The Attorney-general Of Rivers State V. Dar.al.handasah (Shair And Partners) (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO. J.C.A. (Delivering the Lead Ruling)

The applicant herein by an application filed on the 7th May, 2010 prayed this court for the following reliefs:-

1. An order restoring appeal No. CA/L/424M/2004 the Attorney-General River State Vs. Dar-al Handasah (Shair and Partners) which was dismissed on 23/11/09 under order 8 Rule 18 of the Court of Appeal Rules 2007 for failure to compile and transmit record occasioned by counsel’s inadvertence.
2. An order extending the time within which the Appellant/Applicant may compile and transmit the Record of Appeal in respect of this appeal.
3. An order deeming the Record of Appeal annexed herein us Exhibit ‘1’ already compiled and transmitted by the Appellant/Applicant to this Honourable Court as having been properly compiled and transmitted.”

In moving the application Mrs. N.C. Iroegbu DCL Ministry of Justice Rivers State, stated that the application was brought pursuant to Order 7 Rules (1) and 10 (1), Order 8 Rules 4, 10(2) and 20 of the Court of Appeal Rules 2007 and the inherent jurisdiction of the court. Learned counsel further stated that the application is supported by an affidavit of 26 paragraphs with 10 annextures marked exhibits ‘A’ to ‘J’ and a further affidavit of 20 paragraphs with one annexture. Learned counsel relied on all the paragraphs of the affidavit and the exhibits, particularly exhibit ‘1’ the compiled record of appeal. Learned counsel contended that cogent reasons had been given for the delay in compiling record which included the appeal of the respondent against the ruling of this court giving the applicant leave to appeal. Learned counsel argued that the record of appeal has been compiled and the present application also seeks for extension of time to transmit the record. Learned counsel urged the court to discountenance the counter affidavit filed by the respondent and grant the application.

In opposing the application, Mr. G.I. Ikokwu leading I.A. Chukwu Esq stated that they filed a counter affidavit of 34 paragraphs on 7th July, 2010- Learned counsel conceded that the lapses of counsel should not be visited on the litigant, but in this case both the counsel and the party/litigant are one and the same person. Learned counsel therefore argued that where there is a fault, the counsel who is as well the party must take responsibility. In support of the aforementioned submission reference was made to the case of Allen v. Alfred Melpaine (1968) 1 All ER 543 at 547. Learned counsel further argued that there was inordinate delay on the part of the applicant and therefore urged the court to refuse the application. In a short reply, learned counsel for the applicant submitted that the case cited by the respondent is not applicable to this case as the applicant has shown good and substantial reasons for the delay.

It is clearly not in dispute that the notice of appeal herein was dismissed by this court on 23rd November, 2009 for failure to compile and transmit record within the prescribed time. See the ruling of this court dated 23rd, November 2009 attached to the counter affidavit of the respondent as exhibit ‘A” The dismissal of the notice of appeal was therefore made pursuant to Order 8 Rule 18 of the Court of Appeal Rules 2007, which provides thus:

“If the registrar has failed to compile and transmit the Records under Rule 1 and the Appellant has also failed to compile and transmit the Records in accordance with Rule 4, the Respondent may by notice of motion move the Court to dismiss the appeal”.

The applicant is now back to court seeking for the restoration of the notice of appeal earlier dismissed and extension of time within which to compile and transmit record of appeal. The application was brought pursuant to Order 8 Rule 20, Order 7 Rules 1 and 10 of the Court of Appeal Rules 2007. Order 8 Rule 20 of the Rules of Court provides thus:

“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”.

The power to restore an appeal earlier dismissed is discretionary and the discretion must be exercised judicially and judiciously. The applicant therefore has the onerous responsibility of placing enough materials before the court to warrant the exercise of the discretion in his favour. See E.F.P. Co. Ltd. v. N.D.I.C. (2007) 9 NWLR (Pt.1039) 216 and Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 153. The operative words for the exercise of such a discretion under the aforementioned Rule reproduced above is “for good and sufficient cause”.

Once an applicant shows good and sufficient cause as to why the appeal should be restored, the discretion will be exercised in his favour. In determining good and sufficient cause, the reason for the applicants failure to compile and transmit the record of appeal within the stipulated time is a major factor to be considered. Of course other subsidiary factors like delay in making the application and whether restoring the appeal will prejudice the respondent can be taken into consideration. See the general guidance made by the apex court on the requirements to be considered in the case of Nigerian National Supply Co. Ltd. v. Establishment Sima of Vaduz (1990) 7 NWLR (Pt. 164) 526 at 536.

What then are the reasons for the delay by the applicant in failure to compile the record of appeal within the time prescribed by law. Paragraphs 4 to 18 of the affidavit in support of the application averred as follows:

“4. That on 15/12/2005, the Appellant/Applicant filed his Notice of Appeal at the registry of the lower Court against the judgment of Honourable Justice Moni Fafiade delivered in favour of the Respondent in default of Appellant’s Appearance and defence. Copy of the said Notice of Appeal attached as Exhibit ‘A’ and judgment as Exhibit “B.

5. That consequent upon paragraph (4) above, the Appellant/Applicant immediately followed up the Appeal by contacting the Registrar of the Court below of the need to compile and transmit the Record of Appeal within statutory period.
6. That particularly between December, 2005 and November 2006, the Appellant/Applicant directed his staff one Kinako Duudu, on executive to go to Lagos High Court Appeal Registry to monitor and coordinate the progress of the compilation by the Registrar of the Appeal division. Copy of letters dated 26-08-2005 and 09-12-05 annexed as Exhibit C & D respectively.
7. That I am informed by the said Kinako Duudu and I verily belief him thus:

a. That he made concerted efforts at his visits to the lower Court to get the Appeal Registrar to compile the Records of Appeal to no avail.

b. That at one of his visits sometime in April, 2006 he was informed by one L.A. Bakare, Esq who was the then Appeal Section Registrar at the lower Court that they were looking for the case file and that the Appellant should exercise patience.