IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 22ND DAY OF JANUARY, 2016
NIGERIAN PORTS AUTHORITY. ........................... Appellant
DR. SAMA EKPO SAMA
COMMISSIONER OF POLICE, CROSS RIVER STATE. ................ Respondents
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A (Delivering the leading Judgment):
The present appeal is against the ruling of the High Court of Cross River State, holden at Calabar Judicial Division, delivered on February 7, 2013 in suit No. HC/MSC.129/2012. By the said ruling, the Court below overruled the Appellant's objection and accordingly granted 'the Respondents' application for an extension to file his counter affidavit and written address in opposition to the Appellant's motion.
On September 28, 2012, the Appellant filed in the Court below a motion on notice seeking to set aside the orders of the Court, below, dated September 4, 2012, granting leave to the 1st Respondent to enforce a judgment deliver in 1985.
The motion was predicated upon a total of four grounds, one of which raises the fundamental question of jurisdiction.
On December 3, 2012, the 1st Respondent filed a motion seeking an extension of time to file a counter affidavit to the Appellant's motion and deeming order. On the said February 7, 2013, the Court below overruled the Appellant's objection, and accordingly granted the reliefs sought in the 1st Respondent's motion in question. Dissatisfied with the said ruling, the Appellant filed the notice of appeal thereof on February 20, 2013 in the Court below.
Consequent upon the entering of the appeal the parties filed their respective briefs of argument. Most particularly, the Appellant's brief was filed on 02/5/13. It spans a total of 22 pages.
On the part thereof, the 1st Respondent filed a brief on 14/3/14, but deemed properly filed on 26/5/15. It spans a total of 28 pages. A preliminary objection is raised and canvassed at pages 7 - 15 of the brief. The preliminary objection is predicated upon three grounds, viz:
"1. The Appellant's appeal is invalid, incompetent and therefore liable to be struck out because it is an interlocutory appeal complaining about or challenging the exercise of the discretion of the learned trial Judge against which the Appellant cannot appeal as a right but with waive, either of this Honourable Court or the Court below.
2. Grounds of appeal No. one (1) and two (2) in the Appellant's notice of appeal are respectively, argumentative narrative and verbose and therefore offend the Provisions of Order 6, Rule 2 (3) of the Court of Appeal Rules, 2011.
3. Ground of appear No. Three (3) is not only the repetition of the particulars of grounds of appeal No. one (1) and two (2). It is also a ground of mixed law and facts in an interlocutory appeal against which the Appellant cannot appeal as of right but with the leave either of this Honourable Court or the Court below, and a complaint against a comment made by the learned trial Judge upon which a ground of appeal cannot be found.."
Ground 1 of the preliminary objection is canvassed at pages 7 - 109, the 1st Respondent's brief, to the effect that failure to obtain leave to appeal renders the appeal incompetent and liable to be struck out. See Oyegun v. Nzeribe (2010) 10 NWLR (Pt 1220) 568.
Secondly, the five grounds of the notice of appeal raise issues of fact, or at best mixed law and facts, thus Appellant cannot appeal as of right. See Excel Plastic Industry Ltd vs. First Bank of Nig. Plc (2005) NWLR (Pt. 739) 59 at 91 G; 96 C.
That for failure to obtain leave, contrary to Section 241(1)(b) of the 1999 Constitution, the appeal should be declared incompetent and struck out. See Nwabueze v. Nwora (2005) All FWLR (Pt 272) 297 at 314 B - E.
The Court is urged to uphold the preliminary objection on this ground.
Ground 2 of the objection is canvassed at pages 10 - 11 of the brief, to the conclusive effect that grounds 1 & 2 of the notice of appeal complain about one and the same thing. The particulars of the two grounds also complain about the same thing. They are offensive to Order 6 Rule 2(3) of the Court of Appeal Rules 2011. The Court is urged to uphold the second objection.
Ground 3 of the objection is argued at pages 11 - 15 of the brief, to the effect the ground is a petition and mere rephrase of grounds 1 & 2. It is also a ground of mixed law and fact for which no leave was sought and obtained. NEPA v. Eze (2001) 3 NWLR (Pt 701) 606; Mark v. Abubakar (2009) 2 NWLR (Pt 1124) 79 at 134 D.
On the whole, the Court is urged to uphold the objection on those 3 grounds.
In response, the Appellant filed a Reply brief on 06/5/15. It spans a total of 19 pages.
On ground 1 of the objection, it's submitted in a nutshell, that all the events which resulted in this appeal, are post judgment in suit No. C/04/84. That, this appeal cannot be divorced from suit No. C/104/84 in respect of which a final judgment has been delivered by the Court below.
Further submitted, that once judgment is delivered, all post judgment applications are non-interlocutory. They are final decisions. A decision is either final or interlocutory. It cannot be both. Cited and relied upon TRANS NAB LTD V. JOSEPH (1997) 5 NWLR (pt 504) 176 @ 188 D,; MADUABUCHUKWU V. MADUABUCHUKWU (200) 10 NWLR (pt. 999) 475 @ 492 F - G, et al.
The Court is urged to so hold.
Equally submitted, that all the 5 grounds are grounds of law therefore, the appeal is competent. See Section 241 of the 1999 Constitution, as amended. 7 UP BOTTLING COMPAN. V. ABIOLA & SONOS BOTTLING LTD (2002) 2 NWLR (Pt 750) 40 @ 57 E - G, et al.
It is contended that the complainant is that the Court below raised issues suo motu and resolved same without hearing which the Appellant.
Thus, that ground raises issue of fair hearing is a ground of law. See HAMBE V. HUEZE (2001) 4 NWLR (Pt.703) 372 @ 37A G; UNITY BANK PLC V. DENGIAG LTD (2014) 18 NWLR (Pt.1332) 293 @ 339 E - G; ABUBAKAR V. YARADUA (2008) 19 NWLR (Pt.1120) 1 @ 131 - 132 H - A.
Regarding the alleged narrative nature of grounds 1 & 2, it is submitted to the conclusive effect, that there is nothing in the rules and cases cited by 1st Respondent which precludes the Appellant from challenging the decision of the Court on two distinct grounds of appeal with separate particulars of errors. That in SOSANYA V. ONADEKO (Supra), the appeal was considered, notwithstanding the prolixity of the grounds of appeal.
Submitted on ground 3, that it's not repetitive of grounds 1 & 2 of the notice of appeal. That ground 3 deals with interpretation of the case of the Appellant which is a ground of law.
That the 1st Respondent has not competently challenged ground 3 of the notice of appeal, as the preliminary objection has not indicated that it would challenge ground 3. See IMONIYAME HOLDINGS V. SONEB ENT. LTD (2002) 4 NWLR (pt 755) 618 @ 648 - 649 F - B et al.
Conclusively, the Court is urged to discountenance the preliminary objection of the 1st Respondent.
DETERMINATION OF THE 1ST RESPONDENT'S PRELIMINARY OBJECTION
As copiously alluded to above, the 1st Respondent's objection is predicated upon three grounds. I will deal with the said grounds seriatim.
The first ground of the objection raises the question of whether or not the appeal is invalid, incompetent thus liable to be struck out because it's an interlocutory appeal challenging the exercise of the discretion of the lower Court, which cannot be appealed against of right but with leave of either that Court or Court of Appeal.
The instant appeal is undoubtedly an interlocutory appeal, within the purview of Section 241 of the Constitution of the Federal Republic of Nigeria 1991, as amended. Being an interlocutory appeal against the exercise of discretionary power of the Court below, leave of Court is required in such circumstance. see OYEGUN V. NZERIBE (2010) 16 NWLR (Pt 1220) 568 @ 580, Paragraphs A - F per Ogbuagu, JSC, INTERNATIONAL EQUITABLE ASSOCIATIONS LTD V. OKEHIE (1999) 5 NWLR (pt 604) 68 @ 627. HARRISON WELLIS V. OKECHUKWU (1985) 2 NWLR (Pt. 5) 63.
I am unable to be persuaded by the Appellant's submission that the appeal being against a post judgment decision, cannot be an interlocutory appeal. I think, with deference, that view is superfluous
Instructively the instant appeal is against the first ruling of the Court, delivered on 07/02/13 in Suit No. H/MISC. 219/2012. That ruling is contained at pages 233 - 238 of the record. By the said ruling, the Court below overruled the Appellant's objection extended time to 1st Respondent and deemed the counter affidavit and written address thereof as having been properly filed and served. At the point in time that ruling was delivered on the said 07/02/13, the substantive motion of the Appellant (filed on 28/9/12) was still subsisting. Thus, for all intent and purposes, the instant appeal is an interlocutory appeal, in as long as this substantive motion in question was in subsistence.
Indeed, the law is trite, that for all practical purposes, what ought to be taken in to account is the effect that the order appealed against tends to have on the right of the parties. Thus, if the order determines once-and-for-all (finally) the rights of the parties, even then the order is final. Otherwise, it's an interlocutory order. See TRANS NAB LTD V. JOSEPH (1997) 5 NWLR (Pt. 504) 176 @ 188 Paragraph.
DUACHUKWU V. MADUABUCHUKWU (2006) 10 NWLR (pt 989) 475 @ 492
Paragraphs F - G.
Most certainly, the above cases do not avail the Appellant, with particular regard to that point. However, the above postulation notwithstanding, by the grounds of the notice of appeal, the Appellant complains thus -
The Learned Trial Judge erred in law by deeming the 1st Respondent's Counter-Affidavit and Written Address dated and filed on 3rd December, 2012 as properly filed".
Learned Trial Judge erred in law when she granted prayer 2 of the 1st Respondent/Applicant's Motion dated 3rd December, 2012 by deeming the Counter-Affidavit and Written Address as having been properly filed.
Learned Trial Judge erred in Law by holding that the argument of the learned counsel for the Applicant-Respondent that from the numbering of the receipts issued in respect of the filing fees paid by the 1st Respondent-Applicant, the presumption raised is that the Counter-Affidavit of the 1st Respondent-Applicant was filed before the motion is therefore not borne out of the facts in the Courts records and this Court so holds.
Learned Trial Judge erred in law in applying the decision in FAMFA OIL LTD. v. ATTORNEY-GENERAL OF THE FEDERATION (2003) 18 NWLR (Pt 852) pages 453 at 459 to hold that the mistake of the Court Registry in issuance of receipts should not affect the documents filed by the 1st Respondent/Applicant who had fully performed his respective obligation will respect to the processes filed.
"Learned Trial Judge erred in Law by applying the presumption of regularity under Section l50 of the Evidence Act to conclude that the Counter-Affidavit and Written Address were regularly filed".
See pages 239 - 442 of the record.
The Appellant thereby seeks the following reliefs:
"(i) An order allowing the appeal and setting aside the ruling of the Honourable Justice Emilia Ibok delivered on 7th February 2013.
(ii) An order directing the 1st Respondent to file a Counter-Affidavit and written Address in response to Appellant's Motion dated 28th September, 2012 subject to payment of Fees for late filing and an Affidavit of compliance."
Apparently, it's obvious that the each of the above five grounds of appeal has raised a ground of law. Thus, they cannot, by any of imagination be said to have raised issues of facts or mixed law and fact.
Invariably, the law is well settled, that an appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
"(a) Final decisions, in any civil or criminal proceedings before the High Court sitting at first instance;
(b) where the ground of appear involves questions of raw, decisions in any civil or criminal proceedings. See Section 146 (1)(a) and (b) of the 1999 Constitution as amended (supra); AUGUSTINE V. HOGKIN (2008) 16 NWLR (pt 1112) 95 @ 111Paragraphs A - C; JOPAPUTRA V. NDUBUISI (2009) 454 @ 460 Paragraph C."
Thus, on that point alone, it's adjudged that the Appellant requires no leave to appeal against the ruling of 07/2/13 of the Court below.
The first ground of the objection fails, and it's hereby overruled and dismissed.
The second ground of the objection raises the question of whether grounds 1 & 2 of the notice of appeal are repetitive, argumentative, narrative and verbose, therefore offend Order 6 Rule 2 (3) of the Court of Appeal Rules, 2011.
It is indeed the law, that a notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal thereof without any argument or narrative, and shall equally be numbered consecutively. See Order 6 Rule 2 (3) of the Court of Appeal Rules, 2011 (supra).
I have had a course to herein above set out the five grounds of the notice of appeal albeit without the particulars hereof. Ground 1 appreciate challenges the jurisdiction of the Court below to make a deeming order regarding the counter affidavit and written address filed after motion containing the deeming order.
Ground 2, on the other hand, questions the decision of the Court that the counter affidavit and written address and were filed simultaneously with the motion on notice. Reliance was out on SOSANYA V. ONADEKO (2000) 11 NWLR (Pr. 677) 34 @ 98 Paragraphs F - G, per Onalaja JCA, in which the Court lamented upon irregular grounds of appeal.
It ought to be reiterated, at this point in time, that in determining the competence of grounds of an appeal, it behoves the Court to avoid any semblance of parochialism in technicalities or niceties of our adjectival laws in the Court motion or interpretation of enabling procedural rules. Contrariwise, the Court has a duty to dispassionately examine the grounds of appeal to see whether or not they are in accord with the rules of Court. As the Apex Court aptly postulated:
"Once a ground of appeal is succinctly couched specially described and avoids vagueness, repetition, narrative or argument, to the extent that the adverse party knows the exact complaint against the judgment, this Court will be very reluctant to strike it out on mere technicality of not following rules of Court."
See SOSANYA V. ONADEKO (2005) LPELR - 3105(SC) per Niki Tobi, JSC @ 41 - 42 Paragraphs F -?? B.
Indeed, it's trite, that rules of Court are made for the Courts to facilitate the administration of justice and not the other way round.
Thus, if strict compliance with rules of Court will cause a miscarriage of justice to any of the parties in the case, the Court has a duty to detract from such rules. See, SOSANYA V. ONADEKO (supra) per Niki Tobi, JSC@ 42 Paragraphs B-D.
In the circumstance, in my considered view, the said grounds 1 & 2 have been succinctly couched, to the extent that the Respondents are left in no doubt as to the exact nature of the complaint against the ruling of the Court below in question.
Thus, the objection against both grounds 1 & 2 is equally hereby overruled and dismissed by me.
The third ground of the objection raises the question of whether the comment made by the Court below is one upon which a ground of appeal cannot be found.
Having considered the said ground 3 and the two particulars thereof, contained at page 292 the record, l am unable to uphold the 1st Respondent's argument that the said ground is incompetent. Thus, that objection is equally hereby overruled and dismissed.
Having overruled and dismissed the 1st Respondent's preliminary objection, I now proceed to determine the appeal on the merits. As alluded to above, the Appellant has raised three issues at pages 4 - 5 the brief thereof for determination, viz:
"1. Whether or not learned trial Judge had jurisdiction to deem 1st Respondent's Counter Affidavit and written address as having been properly filed and served. (Grounds 1 and 2).
2. Whether or not learned trial Judge correctly applied the presumption of regularity under Section 150 of the Evidence Act, 2004 now Section 168 (1) of the Evidence Act, 2011 in deeming the 1st respondent's counter Affidavit and Written Address. (Grounds 3 and 5).
3. Whether or not learned trial Judge could validly raise the defence of mistake of Registry suo motu on behalf of the 1st Respondent and resolve same against the Appellant without affording the Appellant a hearing on the point raised suo motu. (Ground 4).
The 1st issue has been canvassed at pages 5 - 11 of the Appellant's brief. The submission on the issue is to the effect that although the Court below has jurisdiction to extend time to 1st Respondent to file a counter affidavit and written address to the motion in question, it however lacked the requisite jurisdiction to deem as properly filed the processes that were not in existence at the time the deeming order was sought by the 1st Respondent.
Further submitted, that the condition precedent to the making of the order was missing at the time the deeming order was sought. Thus, the Court was deprived of the jurisdiction to make the deeming order.
See AUENGBEHIN V. THOMPSON (2008) 5 NWLR (Pt 1083) 70 @ 290 Paragraphs E - H. LAWAL V. ORE (2007) 7 NWLR (Pt.711) 88 @ 116ýParagraph D; et al.
It was contended, that for the reasons stated, the deeming order made by the Court is null and void, which ought not to have been made in the absence of incompetent counter affidavit and written address.
See MACFOY V. UAC (1961) 3 ALL ER 1169 @ 1172. OWENA BANK NIG. PLC V. OLATUNJI (1999) 13 NWLR (Pt. 634) 218 @ 230 Paragraph E, et al.
The issue 2 is distilled from grounds 3 & 5 of the notice of appeal.ýIt is canvassed at pages 11 - 16 of the said brief. It was submitted in the main, that the presumption of regularity in this case would mean that Receipt No. 1 precedes Receipt No. 2 and that precedes No.3 and so forth. Therefore, Receipt No. 1940196 for filing the 1st Respondent said motion on notice precedes Receipt No. 1940197 issued for payment of default fees until Receipt No. 1940207 for filing the counter affidavit and written address.
Further submitted, that the Court below should have correctly applied the reasoning in USMAN DANFODIO UNIVERSITY V. BALOGUN (supra) case in resolving the presumption of regularity in favour of the Appellant.
It was contended, that having regard to the official receipts issued by the Court Registry as borne out by the record, the burden of proof was on the 1st Respondent to establish that his counter affidavit andýwritten address were filed before the motion for enlargement of time as deposed to in Paragraph 62 of the affidavit. See OWENA BANK NIG. PLC V. OLATUNJI (SUPRA) @ 230 E; et al.
The Court is urged to resolve the second issue in favour of the Appellant.
The issue No. 3 is distilled from ground 4 of the notice of appeal.ýIt is canvassed at pages 16 - 22 of the same brief. Submitted in a nut shell, that the issue of mistake of the registry being the reason for the improper filing of the 1st Respondent's counter affidavit and written address was not canvassed before the Court below. It was raised suo motu by the Court without affording the Appellant a hearing, thus breaching the Appellants' right to fair hearing. See BHOJSONS PLC v. DANIEL ý?? KANO (2006) 5 NWLR (Pt 973) 330 @ 350 C - D, et al.
The Court is urged to equally resolve the third issue in favour of the Appellant.
Conclusively, the Court is urged to allow the Appeal and set aside the decision of the Court below.
On the other hand, the 1st Respondent's argument on the merits is contained at pages 15 - 25 of the brief thereof. At page 16 of the said brief, a sole issue has been couched for determination, viz:
"Whether the learned trial Judge exercised his discretion property in the circumstance when he granted the 1st Respondents motion for extension of time to file his counter affidavit and written address in apposition to the Appellants motion and for deeming the processes already sited and for which relevant Court fees had been paid as having been duly filed and served?"
Submitted in a nutshell, that on 03/12/12, the three processes were filed and already before the Court below on 04/12/12 when the matter came up before the Court. Further submitted, that the learned senior counsel did not complain that he was not served with the counter affidavit and written address of the 1st Respondent. He was not apposed to the Court extending time to the 1st Respondent to file the two processes but urged not to deem same as having been duly filed.
It is contended, that the Appellant's contention leans unduly on technicality of which the Courts have departed from to pursue the course of substantial Justice. See OJAH V. OGBONI (1996) 6 NWLR (Pt.454) 272 @ 292ýParagraphs D - E per Iguh, JSC.
Further contended, that the grant of application of enlargement of time is based entirely on the discretion of the Court below, which is usually done to avoid in justice as was done in this case. See IKA LOCAL GOVERNMENT AREA V. MBA (2007) 12 NWLR (Pt. 1049) 676 @ 697 ý?? 698 G - B & D.
The Court is urged to resolve the sole issue against the Appellant.
Conclusively, the Court is urged upon to accordingly dismiss the appeal and affirm the decision of the Court below.
The Appellant's reply brief spans a total of 19 pages. Pages 11 - 19 of the said reply brief are devoted to response to argument canvassed by the 1st Respondent on points of law. Conclusively, the Appellant urged the Court to dismiss the 1st Respondent's objection, resolve the issues in the main appeal in favour of the Appellant, allow the appeal and set aside the judgment of the Court below.
I have accorded an ample regard upon the circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-a-vis the record of appeal. I have deemed it expedient to adopt the three issues raised and canvassed by the Appellant in the brief thereof for the determination of the appeal.
ISSUE NO. 1
As copiously alluded to above, the first issue raises the vexed question of whether or not the Court below had jurisdiction to deem 1st the Respondent's counter-affidavit and written address as having been properly filed and served. The issue is distilled from both grounds 1 & 2 of the notice of appeal.
Undoubtedly, the first issue raises a very fundamental question - jurisdiction of the Court below. Thus, being fundamental and most crucial, jurisdiction once raised by the parties, or even suo motu by the Court, it must urgently be dealt with and resolved, one way or the other.
This is so, because once a Court adjudicates on a matter without the requisite jurisdiction, the decision arrived at is tantamount to a nullity, no matter how eloquently conducted. See KASIKWU FARMS LTD. V. A.G. BENDEL STATE (1986) 1 NWLR 695; UKWU V. BUNGE (1997) 8 NWLR (PT.518) 527 @ 544 Paragraphs B- D; MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 @ 595.
In the instant case, it has been canvassed at page 7, Paragraph 4.3 of the Appellant's brief to the effect, inter alia, thus:
4.3: Where as in this case, the condition precedent to the making of an order is missing (a non-existing/unfiled process) at the time the deeming order was sought the Court is derived of the jurisdiction to make the deeming order. It matters not that the process was subsequently filed after the motion seeking to deem the process as properly filed was filed."
Ironically, however, the Appellant with deference has missed the point by alluding and vexed as one of jurisdiction. The High Court of Cross River State (Civil Procedure) Rules, 2008, most especially Order 6 Rule 4 thereof are mere rules of procedure and practice governing administration of justice in the Court below. Likewise, in the conduct of proceedings other procedural laws such as the Evidence Act (supra) shall also apply to the Court below. Such procedural laws or rules do not confer jurisdiction upon the Court. This is absolutely so, because, as aptly asserted by the Apex Court, jurisdiction is only donated by the Constitution and/or statutes. See Sections 270, 271, 272, & 273 of the Constitution of the Federal Republic of Nigeria, 1999, as amended; BELGORE v. AHMED (2013 8 NWLR (Pt. 1355) 60 @ 91 -92 Paragraphs H - B per Tabai, JSC.
See also OGUNREMI V. DADA (1962) NSCC 419 @ 422; SAEED v. YAKOWA (2013) 7 NWLR (pt. 1352) 124.
Hence, it follows that breach of any procedure rule of the High Court Rules (supra) by the Court or party does not and cannot raise an issue of jurisdiction. Rather, the consequence of such a breach of the procedural rules may result in rendering the decision thereby reached incompetent and a nullity thus liable to be set aside on appeal.
In the case of BELGORE v. AHMED (supra), the apex Court aptly asserted thus:
"And as I stated in the recent decision of Saheed & Anor V. Patrick Ibrahim Yakowa & Anor... delivered on the 8th day of February, 2012, now reported in (2013) 7 NWLR (pt. 1352) 124 the 1st Schedule being rules of procedure do not confer jurisdiction. Jurisdiction is only donated by the Constitution and/or statutes. See Ogunwemi & Ors. V. Dada & Ors. (1962) NSCC 419 at 1422 ... (1962) SCNLR 417. It follows therefore that a party's breach of the provisions of the 1st Schedule to the Electoral Act and/or the Federal High Court Rules does not raise an issue of jurisdiction. Rather, the consequences of such breaches of the 1st Schedule are specifically provided for in Paragraph 53 thereof."
Per Tabai, JSC @ 91-92 paragraphs H-A.
The power of the Court below to enlarge time to a party to file the processes thereof is duly circumscribed by law. Most specifically, by Order 6, Rule 4 of the High Court of Cross River State (Civil procedure) Rules, 2008, the Court below is cloaked with the power thus:
"4. The judge may, as he deems fit, either before or after the expiration of the time appointed by these Rules or by any judgment or order of the Court, extend or abridge the time for doing any act or taking any proceedings:
Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules, shall pay to the Court an additional fee of two hundred naira for each day of such default at the time of filing his application for extension of time."
Undoubtedly, the discretionary power accorded the Court below is extensive, albeit fettered by the proviso to Order 5 Rule 4 (supra).
In the instant case, there is an ample evidence on record to support the finding of the Court below to the effect that there is a presumption of regularity, under Section 150 of the Evidence Act, Cap. E14 Laws of the Federation of Nigeria, 2004 (now Section 168(1) of the Evidence Act, 2011) in deeming both the counter affidavit and the written address of the 1st Respondent in question as properly filed and served. See USMAN DANFODIO UNIVERSITY V. BALOGUN (supra); FAMFRT OIL LTD V. A. G. FEDERATION (2003) 18 NWLR (pt 952) 453.
In the circumstance, there is every cogent reason for me to hold that the Court below has the competence to enlarge time to the 1st Respondent and deem the processes filed as properly filed and served. And I so hold. The first issue is hereby resolved against the Appellant.
ISSUE NO. 2:
The second issue raises the question of whether or not the Court below correctly applied the presumption of regularity under Section 150 of the Evidence Act, 2004 (now Section 168(1) of the extant Evidence Act, 2011) in deeming the 1st Respondent's counter affidavit and written address as properly filed. The issue is distilled from grounds 3 and 5 of the notice of appeal.
At page 237 of the Record, the Court below finds, inter alia, thus:
"This Court agrees with the submission of the learned counsel to the 1st Respondent - Applicant that the assessment, numbering and the dates which are the bases of this objection are official acts and there is a presumption of validity in favour of same by virtue of Section 150 of the Evidence Act, 2011, when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. See the case of USMAN DANFODIO UNIVERSITY SOKOTO V. BALOGUN (2006) 9 NWLR (Pt. 984) 124."
However, as aptly posited by the Appellant, that presumption provided for under Section 150 of the Evidence Act (supra) is a rebuttable presumption. The reason is not far-fetched. It is provided under Section 145 of the Evidence Act, 2011 thus:
"(1) Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved unless and until it is disproved; or
(2) Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved".
At page 12, Paragraph 4.15 of the Appellant's brief, it's submitted, inter alia, thus:
"Appellant offered evidence in rebuttable of the presumption that the 1st Respondent's counter-affidavit and written address which the learned trial judge deemed as having been properly filed was not and could not have been properly filed having regard to the order of filing of the processes and Paragraph 12 of the Affidavit in support of the said motion on Notice."
To say the least, the above submission is with deference, misconceived and utterly misleading for some obvious reasons. It is evident on the record, that the Appellant neither offered nor adduced any evidence in rebuttable of the said presumption under Section 150 of the Evidence Act (supra). As a matter of fact, the Appellant flatly declined to offer any evidence of rebuttal of presumption when challenged by the 1st
Respondent's counsel to do so thus:
"MBA UKWENI, ESQ.
- We refer the Court to Order 27 Rule 1(3) of High Court Civil Procedure of Cross River State 2008 it is stipulated what a party who intends to oppose an application. The learned counsel for the Applicant has not done that so we urge the Court to hold that there is no objection.
The processes have shown the dates they were filed and that the processes were filed together.
The learned counsel stating that the counter affidavit and the written address were not filed yesterday while the dates and stamp of Court on same show they were, he needs to file affidavit evidence to do so and not just state so from the Bar. We urge the Court to discountenance the objections since the Court is enjoined to presume the regularity of what the registry has done."
Whereupon, the Appellant responded in his own stride thus:
"P. Osipitan, Esq, (Rejoinder) - The issue is an issue of jurisdiction which is a point of law. A deeming order is a point of law. At the time the order was prayed for the process was not filed and you cannot put something on nothing. We do not need affidavit evidence to look at the materials in the Court records because the Court is bound to look into its records on issue of presumption of regularity, the presumption favours us because by the numbering on the receipt it is presumed that the counter affidavit was filed before the motion."
In the course of the vexed ruling, the Court below took up the challenge thrust thereupon by the Appellant and made some far-reaching findings, thus:
"Upon hearing the representations of learned counsel on both sides, this Court duly looked into its records and finds that there are hand written assessment and payment details made by the Court Registry staff in respect of the fees paid by the 1st Respondent - Applicant for the various documents he filed, with this motion. "
The Court proceeded to tabulate in great details the processes in question the date, amount and receipt numbers thereof and thereby coming to the following conclusion:
"From the tabulated details above, and particularly the numbering on the receipts, since the receipt have issued on the same oath and the numbering show some sequence.
Moreover, this Court agrees with the submission of the learned counsel for the 1st Respondent Applicant that the assessment, the numbering and the dates which are the bases of this objection are official acts and there is a presumption of validity in favour of same by virtue of Section 150 of the Evidence Act 2011; when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity hence complied with. See pages 236 - 237 of the Record."
In the instant case, as alluded to above, the Appellant has not made any effort to rebut the presumption that the process in question were not filed by the 1st Respondent in accordance with the law. Thus, in the circumstance, the second issue is equally resolved against the Appellant.
ISSUE NO. 3
The third issue raises the question of whether or not the Court below could validly raise the defence of mistake of registry suo motu on behalf of the 1st Respondent and resolve same against the Appellant without affording the Appellant a hearing on the point. The said issue is distilled from ground 4 of the notice of appeal.
Contrary to the submission of the Appellant, the issue of mistake of Court registry alluded to by the Court below could not rightly be said to have been raised suo motu. Undoubtedly, the question of not penalizing the litigant for mistakes of Court or the staff thereof was commented upon by the Court below while considering the issue of presumption of regularity raised by the 1st Respondent's learned counsel. As alluded to above under issue 2, that issue was extensively canvassed by the respective learned counsel. Most especially, the learned senior counsel to the Appellant, while responding to the 1st Respondent's submission had this to say:
"We do not need affidavit to look at the materials in the Court records, because the Court is bound to look into the records. On issue of presumption of regularity, the presumption favours us because by the numbering on the receipts, it is presumed that the counter-affidavit was filed before the motion. "
What is more, at page 18 Paragraph 4.24 of the brief thereof, the Appellant has duly acknowledged the very fact that:
"The work of the registry of a Court is limited to initiating of processes, assessment, oathing, stamping and issuance of receipts of payment for filing".
In the instant case, as aptly found by the Court below, the three processes in question - the motion on notice, the counter-affidavit and written addresses were all filed by the 1st Respondent on the same date, 03/12/13 and at the same time. The fact that the assessment for the fees to be paid, the numbering and issuance of the receipts issued were within the exclusive official preserve of the lower Court's registry staff is no longer in doubt! Thus, the invocation of the presumption of regularity vis-a-vis the validity of the official acts of the said registry staff was rightly and aptly made by the Court below.
Thus, against the backdrop of the foregoing postulation, there is every cogent reason for me to hold that the Court below was right in presuming that the three processes in question, filed by the 1st Respondent, were processed in a manner shown to have been substantially regular and that formal requisites for their validity were duly complied with. See USMAN DANFODTO UNIVERSITY SOKOTO V. BALOGUN (2006) 9 NWLR (Pt 984) 124.
In the circumstance, the third issue is equally resolved against the Appellant, in favour of the Respondent.
Hence, having resolved all the three issues against the Appellant, there is no gainsaying the fact that the instant appeal is unmeritorious, and it is hereby dismissed by me.
Consequently, the ruling of the Court below delivered on February 7, 2013 in Suit No. HC/MISC.219/2012 by Hon. Justice Emilia Ibok, is hereby affirmed.
Parties shall bear their respective costs of litigation.
ONYEKACHI AJA OTISI, J.C.A.:
I had the privilege of reading in advance a draft copy of the Judgment just delivered by my learned Brother, I.M.M. Saulawa, JCA, dismissing this appeal. The issues raised in this appeal have, in his characteristic manner, been comprehensively addressed by my learned brother, and, I am in agreement with his reasoning and conclusion, which I adopt as mine.
I also dismiss this appeal and I abide by the Orders made in the lead Judgment.
PAUL OBI ELECHI, J.C.A.:
I have read in draft the Judgment just delivered by my Learned brother Ibrahim Mohammed Musa Saulawa, JCA.
My Learned brother has adequately considered all the issues raised in this appeal on their merit before Arriving at its conclusion that there is
no merit in this appeal. I adopt the said consideration and conclusion as mine and hereby dismiss the appeal as being unmeritorious.
I also abide by the issue of the Order that parties should bear their respective costs of litigation.
Mba E. Ukweni with him, P. A. Akpoke with him, C.A.C. Efifie, - for Respondent.
I.E. Ikona, Director for Civil Litigation, CRS, with Margaret Bassey, Senior State Council for 2nd Respondent - For Respondent