MRS. ALERO JADESIMI V. ADOLO OKOTIE-EBOH & ORS.

MRS. ALERO JADESIMI V. ADOLO OKOTIE-EBOH & ORS.
CITATION: (1986) 1 iLAW/SC.112/1985
OTHER CITATIONS:
1 Jadesimi v. Okotie-Eboh (1985) NWLR (Pt.10) 909
Nigerian Coat of Arms
In The Supreme Court of Nigeria
On Friday, the 31st day of January, 1986
Suit No: SC.112/1985
Before Their Lordships
AYO GABRIEL IRIKEFE
……. Justice of the Supreme Court
KAYODE ESO
……. Justice of the Supreme Court
DAHUNSI OLUGBEMI COKER
……. Justice of the Supreme Court
ADOLPHUS GODWIN KARIBI-WHYTE
……. Justice of the Supreme Court
SAIDU KAWU
……. Justice of the Supreme Court
 Between
MRS. ALERO JADESIMI
(NEE OKOTIE-EBOH)
Appellants
 And
1. ADOLO OKOTIE-EBOH
2. LAWRENCE OKOTIE-EBOH
3. BAWO OKOTIE-EBOH
4. MRS. VICTORIA OKOTIE-EBOH
5. DR. (MRS.) CLARA AKELE
6. JOHN OKOTIE-EBOH
Respondents
RATIO DECIDENDI
1
COURT – RULE OF COURT: Whether where an appellant inability to satisfy the requirements of the rules of the court in an appeal is attributable entirely to the default of the officer of the court; he should not be given an opportunity to comply with the rules
“…In such a circumstance where applicant is not in complete control of the situation, and where the omission resulting in the non-compliance with the rules of this court is attributable entirely to the default of the appropriate officer of the court below responsible for enabling applicant to comply, I think the interest of justice demands that applicant be completely absolved from responsibility. Accordingly he should be given an opportunity to comply with the rules. In this situation, to refuse the application will tantamount to punishing the applicant for the omission resulting from the erroneous interpretation of his duty by the appropriate responsible court official. Furthermore, there is overwhelming evidence that there was no delay in the first instance in filing the notice of appeal before the court. The applicants have now obtained and filed all the documents required to enable them comply with the rules of this court. It will therefore, in my view, be contrary to justice to shut them out from arguing their appeal. I derive support for this view in the observation of Sowemimo, J.S.C. (as he then was but now the Chief Justice of Nigeria) in Abiegbe & Ors. v. Ugbodume & Anor. (1973) 1 ALL NLR at p 77 where he said, “we think the above matters require some consideration when an application for extension of time or dismissal for want of prosecution is being considered either separately or together. It is in the interest of justice that parties should be afforded reasonable opportunity for their rights to be investigated and determined on the merits. …To dismiss an action for want of prosecution does not give judgment in favour of the defendants nor does it prohibit the plaintiffs from filing a fresh action. It is therefore in the interest of both panies that they should not be subjected to any undue delay and further expenses in order to have their rights determined”.” Per KARIBI-WHYTE, J.S.C (Pp. 25-26, paras. E-G) – read in context
K. ESO, J.S.C. (Delivering the Lead Ruling): The application of Kehinde Sofola (S.A.N.), on behalf of the appellant, which is relevant to these Reasons, was brought under Order 2 Rule 31 which provides for enlargement of time for the doing of anything to which the Supreme Court Rules apply. In particular learned Senior Advocate seeks an order-

“that the time within which the appellant shall prepare the Record of Appeal herein for the use of the Judges be enlarged.”

This application is sequel to the application of Dr. (Mrs.) Clara Akele, who was the 2nd defendant in the trial Court, filed by her learned counsel, Miss Ayo Ogunsola, seeking an order for the striking out of the appeal of the appellant for want of prosecution.

We heard both applications on 16th September, 1985 and granted the order, sought by the appellant through her counsel, Mr. Kehinde Sofola (S.A.N.). We however reserved our reasons for granting this application till today. I now give my reasons for granting the order sought on that day.

Having regard to the facts that emerged from the submissions of both learned counsel, I think the issue herein is in regard to the understanding, or, rather non-understanding, of Order 7 particularly Rules 6 and 7 of the Supreme Court Rules, 1985. As the provisions of this Order are a complete departure from the procedure provided by the old Rules of this Court, that is Supreme Court Rules 1977, hereinafter referred to as the 1977 Rules, I think this is a good opportunity to have a break down and simple explanation of the new Rules.

Under the old system, as provided for by Order 7 Rules 4, 5, 6, 7, 8 and 12 of the 1977 Rules, the following procedure obtained.

(1) The appellant filed his notice of appeal in the Registry of the Court of Appeal (Rule 4).

(2) After the filing of the notice of appeal, the Registrar of the Court of Appeal caused to be served a true copy of such notice upon each of the persons who had been mentioned by the appellant in his notice of appeal (Rule 5).

(3) Whereupon, within thirty day of the service of the notice of appeal upon a Respondent, he filed, in duplicate, also with the Registrar of the Court of Appeal, notice of all full and sufficient address for service. The Registrar indicated to him the number of copies required and the Registrar would then send a copy of that notice of address to the Registrar of the Supreme Court with a copy thereof also served on the appellant (Rule 6).

(4) After the expiration of time for filing the notice referred to above, the Registrar of the Court of Appeal summoned the parties before him for the settlement of the Record of Appeal that is, in regard to the documents to be included in such Record, fixing of the amount of deposit by the appellant to cover the estimated cost of making up and forwarding the record, and also the amount of deposit for due prosecution of the appeal and payment of costs (Rule 7). The Registrar was limited to include in the Record of Appeal –

(a) the index;

(b) a statement by the Registrar of the Court of Appeal giving brief particulars of the case;

(c) copy of the notice of appeal and other relevant documents and

(d) copies of the documents settled by him under Rule 7 (as already stated in this paragraph above).

(5) After the settlement of the Record of Appeal by the Registrar of the Court of Appeal, he transmitted it to the Registrar of the Supreme Court together with –

(a) a certificate of service of the notice of appeal;

(b) a certificate that the conditions imposed in regard to Cost of Record and security for Costs had been fulfiled;

(c) ten copies of the copies of the Record for the use of the Judges of the Supreme Court, and

(d) the docket or file of the case in the Court of Appeal which would contain all papers or documents which had been filed by the parties in connection with the appeal.

That was what the 1977 Rules required. However, under the new Rules that is, the Supreme Court Rules 1985, hereinafter referred to as the 1985 Rules, there has been a marked departure from the 1977 Rules. The procedure is governed by Order 7 Rules 2, 3, 4, 6, 7 and 8. They are as follows:

2. – (1) As soon as an appellant has filed his Notice of Appeal in the court below, the Registrar of that court or (in the case to which Rules 6 and 7 of this Order apply) the appellant, shall, with all due expedition, start to prepare the Record in accordance with the provisions of this Order.

(2) The Record shall contain the following documents in the order set out.

(b) a statement by the Registrar of the Court of Appeal giving brief particulars of the case and including a schedule of the fees paid in the Court of Appeal;

(c) copies of the documents and proceedings constituting the Record of Appeal before the Court of Appeal;

(d) copies of all documents and proceedings before the Court of Appeal;

(e) a copy of the order for leave to appeal whether made by the Court or by the Court of Appeal;

(f) a copy of the Notice of Appeal;

(g) a certificate by the Registrar of the Court of Appeal certifying that the Notice of Appeal was duly served upon the respondent;

(h) a certificate by the Registrar of the Court of Appeal certifying that the appellant has duly and punctually complied with the conditions of appeal imposed upon him; and

(i) a certificate by the Registrar of the Court of Appeal certifying that the appellant and the respondent have either collected their copies of the record respectively or that they have been duly notified that such record is ready for collection.

(3) In respect of the documents and proceedings referred to in paragraphs (c) and (d) of sub-rule (2) of this Rule, it shall not be necessary to copy any documents which the appellant with the consent of the respondent considers should be excluded: Provided that whenever such document has been included on the insistence of the respondent, the Registrar of the court below shall make a note to that effect.

(4) It shall not be necessary to copy the notes or minutes of the proceedings taken by every member of the Court of Appeal and the notes or minutes signed by the Presiding Justice shall be deemed to be the proceedings of the court below.

(5) It shall not be necessary for copies of individual documents to be separately certified but the Registrar of the court below shall certify as correct each copy of the Record transmitted by him in accordance with these Rules.

3. – (1) When the appellant or his agent files his Notice of appeal, he shall be informed of the amount assessed by the Registrar of the Court of Appeal as the cost of the preparation and transmission of the Record to the Court and (in the case of civil appeals) as the amount of security for costs and the due prosecution of the appeal.

(2) The appellant shall within a period of not more than 14 days pay the amount so assessed and deposit the amount prescribed as security for costs and the due prosecution of the appeal or in lieu thereof give security by bond with one or more sureties to the satisfaction of the Registrar: Provided that:

(a) The amount of such security shall not exceed twice the costs awarded in favour of the successful party before the Court of Appeal; and

(b) no deposit or security shall be required where the deposit would be payable by the Government of the Federation or of a State, by any Government department, by a local government, or by a corporation directly established by a law enacted by the legislature of the Federation or of a State.

(3) 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-tenth cost for each of the ten copies for the use of the Court.

(4) The Court may, where necessary, require security for costs or for performance of the orders to be made on appeal, in addition to the sum determined under this Rule.

4. – (1) The Registrar of the court below shall within a period of not more than six months from the date of the filing of the notice of appeal transmit the record when ready together with:-

(a) a certificate of service of the notice of appeal;

(b) a certificate that the conditions imposed under this Order have been fulfilled:

(c) ten copies of the record for the use of the Judges;

(d) the docket or file of the case in the court below and the court of first instance containing all papers or document filed by the parties in connection therewith, to the Registrar of the Court; and (e) a certificate indicating date of service of records on the parties.

(2) The Registrar of the court below shall also cause to be served on all parties mentioned in the notice of appeal who have filed an address for service a notice that the record has been forwarded to the Registrar of the Court who shall in due course, enter the appeal in the cause list.

6. – It shall not be necessary for the Registrar of the Court of Appeal to prepare a Record in respect of an appeal of the type mentioned in Sub-Rule (2) of Rule 1 of this Order unless the Court otherwise directs. Accordingly, the Record for the purpose of such appeals shall be prepared in the manner set forth in Rule 7 of this Order.

7.- (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 Judges a Record comprising –

(a) the index;

(b) office copies of documents and proceedings which the appellant considers relevant to the appeal

(c) office copy of the order for leave to appeal (if any); and

(d) a copy of the notice of appeal.

(2) If the respondent considers that the documents and proceedings filed by the appellant are inaccurate or are not sufficient for the purposes of the appeal, he shall, within a period of 7 days after service on him of the Record filed by the appellant, file any further or to her documents that he wishes to file

(3) All documents filed by either party shall be verified by the affidavit of a person who has read them and compared them with authentic or certified true copies.

(4) In the case of the documents and proceedings mentioned in Rule 7(1)(b) and (c) of this Order, the party filing them shall lodge certified true copies thereof with the Registrar of the Court.

8. – (1) When the Registrar of the court below has complied with the requirements of Rule 4 of this Order, he shall deliver a copy of the Record to the parties after receiving any fees that may be due or payable under the Second Schedule to these Rules.

(2) In respect of criminal appeals, the Registrar of the court below shall forward a copy of the Record to the Attorney-General or the Solicitor-General of the State from which the appeal emanates or (as the case may require) to the Attorney-General or the Solicitor-General of the Federation.” Under these Rules, there are two different circumstances, and I will deal with them seriatim.

A. WHERE THE APPEAL IS FROM A FINAL DECISION OF THE E COURTOF APPEAL.

With regard to this circumstance –

(1) The appellant files his Notice of Appeal in the Court of Appeal and the Registrar of that court shall immediately thereafter, commence the preparation of the Record of appeal. He, the Registrar, shall make sure that the Record contains the following documents, which he shall set out in the following orders:

(a) the index of the contents;

(b) a statement, made by the Registrar of the Court of Appeal, which statement shall give brief particulars of the case on appeal and which statement shall include therein a schedule of the fees paid by the parties in the Court of Appeal;

(c) copies of the documents and the proceedings in the case which constitute the Record of Appeal before the Court of Appeal, that is, in regard to cases coming before that court on appeal from a final decision of the court below the Court of Appeal:

(d) copies of all documents and proceedings which take place before the Court of Appeal. In other words, while paragraph (c) supra represents the documents that were brought to the Court of Appeal from a court below, this paragraph represents what actually took place in the Court of Appeal, when it heard the appeal in that court;

(e) where leave to appeal is necessary, that is, in cases where the grounds of appeal are based on facts or mixed law and facts and an application has been made to the Court of Appeal for leave to appeal from its final decision in matters where the appeal that came to the Court of Appeal is from the final decision of a High Court, then, a copy of the order for leave to appeal. Even, where the leave to appeal to the Supreme Court has been made by the Supreme Court itself, a copy of the order for leave to appeal shall also be included in the Record.

(f) a copy of the Notice of Appeal from the Court of Appeal to the Supreme Court with a certificate from the Registrar of the Court of Appeal that the Notice of Appeal has been duly served upon the Respondents;

(g) a copy certified by the Registrar of the Court of Appeal to the effect that the appellant has duly and punctually, complied with the conditions of appeal which he has imposed upon such appellant,

(h) yet, another certificate from the same Registrar of the Court of Appeal that both the appellant and the respondent have either collected their copies of the record respectively or where they have not, that both have been duly notified that such record is ready for collection.

Now, where the appellant, acting with the consent of the Respondent considers that some of the documents and proceedings constituting the Record of appeal before the Court of Appeal or the documents and proceedings before the Court of Appeal itself should be excluded, then the Registrar needs not copy them. However, if it is at the instance of the Respondent, despite the consideration of the Appellant to the contrary, that such documents ought to be included, the Registrar of the Court of Appeal shall include them but make a note to the effect that he did so at the instance of the Respondent.

In preparing the Record of Appeal, only the minutes which have been signed by the Presiding Justice of the Court of Appeal in the particular case shall be deemed as the proceedings of the Court. Moreover, the Registrar of the Court of Appeal, in certifying each copy of the Record which he transmits or causes to be transmitted to the Supreme Court, shall not need to certify individual documents separately.

After the preparation of the Record of Appeal as aforesaid, the Registrar of the Court of Appeal shall then, within a period of not more than six months from date of the filing of the notice of appeal, transmit ten copies of that record with all the contents aforesaid to the Supreme Court. He shall accompany the transmission itself with a certificate indicating the date of service of records on all the parties. There should also be transmitted (just as under the 1977 Rules), to the Registrar of the Supreme Court, the dockets or files of the case in the Court of Appeal and that of the court of first instance. These dockets or files shall contain all papers or documents which were filed by the parties in connection with the case.

will like to observe here that Rule 4(1)(a) and (b) of the 1985 Rules provides for inclusion in that transmission –

“(a) a certificate of service of the notice of appeal, and

(b) a certificate that the conditions imposed under Order 7 have been fulfilled”.

These provisions have earlier been represented by Order 7 Rule 2(g) and (h) and I have already dealt with them. They are merely superfluous under Rule 4(1)(a) and (b).

The import of the 1985 Rules, in regard to appeals where the appeals are from a final decision of the Court of Appeal, is to expedite appeals and ensure that within six months of a final decision of the Court of Appeal, an appeal therefrom is already in the Supreme Court. This is a marked departure from the 1977 Rules which only specified that the Registrar of the Court of Appeal was to transmit the record, when it is ready. Again, under the 1977 Rules which only specified that the Registrar of the Court of Appeal was to transmit the record, when it is ready. Again, under the 1977 Rules, the discretion was in the Registrar of the Court of Appeal to determine the time within which the appellant should deposit with him a sum fixed to cover the estimated expense of making up and forwarding the record of appeal (Order 7 Rule 9 of the 1977 Rules) whereas under the 1985 Rules, the Registrar is obliged to inform the appellant of the assessed amount when he files the notice of appeal [Rule 3(1)] and the appellant is obliged to pay the amount so assessed not more than 14 days [Rule 3(2)], in addition to the normal discretion of the Registrar [Rule 3(3)].

B. WHERE THE APPEAL IS FROM DECISIONS IN INTERLOCUTORY AND SOME OTHER SPECIFIED CASES

More revolutionary in their provisions are the Rules in regard to interlocutory decisions and decisions affecting specific cases of the Court of Appeal in civil and criminal cases. The Rules provide

“1 (2)The provisions of Rules 6 and 7 of this Order (that is Order 7 sic) shall apply to any decisions of the Court of Appeal in respect of-

(a) an interlocutory decision made by it;

(b) a decision made by it on appeal from an interlocutory decision of a High Court;

(c) a decision made by it affirming or reversing an order for summary judgment, or

(d) a decision made by it in cases –

(i) where the liberty of a person or the custody of an infant is concerned;

(ii) where an injunction or the appointment of a receiver is granted or refused;

(iii) relating to or connected with the winding up of companies;

(iv) of a decree nisi in a matrimonial cause;

(v) affecting the Revenue of the Government of the Federation or of a State;

(vi) such other cases as the Court in its discretion may direct.”

In regard to these cases, Rules 6 and 7 (which I have already set out, are relevant). It is the appellant himself (and not the Registrar of the Court of Appeal) who would, either Simultaneously with filing his Notice of appeal or within 14 days thereof, prepare the Record of Proceedings. The contents are of limited nature compared with those required under appeals, other than those governed by these Rules. The appellant only requires

(a) the index;

(b) office copies of documents and proceedings which he, the appellant, considers relevant to his appeal;

(c) copy of the order of the Court of Appeal or of the Supreme Court (if any) for leave to appeal;

(d) a copy of his notice of appeal.

He is to be the judge of what is relevant to his appeal. But if the Respondent considers that the documents and the proceedings which have been filed by the appellant are not accurate or that he needs more papers for the purposes of the appeal of which he is Respondent, then he, the Respondent, shall, within a period of seven days after the Record filed by the appellant had been served upon him, file such other documents which he considers necessary.

As a way of proving those documents, a person who has read them and who has actually compared them with authentic copies or even with only certified true copies, shall, by an affidavit, verify the documents. In other words, apart from obtaining the office copies of documents and proceedings of the case and also a copy of the order of the Court for leave to appeal from the Registrar of the Court of Appeal, the entire process is undertaken by the appellant himself. Having obtained these documents and having got a person to verify them by affidavit, all that is left for the appellant is to lodge certified true copies of the office copy of the documents and proceedings and of the “office copy of the order for leave to appeal (if any)” with the Registrar of this Court. Now, with this short cut, the cumbersome process of settlement of record, present in the old system, and which tends to delay matters preliminary to the appeals coming to this Court have been completely wiped out in all cases whether they involve final or interlocutory decisions or even whether in any categorised areas. In matters relating to final decisions, all the preliminaries ought to have been completed within six months, and within a month in other cases.

The real bottleneck in the 1977 Rules had been the power of the registrar of the Court of Appeal to summon the parties for the purpose of settling the documents to be included in the record of appeal. It created a lot of delay to appeals finding their way to the Supreme Court for, before he settled the record, he would have spent much time serving notices filed by the appellant or the Respondent (Rule 5) waiting for about a month after such service for  the Respondent to file notice of his full address for service; and after the settlement of record serve on all parties to the appeal a notice again that the record has been forwarded to the Registrar. It consumed time and it so did unnecessarily.

This bottleneck has now been removed. The Registrar is not in any way concerned with settlement of any record. Indeed there is nothing anymore like the settlement of record. In the circumstance where the Registrar has to prepare the Record (and this has already been fully discussed – see Order 7 Rule 2) he knows what, under the Rules, to include in the record, he does not need to wait for the Respondent to file notice of his address. All he has to do is to serve the notice of appeal on the Respondent – and issue a certificate to that effect. He would know whether or not the appellant has duly and punctually complied with the conditions of appeal which he has imposed on that appellant and his responsibility is discharged once he issues a certificate to that effect. He would have informed the appellant at the time he filed his notice of appeal, of the amount he has estimated for the record and the amount of security for costs and if he waits for a fortnight after, and the appellant has not fully complied with this, he issues a certificate to that effect and the appeal will be aborted.

With all these explanations it is probably understandable that the Registrar of the Court of Appeal was still ignorant of the marked change in the Rules of Court and definitely with regard to the instant case, for the complaint of Mr. Sofola in seeking enlargement of time to prepare the Record of Appeal (which being in an interlocutory decision has to be prepared by the appellant himself and not the Registrar) was that after his junior counsel had called personally nearly every day at the Court of Appeal Registry to obtain as a matter of urgency, the proceedings of the Court of Appeal on 13th February, 1985, 26th March, 1985, and 17th April, 1985, the judgment delivered on 18th March, 1985, the Ruling delivered on 29th April, 1985, which the said Mr. Sofola considers relevant to the appeal so as to include the same in the Record of Appeal for the use of Judges of the Supreme Court”, in accordance with the 1985 Rules, he was unsuccessful because the Registrar in charge told him that he would have to issue the necessary notices to the appellant after assessing how much he would require as a deposit for the Supreme Court” and indeed the Registrar did cause the notice to be served on counsel, thus revealing the ignorance of that Registrar of the new Rules. The fault definitely was in the Registrar of the Court of Appeal who acted in pardonable ignorance and not that of the applicant represented by Mr. Sofola.

For these reasons I granted the leave he sought. For the education of the Registries of the Court of Appeal and the Supreme Court, I direct that a copy of this ruling be made available to every Registrar of the two courts. I do hope that if in future appellants or their learned counsel encounter similar difficulties they will bring this Ruling to the notice of the Registrar concerned.

A. G. IRIKEFE, J.S.C.: We had ruled on this application on Monday 16th September, 1985 and adjourned for reasons to be rendered for the said ruling. I had, before now, seen in draft, lead reasons just read by my learned brother, Eso, J.S.C. I agree with the said reasons and have nothing further to add.

D. O. COKER, J.S.C.: On the 16th day of September 1985, the application of Mrs. Alero Jadesimi (Nee Okotie-Eboh) as Appellant, seeking enlargement of time within which to prepare and file the Record of Appeal for the use of the Judges was granted. On the same day and time, the application of Dr. (Mrs.) Clara Akele, the 2nd Defendant/Respondent, for an order to strike out the appeal of the Appellant for failure to file within time the Record of Appeal was dismissed.

The operative Rules of Court applicable to both applications have been fully set out in the lead Reasons for Decision of my learned brother, Kayode Eso, J.S.C., and it is needless to repeat them. He has equally set out the former Rules now repealed and has ably commented on the changes. I entirely agree with his reasons and adopt them as my own. The delay to produce and file the Records of Appeal have been satisfactorily explained in the said lead Reasons and I am satisfied that the delay could not be attributed to the Applicant or that of her Counsel, who has shown due diligence in the prosecution of her appeal. The delay, in view, was due to the failure of the Registrar of the Court below to comprehend the changes in the former Rules by the 1985 Rules of the Court. The refusal of the said Registrar to comply with the new Rules and the inability of Counsel for the Appellant to secure copies of the relevant papers to be included in the Record of Appeal were responsible for the delay. No fault could be laid at the feet of the Appellant or her Counsel in the circumstance.

For these reasons and those adequately stated by my learned brother, Eso, J.S.C., I granted the application and enlarge the time.

A. G. KARIBI-WHYTE, J.S.C.: On the 16th September, 1985 we heard both the application of Mr. Kehinde Sofola SAN, counsel for the Appellant seeking an order for enlargement of time within which to prepare the record of appeal, and of Miss Ogunsola counsel for the respondent seeking an order of this court to strike out the appeal on the ground of want of prosecution. We granted Mr. Sofola’s application for enlargement of time, and dismissed Miss Ogunsola’s application. We indicated that we shall give reasons for doing so today.

I have read the reasons for judgment of my learned brother Kayode Eso, J.S.C. in this appeal. I entirely agree with his reasoning and conclusions. My learned brother Kayode Eso, J.S.C. having dealt exhaustively with the changes in Supreme Court Rules of 1977 brought about by the Supreme Court Rules 1985, it is unnecessary for me to go over the same ground. I proceed to deal with the issue argued. It is fairly clear from the averments in the affidavit filed that the issue before us was whether the want of prosecution on the part of the appellant was due to his inactivity, or it was the result of the ignorance of the current rules of court governing appeals to this court by the appropriate court official in the Court of Appeal. My learned brother Kayode Eso, has made a detailed analysis of the working of the two rules of court and has accentuated the changes made to the 1977 Rules hitherto applicable, by the 1985 Rules now in force. Concisely put, one of the cardinal improvements is that it is no longer required for parties under the 1985 Rules to go into the time wasting process of settling records which was the bottleneck in the 1977 Rules. Under the 1985 Rules, which governs the appeal in hand, the matters which must be included in the Record of Appeal are spelt out. Of course where an appellant or respondent desires to include additional documents, this could be done at his instance. Counsel for the appellant/applicant, Kehinde Sofola SAN, has in his argument relied on the affidavit filed. Counsel pointed out that his dilemma which resulted in his inability to comply with provisions relating to appeal within time, was the non-cooperation arising from the erroneous view held by the Registrar in the Court of Appeal, that appellant having given notice of appeal, must have to settle records. Of course under the 1977 Rules he was perfectly right, and the notice he sent to the respondents on the 14th June, 1985, (after the expiration of the 14 days) for the purpose would have been indispensable.

Accordingly, the Registrar refused to supply appellant with copies of the judgment delivered on the 18th March, 1985, and the ruling delivered on the 29th April, 1985, despite persistent efforts made. He also did not make available copies of the proceedings of the Court of Appeal on the 13th, 26th March, 1985 and 17th April, 1985 to enable appellant include them as part of the record of proceedings. By this failure he was erroneously and unwittingly making appellants to contravene provisions of Order 7 1.7(1) of the 1985 Rules. The Registrar’s excuse for non-compliance with the request of the appellant was that he would have to invite both parties for the settlement of the record of appeal before he could assess how much deposit he would ask for the compilation and transmission of the record of appeal to this Court.

In actual fact, as I have already stated, the Registrar proceeded to send out the relevant notices consistent with his understanding and conception of his role in these matters. It is relevant to point out that the judgment appealed against dated 18th March, 1985 is an interlocutory appeal against the ruling of the High Court of Lagos by Candid, Johnson, Ag. C.J. The Ruling of the 29th April 1985 appeal against is the ruling dismissing an appeal to the Court of Appeal for stay of proceedings in the High Court of Lagos suit No. LD/1035/81. Both appeals fall within Order 7 1.7(1). Notice of Appeal on this refusal was filed on the 7th May 1985 and should be complied with on or before 21/5/85. There is no doubt that on the facts averred in the affidavit which have not been contradicted, the notice of appeal was filed within fourteen days of the judgment appealed against and is within the period prescribed under Order 7 1.7(1), and S.31(2)(a) Supreme Court Act 1960. Counsel to the respondent had argued that it was not necessary to rely on the facilities of the court in order to comply with the conditions in Order 7 1.7(1). With due respect this, is a curious interpretation of the rule and ignores the actual modalities of court process.

It is important to appreciate that although under the 1985 Rules, the entire process of complying with the rules is undertaken by the appellant himself, the collaboration of the Registrar and the Court Registry is indispensable. For instance under order 7 r.7(1)(b)(c), the office copies of the proceedings and the order of the court for leave to appeal, or any judgment or ruling can only be obtained from the Court and certified by the appropriate official. All these must be filed within 14 days of the judgment. It is in this regard that the interpretation of the Registrar of his role came into conflict with the prosecution of the appeal by the appellant. The Registrar sent notices inviting parties to settle records on the 14th June, 1985. This is 21 days from the closing date of compliance with Order 7 1.7(1).

There is no doubt that the view of the Registrar and his discharge of his duty accordingly which was wrong, was entirely responsible for the inability of the appellant to satisfy the requirements of the new rules. It is consequently not a fault attributable to the appellant.

In such a circumstance where applicant is not in complete control of the situation, and where the omission resulting in the non-compliance with the rules of this court is attributable entirely to the default of the appropriate officer of the court below responsible for enabling applicant to comply, I think the interest of justice demands that applicant be completely absolved from responsibility. Accordingly he should be given an opportunity to comply with the rules. In this situation, to refuse the application will tantamount to punishing the applicant for the omission resulting from the erroneous interpretation of his duty by the appropriate responsible court official.

Furthermore, there is overwhelming evidence that there was no delay in the first instance in filing the notice of appeal before the court. The applicants have now obtained and filed all the documents required to enable them comply with the rules of this court. It will therefore, in my view, be contrary to justice to shut them out from arguing their appeal. I derive support for this view in the observation of Sowemimo, J.S.C. (as he then was but now the Chief Justice of Nigeria) in Abiegbe & Ors. v. Ugbodume & Anor. (1973) 1 ALL NLR at p 77 where he said,

“we think the above matters require some consideration when an application for extension of time or dismissal for want of prosecution is being considered either separately or together. It is in the interest of justice that parties should be afforded reasonable opportunity for their rights to be investigated and determined on the merits.

…To dismiss an action for want of prosecution does not give judgment in favour of the defendants nor does it prohibit the plaintiffs from filing a fresh action. It is therefore in the interest of both panies that they should not be subjected to any undue delay and further expenses in order to have their rights determined”.

It is conceded that this dictum refers to and was made in an application to the Supreme Court on appeal from the High Court in similar circumstances, it is humbly submitted that the same principle of the interest of justice in the determination of the rights of the parties is equally applicable, where, as in this case, it is an appeal from the decision of the Court of Appeal to this court.

The applicant having not been quilty of any fault resulting in the noncompliance, the reasons for enlarging the time to accommodate him is compelling and irresistible. These are my reasons for granting the application for enlargement of time and dismissing the application to dismiss the appeal for want of prosecution.

S. KAWU, J.S.C.: On 16th September, 1985, we granted the application of the appellant, brought under Order 2 Rule 31 of the Supreme Court Rules, 1985 for an enlargement of time within which to prepare the Record of Appeal. We then indicated that we would, today, give our reasons for doing so.

I have had the advantage of reading in advance, the reasons just delivered by my learned brother. Eso, J.S.C. I agree with them and I adopt them as my reasons for granting the application.

Application granted.

Appearances
K. Sofola, S.A.N. with him A. O. Aniagolu – for Mrs. Alero Jadesimi For the Appelants
Miss Ayo Ogunsola
A. Odofin
J. Y. Odebala
M. A. Agbamuche, (SAN) with him M. A. Agbamuche Jnr.
For the Respondents