Reflections On Order 6 Rule 4 Of The Court Of Appeal Rules, 2016; Making A Case For An Affidavit Of Notification.

1. INTRODUCTION
This paper takes an all-round look at the implication of interpreting Order 6 Rule 4 of the Court of Appeal Rules, 2016 (hereafter The Rules) in literal terms. It might interest us to know that if we take a closer look at its construct, there is a strong possibility we conclude that it births an absurdity. In our short time here, we shall think on the cure to its absurdity as well as attempt making a case for an affidavit of notification in a situation where an appeal is out of time.

2. ORDER 6 RULE 4 – THE KNOWN TO UNKNOWN

The popular notion shared by many trial lawyers and authors remains that all appeals, by way of rehearing, shall be brought by way of notice of appeal and filed in the registry of the court below vide Order 7 Rule 2 of The Rules. Also, it is the practice that where an interlocutory decision as of right or that requiring leave of the court is to be challenged by an aggrieved party, where brought within time i.e. 14 days, it should be filed at the court below first. It is trite that once out of time, the court below becomes without vires to entertain the application for enlargement of time within which its own decision can be appealed against; the court below lacks jurisdiction as only the court of appeal has the vires to grant the application for enlargement of time when satisfied that the appellant has shown good grounds why the appeal was filed out of time and why the grounds of appeal should be heard vide Order 6 Rule 9 (2) of The Rules. It is equally the position that interim orders pending appeal, such as stay of execution and stay of proceeding, must be filed at the court below, first – some authors tie this to 0rder 6 Rule 4 of The Rules and it is even believed, albeit erroneously, by some trial lawyers that all applications pending appeal must be filed at the lower court before bringing or filing the application at the registry of the court of appeal. It is to this unknown we turn.

Order 6 Rule 4 reads as follows:
Wherever under these Rules an application may be made either to the court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances, which make it impossible or impracticable to apply to the court below. (Words underlined mine for emphasis)

Instructive from the above underlined words are “wherever under these Rules” and “application may be made either to the court below or to the court”. A literal interpretation of these set of instructive words would mean The Rules provide for applications that could be made to the Court below or to the Court of Appeal but a cursory look at The Rules shows that it does not provide for or state, for example, interim orders pending appeal such as injunction pending appeal, stay of proceeding or stay of execution. It neither provides that interim orders, for instance, must first be brought before the court of first instance. The question then becomes, where can one ordinarily source applications that could be made either to the court below or the court of appeal? The answer is within reach. Say we further consider the source of applications like stay of proceedings and stay of execution, there are various court laws that give the courts below the power to entertain and rule on interim orders pending appeal as properly spelt out under the rules of court of those courts. For example, s.13 of the Federal High Court Act allows the Federal High Court to grant injunctions and its rules vide Order 32 Rule 1 vests on the court the power to entertain and rule on applications for stay of proceedings or execution pending appeal. Sections 16 and/or 18 of the National Industrial Court Act 2006 vests upon the Court the power to grant injunctions and urgent interim reliefs which a stay of proceedings and execution ordinarily falls under; its rules has under Order 64 Rule 8 of the National Industrial Court Rules, 2017, the express conferment of the court’s vires to entertain and decide applications for stay of proceeding and/or execution. In fact, all high court rules provide for the power of the high court to rule on interim reliefs pending appeal. In answering the question formulated above, “where can one ordinarily source applications that could be made either to the court below or the court of appeal?” while it appears that the pieces of legislation aforementioned merely vests on those courts the powers to determine interim orders without stating that the powers it possesses in that respect may be made even at the court of appeal to indeed satisfy the phrase “wherever under these rules an application may be made to the Court below and the Court” vide Order 6 Rule 4 of The Rules, s.16 of the Court of Appeal Act best resolves the aspect that deals with “may be made to the court below and the court” where it provides inter alia that the Court of Appeal may make an interim order or grant any injunction which the court below is authorised to make or grant. This resolution of the aspect dealing with “may be made to the court of appeal”, when read in conjunction with Order 6 Rule 4, shows that interim orders pending appeal such as stay of proceedings should be made to the court below save where there are circumstances making it impossible or impracticable to so do.

Unresolved is the aspect of “wherever under these rules”, and it is because all applications which could be made to the court of appeal cannot be found in The Rules that one must read and interpret Order 6 Rule 4 by ignoring the phrase “wherever under these rules” as The Rules does not provide for the bringing of applications both in the High Court and the Court of Appeal – For instance, application for bail, stay of execution, stay of proceeding, to mention a few, are provided for either in specific Acts or Laws or under the inherent jurisdiction of the courts and as we have seen, it is the Act or Law that makes the powers concurrent between the lower court and the court of appeal such that “may be made to the court of appeal” vide Order 6 Rule 4 becomes satisfied.

Reflecting on the apparent absurdity of the literal interpretation of Order 6 Rule 4 of The Rules, the Supreme Court in MOHAMMED V OLAWUNMI [1993] 4 NWLR (Pt. 287) 254 @ 262, on the construction of Order 3 Rule 3 (4) of the Court of Appeal Rules 1981 (now Order 6 Rule 4 of the Court of Appeal Rules 2016) held as follows:

“Therefore, in order to avoid absurdity, Order 3 rule 3(4) should be interpreted as meaning“wherever an application may be made either to the High Court or to the Court of Appeal, it shall not be made in the first instance to the Court of Appeal except there are some special circumstances, which make it impossible or impracticable to apply to the High Court.” (Underlined words mine for emphasis)

This interpretation by the Supreme Court indeed clears the absurdity as it replaces the construction of words “wherever under these rules” with “wherever an application”. It is submitted that the remaining set of words underlined still buttresses what has been said earlier – the applications which may be made to both the court below and the Court of Appeal must be made to the court below save for special circumstances. The implication of the construct is such that where a specific Act or Law providing for the bringing of an application before the Court of Appeal does not make for such provisions to be brought to either the Court below or the Court of Appeal, it would be absolutely needless to make the applications at the Court below. A typical example is bringing an application for bail pending appeal. It would be agreed here that the various high court laws with its rules do not enjoy the jurisdiction to entertain an application for bail pending appeal. The only specific Act that provides for the bringing of such application is s.29 (1) of the Court of Appeal Act. For ease of reference, the said section will be reproduced hereunder:

“The Court of Appeal may, if it thinks fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal.” (Underlined words mine for emphasis)

Beyond a doubt, from words underscored, only the Court of Appeal has the vires to entertain an application for bail pending appeal. The effect is such that it would be incorrect to read an application for bail pending appeal into Order 6 Rule 4 of The Rules as the particular application is not one that may be made at either the Court below or the Court of Appeal. By way of re-emphasizing, not all applications can be trapped by Order 6 Rule 4 as one must first ascertain whether those are applications that may be made to either the court below or the court of appeal such that the application may or may not be brought before the court below, first.

3. MAKING A CASE FOR AFFIDAVIT OF NOTIFICATION

Having flowed from the known to the unknown, this segment may pose a bumpy transition especially after one must concede to the fact that there is no such application or affidavit shaped in form of an affidavit of notification. A strange application it would seem but the real question is, “upon what circumstances can this strange application be a true reflection of prayers sought by an appellant? Not to worry, an instance would be smoothly sketched.

Suppose an aggrieved litigant intends to appeal an interlocutory ruling but is now out of time, it is settled law that such applications can only be filed at the Court of Appeal since the court below lacks jurisdiction to entertain same. Say the aggrieved litigant has successfully entered his notice of appeal, it is equally settled law that subsequent applications be made to the Court of Appeal and not the Court below as the lower court becomes functus officio to so determine applications after the court of appeal has become seised of the matter to be re-heard. On the strength of this settled law, the aggrieved litigant filed a stay of proceeding alongside his notice of appeal at the court of appeal but is in a quandary wondering how best to notify the lower court that he has entered both the notice of appeal and stay of proceedings at the court of appeal since he appealed out of time. He has gone by way of an affidavit of notification to put the court below (trial court) on notice that His Lordship be aware of the developments but the court is unshaken and says failure to come by way of motion must see that proceedings go on – long and short, a preliminary objection is taken despite a pending appeal.

It must be understood that it is reckless to hold that all applications come by way of motion. In fact, one must wonder why same preached digest does not extend to applications for adjournments or applications to stand down a matter, for example. It is curious what such a motion must be headed with or whether the appellant (aggrieved litigant) is supposed to be praying the court for an order to further comply with the constitutional hierarchy of courts. In the case of VASWANI TRADING CO. V SAVALAKH & CO. (1972) ALL NLR (Pt. 2) 483 and MOHAMMED V OLAWUNMI (SUPRA) the Supreme Court held that where a judge of the High Court is aware of an application in a higher court like the Court of Appeal in a case before him, but deliberately chooses to ignore it, it is an attitude which borders on judicial impertinence and is an affront to the authority of the Court of Appeal. In other words, the question is whether the court was aware? It is always the position that the courts should abhor technicalities – the interest the affidavit of notification was to serve was to notify the court below and it is always commendable that the courts be more interested in confirming such developments by asking for the notice of appeal, examining appeal numbers on the stay of proceedings, to mention a few. It will amount to an affront to have been notified “strangely” of a pending appeal and a stay of proceeding yet working stubbornly to see that the matter proceeds. It is in this sense that an affidavit of notification could be used should one find it altogether bizarre to bring such notification of developments by oral means.

4. REFLECTIONS

It is the position, as abovementioned, that not all applications to the Court of Appeal must first be brought to the Court below as one can only determine the applicability of Order 6 Rule 4 of The Rules upon examination of the specific Laws or Acts providing for such applications and whether the applications “may” be made either ways.

It is the position of the writer, also, that one can rely on an affidavit of notification to make the trial court aware of a stay of proceeding entered at the Court of Appeal due to an appeal entered out of time. Since such affidavits are facts which are relatively harmless, it would be chaotic for any court to disregard same as though to foist a fait accompli on the Court of Appeal.