Government Of Anambra State V. Dr. Sam J. Oji (1990)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

There are two applications before us in this appeal. The first is brought by the respondent/applicant while the second was filed by the appellant/respondent. The first application, which was filed on the 13th day of February, 1990, is for the appeal to be dismissed for want of prosecution on the grounds-

“1. That the appellant’s said appeal is an appeal to which rules 6 and 7 of order 7, Supreme Court Rules 1985, apply being an appeal against a decision of the Court of Appeal affecting the revenue of the Government of Anambra State.

2. That the appellant has failed to comply with the mandatory provisions of order 7 rule 7 of the said rules, having not prepared and lodged with the registrar of this court, for the use of the Honourable Justices, the requisite number of records of appeal, within 14 days of filing of the notice of appeal.
3. That the appellant’s grounds of appeal even if allowed, will not adversely affect the decision of the Court of Appeal appealed against.”

Paragraph 7 of the affidavit in support of the motion reads as follows-

“7. That being dissatisfied with Exhibit ‘C’ the appellant by its counsel, Senator N.N. Anah, S.A.N., filed a notice of appeal at the Court of Appeal Registry, Enugu on the 18th day of January, 1990. A certified copy of the appellant’s said notice of appeal is attached hereto and marked Exhibit ‘D’ “.

Copy of the appellant’s notice of appeal is exhibited in the affidavit and marked Exhibit D. It is the respondent/applicant’s case that the appeal comes under the ambit of order 7 rules 1(2),6 and 7 of the Supreme Court Rules, 1985. Order 7 rule 1(2) (d) (v) thereof provides that the provisions of rules 6 and 7 of the order will apply to decisions of the Court of Appeal in respect of decisions made by the Court of Appeal in cases “affecting the revenue of the government of the federation or of a state,”. By order 7 rule 6 of the Supreme Court Rules, 1985

“It shall not be necessary for the registrar of the Court of Appeal to prepare a record in respect of an appeal of the type mentioned in subrule (2) of rule 1 of this order unless the court otherwise directs. Accordingly, the record for the purpose of such appeals shall be prepared in the manner set forth in rule 7 of this order.”

Now, order 7 rule 7 (1) of the Supreme Court Rules, 1985 provides as follows –

“7. (1) The appellant shall, in appeals to which this rule applies either simultaneously with filing his notice of appeal or within 14 days thereafter, prepare for the use of the Judges a record comprising –

(a) the index;

(b) office copies of documents and proceedings which the appellant considers relevant to the appeal;

(c) office copy of the order for leave to appeal (if any); and

(d) a copy of the notice of appeal.”

By the deposition in paragraph 7 of the affidavit in support of the respondent/applicant’s motion and the oral argument of learned counsel for the party, the application is premised on the fact that the appellant/respondent filed its notice of appeal on the 18th day of January. 1990. If this were correct, then the appellant/respondent was obliged to file the record of appeal within 14 days thereafter, that is on or before the 2nd day of February, 1990. The question that arises is: did the appellant/respondent file the notice of appeal on the 18th day of January, 1990 as submitted by learned counsel for the respondent/applicant It is necessary to examine the notice of appeal filed by the appellant/respondent, (Exhibit D) in order to be able to answer the question.