The Order reads as follows:
?1. 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 for the relief sought.
2. Any application to the Court for leave to appeal (other than an application made after the expiration of the time for appealing) shall be by notice of motion, which shall be served on the party or
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parties, affected.
3. Where an application has been refused by the Court below, an application r a similar purpose may be made to the Court within fifteen days after the date of the refusal.?
An application for leave to appeal on grounds of mixed law and fact and for time to be extended to appeal pursuant to Section 242(1) and (2) of the Constitution (supra) read together with Order 7 Rules (1) and (2) of the Court of Appeal Rules (supra) is a call on the Court of Appeal to exercise a judicial discretion in favour of the applicants/appellants since time for appealing had already expired. An application for leave to appeal is defined as ?A motion asking an appellate Court to hear a party?s appeal from judgment when the party has no appeal by right or when the party?s time limit for an appeal by right has expired. The reviewing Court has discretion whether to grant or reject such a motion.? See Black?s Law Dictionary, 9th edition, page 115.
If ?appeal? includes ?an application for leave to appeal? and ?appellant? means ?any person who desires to appeal or appeals from
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a decision of the Court below or who applies for leave to so appeal, and includes a legal practitioner representing such a person in that behalf? within the contemplation of Section 30 of the Court of Appeal Act, 2004, the legal implication is that an application seeking extension of time to appeal against the decision of a lower Court has the same effect as an appeal itself; the application should be heard by the Court of Appeal as the substantive appeal. How are appeals heard in the Court of Appeal?
Order 18 Rules 1-4 and 9(1) of the Court of Appeal Rules, 2011 provides thus:
?1. This Order shall apply to all appeals coming from any Court or Tribunal from which an appeal lies to this Court.
2. The appellant shall within forty-five days of the receipt of the Record of Appeal from the Court below file in the Court a written brief, being a succinct statement of his argument in appeal.
3(1) The brief, which may be settled by Counsel, shall contain an address or addresses for service and shall contain what are, in the appellant?s view, the issues arising in the appeal as well as amended or additional grounds of appeal.<br< p=””
</br<
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(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the court below, and. wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.
(5) Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarize judgments of the lower Court, nor set out statutory provisions, nor contain an account of the proceedings below nor of the facts of the case.
(6)(a) Except where the Court directs
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otherwise, every brief to be filed in the Court shall not exceed 30 (thirty) pages.
(b) The brief must be prepared in 210mm by 297mm paper size (A4) and typed in clear typographic character. The typeset shall be in Arial, Times New Roman or Verdana of 12 point with at least single spaces in-between.
(c) Every brief which does not complied with the page limit and page size requirements of this Order shall not be accepted by the Registry for filing.
4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent?s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent?s brief shall answer all material points of substance contained in the appellant?s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall Mutatis Mutandis, also conform to Rule 3(1), (2), (3), (4) and (5) of this Order.
xxxxxxxxxxxxx
9(1) Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing in the briefs
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already filed in Court.?
Appeals are not heard on written addresses but on briefs of argument.
It seems to me that an application brought pursuant to Section 242(1) and (2) of the Constitution (supra) read together with Section 30 of the Court of Appeal Act, 2004 and Order 7 Rule 10(2) and Order 18 Rules 3-4 of the Court of Appeal Rules (supra) ought to be supported by an appellant?s proposed brief of argument. The record of proceedings and the appellant?s proposed brief wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.? See Order 18 Rule 3(3) of the Rules (supra). All the relevant documents and exhibits this Court has to consider to list the application for an oral hearing in the interest of justice are not before this Court.
Exhibit ?A? is the decision of the lower Court rendered on 3rd December, 2015. Pages 2-3 of the decision reads as follows:
?The appellant formulates a single issue for determination, from the first ground of appeal, implicitly abandoning the second ground. This issue is:<br< p=””
</br<
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?Whether the respondents have proved their case to be entitled to judgment at the trial Court.?
Appellant?s Counsel drew our attention to page 2 line 16 and page 3 lines 1-4 of the record of proceedings, that the only evidence relied upon by the respondents as plaintiffs was a Customary Certificate of Occupancy, a receipt and a site plan. These were not forwarded as part of the record of appeal and when this Court?s registrar wrote (Exhibit ?A?) requesting the trial Court to do so, the reply (Exhibit ?B?) was that they were ?nowhere to be found.? Counsel therefore submits that the trial Court acted on no evidence when it gave judgment for the respondent.
Furthermore, appellant?s Counsel further contended that the DW1 who testified for the appellant raised questions as to the way and manner the respondents obtained the certificate relied upon.
Mr. Yahaya, who adopted the appellant?s brief, urged the Court to allow the appeal, set aside the decision of the trial Court, and order a retrial before a different judge.
We have gone through the record of proceedings at the
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trial Court. The respondents, as contended by Counsel, relied only on those documents. The trial Judge based his judgment on a preference of those documents as being weightier than the testimonies of the four witnesses called by the appellant/plaintiff. The witnesses gave testimony of knowing the farmland to have been owned by the appellant?s father and later the appellant. DW4 testified that the appellant even allowed him to cultivate once and the respondents? animals destroyed his beans. The appellant?s witnesses wondered how the respondents ?registered? the farm.
While the trial Court is at liberty to consider the documents as weightier than the testimonies, where those documents have been strenuously challenged, there was the need to establish their authenticity. Mere production of a Customary Certificate of Occupancy, purporting to grant the land to a party, is not enough in the circumstance. The point was made time without number. It should suffice to refer to the case of Boye Industries Limited & Anor. vs. Sowemimo (2009) LPELR-8858, per the exemplary jurist of our time, Salami, JCA:
?It is trite that
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the mere issuance or acquisition of a certificate of occupancy does not and cannot confer title in respect of a parcel of land it purports to cover where no such title either existed or was available to be transferred. ?A certificate of occupancy does not stop the Court from enquiring into the validity or existence of title of the person asserting possession before the issue of the certificate.?
Indeed, where, as in this case, the certificate and documents relied upon could not be traced at the Court and produced as part of the record of appeal, the judgment premised solely on them cannot stand.
We therefore resolve this issue in favour of the appellant. The appeal is allowed. The judgment of the trial Court is set aside. We order a retrial before a different Judge.
Costs of N30,000.00 in favour of the appellant.?
How can this Court arrive at a decision that the interests of justice do require an oral hearing of this application in the absence of the decision of the Court of first instance which this Court will consider whether the lower Court was right or wrong in setting aside? That is not possible.
?In Rt. Hon.
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Uduimo Itsueli & Anor. vs. Securities and Exchange Commission & Anor. (2016) 6 NWLR (Pt.1507) 160, Ogunbiyi, JSC held at page 172 as follows:
?The law is trite that in an application of this nature, for the applicant to earn the favour of the Court, he must satisfy two conditions which must co-exist conjunctively i.e. to say there must be good and substantial reason why a discretion should be exercised in favour of the application and secondly that the grounds of appeal sought to be introduced are arguable.
From the facts deposed on the affidavits and counter affidavit of parties taken together, and also the grounds predicating the application, I hold the view that the justice of this application does not operate in favour of the applicant. My learned brother has given detailed reasons for the refusal of the application and I adopt same as mine and dismiss the application for want of merit.?
The Supreme Court has held that the two conditions prescribed in Order 7 Rule 10(2) of the Court of Appeal Rules, 2011 must co-exist before time is extended for an appellant to appeal. See Chrisray (Nig.) vs. Elson & Neil Ltd. (1990)
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3 NWLR (Pt.140) 630 at 640; Osinupebi vs. Saibu & Co. (1982) 7 SC 104 at 109; Montubi S.P.A. vs. Scansila Contracting Co. Ltd. (1986) 2 NWLR (Pt.21) 154 at 164; John & Ors. vs. Blakks & Ors. (1988) 4 NWLR (Pt.90) 539 at 549 and Kiyawa vs. Madawaki (1986) 2 NWLR (Pt.20) 113 at 121. That may be so. But when one examines the provisions of Section 242(1) and (2) of the Constitution (supra), the real questions to be determined is whether upon establishing the two conditions precedent the interests of justice, which may vary according to the circumstances of each appeal/application, necessitates an oral hearing of the application. InNwawuba vs. Enemuo (1988) 19 NSCC (Pt.1) 930 at 936 lines 27-41, Aniagolu, JSC held as follows:
The defendants appealed to the Court of Appeal, Enugu Division. In the lead judgment of S.M.A. Belgore, JCA (as he then was) to which Phil-Ebosie and Ola-tawura, JJ.C.A. concurred, he carefully adverted to the above findings of fact and the law involved and dismissed the appeal. The defendants (hereinafter called the appellants) have, with leave of the Court of Appeal, appealed further to this Court. The
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plaintiffs shall hereafter be referred to as the respondents.
I must pause here to observe that from the record, I do not see why leave to appeal should have been granted by the Court of Appeal, per Phil-Ebosie, Aseme and Aikawa, JJ.C.A. save, perhaps, that the application for leave was not opposed. In my opinion, even where such an application for leave to appeal is not opposed, the Court of Appeal or, indeed, this Court, is still in duty bound to satisfy itself in a case like this in which there have been far-reaching and concurrent findings of fact by two lower Courts, that there are special circumstances to warrant a grant of leave to appeal. The attitude of this Court to such matters has already been made clear in very many cases, including: Chinwendu vs. Mbamali (1980) 3-4 SC 31; Lamai vs. Orbih (1980) 5-7 SC 28; Chief Kweku Serbeh vs. Ohene Kobina Karikari (1938) 5 WACA 34; Ibodo vs. Enarofia (1980) 5-7 SC 42.
However, as the Court below has granted leave, I am making this point rather as a guide for the future.?
In Chinwendu vs. Mbamali (1980) 3-4 SC 31, Aniagolu, JSC once again held at pages 31-32 as follows:
?This
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appeal has come before this Court for hearing following an application for leave to appeal granted by the Federal Court of Appeal on 2nd May, 1978 upon a Motion ex parte filed by the defendant/appellants and made ex parte by reason of the combined effect of Section 117(3)(a) of the Constitution of the Federation No.20 of 1963 as amended by the Constitution (Amendment) (No.2) Decree, 1976; Section 8(3) of the Federal Court of Appeal Decree No.43 of 1976 which applied the 1961 Supreme Court Rules to the Federal Court of Appeal; and Order VII Rule 3(1) of the said 1961 Supreme Court Rules which states that:
?Where an appeal lies only by leave of Court or of the Court below any application to the Court for such leave shall be made ex parte by notice of motion.?
Had the motion not been made ex parte and had the respondents been given the opportunity to contest the application, it is doubtful whether, on the facts of the case as found by the trial High Court and confirmed by the Federal Court of Appeal, leave to appeal to the Supreme Court would have been granted by the Federal Court of Appeal ? the said facts being so hopelessly against
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the appellants that the surprise was that they should have chosen to appeal at all against the judgments, the appeal being only one of facts even though ingeniously couched, in the grounds of appeal, as if they had any legal contents. At the end of appellants? Counsel?s argument we did not call upon respondents? Counsel for a reply. This is a clear case in which the Federal Court of Appeal ought to have refused leave to appeal or at best ordered notice of the motion to be served on the respondents, as that Court had undoubted power to do, and thereafter hear both sides before granting or refusing the application.?
See alsoLamai vs. Orbih (1980) 5-7 SC 28.
Thus, the listing of an application for extension of time to appeal is not automatic. The application would only be listed for oral hearing in the interests of justice. I have examined the proposed grounds of appeal. They read as follows:
?1. The decision of the lower Court is against the weight of evidence.
2. The lower Court erred in law when it allowed the respondent?s appeal and set aside the judgment of the trial Court when the record of appeal
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before it is not complete which error has caused a miscarriage of justice.
PARTICULARS OF ERROR:
(a) The trial Upper Sharia Court relied on documentary evidence tendered by the appellants and delivered its judgment in favour of the appellants.
(b) The respondent did not object to the admissibility of the document.
(c) The respondent called witnesses who gave irreconcilable contradictory oral evidence.
(d) The trial Court did not believe their testimony and relied on documentary evidence.
3. The lower Court erred in law when it held that ?there was need to establish their authenticity that mere production of a customary certificate of occupancy purporting to grant the land to a party is not enough in the circumstance when the trial Court relied on the principle of Islamic Law in deciding the matter? which error has caused a miscarriage of justice.
PARTICULARS OF ERROR:
(a) The trial Upper Sharia Court decided the case under Islamic Law while the authority relied upon by the lower Court is a common law principle which is not applicable in the matter.
(b) The respondent did not object the admissibility
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of the document.
RELIEFS SOUGHT FROM THE COURT OF APPEAL:
(a) To allow the appeal and set aside the decision of the lower Court.
(b) An order affirming the decision of the trial Court.?
One may still ask: how can this Court arrive at the decision that the Court of first instance applied Islamic Law in the determination of the controversy as to the ownership of the land in dispute when the proceedings of the Court of first instance is not before this Court for consideration? There is no answer.
How may this Court know that the records were incomplete nevertheless the Court below heard and determined the appeal? Entries in the record of proceedings are prima facie correct until proved otherwise. See Atlas (Nig.) Ltd. vs. Steve Rhodes (1961) 1 All NLR (Pt.2) 348.
Accordingly, the appellant has not shown that in the interests of justice the Court of Appeal should list this application/appeal for an oral hearing. I dismissed this application. I award N50,000.00 cost against the appellants in favour of the respondent.
Other Citations: (2016)LCN/8821(CA)
