IN THE COURT OF APPEAL OF NIGERIA
On Thursday, the 15th day of April, 2014
ATTORNEY GENERAL OF THE FEDERATION ................. Appellant
BI-COURTNEY LIMITED .............. Respondent
Matthew Echo for the applicant/appellant.
B. O. Babalakin SAN, with O. Ben-Omotehinse, A. A. Hiwiwu (Miss) for Respondent
AMIRU SANUSI, OFR ,J.C.A. (Delivering the Lead Ruling):
By a Motion on Notice dated the 19th of July, 2013 and filed on the 23rd of July, 2013, brought pursuant to order 7 Rules 1 and 10, Order 8, Rules 1, 4, 5, 10 of the Court of Appeal Rules, 2011, section 15 of the court of Appeal Act, 2004, the Applicant prayed this court for the following reliefs:
1. An Order extending the time within which the Appellant/Applicant may compile and transmit the Record of Appeal from the post judgment ruling of Hon. Justice J. K. Olotu of the Federal High Court, Abuja, in suit No:FHC/ABJ/CS/50/2009 (BI-COURTNEY VS. ATTORNEY GENERAL OF THE FEDERATION) to the Court of Appeal Abuja;
2. An Order deeming as properly compiled and transmitted from the Federal High Court, Abuja to the Court of Appeal, the Record of Appeal already compiled and transmitted;
3. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
In support of the application are two affidavits, first a ten (10) paragraph affidavit deposed to by one Nnamdi Ekwem, a legal practitioner in the law firm of Kenna Partners (counsel to the Applicant), to which is attached one exhibit, i.e. Exhibit A, as well as a further and better affidavit deposed to by the same deponent, exhibiting Exhibits A & B. The Respondent filed a counter affidavit containing thirty (30) paragraphs, and a further and better counter affidavit deposed to by one Osarugue courage Obayuwana, a legal practitioner in the law firm of Messrs Babalakin & Co (Counsel to the Respondent), and exhibiting Exhibits AG1, AG2 and AG3.
In compliance with the order of this Court made on the 6th of November, 2013 parties filed and exchanged written addresses. At the hearing of the application on the 27th of January, 2014, the learned counsel for the Applicant adopted and relied on the Applicant's written address dated and filed on the 19th of November, 2013, and signed by Mr. Matthew Echo Esq., as his argument in support of the application.
Learned counsel for the Respondent, adopted and relied on the Respondent's written address signed by Boonyameen B. Lawal Esq., as his response in opposition.
The facts that led to this application as distilled from the affidavits in support and the exhibits attached, are that the Respondent commenced an action at the Federal High court, Abuja, vide an originating summons dated January 23, 2009 and prayed the court essentially for interpretation and enforcement of rights arising out of a concession agreement dated April, 24, 2003 and judgment was delivered on the 3rd of March, 2009. The Respondent herein, then filed a motion on notice for an order of injunction restraining the Federal Government and all its agencies in the aviation sector from continuing the re-modeling and/or construction works to improve the General Aviation Terminal (GAT). The Federal High Court, sitting in Abuja, herein to be called "the Lower Court", per Olotu J, delivered a Ruling in favour of the Respondent herein.
The case of the Applicant is that consequent upon the Ruling, a Notice of Appeal was filed on his behalf and concerted efforts were made to compile and transmit the Records to the Court of Appeal, but this was impossible as the certified true copy of the Ruling was not made available to it on time. By the time the CTC of the Ruling was obtained, and the Record compiled, time had already elapsed, hence the need for this application to regularize his position.
The Respondent's story is that the Applicant has been and remains in blatant disobedience and disregard to the extant orders of the lower court in relation to the underlying Res of the instant appeal, hence his view is that the Applicant is not entitled to the favourable discretion of this court as sought in this application.
The learned counsel for the Applicant, in his written address, has formulated this lone issue for determination namely:
"Whether in view of the exercise of the right of appeal of the Appellant/Applicant and an appeal having been duly filed, the court ought not to exercise its discretion to grant the Appellant/Applicant an extension of time within which to compile and transmit the Record of Appeal in this appeal."
The Respondent also formulated a sole issue for determination in his written address to wit:
"Whether the Applicant is entitled to the favourable discretion of this Honourable Court with regard to the instant application".
Looking at the nature of the application, it is my view that the lone issue distilled by the Respondent is more apt for the determination of this application and I will rely on same in determining the application. For the Applicant, it is submitted that the court has powers to grant an extension of time within which to do any act or take any step prescribed by the Rules to be done or taken by any party. He referred this court to Order 7 Rule 10 of court of Appeal Rules, 2011 as well as Section 15 of the Court of Appeal Act 2004 and submitted that this court has the power to grant this application. He placed reliance on the case of NIPOL LTD VS. BIOKU INVESTMENT & PROCO Ltd (1992) 23 N.S.C.C. (Pt.1) 606.
It is submitted for the Applicant that it is important for the court to grant extension of time to ensure that the Applicant is not denied his right to fair hearing guaranteed under section 36 of the 1999 Constitution. He relied on the case of National Bank Vs. Are Brothers (1977) 11 N.S.C.C. 382 at 387, as well as the case of IKA L.G.A. Vs. MBA (2007) 12 NWLR (Pt.1049) 676 at 701. Citing and relying on the case of Diko vs. Ibadan South west L.G. (1997) 2 NWLR (Pt.486) 235 at 246, it is submitted for the Applicant that not granting this application would amount to denying the Applicant their right to appeal and for the appeal to be heard on the merit therefore it is in the interest of justice and in accordance with the principles of fair hearing to allow the application.
Learned counsel for the Applicant referred to paragraphs 4-16 of the further and better affidavit and submitted that the Applicant is not in disobedience of any court order as has been insinuated by the Respondent but is merely exercising his right of appeal, though out of time, hence this application.
Relying on a plethora of authorities, including the following: Globestar Eng. (Nig) Ltd Vs. Mile Housing Ltd (1999) 10 NWLR (Pt.662) 270 at 284; Kalu vs. Odili (1992) 5 NWLR (Pt.240) 130; P.D.P. vs. Adeyemi (2002) 10 NWLR (Pt.776) 524, it was submitted on behalf of the Applicant, that the right of appeal is a constitutional right and cannot be fettered other than as provided under the constitution. This Court is therefore urged to disregard the objection by the Respondent's learned senior counsel and to exercise its discretion in favour of the Applicant and grant the application as prayed so that the appeal can be determined on the merit.
In reply, it was submitted for the Respondent that an application of this nature is not granted as a matter of course because such application requires the exercise of the discretion of the court.
It was submitted that the Applicant is undeserving of this Court's discretion in view of the Applicant's consistent disregard and disobedience of the orders of the lower court. Reference was made to Exhibits AG 1 and AC 2, attached to the Respondent's counter affidavit.
Also relying on the following cases: Military Governor of Lagos State & Ors vs. Ojukwu (1986) 1 NWLR (Pt.18) 621; Odogwu vs. Odogwu (1992) 2 NWLR (Pt.225) 539; First African Trust Bank Ltd & Anor vs. Ezegbu & Anor (1992) 9 NWLR (Pt.264) 132, it was submitted for the Respondent that the Applicant's consistent and continuous disregard to the orders of the lower court with regard to the GAT, amounts to an impediment to the course of justice and until the impediment is removed, the applicant is not entitled to the favourable discretion of this Honourable court.
In conclusion, it argued that as a result of the applicant's consistent and unrepentant disregard for the extant orders of the court, this Court ought to decline the favourable discretion requested by the Applicant in the instant application and to dismiss same.
I have carefully considered the averments in the affidavits in support of the application, the counter affidavit, the exhibits and the submissions of the respective learned counsel in their written addresses.
It is pertinent to say here that the Applicant's Motion on Notice, dated 19th July, 2013 and filed on the 23rd of July, 2013, is brought pursuant to Order 7, Rules 1 and 10, Order 8 Rules 1, 4, 5 and 10 of the Court of Appeal Rules 2011, as well as Section 15 of the Court of Appeal Act, 2004, and under the inherent jurisdiction of this Court. It essentially seeks the leave of this Court to compile and transmit the Records of Appeal from the lower court out of time.
Under the mandatory provisions of Order 8 Rules 1 and 4 of the Rules of this court, 2011, where both the Registrar of the lower court and the Appellant have defaulted, omitted, failed and/or neglected to compile and transmit the record of appeal in accordance with the provisions of the Rules with 60 days and 30 days respectively, leave of this court is required before further steps can be taken.
It is trite law, that leave of court, where required, is a condition precedent to the exercise of the right of appeal, as no jurisdiction can be conferred on the appellate court without the requisite leave. See the case of SPDC (NIG) LTD VS. KATAD (NIG) LTD (2006) 1 NWLR (Pt.960) 198.
It is also beyond doubt that an application for extension of time, as in the case, is not automatic. It is not granted as a matter of course. Such application requires that the court exercises its discretion judicially and judiciously. Any applicant seeking the indulgence of such discretion of the court must satisfy the court in its affidavit in support of the motion, that there are good and substantial reasons for the failure to comply with the mandatory provisions of the Rules of this Court.
On what constitutes the phrase "good and substantial reasons" the Rules of Court did not define nor describe the words. However, the description of the phrase in relation to the provision in the Rules of the court is traced to judicial precedent. The supreme court describing "good reason" in Ikenta Best (Nig) Ltd vs. A.G. Rivers State (2008) 6 NWLR (Pt.1084) 612 at 642-643, PER TOBI JSC, said:
"The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reason must not be bad in the sense that they are unacceptable. Substantial reasons are essential, material and important reasons. Reasons which are peripheral strongly cannot suffice. The pendulum should weigh in favour of granting the application and not just enough to balance the weight or on an even keel"
What then is the reason given by the applicant for his failure to compile and transmit the Records within the prescribed time?
Paragraph 3 (d) (e) (f) (g) (h) and (i) is instructive and is hereunder reproduced for purposes of emphasis.
Paragraphs 3(d) (e) (f) (g) (h) and (i)
(d) That the office of the Attorney General of the Federation, upon the delivering of the Ruling of July 3, 2012, instructed counsel (Messrs Kenna Partners) to appeal against the said judgment/ruling and counsel did file a Notice of Appeal dated 10th July, 2012.
(e) That after the said Notice of Appeal was filed, efforts were made to compile records for transmission to the Court of Appeal but it was impossible as the certified copy of the ruling was not available to enable the Appeal Registry of the Federal High Court compile the record as same was said not to be ready.
(f) That by the time the certified copy of the ruling was ready and made available, time has already lapse to compile records.
(g) That under the mandatory provisions of Order 8 Rule 1 of the Court of Appeal Rules 2011 (The Rules) upon filing a Notice of Appeal against the decision of the court below, the Registrar of the Court below is obligated to compile and transmit the record of the appeal from the court below, in respect of an appeal, to this Honourable court within sixty (60) days.
(h) That Order 8 Rule 1 of the Rules provides that upon expiration of the prescribed 60 days, after the filing of the Notice of Appeal, where the Registrar of the Court below has defaulted, omitted, failed and or neglected to compile and transmit the record of appeal in accordance with the provisions of the Rules, it shall be compulsory for the Appellant to compile and transmit the said record to this Honourable Court within 30 days after the Registrar's default, neglect or failure.
(i) That the Appellant/Applicant's counsel had subsequently made applications to the court so as to obtain the certified copies of all processes relating to this appeal from the court's file to enable it compile the records but this was delayed also as we were informed by the Court officers for a long while that the judge was not around to approve the application, hence the Appellant/Applicant inability to conclude same.
I have critically looked at the averments in the aforesaid paragraphs. The primary reason given by the applicant is that the Appeal Registry of the lower court is substantially responsible for the inability to compile and transmit the records within the prescribed time in spite of all concerted efforts made by the applicant to comply with the provisions of the Rules.
The Supreme Court in a catalogue of cases have held that it is not right to visit the parties with punishment arising out of inadvertence, mistakes or tardiness of counsel (or as in the instant case, the Registry of the lower court) and that the discretion of the court although required to be exercised judicially, should lean towards accommodating the parties' interest without allowing mere procedural irregularities brought about by the counsel to preclude the determination of a case on its merit. See the case of Adeosun vs. Akinyemi (2007) 4 NWLR (PT.1023) 47.
However, in the instant case, the crux of the Respondent's contention is that the Applicant is undeserving of the favourable discretion of this Honourable court in view of the Applicant's consistent, blatant and unrepentant disobedience and utter disregard for the positive orders of the lower court in relation to the underlying Res of this appeal. Reference was made to Exhibits AG1 and AG2. The Respondent's view is that the Applicant, being in contempt of the express orders of the lower court, cannot be granted any favourable discretion of this court.
It is well settled law that a party who is in disobedience of a court order will not be given a hearing in any subsequent applications by him as long as the order remains disobeyed. See the case of P.D.P. vs. Adeyemi (2002) 10 NWLR (Pt.776) 524.
In a legion of decided authorities of this court and the apex court, courts frown at disobedience of their orders as they jealously guard against their orders being flouted without just or cogent reasons. They (the courts) therefore do not as a matter of practice and precedents, condone disobedience of their order by parties, not only because the foundation of adjudication will be eroded but also because judicial powers will he made nonsense of or made a mockery of same, which will ultimately stultify the administration of justice.
Failure by a litigant to obey an order given by a court having jurisdiction, amounts to contempt of court and courts therefore have inherent jurisdiction to refuse to entertain any application by the contempt until and unless such contemnor obeys or purges himself or complies with the order given or made by the court against him. That is also constitutional since it is the same constitution of ours that gave court powers to make inherent orders.
The Supreme Court in the case of FATB vs. Ezegbu (supra) this to say at page 150 per Karibi-Whyte JSC-
"The right to be heard in our courts of law or tribunal is fundamental and guaranteed under our constitution. At the game time, the constitution vests in the courts all inherent powers and sanctions of a court of law. see section 6(6)(a) constitution 1979. These unspecified common law Powers enable the courts to enforce their decisions and to do justice according to law between litigants coming before them.
The common law principle precluding persons in disobedience of the orders of the court from being heard in respect of the matter in which they stand in disobedience is well settled. See Hadkinson v. Hadkinson (1952) 2 All ER, 567. There are exceptions to this general principle."
See Odogwu v. Odogwu (supra).
I must state however, that there are few exceptions to the above general rule that a party in contempt cannot be heard. These exceptions are highlighted, below:
a. where the party is seeking for leave to appeal against the order of which he is in contempt; or
b. where he intends to show that because of procedural irregularities in making the order, it ought not to be sustained; or
c. where the party is challenging the order on the ground of lack of Jurisdiction; or
d. All that the contemnor is asking for is to be heard in respect of matters of defence; and
e. that a Person against whom a committal order has not been made cannot be a contemnor.
See also the following cases: Isiyaku vs. Master (2003) 5 NWLR (Pt.814) 443; MOBIL OIL (NIG) LTD vs. Assam (1995) 8 NWLR (Pt.412) 129; NDLEA vs. Okorodudu (1997) 3 NWLR (Pt.492) 221.
In the instant case, the issue is whether or not this case falls within these exceptions. It is on record that there is a Notice of Appeal filed in the Registry of the lower court and the said notice was filed within time. See page 463 of the Records. That means that there is already a pending appeal before this Court by virtue of Order 7 Rule 11 0f the Rules of this court which provide that "an appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the court below."
There is no gain saying, that the right of appeal is a fundamental right which is constitutionally guaranteed and therefore cannot be fettered other than as provided under the constitution or the statute creating same.
When a party who is aggrieved, by a decision or order court or tribunal, and he sets out to appeal, that aggrieved party is simply doing no more than exercising his constitutional right. Nothing must be done or left undone which is capable of thwarting the exercise of that right. See Mangraht vs. Oduba (2004) 4 NWLR (Pt.863) 279 at 287 PER ADEREMI, JCA.
However, there is no shred of doubt that the applicant is still in total disobedience of the order of the court below which as I said supra, is still subsisting and no effort was made by him to apply to the lower court to set aside such order which was given or made by the lower court which in fact has jurisdiction to make same even if the order was wrongly made, the propriety or otherwise of the court order/decision can only be determined by an appellate court.
The applicant here is, denying that he is disobedient to the court order but the simple question is "Did He comply or obey the court order in dispute" I think not. Quite alright by filing notice of appeal he is exercising his constitutional right to appeal against the lower court's order he is aggrieved with, even though that may not be a reason for him to flout the court order simply because he has an appeal pending before bringing this application. In the instant application, the applicant also insinuating that he has a pending application for stay of execution it is well settled principle of law, that the exercise of right of appeal, per se, does not operate as a stay of execution.
But I must however state here, that compilation of record of appeal is essential pre-requisite to the prosecution of an appeal. This is because, it is only when record of proceedings/appeal are properly compiled and transmitted to appellate court that an appeal filed in that court can be heard. Therefore, unless the applicant regularizes the Record of Appeal his appeal will remain static and cannot be argued or heard in this court. It is only when the record of appeal is before the court that would enable this court as an appellate court, to hear and determine the appeal. It goes without saying therefore, the applicant's pending appeal will be meaningless and useless as it would continue to be wasting of or hanging in the court registry until "God knows when". It then becomes an issue of jurisdiction. To refuse to grant the applicant's application to my mind may jeopardize his desire to pursue his appeal and would therefore cause a clog to the prosecution of same by the applicant and may have far reaching overreaching consequence on his right to fair hearing and would also amount to jeopardy. In my view to accede to the submissions of the learned senior Counsel for the Respondent, at this stage, is to run riot and violent to the principle of rule of law and the time-honoured principle of fair hearing.
In summation, having duly considered the entire surrounding circumstances of this case and the overriding interest of justice. I find it expedient and apt to exercise my discretion in favour of the applicant. Suffice it to say however, that the argument proffered by the respondent can still be put forward during the hearing of the appeal or when the appeal is being heard in its merit. It is therefore my considered views, that interest of justice demands that the applicant's application filed on 23rd July 2013 be granted and hereby do same.
On the whole, the application is hereby adjudged meritorious and is accordingly granted by me. It is hereby ordered as prayed as follows:-
1. Time is extended to today within which the appellant/applicant shall compile and transmit the Record of Appeal against the Ruling of the Federal High Court, Abuja delivered by Hon. Justice J. K. Olotu in Suit No.FHC/ABJ/CS/50/2009 (Bi-Courtney v. Attorney-General of the Federation) to the Court of Appeal, Abuja.
2. The Record of Appeal against the said ruling in the said suit already compiled and transmitted to this court on 21st December 2012 is deemed properly compiled and transmitted to this court with effect from today.
Costs follow events. The respondent is however awarded cost of N100,000 against the applicant.
JOSEPH TINE TUR, J.C.A.:
I read in advance the ruling just delivered by my learned brother, Amiru Sanusi, OFR, PJCA. I am also of the humble opinion that the application should be granted.
TINUADE AKOMOLAFE-WILSON, J.C.A.:
I have had the privilege of reading in draft the detailed lead Ruling delivered by my learned brother, Sanusi, JCA, OFR.
My learned brother has exhaustively dealt with the issues involved in this application. I am in full agreement with his reasoning and conclusion reached in the Ruling.
Indeed, in the circumstances of this application, it is just and proper to afford the Applicant the opportunity to exercise his constitutional right of appeal. Failure to get the Record of Appeal compiled within the prescribed period in the circumstances of this case as clearly enunciated by my learned brother in the leading Ruling is definitely not the fault of the Applicant. Every wrong that is not the fault of a party should not be visited on that innocent party. Authorities abound to the effect that the mistake, negligence, or tardiness of the court's Registry should not be visited on a litigant - Duke Akpabuyo (2005) 12 SCNJ 280 at 293; D' Alberto v. Cappa Plc (2006) All FWLR (Pt 335) 166 at 174-175; Broad Bank Nig Ltd v Alhaji Olayiwola & Sons Ltd (2005) All FWLR (Pt.332) 236 at 252.
In this application it will be unfair to allow the Applicant to suffer for the tardiness of the Registry to compile the Record of Appeal within the prescribed period when the Appellant/Applicant has done what the law requires him to do to bring appeal before this Honourable Court. See Dasofunjo v. Oni (1966) 2 All N.L. 291.
I abide by the consequential orders made including the order as to costs.