NIGERIAN INDUSTRIAL DEVELOPMENT BANK LIMITED v. ELDERSON NIGERIA LIMITED
(2013)LCN/6318(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of June, 2013
CA/AK/112M/2011
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
NIGERIAN INDUSTRIAL DEVELOPMENT BANK LTD. Appellant(s)
AND
ELDERSON NIG. LTD. Respondent(s)
RATIO
WHETHER OR NOT A PARTY WILL BE MADE TO SUFFER FOR THE SINS OF HIS COUNSEL
The law is quite settled that a party will not be made to suffer for the sins of his counsel. It was held in the case of Ahmed Vs Trade Bank Plc. (1996) 3 NWLR (437) 445 @ 451 C – F that in order to avoid the sins of counsel being visited on the litigant, the applicant must show that he acted promptly in giving instructions to his solicitor to file the appeal but that the inadvertence or negligence of the solicitor caused the delay. See also: Chief of Air Staff & Ors. Vs Flying Officer Ojeikere Edward & Ors. (2010) LPELR- 3959 (CA). JOMBO-OFO, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Lead Ruling): This is a motion on notice dated 17/10/2011 and filed on 18/10/2011 for the following orders:
1. AN ORDER of the Honourable Court for extension of time within which to appeal against the judgment of Ondo State High Court Coram Olateru-Olagbegi, J. delivered on 18th February, 2000 in Suit No. AK/34/1991.
2. AN ORDER of the Honourable Court extending time within which the appellant/applicant shall file her Notice and Grounds of Appeal against the judgment of the Ondo State High Court delivered on 18th February, 2000 in Suit No. AK/34/91.
3. LEAVE AND ORDER of the Honourable Court to rely on the Record of Proceedings in Suit No. AK/34/91 already transmitted to this Honourable Court and used in Appeal No. CA/B/300/2006.
4. AND for such further and other order(s) as the Honourable Court may deem fit to make in the circumstances of this case.
The grounds for the application are stated on the face of the motion paper. It is supported by a 19-paragraph affidavit deposed to by one Nurudeen Adegboye, counsel in the law firm of Yusuf O. Ali & Co., Solicitors to the appellant/applicant. Attached to the affidavit are 2 exhibits marked A & B respectively. Exhibit A is a certified true copy of the judgment sought to be appealed against. Exhibit B is the proposed Notice and Grounds of Appeal.
The application is brought pursuant to Order 7 Rules 1 and 10 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of the court.
In opposition to the application the respondent filed a 42-pargraph counter-affidavit deposed to by SALIHU ADEBAYO, a counsel in the chambers of Chief Afe Babalola, SAN & Co., solicitors to the respondent. The appellant filed a further affidavit in support of the motion on 14/2/2012.
0n 5/3/2013 the court ordered the parties to file written address. The applicant’s written address is dated and filed on 18/3/2013. The respondent’s written address in opposition dated 2/4/2013 was filed on 3/4/2013. The applicant also filed a Reply address dated 10/4/2013 and filed on 11/4/2013.
At the hearing of the motion on 29/4/2013, S. O. BABAKEBE ESQ. adopted and relied on the appellant’s written address and urged the court to grant the application. AKINTAYO ALUKO ESQ. adopted and relied on the respondent’s written address in opposition and urged the court to dismiss the application.
In his written address, learned counsel for the applicant relied on 4 out of the 11 grounds stated on the face of the motion paper as being germane to this application. The grounds are:
1. The appellant/applicant is dissatisfied with the judgment of the Ondo State High Court delivered on 18th February, 2000 by Honourable Justice Olateru Olagbegi and filed a Notice of Appeal within time against same on 17th May, 2000.
2. The Notice of Appeal was inadvertently signed by a person unknown to law i.e. law firm.
3. The Notice of Appeal filed on 17th May, 2000 was struck out on the 27th October, 2008 by this Honourable Court when the appellant/applicant’s attempt to amend same failed, upon sustaining the respondent’s objection.
4. The appellant/applicant vide an application dated 29th December, 2008 sought for an extension of time within which to file another Notice and Grounds of Appeal and same was granted on 10th November, 2009 by this Honourable Court and 14 days was given to the appellant/applicant within which to file its Notice and Grounds of Appeal.
He also extrapolated the following facts as averred in the supporting affidavit:
(a) “That a judgment was delivered by Ondo State High Court on the 18th February, 2000 against the appellant and in favour of the respondent.
(b) That in expression of her displeasure with the said judgment the appellant/applicant promptly filed a notice of appeal within time on the 17th May, 2000.
(c) That when the law firm of Yusuf O.A. 1. & Co. was briefed to take over the appeal in 2005, an attempt made by the firm to amend the notice of appeal was unsuccessful as this Honourable Court struck out the said Notice of Appeal and/or the entire appeal on the 27th October, 2008 for being incompetent upon sustaining objection of the respondent that the Notice of Appeal sought to be amended was signed by a law firm and not a legal practitioner known to law.
(d) That the appellant/applicant still aggrieved with the said judgment of the Ondo State High Court delivered on 18th February, 2005, (2000) instructed our law firm to file a fresh Notice and Grounds of Appeal to challenge the said judgment.
(e) That a motion on notice dated 29th December, 2008 was filed, moved and granted by the Honourable Court on 10th November, 2009 extending the time within which the appellant/applicant shall file another Notice and Grounds of Appeal and directing filing of same within 14 days from the date of its grant.
(f) That a Notice and Grounds of Appeal was immediately prepared for filing at High Court, Akure but could not be filed within the extended time by this court due to judicial staff union (JUSUN) nation-wide strike (Ondo State inclusive) at the material time.
(g) That this application was filed to seek for further extension of time within which to file the Notice and Grounds of Appeal.”
He noted that some of the averments in the counter-affidavit relate to matters that have already been dealt with in the ruling of 10th November 2009 and are no longer relevant to the present application.
He raised two issues for determination:
1. Whether this Honourable Court was/is not functus officio in some of the issues of fact raised in the respondent’s counter-affidavit to the application in view of the ruling of 10th November, 2009.
2. Whether on the law and factual circumstance of this case, this Honourable Court ought to exercise its discretion in favour of the application.
With regard to the first issue he contended that the averments in paragraphs 10 – 21 and 26 – 31 of the respondent’s counter-affidavit are issues raised and considered in the ruling of 10/11/09 and submitted that the court has become functus officio in respect of these issues and cannot sit on appeal over the said decision. He referred to Nuhu Ahmed Vs. Lawani Yakubu (2009) 6 NWLR (1138) 493 @ 511. He argued that the issues cannot be revisited.
With respect to issue 2 he submitted that the applicant is seeking the exercise of the court’s discretion in his favour and must satisfy the following conditions:
i. That the delay in bringing the application is neither wilful nor inordinate.
ii.That there are good and substantial reasons for failure to appeal within the prescribed period.
iii. That there are good grounds which prima facie show good cause why the appeal should be heard.
iv. That the cause of delay was that of applicant’s counsel.
He relied on Goesource (Nig.) Limited vs. Biragbara (2000) 13 NWLR (Pt.684) 355 @ 358 para F – H; Shanu Vs. AFribank (Nig.) Plc (2000) NWLR (Pt. 684) 392 @ 401 para.A – B; National Inland Waterways Authority Vs Shell Petroleum Development Company of Nigeria Limited (2008) 13 NWLR (Pt. 1103) 48 @ 64 – 65 para H -B, G – H.
He submitted that the applicant by paragraphs 2 – 13 of the affidavit in support has satisfied the first condition by showing that the delay was due to the JUDICIAL STAFF UNION (JUSUN) strike and inadvertence of counsel.
He noted that notwithstanding the fact that the application for enlargement of time dated 4/8/2010 and filed on 6/8/2010 was filed belatedly after the JUSUN strike had been suspended, this court nevertheless exercised its discretion by granting extension of time to appeal.
He argued that paragraphs 15 and 16 of the supporting affidavit and Exhibit B, the proposed Notice of Appeal show that the applicant has arguable grounds, which prima facie show good cause why the appeal should be heard. He submitted that the court is not concerned at this stage with whether the appeal will ultimately succeed. He referred to Iyalabani Vs Bank of Baroda (1995) 4 SCNJ 1 @ 5.
He submitted that it is also in the interest of justice to allow the applicant to use the record of proceedings already transmitted to this court as the record of appeal herein in the event that the application is granted in its favour.
In conclusion he submitted that the applicant has a constitutionally guaranteed right of appeal, which ought not to be denied. He argued that the applicant has not shown the prejudice it would suffer if the application is granted. He urged the court to grant the application.
In opposition to the application, learned counsel for the respondent relied on all the depositions in the counter-affidavit and the submissions as contained in his written address. He noted that the applicant is still trying to appeal against a judgment of the High Court delivered on 18/2/2000, a period of more than 13 years. He referred to previous unsuccessful applications filed on its behalf. He contended that there was no record of proceedings upon which the applicant could rely to prosecute the present appeal because the applicant abandoned the previous appeal and failed to perfect the conditions of appeal in respect thereof. He noted that this was why the appeal was dismissed on 26/4/2006.
In paragraphs 1.10 – 1.13 of his address, learned counsel referred to the several earlier attempts made by the applicant to seek enlargement of time to appeal and argued that the present application is a ploy to further frustrate the respondent from reaping the fruit of its 13 year old judgment.
Learned counsel adopted the applicant’s second issue as the sole issue for the determination of the application.
Learned counsel submitted that the applicant failed to adduce good and substantial reasons for the delay in filing its notice of appeal within the 14 days enlarged by the court. He argued further that the reasons given for the delay as averred in the affidavit in support of the motion on notice dated 4/8/2010 and filed on 6/8/2010 are radically different from the averments in support of the present application in respect of the same time period. Urging the court to make use of its record in this regard he relied on: Agbaisi Vs Ebikorefe (1997) 4 NWLR (502) 630 @ 648 – 649 D – C; Fumudoh Vs. Aboro (1991) 9 NWLR (214) 210 @ 229 E. He examined the averments in the counter-affidavits in support of the earlier and present applications and argued that the applicant sought to correct certain false averments made in the earlier application in the later one. He argued that the present application is premised upon falsehood and the applicant does not deserve the exercise of the court’s discretion in his favour. He relied on the case of A.N.P. P. vs. Albishir (2010) 9 NWLR (1198) 118 @ 139 B – C; 145 E. He also submitted that mere reliance on the JUSUN strike action without more is not sufficient to entitle the applicant to the reliefs he seeks.
He contended that the applicant did not challenge the respondent’s averment that the strike began and ended in January 2010 and was not on as at 10/11/09 when the 14 days enlargement of time was granted. He urged the court to deem the uncontradicted averments in the counter-affidavit as admitted.
With regard to relief 1 (wrongly referred to as relief 2), learned counsel submitted that being a final decision the applicant does not require the trinity prayers or leave to appeal against it. He relied on: Ault & Wiborg (Nig.) Vs. Nibel Ind. Ltd. (2010) 11 NWLR (1220) 486 @ 498 – 499 F-A D- F;500 E.
With regard to prayer (iii) he argued that there are no materials upon which it could be granted. He maintained that the respondent was never invited to settle records as required by Order 8 Rule 2 of the Court of Appeal Rules 2011.
0n the contention that certain issues had been dealt with in the ruling of 10/11/2010, learned counsel contended that most of the facts averred in the counter-affidavit are events that took place after the said ruling.
He urged the court to determine the veracity of the allegations of falsehood by making reference to its file and looking at the motion and affidavit in support dated 4/8/2010 and filed on 8/8/2010 and comparing it with the affidavit in support of the present application. He submitted that the application dated 4/8/2010 was withdrawn for failure of the applicant to attach a copy of the judgment sought to be appealed against.
He argued further that the grounds of appeal contained in the proposed Notice of Appeal do not prima facie show good cause why the appeal should be heard.
Learned counsel contended that as the judgment sum has no interest element, it is the respondent who would suffer if the application were granted. He submitted that the case of National Inland Waterways Authority vs. S.P.D.C. Nig. Ltd. (supra) is unhelpful to the applicant as the respondent has shown more compelling reasons why the applicant does not deserve the exercise of the court’s discretion in its favour for a further extension of time.
In reply, learned counsel for the applicant pointed out that the applicant appealed timeously against the judgment but same was struck out on 27/10/08 because the Notice of Appeal was signed in the name of a law firm and not by a legal practitioner. He maintained that before the appeal was struck out, a record of appeal had been compiled and transmitted to the Court with Appeal No. CA/B/300/2006.
He submitted that the motion on notice filed on 6/8/2010 copiously referred to by learned counsel for the respondent had been withdrawn and struck out and ceased to form part of the court’s records. He argued further that the said application was not determined on its merits and cannot have any effect on the present proceedings. He submitted that the various authorities relied upon by the respondent are inapplicable in this case. He urged the court to discountenance the submissions based on processes not before the court and to grant the application.
I have given careful consideration to the submissions of both learned counsel, the affidavits in support of and in opposition to the application and the exhibits annexed thereto.
In an application for enlargement of time within which to appeal or seek leave to appeal, the applicant must satisfy two conditions:
1. He must accompany his application with an affidavit setting forth “good and substantial reasons” for his failure to appeal within the prescribed period; and
2. By grounds of appeal, which prima facie show good cause why the appeal should be heard.
See Order 7 Rule 10 (2) of the Court of Appeal Rules 2011. The general rule is that both conditions must be satisfied before the application could be granted. See: Ibodo Vs Enarofia (1980) 5 – 7 SC 42; Co-Operative & Commerce Bank (Nig.) Ltd. vs Ogwuru (1993) 3 NWLR (284) 630 @ 637 E – G; Iweka Vs SCOA (2000) 3 SC 21 @ 27 lines 24 – 35.
The main issue in contention in this application is the reason for the delay in filing the Notice of Appeal after the appellant was granted an enlargement of time by 14 days from 10/11/2009. In opposing this application, learned counsel for the respondent has argued extensively on the alleged indolence of the applicant since the judgment sought to be appealed against was delivered on 18th February 2000. At first glance the court and no doubt any right-thinking member of the public would be alarmed at the fact that enlargement of time is being sought to appeal against a judgment that was delivered more than thirteen years ago. However, it is not in dispute from the affidavit evidence before the court that the appellant acted timeously at the time the judgment was delivered by causing a notice of appeal to be filed on its behalf within the time prescribed by the applicable rules of court. It is also not in dispute that on 26/4/2006 the appeal was dismissed pursuant to a certificate of non-compliance with conditions of appeal under Order 3 Rule 20 (1) of the Court of Appeal rules 2002, which were the applicable rules at the time. It is averred in the further and better affidavit of the applicant that an application to re-list the appeal was subsequently granted on 19/3/2007. Before this time, sometime in 2005 the applicant changed its counsel. The new counsel sought, unsuccessfully, to amend the original notice of appeal which was discovered to have been signed in the name of a firm and not by a legal practitioner. The appeal was struck out on 27/10/08 on the ground that the original notice of appeal was defective and could therefore not be amended. The applicant therefore had to go back to the drawing board and apply for extension of time within which to appeal against the judgment of the lower court. The new application was granted on 10/11/09 and the applicant was granted 14 days within which to file its notice of appeal.
The applicant was allegedly unable to file the notice of appeal within the 14 days extended by the court as a result of the nationwide strike embarked upon by the Judicial Staff Union (JUSUN), which also affected Ondo State. It filed a motion on notice dated 4/8/2010 and filed on 6/8/2010 for further enlargement of time within which to appeal against the judgment of 18/2/2000. That application was found to be incompetent for failure to attach a copy of the judgment sought to be appealed against and was consequently struck out. This sequence of events, extracted from the respective affidavit and further affidavit in support of the application, is what has led to the present application.
With due respect to learned counsel for the respondent, the averments in the counter-affidavit relating to what transpired before the applicant was granted 14 days extension of time to file its notice of appeal by the order of this court made on 10/11/2009 are not relevant to the present application. This is because the grant or refusal of an application of this nature is at the court’s discretion. The discretion must no doubt be exercised judicially and judiciously taking all the facts and circumstances of the case into consideration. It is to be presumed that the court was seised of all the relevant facts and properly exercised its discretion in granting the enlargement of time sought on 10/11/2009. The issue is whether the applicant has shown good and substantial reasons for failure to file its notice of appeal within the 14 days extended by the court. It is averred that the motion on notice dated 4/8/2010 and filed on 6/8/2010 was struck out. It is no longer before the court. It does not form part of the case file now before us with miscellaneous number CA/AK/112M/2011. The respondent did not exhibit it. The court is therefore bound by the averments in the affidavits before it.
While the respondent contends that the JUSUN strike did not commence until 18th January 2010 as per Exhibit B attached to the counter-affidavit, the applicant maintains that the strike commenced on 2nd November 2009 and was still on as at 10/11/2009 when it was granted 14 days to file its notice of appeal. I am of the considered view that in an application of this nature the court must take a holistic view of the entire facts and circumstances of the case. What is apparent from the averments in the supporting affidavits is that the applicant has never wavered in its desire to appeal against the judgment of the lower court. There have been hitches here and there along the way that point to the negligence or ineptitude of counsel. The law is quite settled that a party will not be made to suffer for the sins of his counsel. It was held in the case of Ahmed Vs Trade Bank Plc. (1996) 3 NWLR (437) 445 @ 451 C – F that in order to avoid the sins of counsel being visited on the litigant, the applicant must show that he acted promptly in giving instructions to his solicitor to file the appeal but that the inadvertence or negligence of the solicitor caused the delay. See also: Chief of Air Staff & Ors. Vs Flying Officer Ojeikere Edward & Ors. (2010) LPELR- 3959 (CA). From all the facts before the court I am of the view that the applicant has shown good and substantial reasons for failing to file its notice of appeal within the time enlarged by the court. More over the applicant has disclosed good and arguable grounds of appeal and as such ought not be shut out. Whether the grounds of appeal will succeed is an issue for another day.
Accordingly the applicant’s motion on notice dated 17th October, 2011 and filed 18th October, 2011 is granted as prayed. This is to say that:
i. The applicant is granted an extension of time within which to appeal against the judgment of the Ondo State High Court delivered on 18th February, 2000 in suit nos. AK/34/1991.
ii. Applicant is granted 14 days from today within which to file and serve her Notice and Grounds of Appeal against the judgment of the Ondo State High Court delivered on 18th February 2000 in suit nos. AK/34/91.
iii. Applicant is further granted the leave of the court to rely on the Record of Proceedings in suit nos. AK/34/91 already transmitted to this court and used in Appeal nos. CA/B/300/2006.
PRONOUNCEMENT BY CORDELIA IFEOMA JOMBO-OFO, J.C.A.: My learned brother K.M.O. Kekere-Ekun, JCA presided the panel at the hearing of this appeal. He subsequently participated at the conference that led to the ruling just delivered by me. He agrees that this application be granted and abides by all the consequential orders in the lead ruling.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead ruling just delivered by my learned brother, Jombo-Ofo, J.C.A. I fully agree with it. I endorse all the reasoning and conclusions of my learned brother. I have nothing to add, I abide by all the consequential orders.
Appearances
S. O. Babakebe Esq.For Appellant
AND
Akintayo Aluko Esq.For Respondent
