National Inland Waterways Authority V. The Shell Petroleum Development Company Of Nigeria Ltd (2011) LLJR-SC

National Inland Waterways Authority V. The Shell Petroleum Development Company Of Nigeria Ltd (2011)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C

By an application dated 29th day of April, 2010, the Applicant/Appellant prayed for the following reliefs: –

1. AN ORDER for enlargement of time within which the Appellant/Applicant may compile the Record of appeal.
2. AN ORDER deeming the Record of appeal already compiled by the Applicant and attached to the affidavit of Onyinye Akuma as exhibited OA 1 as having been duly and properly compiled and served.
3. AN ORDER abridging the time within which the appellant may file its Appellant’s brief to the time of filing of this application and an order deeming as properly filed contemporaneously with this application.

The application was supported by an affidavit sworn to by one Onyinye Akuma. As disclosed in the affidavit, the applicant had earlier applied to this court for an order to compile the record of Appeal out of time. This application was refused in chambers as some pages of the proposed record of Appeal were not legible. This applicant was not notified of the outcome of this application and by the time it eventually knew the outcome of this application he had taken steps to obtain a clear copy of the illegible pages of the records which is the Oil Mining Lensa (OML).

The counsel to the respondents who tendered the document at the trial court was contacted so that a clear copy could be obtained, but this effort did not yield any result. As a last result, the applicant has to embark on retyping the document; even at then, to get the document certified became another problem. Hence the applicant has to start a fresh the process of re-compiling the record, which is now attached as Exhibit OA1.

The respondent filed a counter/affidavit in which the respondent averred that the application was filed to over-reach its pending application to dismiss the appeal for want of diligent prosecution. The respondent denied the averments contained in the applicant’s affidavit. It was averred that the applicant was promptly informed of the outcome of its application heard in chambers which was refused. Applicant denied that he was informed about the illegibility of the document. It was then averred that this application is a ploy to delay the hearing of the substantive appeal at the Court of Appeal.

The applicant in its written submissions in support of the application formulated a sole issue for determination as follows:-

“Whether the applicant/ appellant has made out a case for grant of an order for enlargement of time within which to compile the record of appeal and an abridgement of time within which the appellant may file its brief of argument”.

The applicant referred to the provisions of Order 2 Rule 31(1) of the Supreme Court Rules and submitted that this court has the power to grant the application. Counsel also referred to cases of: Progress Bank (NIG) PLC v. O.K. Contact Point Ltd. (2008) 1 NWLR (pt. 1069) 514 at 534; and Ika Local Government Area V. Mba (2007) 12 NWLR (pt. 104) 676 at 700. He referred to the averments contained in the affidavit in support of the application and submitted that he has disclosed substantial reasons why the record was not compiled within the time prescribed by the Rules.

The Respondent in its written submissions formulated two (2) issues for determination thus:-

“a) Whether or not the present applicant/appellant’s application is competent when it contains no reliefs for extension of time to file record of appeal as opposed to extension of time to compile record of appeal which the appellant sought for.

b) Assuming but without conceding that the applicant/application is competent, whether the appellant/applicant is entitled to the judicial discretion being sought in this application”.

On the issue No 1, the Respondent submitted that this application is incompetent when it contains no relief for extension of time to file record of appeal as opposed to extension of time to compile record of appeal which the applicant sought for. Being an appeal against Interlocutory decision of the Court of Appeal, the appellant is to compile and file the record of appeal at the Supreme Court. Learned counsel refers to the provisions of Order 7 Rule 1(2) of the Rules of this court.

It was also submitted that the Brief of argument which the appellant wants this Honourable Court to deem as properly filed is incurably incompetent as the appeal has not been entered. The Respondent cited in support the case of Buraimoh v. Bamgbose (1989) 3 NWLR (pt 109) 352/360.

On the issue No 2, the Respondent submitted that the grant of this application is an exercise of judicial discretion having regard to the facts and circumstances, and as such is not granted as a matter of course. In this case the appellant obtained the leave of this court in June 6, 2008 to appeal against the ruling of the Court of Appeal and since then no reasonable step was taken to ensure the compilation of the record of appeal till when this application was filed on 28/4/10. That the appellant has not been diligent in the prosecution of the appeal that the entire reasons advanced by the appellant for failing to produce timeously legible copies of record of appeal are total fabrications and cannot be sustained. Hence, the applicant has failed to disclose good and substantial reasons why this application should be granted.

On the issue of the incompetency of the application raised by the respondent, it would be necessary to examine the provisions of Order 7 Rule 1(2) of the Rules of this court to determine whether the application is competent or not.

Order 7.1 (a) “The provisions of rules 2, 3, and 4 of this Order shall apply to appeal to the court from the final decisions of the Court of Appeal in Civil and Criminal cases other than decisions in appeal to that court from interlocutory decisions of a High Court.

2. The provisions of rules 6 and 7 shall apply to any decision of the Court of Appeal in respect of an interlocutory decision made by it…
3. It shall not be necessary for the Registrar of the Court of Appeal to prepare a record in respect of the type mentioned in sub-rules (2) of rules (1) of that order unless this court otherwise directs, and accordingly the record for the purpose of such appeals shall be in the manner set forth in rule 7 of this order.
4. (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 Justices a record comprising … I have carefully set out the provisions of the rules in order to determine the competency or otherwise of the application. The rule that is specifically relevant is the provisions of order 7 Rule 7 (1) of the rule.

The express provision of the rule is that the applicant shall:

“Prepare for the use of the Justices a record comprising … what the rules require an applicant in an interlocutory appeal from the decision of the Court of Appeal is to

a. “Either simultaneously with the filing of the Notice of Appeal prepare a record for the use of the Justices of this court, or

b. Within 14 days after the filing of the Notice of Appeal prepare a record for the use of this court”.

In this con, it is my view that the word “prepare” is the same as “compile” the record for the use of this court, nowhere is it provided that the appellant shall file. This court will not impute into a statute a word or provisions not provided by it. Therefore the submission of the respondent in this respect is completely misconceived. So also is the issue of the competency of the brief of Argument raised by the respondent. Truth must be told. The respondent cited the case of Burai Mohammed V. Bamgbose (1989) 3 NWLR (pt 109) 352 and submitted that the said brief of argument filed when an appeal has not been entered is incompetent. With tremendous respect, to the contrary what the learned Justice of the Supreme Court has said did not support the position taken by the respondent. The learned Justice at page 360 of the report stated the portion as follows:

“A brief filed before the appellant obtained leave to appeal is nullify” per Nnaemeka-Agu JSC.

I quite agree with the learned Justice Nnaemeka-Agu JSC. In the instant case, an appeal has already been filed, what the appellant was seeking was to enter the appeal, since the record has been prepared or compiled, of course, it does not make any sense for a brief of Argument to be filed when a Notice of Appeal has not been filed and any such brief will definitely amount to a nullity.

On the last issue of disclosing good and substantial reason, it is my considered view that the applicant has disclosed good and substantial reasons why this application ought to be granted. The main cause of the delay was the non notification of the applicant of the ruling of this court that refused the earlier application on the ground that some of the pages of the record were not legible. The respondent averred that the applicant was notified, but no evidence of such notification was exhibited, what was exhibited by the respondent was the one served on him; no effort was made to show that such notification was actually served on the applicant.

My Lords, having considered both briefs of argument together with the submissions of both counsels I hold that this application has merit and it is hereby granted. Consequently I order as follows:-

1. “The applicant/Applicant is hereby granted an enlargement of time within which to compile the record of Appeal in this appeal.
2. The record of appeal exhibited as OA 1 is deemed as having been duly and properly compiled and served.
3. The time to file, the appellant’s brief of argument is hereby abridged, and the appellant’s brief of argument already filed is deemed as duly filed and served today”.

In view of the above orders, it goes without saying that the respondent’s application dated 22/7/2009 and filed on the same date, which seeks an order dismissing the appeal for want of diligent prosecution is hereby struck out, as it has been overtaken by event. N30,000 Naira costs is awarded in favour of the appellant/applicant.

Application is granted.

SC.4/2008 (R)