The Attorney General of Taraba State V. Selihin Consult Limited (2016)
LawGlobal-Hub Lead Judgment Report
JUMMAI HANNATU SANKEY, J.C.A.
This Ruling is predicated on a motion on notice filed by the Applicant on 1st April, 2016, wherein he seeks the following prayers:
1. AN ORDER RESTORING the Applicants Appeal against the Judgment of the Taraba State High Court delivered by Hon. Justice B.S.S. Mohammed on 25th June, 2014 in suit No. TRSJ/20/2014 between SELIHIN Counsel (sic) LIMITED and THE ATTORNEY GENERAL OF TARABA STATE which Appeal was dismissed by the order of this Honourable Court on 25th November, 2014 for failure to transmit the record of Appeal to the Honourable Court.
2. AN ORDER enlarging time for the Applicant to transmit the record of appeal to this Honourable Court.
3. AN ORDER deeming as properly transmitted the record of proceedings to the registry of the Appellate Court.
4. AN ORDER deeming as properly served the record of appeal on the respondent.
5. AND FOR SUCH Order or further Orders as the Honourable Court may deem just and expedient to make in the circumstances of this case.
The ten grounds for making the application were set out therein. The motion was
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supported by a 12 paragraph affidavit and one document annexed thereto and marked Exhibit TRS 1, being the enrolled Order of this Court dismissing the Appeal. Upon being served the motion, the Respondent filed a counter affidavit containing 7 Paragraphs on 16-05-2016.
On 17-05-2016 when the application came up for hearing, Y.N. Akirikwen Esq., the Hon. Attorney General appearing for himself, argued the motion. He submits that the motion is brought pursuant to Order 7 Rule 1 and Order 8 Rule 20 of the Court of Appeal Rules, 2011 and seeks the reliefs as set out therein. He placed reliance on the affidavit and the document annexed thereto. On the counter affidavit of the Respondent, he contends that it actually re-states the case of the Applicant. He submits that the Rules of Court do not provide a time limit for bringing such an application. He contends that by Paragraph 9 of the affidavit, the Appeal canvasses substantial issues of law, and that the Judgment is yet to be enforced. He therefore urged the Court to grant the application as prayed so that the Appeal may be determined on its merits.
Mr. Martin Milkman, learned Counsel for the Respondent,
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in opposing the application, filed a 7 Paragraph affidavit upon which he relied in urging the Court to refuse the application and to dismiss same. Counsel submits that in an application of this nature brought under Order 8 Rule 20 of the Rules of this Court, the Applicant is required to place good and sufficient reasons for it to succeed. For what constitutes good and sufficient reason, he relies on Nigeria Postal Service V Idioho (2013) LPELR-20820(CA) at 24, paras C-A; & Afro Continental Insurance Ltd & Ors V NDIC (2015) LPELR-24805(CA) at 33-34, paras C-G. Counsel contends that the Applicant has not disclosed good and sufficient reason why the Appeal should be heard on the merit and why the application should be granted. In addition, there is no explanation for the failure or the delay in transmitting the Record. He argues that the alleged reason of political instability given by the Applicant has been debunked in the counter affidavit where it has been shown that it has not affected the Appeal.
Counsel further submits that the Appeal number and the name has not been mentioned anywhere in the application. In addition to which, the Notice of
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Appeal has not been exhibited to the application. Furthermore, the enrolled Order of this Court which has been exhibited as Exhibit TRS1 to the supporting affidavit is a photocopy of a public document which has not been certified. That as such, it cannot be relied upon. For this, Counsel relied on Fawehinmi V IGP & Others (2002) LPELR-1258(SC) at 39, paras C-E; Nwaogu V Atuma (2013) 221 LRCN (Pt. 11) 22-23, paras JJ-P. Additionally, Counsel submits that the affidavit in support of the motion is defective having not complied with Section 117(1) of the Evidence Act, 2011 by stating the residence of the deponent. He relied on Mustapha V Suntai (Unreported) Appeal No. CA/YL/38/13 delivered on 24-07-13. He therefore urged the Court to refuse the application and dismiss same.
In a brief reply on points of law, The Hon. Attorney General submits that at the stage when the Appeal was dismissed, the Record of Appeal had not been transmitted to this Court. As a result, there could not have been any Appeal number since it had not been registered. He therefore submits that the application has given sufficient particulars to warrant its being granted.
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In respect of the submission that good and sufficient reason had not been supplied, the learned AG submits that while all the authorities cited are good law, it is only this Court that is in a position to decide whether or not the reasons given by the Applicant are good and substantial. He argues that whereas the Applicant has advanced reasons why the Record of Appeal was delayed, it is within the discretion of the Court to decide whether or not they are good and substantial.
With regard to the non-certification of the enrolled Order of the Court, Exhibit TRS1 annexed to the affidavit, learned AG submits that the decision in Fawehinmi V IGP (supra) is no longer good law. He relies on Nwosu V Imo State Environmental Sanitation Authority & Ors (1990) LPELR-2129(SC). He submits that any public document attached to an affidavit cannot be opposed on ground of admissibility. It is only when it is being tendered in Court that it can be opposed. He submits that in addition to this, it is a document of this Court for which it can take judicial notice. He finally urged the Court to grant the application and discountenance the objection.
Findings:
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This application is presented before the Court on the invocation of Order 8 Rule 20 of the Court of Appeal Rules, 2011.The Rule of Court provides thus:20. An Appellant whose appeal has been dismissed under this Rule may apply by notice of motion that his or the appeal be restored and any such application may be made to the Court, who may, in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit. (Emphasis supplied)
By Order 8 Rules 1 and 4 of the Rules, where the Registrar has failed to compile the record of appeal within the time prescribed, i.e. 60 days, and the Appellant has equally failed to do his duty by compiling the Records within 30 days, the Respondent, by virtue of Rule 18 of the same Order, may apply to the Court by way of a notice of motion to dismiss the Appeal. However, the filing of a motion on notice for the dismissal of an appeal for want of prosecution (as provided) is permissive and not mandatory by reason of the word may used therein.
Order 8 Rule 18 of the Court of Appeal Rules, 2011, deals with a situation where an Appeal is deemed
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filed, in that the Notice of Appeal has been filed, but both the Registrar of the Lower Court, as well as the Appellant, have failed to compile and transmit the record of appeal to the appellate Court within the time prescribed, thereby entering the Appeal before it. In such a situation, the Appeal need not be entered before the Court will be clothed with jurisdiction to deal summarily with it. Instead, by virtue of its inherent powers, the Court is vested with jurisdiction to suo motu list the Appeal and to summarily dismiss same for want of prosecution, even without waiting for the Respondent to make the application, either orally or by way of a motion on notice. This is because the Court is vested with the inherent power to decongest its cause list of unserious, frivolous or vexatious appeals, particularly where the appeal is intended to overreach or deny the respondent the enjoyment of the fruits of the Judgment given in his favour by the Lower Court.
Rule 20 of Order 18 of the Rules of Court is however emphatic on the point that such a dismissal is not on the merit. Consequently, an erstwhile Appellant may apply for the restoration of such a
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dismissed Appeal. However, an application of this nature is not granted as a matter of course, but is based on some established principles of law. An Appeal dismissed for the non-compilation of the Record of Appeal may be restored upon good and sufficient reasons being advanced for the delay. The Court may therefore in its discretion for good and sufficient cause, restore the Appeal and/or make any order as it deems fit. In such an application, it is always wise for the Applicant to exhibit the compiled Record in order to convince the Court of the seriousness of the Applicant.
In Asol (Nig) Ltd V Access Bank (Nig) Plc (2009) 10 NWLR (Pt. 1149) 283, ruling on a similar application, this Court held that, the reasons given by the Appellant, even if considered substantial, were successfully and effectively debunked and refuted by the Respondent. Consequently, the Court found that the Appellant did not advance any reasons at all, not to talk of a good and substantial reason, for its failure to compile the Record within the prescribed period, and did not therefore satisfy the first condition of the Rule. Hear Rhodes-Vivour, JCA (as he then was) at pages 306-307
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of the Report: Before this application for extension of time to compile the record of appeal can succeed it must be supported by an affidavit which must show good and substantial reasons for failure to compile the record of appeal within the prescribed period. This is a discretionary application, and before the Judge can grant it, it must be seen that he exercised his discretion judicially and judiciously. That is to say he acted with convincing reasons and not just as he likes. The affidavit in support must contain depositions which will entitle the applicant to the Courts discretion. After all, where no credible excuse is given no indulgence can be granted.
In the affidavit in support, the reason given for the Appellants delay in compiling the record of appeal is that Mr. Teriola Williams (counsel in chambers) was instructed to compile the records, but he resigned from the chambers of counsel for the appellant and so the record was not compiled. In the counter affidavit, it is deposed therein that after Mr. Teriola Williams resigned from the chambers of learned counsel for the appellant, on about five occasions counsel from
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the said chambers appeared in Court trying to obtain a stay of execution of the Judgment appealed against.
See also Olowokere V African Newspapers of Nigeria Ltd (1993) 5 NWLR (Pt. 295) 583; CCB (Nig) Ltd V Ogwuru (1993) 3 NWLR (Pt. 284) 630; Williams V Hope Rising Voluntary Funds Society (1982) 1 ALL NLR 1; & Bowaje V Adediwura (1976) 6 SC 143.
In the instant application, the reasons given by the Applicant to explain his outright failure to transmit the Record of Appeal from 10th July, 2014 when the Notice of Appeal was filed, to 25th November, 2014 when the Appeal was dismissed, and from 24th November, 2014 to 1st April, 2016 when this application was filed, is contained in Paragraphs 5 and 6 of the supporting affidavit. For ease of reference, they are set out hereunder:
5. a. That the Respondent instituted an action against the Applicant in Suit No. TRSJ/20/2014 at the Taraba State High Court sitting in Jalingo under Summary Judgment Procedure of the Rules of the trial High Court claiming the sum of N140, 000, 000.00.
b. That the trial Court gave Judgment against the Applicant on 25th June, 2014.
c. That being
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dissatisfied with the said Judgment, the Applicant timeously filed a notice of appeal dated and filed on 10th July, 2014 against same and applied to the Registrar of the trial Court to compile and transmit the record of proceedings to this Honourable Court.
d. That the registrar of the trial Court failed to transmit the record within the sixty days allowed, which sixty days elapsed sometimes in September, 2014.
e. That at the time the period allowed for the registrar to compile and transmit the record of appeal had elapsed, the State had become politically unstable as a result of frequent change in political leadership ranging from Alh. Garba Umar to Sani Abubakar Danladi and now to Arc. Darius Ishaku, all within this short period of time.
f. That the facts stated in sub paragraph (e) above also led to the massive movement of personnel and files from one department to another which resulted in some files from one department to another which resulted in some files and documents being lost or misplaced which made it extremely difficult for the Applicant to put its house in order and to also compile the record after the trial Court failed to do
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so.
g. That the facts deposed to paragraphs (d) and (e) so heated up the polity in the state so much so that several government businesses were stalled or frustrated, including some cases by or against the state government in Courts both within and outside the State, and that this also led to the dismissal of the Applicants appeal by order of this Honourable Court on 25th day of November, 2014 for failure to compile and transmit record of appeal. The said Order is hereby attached as Exhibit TRS1.
6. I also know as a fact that the new administration under Governor Darius Ishaku has just settled down with the appointments of members of the State Executive Council which includes the new Attorney General of the State. (Emphasis supplied)
In its opposition to the application and in direct response to the depositions in the supporting affidavit, the Respondent filed a counter affidavit of 7 paragraphs. Therein, he sought to debunk the postulations of the deponent in the supporting affidavit. The relevant paragraphs of the counter affidavit are set out hereunder as follows:4. c) That on the 8th day of September, 2014, the 60
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days provided by the rules of this Honourable Court for the Registry of the trial Court to compile and transmit the Record of Proceedings elapsed without the Registry transmitting the Record of Appeal.
d) That the time allowed by the Rules of this Honourable Court to compile and transmit the Record of appeal to the Registry of this Honourable Court by the Applicant himself is 30 days
e) That the said 30 days lapsed on the 8th day of October, 2014 without the said Records of appeal being transmitted by the Appellant.
f) That following the Applicants failure to compile and transmit the Records of Appeal, the Respondent applied to this Honourable Court via Motion No. CA/YL/89M/14, dated 28/10/2014, and filed on 11/11/2014, seeking to dismiss the Appeal of the Applicant of the Applicant for failure to transmit Records of Appeal.
g) That the said Motion and a Hearing Notice was duly served on the office of the Attorney-General of Taraba State.
h) That at the time the Lower Court delivered its Judgment in the matter appealed against, there was a substantive and sitting Attorney-General for Taraba State by name Musa Adamu Tende, Esq.
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i) That it was the Attorney-General himself, Musa Adamu Tende Esq. that signed and filed a Notice of Appeal.
J) That even when the Motion seeking for the dismissal of the appeal was filed and served on the Applicant, there was still a sitting and subsisting Attorney-General.
k) That even when the Motion seeking for the dismissal of the Appeal was fixed for hearing by this Honourable Court, there was a substantive Attorney-General, Musa Adamu Tende, Esq.
l) That the office of the Attorney-General is static, which has been in existence and still is in existence.
m) That there was no political instability whatsoever that affected the compilation and transmission of the Records of Appeal to this Honourable Court within the stipulated time.
n) That throughout the period in issue there was a sitting Attorney-General for Taraba State.
o) That at all material time there are law officers in the Chambers of the Attorney-General of Taraba State and there is a Solicitor General/Permanent Secretary and several Directors in the Ministry of Justice of Taraba State.
p) That when the Applicant was served with the Respondents
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Motion seeking to dismiss the Appeal, the Applicant failed and refused to seek leave to transmit the said Record of Appeal, but chose to be absent from Court even though served with a hearing Notice.
q) That the application seeking for the dismissal of the appeal was heard and argued about 2 years ago.
r) That the new administration under Governor Darius Dickson Ishaku, came into existence, settled down with the appointment of members of the Taraba State Executive Council, including the Attorney-General of Taraba State since the year 2015.
s) That even before the new administration settled down with the appointment of the incumbent Attorney-General there was also another Attorney-General for Taraba State who took over from Musa Adamu Tende, Esq.
t) That the Applicants application was necessitated by the fact that the Respondent was taking steps to enforce the said Judgment against the Applicant.
5. That I know this application is made in bad faith.
6. That the grant of this application will prejudice the Respondent. (Emphasis supplied)
It is apparent from these depositions that the Applicant hinged the reason
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for failure to transmit the Record of proceedings since 10th July, 2014 when the Notice of Appeal was filed, on the so-called political instability of Taraba State ostensibly due to the change in political leadership of the State, i.e. the change of batons of the occupants of the office of Governor of Taraba State. He attributed the delay in compiling and transmitting the Record of Appeal, which resulted in the dismissal of the Appeal, to the political volatility in the State. However, having advanced this reason, the Respondent practically went to town debunking each and every of these reasons advanced by the Applicant. He deposed to the fact that even when the political leadership was experiencing some fluidity in the position of the office of the Chief Executive of the State, the office of the Attorney-General of the State was never vacant. At the time the Judgment of the Lower Court was given against the Applicant, one Musa Adamu Tende, Esq. was the sitting Attorney General. Dissatisfied by the decision, he filed the Notice of Appeal in 2014. Thereafter, no further steps were taken towards the actualization and/or prosecution of the Appeal.
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When the prescribed periods for compiling and transmitting the Record of proceedings by both the Registrar of the Lower Court and the Applicant had elapsed by effluxion of time, the Respondent filed a motion in line with Order 8 Rule 18 of the Rules of this Court seeking an order for the Appeal to be dismissed for failure to transmit the Record of proceedings to this Court. This motion, which was on notice to the Applicant, was duly served on him. In addition, a hearing notice was also served notifying him of the date for the hearing of the motion. However, he neither responded to the motion by putting in an appearance in Court to indicate his desire to proceed with the Appeal, nor did he take any steps towards compiling and transmitting the Record, which would have short-circuited the grant of the motion for dismissal. None of these options were explored by the Applicant. Instead, he laid back and did nothing, even when the Attorney-Generals office is populated by such senior-level officers in addition to the learned Attorney General himself, such as the Solicitor General and other Directors, who had the capability of taking appropriate
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action if the Applicant had seriously desired to actively prosecute the Appeal.
The content of Order 8 Rule 20 of the Court of Appeal Rules, 2011, under which the Applicant has approached the Court seeking an order to restore the dismissed Appeal has already been set out earlier in the body of this Judgment. In the face of the detailed facts placed before the Court by the Respondent in his counter affidavit, the Applicant has not deemed it fit to file a further and better affidavit to debunk these assertions which postulate that the failure of the Applicant to transmit the Record of proceedings of the Lower Court to this Court, and the inordinate delay in filing the application to restore the Appeal from 25-11-14 when the Appeal was dismissed, until 01-04-16, was either due to a lack of interest and/or a lack of diligence; and certainly not due to political instability in the State which has not been shown to have denied the Applicant the opportunity of transmitting the Record of Appeal. In the absence any other affidavit evidence to debunk this, the best interpretation that can be given to these uncontroverted and unchallenged depositions brought to the
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fore in the Respondents counter affidavit is that the averments are admitted. The facts certainly speak for themselves.
That being the case, the Respondent has succeeded in debunking the reasons advanced by the Applicant in trying to persuade the Court to grant the application. Thus, in the exercise of my judicious discretion, based on the affidavit evidence before the Court, I am bound to hold that the reasons given in the depositions of the Applicant do not amount to good and sufficient cause for the restoration of the Appeal. Consequently, I find that the conditions for the grant of the application under Rule 20 of Order 8 of the Rules of Court have not been met.
The law is settled that in order to justify the exercise of the Courts discretion in favour of an Applicant, there must be some material upon which to base the exercise of that discretion. Any exercise of the Courts discretion where no material for such exercise has been placed before the Court would certainly give a party in breach of the Rules of Court an uninhibited right to an unmerited relief. Consequently, the conditions precedent to the grant of such an
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application set out in the Rules of Court would, in the circumstances, have no legal content. This would serve only to give an unwarranted and undeserved advantage to the Applicant over the Respondent, which is the antithesis of the exercise of judicious discretion, and which cannot be in consonance with the tenets of justice.
When an application seeks an order of Court to set aside its own decision given in the absence of one of the parties before it, in order to give the other party an opportunity of being heard, the Court must consider the reasons for the applicants failure to transmit the Record within the time prescribed and also his failure to appear at the hearing of the motion seeking to dismiss the Appeal, in which a Ruling was yet again given in his absence; and whether there has been undue delay in making this application so as to prejudice the party in whose favour the Ruling of the Court dismissing the Appeal, subsists. The Court being asked to exercise its discretion to set aside its Ruling and restore the Appeal must be satisfied that the Applicants conduct throughout the proceedings has been such as to make his
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application worthy of a sympathetic consideration. See Williams V Hope Rising Voluntary Funds Society (1982) LPELR-3484(SC) 1 at 9-10. As has been stated earlier, the Applicant has failed to do so. The Supreme Court in the latter case held inter alia as follows per Idigbe, JSC, at page 17-18 as follows:
It is true of course that the Court should bear in mind when exercising its discretion the interests of the parties and the justice of the case, and should exercise its discretion where the justice of the case requires it to do so. But where, as here, the conduct of the applicants throughout the proceedings as is evident from the record show a deliberate lack of interest in the proceedings and no proper reason has been advanced for the tardiness in bringing this application, the Court ought to reject same.
I therefore find that the Applicants explanation for failing to transmit the Record of proceedings of the Lower Court to this Court within the time prescribed by the Rules of this Court is unconvincing and does not amount to good and sufficient cause within the ambit of Order 8 Rule 20 of the Rules. This is in addition to his
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failure to take advantage of the further window of opportunity opened for him to do so when a motion on notice filed by the Respondent was served on him in line with Order 8 Rule 18 of the Rules. I therefore exercise my discretion to refuse the application for failure to show good and sufficient cause.
Notwithstanding my finding on the substance of the application, I feel I must say a word or two about the non-certification of the Exhibit TRS1, the enrolled Order of this Court dismissing the Appeal. Whereas learned Counsel for the Respondent has contended that the said enrolled Order, undoubtedly a public document which was not certified, should be discountenanced as an exhibit to an affidavit; the learned Attorney General has submitted that a public document attached to an affidavit cannot be opposed on ground of admissibility, and that it is only when it is being tendered in Court that it can be so opposed. The Respondent cited a number of decided cases to buttress his position in this regard, and I have taken time to examine same.
In the case of Fawehinmi V IG, Police (2002) 5 SCNJ 103, the Appellant by an Originating Summons sued the Respondents
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in the Federal High Court inter alia for an order of mandamus to compel them to investigate some criminal allegations which the Appellant made against Tinubu, the then incumbent Governor of Lagos State. The allegations were that Tinubu committed the following acts: deposing on oath to untrue facts. In the affidavit in support, the Appellant exhibited photocopies of public documents, which were not certified true copies of the originals, for the purpose of showing that Tinubu indeed committed the offence which he alleged. Following a preliminary objection raised by the Respondents that by virtue of Section 308 of the 1999 Constitution, the Governor enjoyed immunity from being investigated in respect of criminal allegations, the trial Judge dismissed the preliminary objection, after upholding the submission of the Respondents. Both parties were dissatisfied and appealed to the Court of Appeal. The Appellant appealed in respect of the finding that Tinubu enjoyed immunity against investigation; while the Respondents cross-appealed against the findings of the trial Court that the uncertified documents were admissible in evidence and that the Appellant had locus
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standi to institute the action. In respect of the appeal against the finding with regard to the uncertified documents annexed to the affidavit before the trial Court, the Court of Appeal held that, being uncertified documents, they were inadmissible. In particular, it held as follows:
In the instant case, Exhibits GF1, GF2 and GF3 being public documents, could only be used in evidence if the certified copies of them were produced. If they were documents which by the Evidence Act could not be used in any civil proceedings, it matters not in my view whether they were produced for use in an interlocutory application or a substantive suit. They remain inadmissible in both situations…
On further appeal, the Supreme Court upheld the findings of the Court of Appeal in respect of the use to which the trial Court made of the uncertified documents. For ease of reference, the Supreme Court per Uwaifo, JSC, held thus at (pages 131-132 of the Report):
Exhibits GF1, GF2 and GF3, if admissible, would have formed the basis of the evidence made available to the police to get them to investigate the alleged crime… As they were found to be
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inadmissible, the affidavit referred to by the Court below to which the said documents were exhibited in support could no longer speak for itself. It no more had any evidential value in regard to the said allegations of crime. Without that evidence, the application for the order of mandamus would cease to have any purpose. It would be purely academic to press argument on it and expect the Courts opinion thereon… In my view, the absence of the evidence intended by Exhibits GF1, GF2 and GF3 was enough to base a discretion not to order mandamus upon, as there was nothing to show that the allegations of the crime were real… In the absence of the evidence which Exhibits GF1, GF2 and GF3 was meant to represent, I answer issue 3 in the negative. (Emphasis supplied)
Again in Federal Airports Authority of Nigeria V Wamal Express Services (Nig) Ltd (2011) 1 SCNJ 133 at 144, the Supreme Court declined to rely on uncertified public documents annexed to an affidavit where the record of proceedings of the Court of Appeal was under challenge. See also Agagu V Dawodu (1990) 9 NWLR (Pt.160) 56.
Clearly, from the tenor of these decisions handed down
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from the Apex Court of the land, the law is settled that copies of public documents, being secondary evidence, which are not certified in satisfaction of Sections 104 and 105 of the Evidence Act, 2011, are inadmissible in evidence either when exhibited to affidavits or when tendered in Court during trial. It therefore goes without saying that the copy of the enrolled Order of the Court annexed to the Applicants affidavit, Exhibit TRS1, being a public document, lacks all the specifications of certification and so is not in conformity with the provisions of the Evidence Act. It is therefore difficult for this Court to act and rely upon such an uncertified public document in the determination of the merit or otherwise of the application. This Court therefore cannot act on Exhibit TRS1, which is inadmissible in evidence.
Having found Exhibit TRS1 inadmissible as evidence in support of the application, in the words of the Apex Court, the supporting affidavit to which the document was exhibited can no longer speak for itself. It no more has any evidential value in regard to the application. Without that evidence, the application for an order to relist
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the Appeal ceases to have any purpose. It has become purely academic, there being nothing before the Court to show that the Appeal sought to be relisted, was dismissed and the reason for its dismissal by the Court.
However, having earlier found that the application has not disclosed good and sufficient cause to restore the Appeal, I find the application lacking in merit. It is refused and accordingly dismissed.
Other Citations: (2016)LCN/8667(CA)
