CORAM

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Uwani Musa Abba Aji – JUSTICE OF THE SUPREME COURT OF NIGERIA

Ibrahim Mohammed Musa Saulawa – JUSTICE OF THE SUPREME COURT OF NIGERIA

Emmanuel Akomaye Agim – JUSTICE OF THE SUPREME COURT OF NIGERIA

Moore Aseimo Abraham Adumein – JUSTICE OF THE SUPREME COURT OF NIGERIA

Mohammed Baba Idris – JUSTICE OF THE SUPREME COURT OF NIGERIA

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PARTIES

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TOKUNBO A. ADEYEMI

APPELLANTS 

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1. CAPTAIN M. B. GOWON

2. HON MINISTER, FEDERAL CAPITAL TERRITORY ADMINISTRATION

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, PRACTICE AND PROCEDURE, RECORD OF APPEAL, SUPPLEMENTARY RECORD OF APPEAL, JUDICIAL DISCRETION, EXTENSION OF TIME, PRESUMPTION OF REGULARITY, EVIDENCE, COURT PROCESSES

 

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SUMMARY OF FACTS

This was a Motion on Notice brought by the 1st Respondent/Applicant (Captain M.B. Gowon) in Appeal No. SC.291/2017 — an appeal from the Court of Appeal, Abuja Division in Appeal No. CA/A/36A/2011. The application sought four reliefs: leave to compile and transmit a supplementary record of appeal out of time; an order deeming the supplementary record already compiled and transmitted as properly filed and served; an order to amend the 1st Respondent’s Brief of Argument; and an order deeming the amended brief as duly filed and served.

The original record of appeal was compiled and transmitted to the Supreme Court on 12th April 2017 by Mrs. Josephine Ekperobe, Head of Appeal Section, for the Deputy Chief Registrar of the Court of Appeal, Abuja, in accordance with the Supreme Court Rules. Counsel for the 1st Respondent — T.G. Taidi, Esq. — acknowledged receipt of the record on that same date.

The 1st Respondent/Applicant’s case was that in the course of a case review in 2023, it was discovered that the Registry of the Court of Appeal had inadvertently omitted the Writ of Summons and other originating processes from the record transmitted in 2017 (paragraph 4(a) of the affidavit) and also that the processes transmitted were not the appropriate ones (paragraph 5(a) of the affidavit) — contradictory depositions the court noted and highlighted.

The 1st Respondent/Applicant had filed similar applications in 2017, 2018, and 2019 which were withdrawn and struck out. The application presently before the court was filed in 2024 — some seven years after the original record was transmitted — without any explanation for the prolonged delay or for the withdrawal of the earlier applications.

The Appellant/Respondent opposed the application, submitting that the supplementary record sought did not form part of the record of the court below, that no exceptional circumstances were shown to justify the delay, and that the processes in the purported supplementary record were not certified by any Registrar.

Upon examination, the court found that the supplementary record was largely identical to the original record, save for three items: a dated Statement of Claim with counsel’s signature on page 6; a statement of account on page 36; and a proof of service page with no link to any specific process being proved served. The processes in the supplementary record were not certified by any Registrar of the lower court. The court dismissed the application with N3,000,000 costs awarded in favour of the Appellant/Respondent.

 

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HELD

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The application was dismissed with N3,000,000 costs. The court held that the 1st Respondent/Applicant provided no material reason for the filing of the application out of time since 2017, no explanation for the withdrawal and striking out of the three earlier applications, and no exceptional circumstances justifying the extraordinary delay. The affidavit contained internally contradictory depositions — one saying the Writ was omitted entirely, another saying it was transmitted but incorrectly — which the court found irresolvable by mere deposition without further verification. The court found on examination that the supplementary record was substantially the same as the original and its processes bore no certification from any Registrar. The original record of appeal enjoyed a presumption of regularity under Section 147 of the Evidence Act 2011, which the Applicant failed to rebut. Judicial discretion cannot be exercised in vacuo and must be grounded in prudence, rationality, and sufficient materials placed before the court.

 

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ISSUES

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1. Whether, considering the circumstances of the appeal, the 1st Respondent/Applicant is entitled to the reliefs sought in the application?

2. Whether sufficient material was placed before the court to justify the exercise of its discretion in favour of the Applicant?

3. Whether the record of appeal compiled and transmitted by the Registry of the Court of Appeal enjoys a presumption of regularity and whether the Applicant successfully rebutted that presumption?

4. Whether the failure to explain the delay from 2017 to 2024 — and the withdrawal of earlier similar applications — is fatal to the application?

 

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RATIONES DECIDENDI

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JUDICIAL DISCRETION — CANNOT BE EXERCISED IN VACUO; APPLICANT MUST SUPPLY SUFFICIENT MATERIALS TO GROUND EXERCISE OF COURT’S DISCRETION IN HIS FAVOUR

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“A party seeking the indulgence of the Court to exercise a discretion in its favour has to supply the Court with the necessary materials upon which the Court would base such a decision, since the Court cannot act in vacuo but must be seen to have exercised the discretion judiciously and judicially and not arbitrarily or just off the cuff.” — Per Mohammed Baba Idris, J.S.C.

 

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JUDICIAL DISCRETION — IS EXERCISE OF JUDGMENT BASED ON WHAT IS FAIR UNDER CIRCUMSTANCES GUIDED BY RULES AND PRINCIPLES OF LAW; MUST BE BASED ON PRUDENCE, RATIONALITY, SAGACITY AND REASONABLENESS

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“Judicial discretion is not exercised as a matter of course. It is the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law. In other words, it is a Court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right. To make such a discretion look judicial and judicious, it has to be based on prudence, rationality, sagacity, astuteness, considerateness, and reasonableness.” — Per Mohammed Baba Idris, J.S.C.

 

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RECORD OF APPEAL COMPILED AND TRANSMITTED BY REGISTRY OF COURT OF APPEAL — ENJOYS PRESUMPTION OF REGULARITY UNDER SECTION 147 OF EVIDENCE ACT; APPLICANT WHO SEEKS TO DISPLACE IT MUST REBUT THE PRESUMPTION

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“The Record of Appeal already compiled and transmitted by the Registry of the Court of Appeal enjoys a presumption of regularity by virtue of Section 147 of the Evidence Act, 2011 (as amended), which the Applicant has woefully failed to rebut.” — Per Mohammed Baba Idris, J.S.C.

 

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RECORD OF APPEAL IS BINDING ON COURT, PARTIES AND COUNSEL — MUST BE DULY AUTHENTICATED AND CERTIFIED BY REGISTRY OF APPROPRIATE COURT

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“The law is that a record of appeal binds the Court, the parties and learned counsel for the contending parties, and it has to be duly authenticated by the Registry of the appropriate Court. A record of appeal/proceeding has to be duly and properly compiled to guarantee as to its correctness; and it must be meticulously checked and compared with vis-a-vis the original process/documents filed in the matter as well as the proceedings of Court.” — Per Moore Aseimo Abraham Adumein, J.S.C.

 

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SUPPLEMENTARY RECORD OF APPEAL — PROCESSES THEREIN MUST BE CERTIFIED BY REGISTRAR OF LOWER COURT; UNCERTIFIED PROCESSES IN SUPPLEMENTARY RECORD ARE OF DUBIOUS ORIGIN

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“Upon a careful examination of the 1st respondent’s Supplementary Record of Appeal, already transmitted to this Court on the 22nd day of May 2018, the Writ of Summons and other processes therein are not certified by any Registrar of the lower Court or at all. The processes in the said Supplementary Record of Appeal, in my humble opinion, are of dubious origin.” — Per Moore Aseimo Abraham Adumein, J.S.C.

 

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EXTENSION OF TIME TO FILE SUPPLEMENTARY RECORD — FAILURE TO PROVIDE MATERIAL REASON FOR DELAY OF SEVEN YEARS AND FAILURE TO EXPLAIN WITHDRAWAL OF EARLIER SIMILAR APPLICATIONS IS FATAL TO APPLICATION

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“The 1st Respondent/Applicant neither mentioned the reason for the withdrawal and striking out of the same, did not direct the Court to the part of the record where the reason for withdrawal and striking out of the respective motions is contained nor did he state any exceptional reason why the 1st Respondent/Applicant did not file a supplementary record of appeal since the original Record of Appeal was filed in 2017. There is no reasonable explanation for the lapse of time, and he simply resurfaced in 2024 to make this application. This is preposterous to say the least!” — Per Mohammed Baba Idris, J.S.C.

 

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COURTS DO NOT RELY ON CONJECTURE OR GUESSWORK — APPLICANT MUST PRESENT SUFFICIENT EVIDENCE TO GROUND COURT’S DECISION; BARE CONTRADICTORY DEPOSITIONS CANNOT SUFFICE

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“Courts of law do not rely on conjecture or guesswork, as these cannot produce a fair and just decision. When an applicant requests the Court to exercise its discretion in his favor, he must present sufficient evidence for the Court to base its decision on. The deposition of the Applicant/1st Respondent on the correctness of the Record of Appeal cannot be verified just by the mere deposition of parties, which is a back and forth of ‘it is complete, it is not complete.'” — Per Mohammed Baba Idris, J.S.C.

 

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DISCRETION OF COURT OF EQUITY — MUST BE EXERCISED ON FACTS AND CIRCUMSTANCES PRESENTED AND GOVERNED BY LAW; COURT MUST BE FULLY APPRAISED OF RELEVANT FACTS

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“A Court of equity must be fully appraised of facts relevant for the exercise of its discretion, otherwise it will be in breach of the principles upon which it can properly act if it were to exercise that discretion. For a judicial discretion to be properly exercised, it must be founded upon the facts and circumstances presented to the Court from which the Court must draw a conclusion governed by law and nothing else.” — Per Uwani Musa Abba Aji, J.S.C.

 

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SUPPLEMENTARY RECORD THAT IS SUBSTANTIALLY IDENTICAL TO ORIGINAL RECORD — PROVIDES NO BASIS FOR ITS TRANSMISSION; COURT WILL NOT GRANT LEAVE WHERE SUPPLEMENTARY RECORD APPEARS TO BE A PLOY TO SMUGGLE EVIDENCE

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“I have looked at the Supplementary Record of Appeal filed by the 1st Respondent/Applicant, it is clear to me that it is the same processes compiled and transmitted in the original Record of Appeal that has been compiled and transmitted in the supplementary Record of Appeal. There is nothing more before this Court for it not to conclude that the supplementary record of appeal is a ploy for the Applicant/1st Respondent to smuggle evidence before this Court.” — Per Mohammed Baba Idris, J.S.C.

 

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EXERCISE OF DISCRETION — MUST BE HONEST AND IN SPIRIT OF STATUTE; DISCRETIONARY ACT NOT GROUNDED IN FACTS AND LAW MUST BE SET ASIDE

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“For a judicial discretion to be properly exercised, it must be founded upon the facts and circumstances presented to the Court from which the Court must draw a conclusion governed by law and nothing else. The exercise of that discretion must be honest and in the spirit of the statute, otherwise, any act so done will not find a solace in the statute and such a discretionary act must be set aside.” — Per Uwani Musa Abba Aji, J.S.C.

 

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EXERCISE OF DISCRETION — IS A LIBERTY OR PRIVILEGE TO DECIDE IN ACCORDANCE WITH WHAT IS FAIR AND EQUITABLE UNDER THE PECULIAR CIRCUMSTANCES OF THE CASE GUIDED BY SPIRIT AND PRINCIPLES OF LAW

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“An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law.” — Per Uwani Musa Abba Aji, J.S.C.

 

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CONTRADICTORY AFFIDAVIT DEPOSITIONS — WHERE PARAGRAPHS OF SUPPORTING AFFIDAVIT CONTRADICT EACH OTHER ON MATERIAL FACTS, SUCH CONTRADICTIONS UNDERMINE THE CREDIBILITY OF THE APPLICATION

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“Looking at the reasons reproduced above, 4(a) shows that the Writ of Summons and other processes were completely left out during the compilation and transmission of the Record of Appeal. On the other hand, paragraph 5(a) indicates that the originating processes were compiled and transmitted, but they were not the appropriate ones. The deposition of the Applicant/1st Respondent on the correctness of the Record of Appeal cannot be verified just by the mere deposition of parties.” — Per Mohammed Baba Idris, J.S.C.

 

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RECORD OF APPEAL COMPILED IN ACCORDANCE WITH RULES OF COURT — CERTIFIED BY REGISTRAR AND ACKNOWLEDGED BY COUNSEL; PARTY CHALLENGING SUCH RECORD BEARS HEAVY BURDEN OF PROOF

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“It is clear, from the certificates of the Registrar of the Court of Appeal that the record of appeal transmitted to this Court on 12/04/2017 was compiled and transmitted in accordance with the Rules of the Court. There is also a certificate of proof of service of the said record of appeal on the 1st Respondent, whose learned counsel acknowledged receipt of the record of appeal on the 12th day of April, 2017.” — Per Moore Aseimo Abraham Adumein, J.S.C.

 

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CASES CITED

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STATUTES REFERRED TO

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• Constitution of the Federal Republic of Nigeria 1999 (as amended) — Section 36(1)

• Evidence Act 2011 (as amended) — Section 147

• Supreme Court Rules 2014 (as amended) — Order 2 Rule 31; Order 7 Rule 7(2); Order 6 Rule 2(5); Order 6 Rule 2(h)

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT 

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COUNSEL

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1.  J. G. Taidi, SAN with him, A. A. Aremu, Esq, A. O. Okeke, Esq. and F. O. Eje, Esq.For Appellant(s)

2.  P. Okoh, Esq. with him, E. Lawal, Esq, A. Daniel, Esq. and J. Ibrahim, Esq. for 1st Respondent

3. M. V. Bashir, Esq. for 2nd RespondentFor Respondent(s)