New Nigeria Bank Plc V. Denclag Limited & Anor (2000)
LawGlobal-Hub Lead Judgment Report
T. MUHAMMAD, J.C.A.
In a motion on notice filed by the appellant/applicant on the 14th day of February, 2000, the applicant prays for the following reliefs:
“(a) Setting aside the “Certificate of Non-compliance with conditions imposed upon a would be appellant” dated 8th February, 2000 (Civil Form 16) issued in this case by the Registrar, High Court of Justice, Jos and
(b) listing the appeal for hearing.
And for such further or other orders as this Honourable Court may deem fit to make in the circumstances”.
The background facts giving rise to this application were that, by a certificate of non-compliance with conditions imposed upon the Applicant filed by the registrar to the court below on the 9th day of February, 2000, the Registrar informed this Court that:
“Pursuant to Order 3 rule 20 of the Federal Court of Appeal Rules, I hereby certify that the Appellant(s) in the above named cause has complied with none of the requirements of Order 3 rules 10 and 11”.
While moving the application, learned Counsel for the Applicant, Mr. Igbanoi informed the Court at the motion was supported by a 40-paragraph affidavit and 27 exhibits. He relied all the paragraphs of the affidavit and the exhibits. Learned Counsel submitted that the applicant had fully complied with the requirements of Order 3 rules (10) and (11) of the Court of Appeal Rules and that the applicant had done so within time. He referred to paragraphs 8 to 11 of the affidavit in support. He also referred to Exhibits ‘A’, ‘C’, ‘D’ and ‘E’. It was learned Counsel’s submission that there were sustained efforts by to Applicant in following up to see that the record was produced by the registry of the lower court. He referred the Court to paragraphs 12-15 of the affidavit in support and Exhibits ‘L’, ‘G’ and ‘H’. He further referred the Court to Exhibit 1, which was requested from the registrar of the lower court for the sum of N20,000.00 (Twenty Thousand Naira) for the purposes of photocopying exhibits, though this was not pan, the conditions laid. In a reaction to that, the Applicant collected the exhibit and photocopied them as required. Paragraph 17 of the affidavit and Exhibit ‘J’ were referred to. It was argued further for the Applicant that, the record was completed by the lower court and forwarded to the Court of Appeal on 9/2/2000 and the respondents were duly served. (Paragraphs 33 and Exhibit M). The record, learned Counsel argued further contained the Certificate of Compliance (paragraph 43 and Exhibit ‘N’ referred to). Learned Counsel submitted that, it was to his surprise that the record, filed and served, was later withdrawn by the lower court’s registry (paragraph 7 and Exhibit ‘BB’). On the counter-affidavit filed by the respondent, learned Counsel argued that the facts deposed to did not effectively counter the depositions made in the affidavit in support and furthermore by paragraph 4 of the counter-affidavit, the respondent mentioned what he denied and that whatever was not denied amounted to an admission. Learned Counsel urged the court to grant his application.
Mr. Akubo, learned Counsel for the Respondent, tersely opposed the application. He filed a counter-affidavit on the 15th day of February, 2000. He based his argument on five main grounds:
(1) That the Certificate of non-compliance was not exhibited in me affidavit in support. This omission, he argued, was fatal to the application.
(2) That the counter-affidavit filed has effectively rebutted all the depositions in the affidavit in support. Paragraph 8 and other paragraphs of the counter-affidavit answered the affidavit paragraph by paragraph and revealed the organised arrangement involving the lower court’s registry staff. He relied on paragraph 8I-8X and Exhibit ‘M’.
(3) That exhibit ‘C’ which imposes conditions of settlement of record of appeal did not require the applicant to make half-hearted attempts in compliance thereof. He alleged that Exhibit ‘D’ was made at the respondent’s back and was never copied to the respondents.
(4) The second prayer cannot be granted as it is now, as briefs have not yet been filed and as no record was available.
(5) That there was no application for extension of time within which to comply with the conditions imposed.
Learned Counsel for the Respondents argued further that, none of the parties had the right to depart from the conditions stipulated in Exhibit ‘A’ and that, the materials listed in exhibit ‘D’ did not include materials for binding of the record. He further argued that by Order 3 r 20(4) of this Court’s rules, the Applicant cannot be heard on any of the reliefs sought. Learned Counsel finally urged this Court to strike out paragraph 37 of the affidavit in support as it was in conflict with section 38 of the Evidence Act (as amended). He cited the cases of Jideonwe v. Chuwkuma (2000) 1 NWLR (pt. 641) 397 at Pp. 405; Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt.583) 632 at Pp. 655-657. Learned Respondent’s Counsel urged this court to dismiss the motion.
In a brief reply on points of law, learned Counsel for the Applicant submitted that omission to exhibit or include the Certificate of non-compliance in the motion paper cannot be fatal to the application as same is before the Court. On Order 3 r 20, learned Counsel submitted that there was nothing sacrosanct in the order as all it required was compliance with conditions for settlement of record of appeal. He replied that there was no challenge by the Respondent on the authenticity of the record earlier on filed and served. He cited in support me case of Nofiu Surakatu v. Nigeria Housing Development Society Ltd & 1 Or (1981) 4 SC, 26 at Pp. 32-34.
Now, it is stated in our Court rules that a record of appeal-
“Means the aggregate of papers relating to an appeal including the pleadings, proceedings, evidence and judgments proper to be laid before the court on the hearing of the appeal”.
(See: Order 1 section 2 of the Court of Appeal Rules, 1981) (as amended).
The general practice in the production of record of appeal is that the Registrar of the Court below, the Appellant and the Respondent shall endeavour to produce a relevant record in respect of the appeal (Order 3 rule 2). However, as the Appellant is the person who desires to appeal or appeals from the decision of the court below (inclusive of an application for leave to appeal), Order 3 rules 10 and 11 have imposed some responsibilities on him which he is expected to discharge. The rules state:
“10. The Appellant shall within such time as the Registrar of the Court below directs deposit with him a sum fixed to cover the estimated expense of making up and forwarding the record of appeal calculated at the full cost of one copy for the appellant and one-seventh cost for each of the seven copies for the use of the Court, or where twenty copies are sent, one twentieth.
- The Appellant shall within such time as the Registrar of the court below directs, deposit such sum as shall be determined by such Registrar or give security therefore by bond with one or more sureties to his satisfaction as such Registrar may direct, for the due prosecution of the appeal and for the payment of any costs which may be ordered to be paid by the Appellant.
Provided that no deposit or security shall be required where the deposit would be payable by the Government of the Federal Republic of Nigeria or of a State, or by any Government department”.
Where the Appellant fails to comply with the above requirements, rule 20(1) of Order 3 of the Court Rules, applies:
“20(1) If the Appellant has complied with none of the requirements of Rules 10 and 11 of this Order, the Registrar of the Court below shall certify such fact to the Court, which shall thereupon order that the appeal be dismissed either with or without costs, and shall cause the Appellant and the respondent to be notified of the terms of its order”.
It was under this rule that the Registrar of the Court below filed to this Court a certificate of non-compliance which was now sought to be set aside.
It should be appreciated from the outset that, it is clear from the document now placed before this court, particularly exhibit ‘A’ annexed to the affidavit in support of the motion as well as the certificate of non-compliance that a conference was hold between the Registrar of the Court below and learned Counsel for the Appellant/applicant and that of the respondent in order to settle the record of appeal. They all agreed on the relevant documents to be placed if the record as well as terms governing the conditions for the production of the record. I find it imperative to quote below, the conditions imposed:
Conditions
- The Appellant shall pay the sum of N200.00 for the prosecution of the appeal.
- The Appellant shall deposit the sum of N50,000.00 which is expected to cover the cost of producing the records or in the alternative the Appellant shall provide all the materials for the production of the records up to binding stage.
- This condition (sic) shall be fulfilled within 30 days of the settlement
SGN
REGISTRAR.
(Italics for emphasis)
In a bid to satisfying these conditions, the applicant deposed in paragraph 9 of the affidavit in support that on the 9th day of March, 1999 he had fulfilled the 1st condition by paying through its counsel the sum of N200.00 for the due prosecution of the appeal. A receipt to that effect was issued and annexed as Exhibit ‘B’. I examined Exhibit ‘B’ and found it to be a receipt of payment of the sum of N200.00 to a bailiff made by Ibrahim Hamman & Co. That was on the 8th day of March, 1999 and was in respect of suit No. PLD/J383/95. Throughout the eleven paragraph counter-affidavit of the Respondent, there is no denial to this averment. As for the second condition which is given by the Registrar of the court below in alternatives, i.e. the security deposit for the sum of N50,000 (fifty thousand Naira), or providing all materials for the production of the record up to binding stage, the applicant chose the latter. To that effect, the Applicant wrote to the registrar of the court below on 30th March, 1999, requesting to know what materials would be required for that purpose. (Exh. ‘C’) The Registrar of the Court below replied on the same date as per Exhibit ‘D’. Exh. ‘D’ reads in part:
“With reference to your letter dated 30th March, 1999, I forward here the following list of the materials needed to start production on the above record to Court of Appeal-
- Stencils – 12 packets
- Duplicating papers – 10 realms
- Duplicating ink – 3 tubes
- Ribbon-3
- Correcting fluid (Red) 2
Sgd. & Stamped
Registrar.
By Exhibit ‘E’, the Applicant supplied to the Registrar the above materials. And there is an acknowledgment of the receipt of the materials by one Mr. Chuwery on the 31st of March, 1999. These are contained in paragraphs 10 and 11 of the affidavit in support. There is no categorical denial of these facts too by the Respondents in their counter-affidavit. All that was deposed to in the counter-affidavit in relation to Exhibits. ‘C’ and ‘D’ was that Exhibits ‘C’ and ‘D’ were privately arranged behind the back of the Respondents and their Solicitors to short out the obligation imposed on the applicant by the terms of settlement of record, and that the exhibits were not copied to the respondents or their Solicitors. It was also deposed to the fact that, the Registrar who signed Exhibits ‘B’ was not the one that settled the record and that, the said Registrar acted without authority (see paragraphs 5-8(b) of the counter-affidavit). It is well settled by a plethora of decided authorities that facts deposed to in an affidavit which remain unchallenged or uncontroverted in a counter-affidavit are deemed admitted. See Ejide v. Ogunyemi (1990) 3 NWLR (pt. 141)758; Soy Agencies Ind. Services Ltd. v. Metalum Ltd. (1991) 2 NWLR (Pt. 177) 35; Lijadu v. Lijadu (1991) 1 NWLR (pt. 169) 627; Bedding Holdings Ltd. v. NEC (1992) 8 NWLR (Pt. 260) 428; Babatunde v. Olatunji (1994) 4 NWLR (Pt. 339) 448; Opara v. Ihejirika (1990) 6 NWLR (pt. 156) 291 at page 302. Thus, going by the conditions laid by the Registrar of the lower Court, the Applicant, having satisfied all the conditions imposed on him, had successfully complied with the conditions of the appeal. I do not therefore agree with the learned Counsel for the respondent in his submission that there were private arrangements by learned Counsel for the applicant to ‘short out’ the obligations imposed on the applicant by the registrar of the court below for the production of the record of appeal. I think what is paramount in the processes of compilation of record of appeal is for the Appellant to make provisions for the production of the record. Once he has done so, what remains is within the domestic affair of the registry of the Court whose decision is appealed against. Belgore, J.S.C stated eloquently in Ajayi v. Omorogbe (1993) 6 NWLR (Pt. 301) 512 at 526 that:
“The Appellant must not only make sure the records are ready for transmission to the appellate court by settling the records, he must also fulfil all the conditions of appeal.”
See further: Obiamalu & Ors. v Nwosu & Ors (1973) NSCC Vol. 8 page 60 Umechie v Obi & Ors (1973), NSCC Vol. 8, page 56.
On the other hand, while it is the duty of the Court to get the records ready and notify the Appellant and the respondent of the situation, the Appellant has an added responsibility and diligently pursuing the timeous and correct preparation, settlement and transmission of the record of appeal. See Ajayi v. Omorogbe (supra). From the averments in paragraphs 12-16 of the affidavit in support, I am satisfied that there were sustained efforts by the applicant to secure the record of appeal. There was nothing like ‘half-hearted attempts’ in complying with the conditions imposed, as alluded by the learned Counsel for the respondents if anything, it was the registry of the Court below that had attempted to expand the scope of the conditions it earlier imposed on the Applicant by asking for an additional sum of N20,000.00 (Twenty Thousand Naira) which is expected to cover for the photocopying, binding and other logistics associated with the production of the records. See paragraph 2 of Exhibits ‘I’. This in my view, was a further condition imposed on the Applicant. This further demand/condition appears to be in conflict with the conditions earlier imposed as per Exhibit ‘A’. It is clear from paragraph 2 of Exhibit ‘A’, that the amount of N50,000.00 or materials, whichever the Applicant opted for, must cover up to production stage of the record including binding. Since the Applicant was given an option to provide the materials for producing the record, the applicant in Exhibit ‘J’ requested that the documents to be photocopied be made available to him to do so as he had a photocopying machine. The Chief Registrar refused this request. See Exhibit ‘K’. See also paragraphs 17 and 18 of the affidavit in support. At any rate, the photocopying and the binding of the record were finally completed on the 7th of February, 2000. (Paragraph 19 of the affidavit in support). Bound copies of the record so compiled were despatched to the Court of Appeal and served on the parties’ respective Counsel. See paragraph 3 of the affidavit in support.
It is worth-noting however as deposed to in paragraph 35 of the affidavit in support that, when the lower court’s bailiff went to effect service of the record of appeal on Respondent’s Counsel, Mr. P. A. Akubo, on 9th February, 2000, Mr. Akubo refused to accept service and he (Gotus) i.e. bailiff had to serve him by throwing. (See Exhs. O & P). This fact was corroborated by learned Counsel for the respondents in his counter-affidavit:
“8(v) that on February 10th, 2000, the copy of the record purportedly served on the firm of Akubo & Co., at about 5:15pm, on 9th/2/2000 under questionable circumstance by Emmanuel Gotus was returned to High Court. The copy of the letter evidencing this is attached and marked as exhibit ‘DD’ “.
Exhibit ‘N’ exhibited in paragraph 34 of the affidavit in support is the lower Court’s certificate of full compliance with the conditions of appeal. But the Respondent stated in paragraph 8(1) of his counter-affidavit that, it was after waiting in vein that the lower Court’s registry decided to issue the certificate of non-compliance, on the 8/2/2000. From the foregoing, it follows that there was a record of the appeal which the Applicant/Appellant was pursuing. Understandably, there were a lot of bottlenecks in the process of compiling the record. The most important thing was compliance with the conditions for the compilation of the record. Since the record had gone to stage of filing at the Court of Appeal, I do not think it can be right to say that the applicant did not comply with the conditions imposed. If he did not comply, then how did the record come into the hands of the parties and the Court of Appeal? I do not think as well that the subsequent withdrawal of the copies filed and served at the Court of Appeal and on the parties should be of any consequence to warrant the filing of a non-compliance certificate. This noncompliance certificate became a subject of controversy between the parties and the registry of the Court below. At a time, a letter Ref. PLD/1383/1995/772 was written on the 10/2/2000 to the parties and copied to the Registrar of the court by the Chief Registrar of the Court below asking him to disregard the Certificate of non-compliance dated 8/2/2000. Four days later, the same Chief Registrar wrote another letter Ref. PLD/J383/1995/776 dated 14/2/2000 to our Registrar informing the registrar that the earlier letter was ‘inadvertently’ copied to him, that the Certificate of non-compliance was still valid, ‘pending the outcome of directives from the Hon. Chief Judge after the meeting with the lawyers’. This indeed, is dramatic; I cannot see how an organised registry can allow itself to be dragged into such a quagmire. The statutory duties of the registry of a court from which an appeal lies to the Court of Appeal, in addition to the compilation of record of appeal, are well stated in Order 3 Rule 13 of the Court of Appeal Rules 1981 (as amended). These duties cannot be turned into a game of chance or a toss. They must strictly be complied with, and once an appellant has fulfilled his own part of the obligations, the registry staff or any other person for that matter has no right to inhibit the compilation and forwarding to the Appeal Court of the record of appeal. It is natural that, an appellant wishing to prosecute his appeal timeously will comply with conditions stipulated to him by the registry of the trial Court whether such conditions are errorneous or not. For that reason, it is always mandatory for the Registrar in charge of compilation and processing of appeal document to their final stage to see that he strictly follows the provisions of the law such as the ones provided by the Court of Appeal Rules (particularly Order 3 Rules 8, 9, 10, 11-13). So except where there is a total failure or neglect from an appellant to comply with the requirements of Order 3 Rules 10 and 11, resort cannot be had to Order 3 Rule 20 calling for the dismissal of the appeal. Other points raised by Mr. Akubo were non exhibiting of the Certificate of non-compliance along with the affidavit in support and that such omission was fatal. Learned Counsel for the applicant replied that such omission cannot be fatal. I am in agreement with the submission of learned Counsel for the Applicant. There is no gain saying that the Court h as already seized of the Certificate of non-compliance as it was directly filed to the registry of this court.
The Court can rightly take cognisance of that document. On learned Counsel’s point of relief (b) of the motion on notice that it cannot be granted at this stage, I will agree with him that the appeal at this stage is only ripe for mention as briefs are not filed and exchanged.
To crown it all, I think I should point out that the right to appeal is fundamental and no one shall be deprived of such a right unless where genuine circumstances exist for doing so. I think also, it is always better to allow an appeal to be considered on its merits rather than nipping it in the bud. Trial Courts as well as all Courts from which appeal emanates to higher Courts have a lot to offer in this respect.
For the above reasons, I hold that the application is meritorious. I hereby grant it. Accordingly, it is hereby ordered that the Certificate of non-compliance with conditions imposed upon a would-be Appellant dated 8th February, 2000 in respect of Appeal No. CA/J/27/2000 which was issued by the Registrar of the High Court of Justice, Jos, is set aside.
It is further ordered that relief(b) on the motion on notice must and is struck out as an appeal can only be properly ripe for hearing when briefs have been filed and exchanged. Applicant is entitled to N2,000.00 costs from the Respondents.
Other Citations: (2000)LCN/0709(CA)