Irrumdu Jamari & Ors. V. Ijabani Yaga (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment)

At the High Court of Adamawa State, Michika Judicial Division [hereinafter referred to as the lower court], the appellants, through their counsel, by a motion on notice dated and filed on July 13, 2007, entreated the court, inter alia, for an order for extension of time within which to appeal. Although, the judgment being appealed against was not exhibited in the affidavit accompanying the application, when it came up for hearing, the appellant’s counsel proceeded and argued the motion extensively. The respondent’s counsel replied, accordingly, and urged the court to refuse the application. After the arguments by both counsel and the application was about to be adjourned for ruling, counsel for the appellant applied to withdraw the motion.

His reason was that he wanted “to come properly.” Counsel for the respondent opposed the application and urged the court to rule on the merit or otherwise of the application, arguments having been canvassed. The lower court rendered its ruling, dismissing the motion. This appeal is against that decision. The appellants formulated only one issue for the determination of this appeal, thus:

Whether under the circumstances of this matter it was right for the High Court of Justice of Adamawa State, Michika judicial division, to make an order of dismissal of the application for extension of time within which to appeal as against an order striking same out.

Learned counsel for the appellant submitted that under the circumstances of this matter, it was not right for the lower court to make an order of dismissal of the application for extension of time within which to appeal as against an order striking out the application.

Citing Order 43 rule 6 of the Adamawa State Civil Procedure Rules, he contended that whenever an appeal is to be filed out of the time, the appellant must do so by way of motion on notice seeking leave of the lower court or appellate court to do so. He noted further that for the application to be proper before the appellate court, the appellant must, among other things, annex the judgment being appealed against to the motion paper. In his submission, where the appellant does not comply with these provisions, the appellate court would strike it out as not being properly before it.

He submitted that the proper approach which the lower court ought to have adopted in the circumstance was to strike out the application and not to order its dismissal, citing page 36 of the record of proceedings. This, in his view, is so because the merit of the matter was not decided. Until a matter is decided on its merit it will be improper to dismiss it since a dismissal bars the parties from coming back to have the matter heard on its merit, citing Amoo v Alabi (2003) 12 NWLR (pt 835) 537, 553; Afolabi v Adekunle (1983) 2 SCNLR 141

Counsel contended that it is the appellant’s duty to file the motion and annex the relevant papers including the judgement of the lower court. He observed that the sin of counsel should not be visited on the party he represents, Adekeye & Ors v Akin-Olubade (1987) 3 NWLR (pt 60) 214; Ndika v Chiejina (2003) 1 NWLR (pt 802) 451, 483. Against this background, he submitted that when counsel, inadvertently, moved the application when the judgment of the lower court was not annexed, it was in the interest of justice to allow such an application to be heard on the merit by striking same out so that the party can come properly.

He submitted that dismissing the application means that the applicant was shut out completely and will no longer be heard on the merit on the application and even the proposed appeal. In his view, since the appellants’ counsel failed to exhibit the necessary documents to the motion paper due to either negligence or omission on his part, such negligence or omission should be treated as his fault and not that of the appellants.

He urged the court, having regard to the circumstances of the facts stated above, that is, the irregularity in the filling of the motion for extension of time to appeal, not be allow that irregularity to bar the appellants from exercising their constitutional right to be heard on the merit so that their grievances can be properly adjudicated.

The respondent distilled two issues for determination. They were framed thus:

(1) Whether the appellants can turn round thereafter and complain that the decision of their counsel to keep and not exhibit the proceedings and judgments of the courts against which they sought to appeal is a mistake or inadvertence, the consequence of which cannot be visited on them.

(2) Whether grounds 2, 3 and 4 contained in the appellant’s notice of appeal are competent and arguable before this Honourable Court?

On the first issue, counsel for the respondent submitted that the essential requirement of the law in an application for extension of time to appeal is that the proceedings and/or judgment of the court against which the appeal is to be entered must be exhibited to the motion paper, citing Afribank Nig. Ltd. v Awoyemi (1995) 2 NWLR (pt 375) 110, 111. He noted that the records were not attached so as to place them before the lower court. In his view, this was a factual blunder which the appellants thought was a mistake of their counsel but must accept full responsibility for, N. I. W. A. v Shell Petroleum Dev. Co. of Nig. Ltd. (2008) 6 SCM 127, 132.