Francis Edobor V. I.e. Imadegbelo & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.(Delivering the Lead Ruling)

The Appellant/Applicant, as Plaintiff at the lower court, commenced proceedings against the Respondents/Respondents, as Defendants, sometime in 1995. Subsequently when the suit came up for hearing at the said court on 23/11/2000, the Appellant/Applicant was absent whereupon that court dismissed the Suit on the oral application of the Respondents’ counsel for want of prosecution.

Following the order of dismissal of the suit, the Appellant/Applicant applied to the same court to set aside the order of dismissal and relist the suit for hearing on the merits. That application for setting aside was dismissed on 11/3/2002. Aggrieved by the order dismissing the application to relist, the Appellant/Applicant lodged an appeal to this court by filing his notice and grounds of appeal at the lower court on 20/3/2002.

On 13/8/2004, the Registrar of the lower court gave conditions of appeal which was served on the Appellant/Applicant. The conditions were to be perfected within 30 days from date of service. The conditions having not been perfected and time having expired for their perfection, the Registrar, pursuant to the Court of Appeal Rules issued and published the certificate of non-perfection which was forwarded to this court and served on the Appellant/Applicant.

The present application before this court seeks orders setting aside the certificate of non-perfection of the conditions of appeal; extending time within which to seek leave to comply with the conditions; complying with the conditions and extending time to comply with the conditions. The application has for its support an affidavit outlining the reasons for the application and documents which the Appellant/Applicant considers relevant thereto. The Respondents/Respondents filed counter-affidavits in opposition. In my view the sole issue for determination herein is whether from the facts, circumstances and law, applicable thereto, this court should accede to the application.

Arguments have been proffered for and against the application by counsel for all the parties in the matter. Learned counsel for the Applicant, Mr. Ezomo, relying on the affidavit in support of the application had argued on this issue that the facts deposed therein should persuade this court to grant the application as the court has both statutory and inherent jurisdiction to extend time for the doing of an act and a matter in the interest of justice. He argued that the grounds of appeal were substantial and cogent and should be looked at in the consideration of the application. On the proper forum where this application should be brought, learned counsel argued that the Court of Appeal is the proper forum as the Provisions of Order 8 Rule 11 of the defunct Bendel State High Court Rules 1988 relied upon by the Respondents in their opposition did not contemplate a certificate of noncompliance of conditions of appeal issued by the Registrar of the High Court. The order Ex Parte referred to in that rule, he argued, related to an Ex Parte order made by the High Court of the State and does not cover a certificate issued by a Registrar of the Court.

The arguments bf learned counsel for the 1st Respondent, Mr. Imade, in opposition is four-pronged. Firstly, it was his contention that since the Record of Appeal had not been transmitted to this court, the appeal had not been entered and so the proper forum to lodge the present application would be the lower court and not this court which still had control over the proceedings in the matter. More so as by Order 8 Rule 11 of the defunct Bendel State High Court Rules applicable at the relevant time all Ex Parte Orders were to be discharged within 7 (seven) days upon relevant application by the party so affected. The certificate of non-compliance having been issued more than five years following the conditions of appeal, the application for extension of time ought to be made at the lower court, he argued. Secondly, Mr. Imade argued that the effect of the issuance and transmission of the Certificate of Non-Compliance with the conditions of appeal was that the Appellant/Applicant was foreclosed. Thirdly, that the Applicant could not rely on the reasons given in paragraphs 13, 14,15 and 25 of his affidavit in support and countered by the 1st Respondent in paragraphs 5 (d), (e), (f) and (g) of his counter-affidavit as this court, per Ngwuta JCA had, in an earlier ruling on a similar application dated 11/5/04 over the same matter, decided on that issue and so it could not be reopened in the present application. Fourthly and finally, counsel argued that, even at that, the affidavit in support did not disclose cogent and reasonable grounds to justify the grant of the application.

The arguments of the learned counsel for the 2nd and 3rd Respondents, Mr. Esekhaigbe followed the same line with those of Mr. Imade and so there is no need summarizing them in repetition here.

The issue for determination in this application as set out above is straight forward. I have carefully and studiously considered all the arguments of counsel both in support of the application and in opposition to it. Let me quickly dispose of the question of the appropriate forum where this application ought to be brought. In my view although the Record of Appeal has not been transmitted to this court, and indeed there is nothing to transmit in terms of record since the conditions of appeal were not complied with by the Appellant/Applicant, the certificate of non-compliance having been issued, served and transmitted to this court, any application relating to that certificate has to be brought to this court as the lower court would have no jurisdiction to decide on what is no longer before it and on what is now before this court as otherwise it will be overreaching the powers of this court over a subject matter before it, particularly in relation to its functional jurisdiction pursuant to Order 3 Rule 20(1) of the Court of Appeal Rules 2002 applicable here. If it were to be otherwise, the possibility of two conflicting decisions over the same issue will arise concurrently one from a higher court and the other from a lower court. The situation will be absurd and bizarre. The appropriate forum in the circumstances of the present situation would be this court. If the certificate of non-compliance had not been transmitted to this court, a different scenario and situation would have arisen to suggest the lower court as the appropriate forum. But this is not the case here.

By far the most potent argument is the effect of the issuance and transmission of the certificate of non-compliance to the Court of Appeal.

Counsel to the Applicant, Mr. Ezomo, had argued that notwithstanding this transmission, this court could still set it aside and extend time.

Counsel for the 1st Respondent, Mr. Imade, and for the 2nd and 3rd Respondents, Mr. Esekhaigbe, had argued that it foreclosed the matter and defeated the application. Which side is correct?

Now the provisions of Order 3 Rule 20(1) of the Court of Appeal Rules 2002 applicable to the point and under which the certificate was issued is clear and unambiguous. It states:

“Where the Appellant has not complied with any of the requirements of rules 10 and 11 of this Order, the Registrar of the court below shall certify such to the court, which shall thereupon order that the appeal be dismissed either with or without cost, and shall cause the Appellant and the Respondent to be notified of the terms of its order”.(Underlining supplied for emphasis).