Mr. Innocent Nweke & Ors V. The Inspector General Of Police & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STEPHEN JONAH ADAH, J.C.A. (Delivering the Lead Ruling)

The Applicants by a motion on notice dated and filed on the 26th day of March, 2009 have sought for the following reliefs.

1. The Order of Court extending the time within which to file Notice and Grounds of Appeal against the Judgment of Hon. Justice A.W. Jumbo sitting at High Court No.16 Port Harcourt delivered on the 16th day of December, 2008 in suit No. PHC/431/2008 between Mr. Innocent Nweke, Maxwell Nweke, Kenneth Okere, Francis Nweke and Gift Okere Vs. The Inspector General of Police. The A.I.G. Zone 6 Calabar, The Commissioner of Police, Rivers State, Ukonwa Nweke, Reginald Nweke, Chigozie Nweke, Daniel Nweke, Azubuike Nweke, Joseph Nweke, Stephen Nweke and Charles Nweke.
2. An Order deeming the Notice of Appeal attached hereto and marked as EXHIBIT D as properly filed and served the proper filing fees having been paid.
3. AND for such further Order or Orders as this Honourable Court may deem fit to make in the circumstance.

The application is supported by a 17 paragraph affidavit deposed to by Dorothy Joel, a Litigation Assistant in the Chambers of the Learned Counsel for the Applicants. There are four Exhibits which are exhibits A, B, C and D, annexed to this affidavit. Exhibit A is the Certified True Copy of the Judgment delivered by Hon. Justice A.W. Jumbo of the Rivers State High Court, Port Harcourt Judicial Division on 16/12/2008. Exhibit B, is the application of the Learned Counsel for the Applicants to the Assistant Chief Registrar of the trial Court requesting for the CTC of the Judgment of the trial Court and it was dated 18th December, 2008. Exhibit C is another letter of request for the said judgment and it is dated – 3rd February, 2009. Exhibit D is the Notice of Appeal dated 16th March 2009 signed by Sir C.I. Enweluzo, Counsel to the Appellants.

This application was heard on 9th January 2013 by this Court. There is no counter affidavit from the Respondents contesting the facts in the affidavit in support of this application. It is trite law that where facts provable by affidavit evidence are duly deposed to in an affidavit by a party to a suit, his adversary has a duty to controvert those facts in a counter affidavit if he disputes them otherwise such facts may be regarded as duly established. See NNPC & Anor. v. Famfa Oil Ltd. (2012) 2 LPELR 7812 SC.

The law is therefore settled that deposition in an uncontroverted affidavit are deemed to be admitted and no the Court is entitled to rely on them as representing the true position of the facts deposed therein. See the case of Amgbere v. Sylva (2007) 18 NWLR (Pt.1065) 1 30 – 31.

In the instant case, the only evidence before the Court is the affidavit of Dorothy Joel the Litigation Assistance in counsel’s chambers. There is no counter-affidavit to challenge the depositions therein. It is therefore taken as deemed admitted on the facts.

The business of the Court in this type of a situation is to go through the affidavit before the Court and to see if the facts in the affidavit are substantial enough to enable the Court exercise its discretion as contemplated or conceived by this application. The deponent in paragraphs 5, 6, 7 -15 of the affidavit deposed as follows:

5. That the trial Court, Honourable Justice A.W. Jumbo delivered its judgment on the 16th day of December, 2009 wherein he held that the Applicants fundamental rights have not been breached. Attached and marked EXHIBIT A is a certified true copy of the said judgment.
6. That being dissatisfied with the Judgment of the said Honourable Justice A.W. Jumbo, the Applicants instructed us to appeal against the said Judgment.
7. That I am informed by Sir C. I. Enweluzo of Counsel and verily believe him that:

(a) He applied for the certified true copy of the judgment of the Court as far back the 18th day of December, 2008. The said application is attached hereto and marked EXHIBIT B.

(b) That having been instructed by the said Sir C.I. Enweluzo of Counsel, I went severally to the Court in order to collect the Judgment of the Court so that our said Counsel could get the full of the Judgment and know the area and/or part of the said judgment to appeal against.

(c) That most unfortunately, in all the days I went to the Court, I was told that the Secretary of the trial Judge was suspended from office as a result of some actions he took that was considered affront to civilized values and dispensation of justice.

(d) That I discovered upon further inquiry that the said secretary to the judge – as part of the disciplinary measures against him- was suspended and thereafter his appointment terminated.

(e) That it took almost two months for the said Secretary to be replaced with another Secretary.

(f) That in desperation, our said Sir C. I. Enweluzo of Counsel wrote another letter requesting that the enrolled Judgment of the Court be given to him. This he did to no avail. Copy of the said second letter is attached hereto and marked EXHIBIT C.

8. That I know as a matter of fact that when I eventually met with the new Secretary of the trial Judge, she claimed that she had not been handed over anything by the last Secretary, hence I reported back to the said C.I. Enweluzo of Counsel.
9. That the Judgment was eventually typed when our said Counsel went with me and complained to the trial judge (i.e. Justice A: W. Jumbo).
10. That on receipt of the said judgment of Court, our C.I. Enweluzo settled the necessary processes and handed over to me for filing and traveled to Calabar where the Knights Order he belongs to (i.e. the Knights of St Mulumba) were having an activity.
11. That there were many Court Processes to be filed and using my Discretion, I took the Processes I thought were most urgent.
12. That on reporting to our said C. I. Enweluzo when he came back on the 18th day of March, 2009, he expressed his dismay to the effect that the Notice of Appeal ought to have been filed latest on the 17th day of March, 2009 and that we were now out of time.
13. That being out of time by one day, we had no alternative than to settle this application and file seeking now the Court’s leave to extend time within which to file the said Notice and Grounds of Appeal.
14. That we very much regret the failure in filing this Notice of Appeal within time.
15. That now shown to me and marked EXHIBIT D is a copy of the said Notice of Appeal.

From the facts deposed to in this affidavit the judgment of the trial Court was delivered on 16th December 2008. See paragraph 5 of the affidavit. It further showed that on 18th December 2008 the Appellant made a formal request for the Certified Copy of the judgment. But could not get it from the Court. He made a further request as in Exhibit C for the said record of the judgment. When eventually the Applicant got it Mr. Enweluzo assigned his Litigation Assistant in the Chambers to have the notice of appeal filed, but as a result of a mix-up the Litigation Assistant could not file the notice until he discovered that he was late a day after the statutory time to appeal expired, hence this application.