JUDGMENTS OF THE NIGERIAN COURTS OF JUSTICE
Restoring Nigeria's Law to Nigeria's People - One by One
ATTORNEY GENERAL OF THE FEDERATION
AMIRU SANUSI, OFR ,J.C.A. (Delivering the Lead Ruling):
By a Motion on Notice dated the 19th of July, 2013 and filed on the 23rd of July, 2013, brought pursuant to order 7 Rules 1 and 10, Order 8, Rules 1, 4, 5, 10 of the Court of Appeal Rules, 2011, section 15 of the court of Appeal Act, 2004, the Applicant prayed this court for the following reliefs:
Order extending the time within which the
Appellant/Applicant may compile and transmit the
Record of Appeal from the post judgment ruling of Hon.
Justice J. K. Olotu of the Federal High Court, Abuja,
in suit No:FHC/ABJ/CS/50/2009 (BI-COURTNEY VS.
ATTORNEY GENERAL OF THE FEDERATION) to the Court of
2. An Order deeming as properly compiled and transmitted from the Federal High Court, Abuja to the Court of Appeal, the Record of Appeal already compiled and transmitted;
3. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
In support of the application are two affidavits, first a ten (10) paragraph affidavit deposed to by one Nnamdi Ekwem, a legal practitioner in the law firm of Kenna Partners (counsel to the Applicant), to which is attached one exhibit, i.e. Exhibit A, as well as a further and better affidavit deposed to by the same deponent, exhibiting Exhibits A & B. The Respondent filed a counter affidavit containing thirty (30) paragraphs, and a further and better counter affidavit deposed to by one Osarugue courage Obayuwana, a legal practitioner in the law firm of Messrs Babalakin & Co (Counsel to the Respondent), and exhibiting Exhibits AG1, AG2 and AG3.
The facts that led to this application as distilled from the affidavits in support and the exhibits attached, are that the Respondent commenced an action at the Federal High court, Abuja, vide an originating summons dated January 23, 2009 and prayed the court essentially for interpretation and enforcement of rights arising out of a concession agreement dated April, 24, 2003 and judgment was delivered on the 3rd of March, 2009. The Respondent herein, then filed a motion on notice for an order of injunction restraining the Federal Government and all its agencies in the aviation sector from continuing the re-modeling and/or construction works to improve the General Aviation Terminal (GAT). The Federal High Court, sitting in Abuja, herein to be called "the Lower Court", per Olotu J, delivered a Ruling in favour of the Respondent herein.
story is that the Applicant has been and remains in
blatant disobedience and disregard to the extant orders
of the lower court in relation to the underlying Res
of the instant appeal, hence his view is that the
Applicant is not entitled to the favourable discretion
of this court as sought in this application.
The learned counsel for the Applicant, in his written address, has formulated this lone issue for determination namely:
"Whether in view of the exercise of the right of appeal of the Appellant/Applicant and an appeal having been duly filed, the court ought not to exercise its discretion to grant the Appellant/Applicant an extension of time within which to compile and transmit the Record of Appeal in this appeal."
The Respondent also formulated a sole issue for determination in his written address to wit:
"Whether the Applicant is entitled to the
favourable discretion of this Honourable Court with
regard to the instant application".
Looking at the
nature of the application, it is my view that the lone
issue distilled by the Respondent is more apt for the
determination of this application and I will rely on
same in determining the application. For the Applicant,
it is submitted that the court has powers to grant an
extension of time within which to do any act or take any
step prescribed by the Rules to be done or taken by any
party. He referred this court to Order 7 Rule 10 of
court of Appeal Rules, 2011 as well as Section 15 of the
Court of Appeal Act 2004 and submitted that this court
has the power to grant this application. He placed
reliance on the case of NIPOL LTD
INVESTMENT & PROCO Ltd (1992) 23 N.S.C.C.
It was submitted that the Applicant is undeserving of this Court's discretion in view of the Applicant's consistent disregard and disobedience of the orders of the lower court. Reference was made to Exhibits AG 1 and AC 2, attached to the Respondent's counter affidavit.
In conclusion, it argued that as a result of the applicant's consistent and unrepentant disregard for the extant orders of the court, this Court ought to decline the favourable discretion requested by the Applicant in the instant application and to dismiss same.
It is pertinent
to say here that the Applicant's Motion on Notice, dated
19th July, 2013 and filed on the 23rd of July, 2013, is
brought pursuant to Order 7, Rules 1 and 10, Order 8
Rules 1, 4, 5 and 10 of the Court of Appeal Rules 2011,
as well as Section 15 of the Court of Appeal Act, 2004,
and under the inherent jurisdiction of this Court. It
essentially seeks the leave of this Court to compile and
transmit the Records of Appeal from the lower court out
office of the Attorney General of the Federation, upon
the delivering of the Ruling of July 3, 2012,
instructed counsel (Messrs Kenna Partners) to appeal
against the said judgment/ruling and counsel did file
a Notice of Appeal dated 10th July, 2012.
after the said Notice of Appeal was filed, efforts
were made to compile records for transmission to the
Court of Appeal but it was impossible as the certified
copy of the ruling was not available to enable the
Appeal Registry of the Federal High Court compile the
record as same was said not to be ready.
by the time the certified copy of the ruling was ready
and made available, time has already lapse to compile
(g) That under the mandatory provisions of Order 8 Rule 1 of the Court of Appeal Rules 2011 (The Rules) upon filing a Notice of Appeal against the decision of the court below, the Registrar of the Court below is obligated to compile and transmit the record of the appeal from the court below, in respect of an appeal, to this Honourable court within sixty (60) days.
Order 8 Rule 1 of the Rules provides that upon
expiration of the prescribed 60 days, after the filing
of the Notice of Appeal, where the Registrar of the
Court below has defaulted, omitted, failed and or
neglected to compile and transmit the record of appeal
in accordance with the provisions of the Rules, it
shall be compulsory for the Appellant to compile and
transmit the said record to this Honourable Court
within 30 days after the Registrar's default, neglect
(i) That the Appellant/Applicant's counsel had subsequently made applications to the court so as to obtain the certified copies of all processes relating to this appeal from the court's file to enable it compile the records but this was delayed also as we were informed by the Court officers for a long while that the judge was not around to approve the application, hence the Appellant/Applicant inability to conclude same.
I have critically looked at the averments in the aforesaid paragraphs. The primary reason given by the applicant is that the Appeal Registry of the lower court is substantially responsible for the inability to compile and transmit the records within the prescribed time in spite of all concerted efforts made by the applicant to comply with the provisions of the Rules.
However, in the
instant case, the crux of the Respondent's contention is
that the Applicant is undeserving of the favourable
discretion of this Honourable court in view of the
Applicant's consistent, blatant and unrepentant
disobedience and utter disregard for the positive orders
of the lower court in relation to the underlying Res of
this appeal. Reference was made to Exhibits
AG1 and AG2. The Respondent's view is that the
Applicant, being in contempt of the express orders of
the lower court, cannot be granted any favourable
discretion of this court.
In a legion of decided authorities of this court and the apex court, courts frown at disobedience of their orders as they jealously guard against their orders being flouted without just or cogent reasons. They (the courts) therefore do not as a matter of practice and precedents, condone disobedience of their order by parties, not only because the foundation of adjudication will be eroded but also because judicial powers will he made nonsense of or made a mockery of same, which will ultimately stultify the administration of justice.
The Supreme Court in the case of FATB vs. Ezegbu (supra) this to say at page 150 per Karibi-Whyte JSC-
"The right to be heard in our courts of law or tribunal is fundamental and guaranteed under our constitution. At the game time, the constitution vests in the courts all inherent powers and sanctions of a court of law. see section 6(6)(a) constitution 1979. These unspecified common law Powers enable the courts to enforce their decisions and to do justice according to law between litigants coming before them.
See Odogwu v. Odogwu (supra).
must state however, that there are few exceptions to
the above general rule that a party in contempt cannot
be heard. These exceptions are highlighted, below:
a. where the party is seeking for leave to appeal against the order of which he is in contempt; or
where he intends to show that because of
procedural irregularities in making the order, it
ought not to be sustained; or
c. where the party is challenging the order on the ground of lack of Jurisdiction; or
d. All that the contemnor is asking for is to be heard in respect of matters of defence; and
e. that a Person against whom a committal order has not been made cannot be a contemnor.
Time is extended to today within which the
appellant/applicant shall compile and transmit the
Record of Appeal against the Ruling of the Federal
High Court, Abuja delivered by Hon. Justice J. K.
Olotu in Suit No.FHC/ABJ/CS/50/2009 (Bi-Courtney
v. Attorney-General of the Federation) to the
Court of Appeal, Abuja.
2. The Record of Appeal against the said ruling in the said suit already compiled and transmitted to this court on 21st December 2012 is deemed properly compiled and transmitted to this court with effect from today.
Costs follow events. The respondent is however awarded cost of N100,000 against the applicant.
I read in advance the ruling just delivered by my learned brother, Amiru Sanusi, OFR, PJCA. I am also of the humble opinion that the application should be granted.
I have had the privilege of reading in draft the detailed lead Ruling delivered by my learned brother, Sanusi, JCA, OFR.
Indeed, in the circumstances of this application, it is just and proper to afford the Applicant the opportunity to exercise his constitutional right of appeal. Failure to get the Record of Appeal compiled within the prescribed period in the circumstances of this case as clearly enunciated by my learned brother in the leading Ruling is definitely not the fault of the Applicant. Every wrong that is not the fault of a party should not be visited on that innocent party. Authorities abound to the effect that the mistake, negligence, or tardiness of the court's Registry should not be visited on a litigant - Duke Akpabuyo (2005) 12 SCNJ 280 at 293; D' Alberto v. Cappa Plc (2006) All FWLR (Pt 335) 166 at 174-175; Broad Bank Nig Ltd v Alhaji Olayiwola & Sons Ltd (2005) All FWLR (Pt.332) 236 at 252.
In this application it will be unfair to allow the Applicant to suffer for the tardiness of the Registry to compile the Record of Appeal within the prescribed period when the Appellant/Applicant has done what the law requires him to do to bring appeal before this Honourable Court. See Dasofunjo v. Oni (1966) 2 All N.L. 291.
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