The Attorney General of Taraba State V. Selihin Consult Limited (2016)

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JUMMAI HANNATU SANKEY, J.C.A. 

This Ruling is predicated on a motion on notice filed by the Applicant on 1st April, 2016, wherein he seeks the following prayers:
1. AN ORDER RESTORING the Applicants Appeal against the Judgment of the Taraba State High Court delivered by Hon. Justice B.S.S. Mohammed on 25th June, 2014 in suit No. TRSJ/20/2014 between SELIHIN Counsel (sic) LIMITED and THE ATTORNEY GENERAL OF TARABA STATE which Appeal was dismissed by the order of this Honourable Court on 25th November, 2014 for failure to transmit the record of Appeal to the Honourable Court.
2. AN ORDER enlarging time for the Applicant to transmit the record of appeal to this Honourable Court.
3. AN ORDER deeming as properly transmitted the record of proceedings to the registry of the Appellate Court.
4. AN ORDER deeming as properly served the record of appeal on the respondent.
5. AND FOR SUCH Order or further Orders as the Honourable Court may deem just and expedient to make in the circumstances of this case.

The ten grounds for making the application were set out therein. The motion was

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supported by a 12 paragraph affidavit and one document annexed thereto and marked Exhibit TRS 1, being the enrolled Order of this Court dismissing the Appeal. Upon being served the motion, the Respondent filed a counter affidavit containing 7 Paragraphs on 16-05-2016.
On 17-05-2016 when the application came up for hearing, Y.N. Akirikwen Esq., the Hon. Attorney General appearing for himself, argued the motion. He submits that the motion is brought pursuant to Order 7 Rule 1 and Order 8 Rule 20 of the Court of Appeal Rules, 2011 and seeks the reliefs as set out therein. He placed reliance on the affidavit and the document annexed thereto. On the counter affidavit of the Respondent, he contends that it actually re-states the case of the Applicant. He submits that the Rules of Court do not provide a time limit for bringing such an application. He contends that by Paragraph 9 of the affidavit, the Appeal canvasses substantial issues of law, and that the Judgment is yet to be enforced. He therefore urged the Court to grant the application as prayed so that the Appeal may be determined on its merits.
Mr. Martin Milkman, learned Counsel for the Respondent,

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in opposing the application, filed a 7 Paragraph affidavit upon which he relied in urging the Court to refuse the application and to dismiss same. Counsel submits that in an application of this nature brought under Order 8 Rule 20 of the Rules of this Court, the Applicant is required to place good and sufficient reasons for it to succeed. For what constitutes good and sufficient reason, he relies on Nigeria Postal Service V Idioho (2013) LPELR-20820(CA) at 24, paras C-A; & Afro Continental Insurance Ltd & Ors V NDIC (2015) LPELR-24805(CA) at 33-34, paras C-G. Counsel contends that the Applicant has not disclosed good and sufficient reason why the Appeal should be heard on the merit and why the application should be granted. In addition, there is no explanation for the failure or the delay in transmitting the Record. He argues that the alleged reason of political instability given by the Applicant has been debunked in the counter affidavit where it has been shown that it has not affected the Appeal.
Counsel further submits that the Appeal number and the name has not been mentioned anywhere in the application. In addition to which, the Notice of

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Appeal has not been exhibited to the application. Furthermore, the enrolled Order of this Court which has been exhibited as Exhibit TRS1 to the supporting affidavit is a photocopy of a public document which has not been certified. That as such, it cannot be relied upon. For this, Counsel relied on Fawehinmi V IGP & Others (2002) LPELR-1258(SC) at 39, paras C-E; Nwaogu V Atuma (2013) 221 LRCN (Pt. 11) 22-23, paras JJ-P. Additionally, Counsel submits that the affidavit in support of the motion is defective having not complied with Section 117(1) of the Evidence Act, 2011 by stating the residence of the deponent. He relied on Mustapha V Suntai (Unreported) Appeal No. CA/YL/38/13 delivered on 24-07-13. He therefore urged the Court to refuse the application and dismiss same.
In a brief reply on points of law, The Hon. Attorney General submits that at the stage when the Appeal was dismissed, the Record of Appeal had not been transmitted to this Court. As a result, there could not have been any Appeal number since it had not been registered. He therefore submits that the application has given sufficient particulars to warrant its being granted.

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In respect of the submission that good and sufficient reason had not been supplied, the learned AG submits that while all the authorities cited are good law, it is only this Court that is in a position to decide whether or not the reasons given by the Applicant are good and substantial. He argues that whereas the Applicant has advanced reasons why the Record of Appeal was delayed, it is within the discretion of the Court to decide whether or not they are good and substantial.
With regard to the non-certification of the enrolled Order of the Court, Exhibit TRS1 annexed to the affidavit, learned AG submits that the decision in Fawehinmi V IGP (supra) is no longer good law. He relies on Nwosu V Imo State Environmental Sanitation Authority & Ors (1990) LPELR-2129(SC). He submits that any public document attached to an affidavit cannot be opposed on ground of admissibility. It is only when it is being tendered in Court that it can be opposed. He submits that in addition to this, it is a document of this Court for which it can take judicial notice. He finally urged the Court to grant the application and discountenance the objection.

Findings:

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This application is presented before the Court on the invocation of Order 8 Rule 20 of the Court of Appeal Rules, 2011.The Rule of Court provides thus:20. An Appellant whose appeal has been dismissed under this Rule may apply by notice of motion that his or the appeal be restored and any such application may be made to the Court, who may, in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit. (Emphasis supplied)