Alhaji Yekini Jimoh V. The Hon. Minister Federal Capital Territory & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The Appellant/Applicant, through his Counsel Mr. lgbokwe, SAN, is vide application filed on 21st June, 2016 seeking the following reliefs –

1. AN ORDER of this Honourable Court extending the time within which the Appellant/Applicant may compile and transmit to this Honourable Court from the Court of Appeal, Abuja Judicial Division, Abuja, the Record of Appeal in respect of his Notice of Appeal dated and filed on the 2nd day of July, 2015 against the Judgment of the Court of Appeal, Abuja Judicial Division, Abuja delivered on the 1st day of July, 2015, by his Lordships; Honourable Justice Moore A. A. Adumein, Honourable Justice T. Akomolafe Wilson, Honourable Justice Tani Yusuf Hassan in Appeal No. CA/A/26A/2012 between Alhaji Yekini Jimoh vs. The Honourable Minister Federal Capital Development Authority, Alhaji Baba Mustapha (suing through his authorized Attorney/Representative Alhaji Mohammed Sani Musa, the six months period allowed by the Supreme Court Rules, 1985 (as amended) for the Registrar of the Court of Appeal, Abuja Judicial Division, Abuja and the

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14 (fourteen) days allowed for the Appellant/Applicant, to compile and transmit the said Record of Appeal to this Honourable Court, by the Supreme Court Rules, 1985 (as amended), having expired.

2. AN ORDER of this Honourable Court extending the time within which the Appellant/Applicant may serve the Record of Appeal in respect of his Notice of Appeal dated and filed on the 2nd day of July, 2015 against the Judgment of the Court of Appeal, Abuja, Judicial Division, Abuja, delivered on the 1st day of July, 2015, by his Lordships; Honourable Justice Moore, A. A. Adumien, Honourable Justice T. Akomolafe Wilson, Honourable Justice Tani Yusuf Hassan in Appeal No. CA/A/26A/2012 between Alhaji Yekini Jimoh vs. The Honourable Minister Federal Capital Territory, Federal Capital Development Authority, Alhaji Baba Mustapha (suing through his authorized Attorney/Representative Alhaji Mohammed Sani Musa, the period allowed by the Supreme Court Rules, 1985 (as amended) for the Appellant/Applicant to serve the said Record of Appeal on the Respondents having expired.
3. AN ORDER of this Honourable Court deeming the Record of Appeal already compiled and transmitted

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to this Honourable Court and served on the Respondents by the Appellant/Applicant through the Appeal Section of the Court of Appeal, Abuja Judicial Division, Abuja, as having been properly compiled, transmitted, filed and served but with liberty to any of the parties to file and serve an Additional Record of Appeal, if need be.

4. AN ORDER of this Honourable Court granting the Appellant/Applicant extension of time within which to seek leave to appeal to this Honourable Court against the Judgment of the Court of Appeal, Abuja Judicial Division, Abuja, delivered on the 1st day of July, 2015 by his Lordships; Honourable Justice Moore A. A. Adumien, Honourable Justice T. Akomolafe Wilson, Honourable Justice Tani Yusuf Hassan in Appeal No. CA/A/26A/2012 between Alhaji Yekini Jimoh vs. The Honourable Minister Federal Capital Territory, Federal Capital Development Authority, Alhaji Baba Mustapha (suing through his authorized Attorney/Representative Alhaji Mohammed Sani Musa, on grounds other than of pure law, the time within which the Appellant/Applicant could seek leave to appeal against the said Judgment of the Court of Appeal having expired.

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AN ORDER of the Honourable Court granting the Appellant/Applicant leave to Appeal to this Honourable Court against the Judgment of the Court of Appeal, Abuja Judicial Division, Abuja delivered on the 1st day of July, 2015, by his Lordships; Honourable Justice Moore A. A. Adumein, Honourable Justice T. Akomolafe Wilson, Honourable Justice Tani Yusuf Hassan in Appeal No. CA/A/26A/2012 between Alhaji Yekini Jimoh vs. The Honourable Minister Federal Capital Territory, Federal Capital Development Authority, Alhaji Baba Mustapha (suing through his authorized Attorney/Representative Alhaji Mohammed Sani Musa, on the grounds other than of pure law.

6. AN ORDER of the Honourable Court granting the Appellant/Applicant extension of time within which to Appeal to this Honourable Court against the Judgment of the Court of Appeal, Abuja Judicial Division Abuja, delivered on the 1st day of July, 2015, by his Lordships; Honourable Justice Moore A. A. Adumein, Honourable Justice T. Akomolafe Wilson, Honourable Justice Tani Yusuf Hassan in Appeal No. CA/A/26A/2012 between Alhaji Yekini Jimoh vs. The Honourable Minister Federal Capital Territory, Federal Capital Development

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Authority, Alhaji Baba Mustapha (suing through his authorized Attorney/Representative Alhaji Mohammed Sani Musa, time within which the Appellant/Applicant could appeal against the said Judgment having expired.

7. AN ORDER of the Honourable Court granting leave to the Appellant/Applicant to amend his Notice of Appeal including filing additional grounds of appeal in the manner indicated in the Proposed Amended Notice of Appeal already filed and served on the Respondents.
8. AN ORDER of the Honourable Court deeming the Amended Notice of Appeal already filed and served on the Respondent as properly raised, filed and served subject to the payment of filing fees thereon.
9. AN ORDER of this Honourable Court incorporating the Amended Notice of Appeal as part of the Record of Appeal subject to the payment of filing fees on the Amended Notice of Appeal by the Appellant/Applicant.
10. AN FOR SUCH FURTHER ORDERS OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.

He has also, in the application put forward the underlisted grounds for seeking the indulgence. That is –

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By Section 6(6), 36(1) and 233(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), this Honourable Court has powers to hear and determine an application for trinity prayers and for extension of time to compile and transmit record of appeal.

B. The Appellant/Applicant’s application is predicated on a Notice of Appeal and grounds of appeal raised some constitutional jurisdictional issues and they constitute special and exceptional circumstances upon which if leave is granted the appeal may succeed.

C. Some of the grounds of appeal in the Appellant/Applicant’s Notice of Appeal do not require leave of this Honourable Court to appeal and they can sustain the Appellant/Applicant’s Notice of Appeal.

D. This Honourable Court readily accede to an application for leave to appeal if a ground for the appeal is on jurisdiction.

E. The Appellant/Applicant’s grounds of appeal show good cause why the appeal should be heard.

F. This Honourable Court does not deny an Applicant with an arguable appeal his constitutional right to appeal and access to Court.

G. An appeal on law, mixed law and fact and on facts are strictly speaking separate appeals requiring their respective notices and grounds of Appeal.

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It will be too technical, too superfluous and awkward, for the Appellant/Applicant to have to file another Notice of Appeal on grounds of appeal requiring leave to appeal, which will in effect amount to appealing twice (one as of right and the other by leave), multiplicity of efforts, processes and costs in one and the same appeal before the same Court.

I. It was because the procedure in paragraph ‘H’ above, in effect, will same Court that such notice of appeal containing the grounds of law will suffice and any additional grounds can be brought in by way of trinity prayers and additional grounds of appeal.

J. The Appellant/Applicant did not bring this application earlier than now because its Counsel Mr. Adolphus Nwachukwu and Mr. Denis Abu could not obtain the Judgment of the Court of Appeal on time to enable them study and see whether there was need to file additional grounds of appeal.

K. By the time the Judgment of the Court of Appeal was obtained on 14/12/15, the 3rd Respondent has purported to enforce the judgment of the Court of Appeal on 9/12/15 and later on 14/1/16 which made it

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impracticable for the Appellant/Applicant to proceed with this appeal when the res had been tampered with by the 3rd Respondent.

L. The failure to obtain the certified true copy of the judgment of the Court below on time and to appreciate some finding of the Court below are best a mistake of the Registry of the Court below and the Appellant/Applicant’s counsel which cannot be punished on the Applicant.

M. The Applicant indicated in its Notice of Appeal filed on 2/7/2015 that additional grounds of appeal may be filed upon the procurement of the certified true copy of the Judgment of the Court of Appeal.

N. The Record of Appeal was not compiled, transmitted and served within time because the Registrar of the Court of Appeal could not locate the appeal file on time and when same was located the certified true copy of the Judgment of the Court of Appeal was not availed to the Appellant until 14/12/2015.

O. The grant of this application is geared towards ensuring that justice is done between the Appellant/Applicant and the Respondents.

P. The Appellant/Applicant’s application deserves a sympathetic consideration in the interest of fair hearing and substantial justice.

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The application is supported by an affidavit to which a host of documents have been exhibited. The application is also supported by a number of processes christened as direct and concise argument amplifying the reasons relied upon for the application, concise statement of the case containing facts material to the consideration of the questions presented by the Appellant/Applicant; Appellant/Applicant’s statement of questions which he will like the Supreme Court to consider; – etc. All those processes were filed on 5th October, 2018. It would suffice if the learned Senior Advocate for the Applicant had simply relied on the written address he filed on the 21st June, 2016; which address accompanied the application. The surplusage is unnecessary even though at times (but not on this occasion) to be superflous is better than to be scanty.

In opposing the application, the 3rd Respondent, whose Counsel is Mr. Anachebe, SAN, filed a counter-affidavit on 20th December, 2017 to which 12 documents were exhibited. The deponent of the counter-affidavit is one Charles Jibuaku, Esq., who describes

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himself therein as a Legal Practitioner “in the Chambers of Mr. A. B. Anachebe, SAN who is the lead Counsel representing the Judgment Creditor in this matter.”

A deponent of an affidavit in any proceeding before a Court of law is a witness in the matter. Section 115 (1) of the Evidence Act, 2011 enjoins the deponent as a witness, to depose to facts in an affidavit that “either of his own personal knowledge or from information which he believes to be true”. It is not enough to set out in the preamble paragraphs of an affidavit for the deponent to restate the facts that he has been authorized either by his principal or employer, and the client to make the affidavit; and that he derived the facts averred in the affidavit in the course of his employment and/or from his personal knowledge and/or information generally. For every assertion in a specific averment the deponent, consistent with Section 115 (1), (3) & (4) of the Evidence Act, must disclose with particulars his source of information and belief.

The counter-affidavit of Charles Jibuaku, Esq., a Legal Practitioner, is replete with obvious hearsay and unverifiable facts.

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Paragraph 4 of the counter-affidavit, for instance, avers “that private investigation reveals that the Applicant had secretly relinquished his interest in the res in favour of the deponent and/or other unknown persons, which fact is concealed from this Honourable Court but can be ascertained from the tenancy contracts and proof of payment of rent”. No tenancy contract or receipt for payment of rent was exhibited. The source of this information on which the weighty allegation is predicated remains a matter for conjecture. The averment, like many others in the counter-affidavit, is reckless, and offensive of the provisions of Section 115 of the Evidence Act. Paragraph 3 thereof does not state how the deponent of the counter-affidavit comes to the bold assertion “that the deponent of the Applicant’s affidavit is a total stranger to this proceedings.” The averment does not seek to discharge the burden of proof laid on his shoulders by Sections 131 and 132 of Evidence Act that he who asserts any facts must prove that those facts exist inorder to succeed.

Upon reading the counter-affidavit, one gets the impression that it is tailored to meet an application for

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stay of execution of a judgment. There is no such prayer in the application. The quixotic counter-affidavit appears to substantially attack a phantom.

Perhaps I had come to Court to hear this application very presumptuous that when Senior Advocates are in any matter on both sides they would assist the Court reach decision with ease and that the proceeding would not be befuddled. Alas, this case is a complete rebuttal of that presumption.

There are a total of 10 reliefs in the application. According to Adesina, Esq. SAN, of counsel to the Applicant, prayers 1 – 3 seek to regularise the Records of Appeal; prayers 4 – 6 are trinity prayers to regularise grounds of appeal in the Notice of Appeal that leave was not first sought and granted before they are filed; prayer 7 seeks to amend the extant Notice of Appeal to introduce additional grounds of appeal, prayer 9 is to enable the Applicant incorporate the Amended Notice of Appeal into the Record of Appeal. Prayer 8, the senior counsel submits, a prayer that the Amended Notice of Appeal be deemed filed and served.

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In opposing this application Mr. Anachebe, of Senior counsel for the Judgment Creditor/3rd Respondent, submits that Exhibits A2 – A9 are uncertified public documents, and that they are inadmissible in evidence. He submits further that the Records of Appeal to be regularised is also replete with uncertified documents. The objections, seemingly, do not extend to prayers 1- 3: the prayers for extension of time within which to compile the Records of Appeal. Even if the objection that the Record of Appeal is replete with uncertified documents relate to prayers 1- 3; the objection is brought with uncertainties and non-specifics. We are, like the Applicant, not told or shown the documents that are not certified. The fundamental principle in fair hearing is audi alteram partem, which this objection denies to the Applicant. Both the applicant and the Court are left in the dark to fish out the uncertified documents in the 535 proposed Records of Appeal. Certainly, neither the Court nor the Applicant, the adversary of the objector, are expected to discharge the burden of proving the objector’s assertion. This burden rests squarely on Mr. Anachebe, SAN and his client by dint of Sections 131 and 132 of the Evidence Act.

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He who asserts a fact must prove that the fact he asserts exists. Otherwise, he shall not be entitled to the verdict or judgment of the Court.

In any case, it does appear that Mr. Anachebe, SAN, in submitting that the aforestated documents were not duly certified, did not closely observe them. The documents were duly certified. Pages 35 and 45 of the Record clearly show that Exhibits A2 and 43, respectively the Amended Notice of Appeal and the Notice of Appeal were certified. Exhibits A8 and A9, were respectively at pages 83 and 101, duly certified. Exhibit 8 is the motion filed on 22nd January, 2016; while Exhibit A9 is the judgment of the Court of Appeal delivered on 6th May, 2016. Exhibit A4, the letter from Mike Igbokwe SAN & Co., was similarly duly certified at page 53 of the Record. The rather robust submission that these material documents were not duly certified true copies is completely and unfortunately misleading. It was not a mere goof by the Senior Counsel.

The feeble resistance of the 3rd Respondent to prayers 1 – 3 is not sufficient for me to deny

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the reliefs to the Applicant. Prima facie, the supporting affidavit discloses good and substantial reasons for the grant of prayers 1 – 3, paragraphs 9 – 11 of the supporting affidavit blame the delay in compiling the Record on the Registry of the Court below just as they acquit the Applicant and his legal team of any in diligence. The averments remain substantially unchallenged or in disputed.

They are credible and I am entitled to act on them, and I hereby act on them.

Reliefs 1 – 3 are hereby granted. Time is extended to today for the Applicant to compile and transmit the Records of Appeal in the appeal No. SC. 422/2016, the periods within which the Registry of the Court below and the Applicant had respectively to compile and transmit the Records of Appeal haven elapsed. The Record of Appeal transmitted on 21st June, 2016 is hereby deemed duly compiled, transmitted to this Court and served on the parties in the appeal today.

The original Notice of Appeal filed on 2nd July, 2015 has four grounds of appeal. It is at pages 528 – 535 of the Record of Appeal just regularised.

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Prayers 5, 6 & 7 are trinity prayers sought to enable the Appellant/Applicant file 5 additional grounds of appeal to the four (4) in the Original Notice of Appeal. The document, a proposed Amended Notice of Appeal, not yet strictly speaking forming part of a public document, until filed in accordance with the Supreme Court Rules, does not require to be certified as a public document.

Exhibit A2 is a copy of the original Notice of Appeal at the Court of Appeal. It is a copy coming from the Applicant’s custody. The official copy of it is found at pages 286 – 296 of the Records of Appeal. Even if Exhibit A2 is said to be public document (which I do not agree) requiring its certification; this Court can look at its own records, particularly pages 286 – 296 of the Records of Appeal. Exhibit A2 does not need certification. The original of Exhibit A2, statutorily, had already been served on the 3rd Respondent of this Court. The insistence of Mr. Anachebe, SAN for certification is just nothing but an appeal to acne technicality. The Courts these days lean towards doing substantial justice. In any case Exhibit A2, by virtue of Order 2, Rule 31

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(2) of the extant Rules of this Court, is not relevant to any of the prayers in the application. 1st and 2nd Respondents do not oppose the application on prayers 4, 5 & 6. The 3rd Respondent, who opposes them, has not shown good cause why the indulgence should be denied to the Appellant/Applicant. The purpose of additional grounds of appeal is for all the issues in the appeal to be resolved once and for all. The Applicant has established good reasons for the delay in the supporting affidavit. The cause of delay is not disputed, and it is not unreasonable. The additional grounds of appeal prima facie show good cause why the appeal, on the additional grounds of appeal, should be heard. Accordingly, prayers 4, 5 & 6 are hereby granted as prayed.

Time is hereby extended to the Appellant/Applicant within which to seek leave to file additional grounds of appeal, nos 5, 6, 7, 8 & 9 in Exhibit A3. Leave to file those grounds which are not on pure law. Time is extended to today for the said additional grounds of Appeal, Nos. 5, 6, 7, 8 & 9, in Exhibit A3 to be filed.

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The Amended Notice of Appeal, in terms of Exhibit A3, filed on 21st June, 2016 is hereby deemed filed and served today. The said Amended Notice of Appeal shall form, and is hereby deemed to form, part of the Record of Appeal for this appeal.

The Application is granted as prayed in prayers 1 – 9 both inclusive. Parties shall bear their respective costs.

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SC.422/2016(R)