HERITAGE BANKING COMPANY LIMITED v. NATIONAL UNIVERSITIES COMMISSION (2014)

HERITAGE BANKING COMPANY LIMITED v. NATIONAL UNIVERSITIES COMMISSION

(2014)LCN/7405(CA)

In The Court of Appeal of Nigeria

On Monday, the 14th day of July, 2014

CA/A/537/M/2013(R)

RATIO

APPEAL: APPLICATION OF EXTENSION OF TIME TO APPEAL; THE CONDITIONS FOR AN APPLICATION FOR EXTENSION OF TIME TO SUCCEED
By Section 24(2) of the Court of Appeal Act, 2004, a notice of appeal to the Court of Appeal against a final decision of a court in a civil matter must be given within 3 months of the decision. The judgment sought to be appealed against was given on 3/2/2006, while the application for exension of time to appeal was filed in the court on 25/9/2013, i.e., 7 years after the delivery of judgment. By Section 24(4) of the same Act, the court may extend the period within which to appeal. For an applicant for extension of time to succeed, he must satisfy two conditions. viz:
(i) There must be good and substantial reasons for failure to appeal within the prescribed period, and
(ii) There must be 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.
It must be stated that the two conditions are cumulative and the application is not granted as a matter of course or perfunctorily. See NIGERIAN LABORATORY CORPORATION V. PACIFIC MERCHANT BANK LIMITED (2012) 15 NWLR (1324) 505 and UBERE V. COMMISSIONER OF POLICE (2005) 6 NWLR (921) 360, 378 – 379. However where the proposed grounds of appeal complain of lack of jurisdiction or competence and it prima facie appears so, it may not be necessary to inquire into the reasons for the delay. See UKWU V. BUNGE (1997) 8 NWLR (518) 527, and ENYIBROS FOODS PROCESSING COMPANY LIMITED V. NATIONAL DEPOSIT INSURANCE CORPORATION (2007) 9 NWLR (1039) 216, 244 (also reported in (2007) 3 SC (11) 175.

It is also the law that where the proposed grounds of appeal are substantial, they are bound to weigh on the court’s mind in determining its attitude to delay. See ATTORNEY GENERAL OF RIVERS STATE V. IKENTA BEST NIGERIAN LTD (2005) 3 NWLR (911) 1, 19 and NIGERIA INDUSTRIAL DEVELOPMENT BANK V. KOLISCO (NIG) LTD (2010) 1 NWLR (1175) 387, 407. per. JOSEPH E. EKANEM, J.C.A.

APPEAL: DUTY OF AN APPLICANT; THE DUTY OF AN APPLICANT TO PLACE SUFFICIENT MATERIALS BEFORE THE COURT TO ASSIST THE COURT EXERCISE ITS DISCRETION IN HIS FAVOUR

It is the duty of an applicant To place sufficient materials before the court to assist the court exercise its discretion in his favour. See UNIVERSITY OF LAGOS V. OLANIYAN (1985) 1 NWLR (1) 156, 169. per. JOSEPH E. EKANEM, J.C.A.

APPEAL: STAY OF ENFORCEMENT; THE TERMS UPON WHICH THE COURT WILL GRANT A STAY OF ENFORCEMENT

In respect of money judgment, as in this case, the terms upon which the court will grant a stay of enforcement are:
(a) Whether making the applicant to satisfy the judgment would make his financial position such that he could not prosecute the appeal;
(b) Whether it would be difficult to secure the refund of the judgment debt and costs from the respondent if the appeal succeeds. See PAMOL (NIG) LIMITED V. ILAH AGRIC PROJECT LIMITED (2003) 8 NWLR (821) 38, 52. per. JOSEPH E. EKANEM, J.C.A.

JUSTICES

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

HERITAGE BANKING COMPANY LIMITED Appellant(s)

AND

NATIONAL UNIVERSITIES COMMISSION Respondent(s)

JOSEPH E. EKANEM, J.C.A. (Delivering the Lead Ruling): The appellant/applicant applies for;
“(i) AN ORDER enlarging time within which the Appellant/Applicant may file its Notice of Appeal against the decision of the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/293/2005 contained in the judgment of Honourable Justice A. I. Chikere on 3rd of February 2006.
(ii) AN ORDER deeming the already filed and served Notice of Appeal as properly filed and served, the appropriate filing fees having been paid.
(iii) AN ORDER of this Honourable Court staying enforcement or further enforcement of the judgment of the court below in Suit No. FHC/ABJ/CS/293/2005 contained in the judgment delivered by Honourable Justice A. I. Chikere on 3rd February 2006 either by way of garnishee proceedings, writ of execution, attachment and sale of the judgment debtor’s assets, writ of delivery, writ of possession, writ of sequestration or any other form of enforcement of a judgment debt pending the hearing and determination of the Appellant/Applicant’s appeal against the judgment”.
The grounds for the application are set out in the motion paper. The motion is supported by;
(i) A 36 – paragraph affidavit deposed to by Lynda Dunkwu, a legal practitioner in the firm of Babalakin & Co, Solicitors to the appellant/applicant, with exhibits, LD1, LD2, LD3, LD4, LD5, LD6, LD7, LD8, LD9, and LD10 attached;
(ii) An 11- paragraph further affidavit deposed to by Lynda Dunkwu;
(iii) A written address in support of the motion; and
(iv) A reply on points of law.

The respondent responded by filing;
(i) A 19 – paragraph counter affidavit deposed to by Folorunsho Ariyo, a Senior Legal Officer in the Legal Division of the Respondent, with Exhibits 9 and 10 attached; and
(ii) A written address.

When this application came up in court on 10th June, 2014, O.I. Arasi, Esq, of counsel, for the appellant/applicant adopted the written address and reply filed on behalf of the appellant/applicant. Counsel for the respondent, T.A.B. Oladipo, Esq adopted the written address filed on behalf of the respondent.
In the appellant/applicant’s address, settled by Miss Lynda Dunkwu, of counsel, one issue is raised for the court’s determination. It is as follows:
“Whether the Applicants are entitled to the Orders sought in the instant application? (sic)
Counsel first dealt with the application for extension of time. She stated that appellant/applicant is out of time in appealing against the decision of the Federal High Court (“the Lower court”, for short) but that this court has the jurisdiction to grant extension of time. Relying on Order 7 Rule 10(2) of the Court of Appeal Rules, she stated that an applicant for extension of time to appeal is required to show;
(a) Good and substantial reasons tor failure to appeal within the prescribed period; and
(b) Grounds of appeal which prime facie show good cause why the appeal should be heard.
After setting out some facts contained in the supporting affidavit, she submitted that it was evident that the applicant was completely unable to appeal due to the circumstances beyond its control, viz; the revocation of the applicant’s license, the removal of the applicant’s management officials and the appointment of the NDIC as the liquidator of the Applicant. She went on to state that the applicant’s grounds of appeal raise issues of law bordering on the jurisdiction of the lower court. It was her further submission that where a judgment is given without jurisdiction, it can always be appealed against at any time.
In respect of the prayer (iii) for stay of enforcement of the judgment sought to be appealed against, counsel submitted there are special circumstances justifying the grant of the prayer. Referring to Section 30 of the Court of Appeal Act, she stated that an appeal includes an application for leave to appeal. She submitted further that the notice of appeal disclosed weighty issues of jurisdiction and that this constitutes special or exceptional circumstance warranting grant of stay of execution. She argued that where a judgment debtor is a financial institution, prudence demands that such institution be allowed to retain the judgment debt pending the determination of an appeal. The cases of OWENA BANK (NIG) PLC v. O.B.C. LTD (1998) 9 NWLR (564) 129, 136 – 137, FIRST BANK V. DOYIN INVESTMENT LTD (1991) 1 NWLR (99) 634 and UNION BANK V. EMOLE (1991) 9 NWLR (213) 74 were cited to buttress her submission.
In the respondent’s written address settled by Babatope E. Mesele, Esq; 2 issues are proposed for the determination of the application.
The issues are:
(a) Has given good and substantial reasons for failure to appeal within the prescribed time, and
(b) Is supported by grounds of appeal which prima facie show good cause why the appeal should be heard.
2. The judgment sought to he appealed from being money judgment, whether there are special facts in the Applicant’s affidavit and substantial grounds of appeal sufficient to warrant the exercise of this court’s discretion to grant an unconditional order of stay of execution”.
Arguing issue 1, counsel submitted that where an appeal has not been filed within time, the court should not exercise its power to extend time unless there is an affidavit setting forth good and substantial reasons for failure to appeal within time and also grounds of appeal which prima facie show good cause why the appeal should be heard. He noted that there has been a delay of 7? years between the date of the judgment sought to be appealed against and the bringing of the application. He was of the view that the applicant’s grounds of appeal do not show good cause why the proposed appeal should be heard and so the length of the delay is a material factor- In support of his stance, counsel cited and relied on OJORA V. BAKARE (1976) 1 – 2 SC 26, 28 (REPRINT) and C.C.B. (NIG) LTD V. OGURU (1993) 3 NWLR (284). 630, 640.
It was further argued that the reasons given for failure to appeal within time as stated in paragraphs 9 and 11 of the supporting affidavit are irrelevant and not cogent. He set out the reasons for his conclusion and stressed that it had not been shown how the facts relied on by applicant prevented it from filing an appeal within time. He therefore urged the court to reject the reasons given for the delay, citing the case of NIGERIAN LABORATORY CORPORATION V. PACIFIC MERCHANT BANK LTD (2012) 15 NWLR (1324) 505, 524 in support. Counsel added that since the applicant had failed to show good and substantial reasons for failure to appeal within time, it is unnecessary to consider if the grounds of appeal show prima facie cause why the appeal should be heard.
In the alternative, he submitted that ground 1 of the grounds of appeal is either incompetent, does not raise a substantial issues or an issue of jurisdiction. He further submitted that the point raised in ground 2 of the grounds of appeal is a fresh issue which requires leave.
As regards issue 2, counsel asserted that no valid notice of appeal or ruling of the lower court refusing application for stay has been exhibited to the application as required by Order 7 Rule 3 of the Court of Appeal Rules. Again, application was not first made to the lower court, he noted.
Continuing, counsel stated that the judgment, the enforcement of which is sought to be stayed is a money judgment and that the only ground for granting a stay of enforcement is an affidavit showing that if the money is paid over to the respondent, there is no reasonable probability that the sum would be paid back should the appeal succeed. Bare assertion to that effect is not helpful, he added, as compared to the respondent’s undertaking to provide a bank guarantee within 60 days of receipt of the judgment debt to ensure repayment if the appeal fails. (sic; succeeds).
He was of the view that in the absence of an audited report of the applicant showing its asset and liabilities, the depositions of the applicant that the judgment sum is substantial and its payment would affect its right of appeal are hollow. He argued that the submission that being a financial institution, the applicant should be allowed to Keep the judgment debt does not represent the law. The cases of U.B.N. LTD V. ODUSOTE BOOKSTORE LTD (1994) 3 NWLR (331) 129, 149 – 150 and FBN PLC V. J.O. IMASUEN & SONS LTD (2005) 18 NWLR (957) 258, 276 – 277 were cited in support of the argument. Counsel finally urged the court to dismiss the application.
In a reply address as voluminous as the original address, applicant’s counsel argued that the issue of jurisdiction can be raised at any time without leave. It must however be stated that the bulk of the reply is a rehash or fine- tuning of the arguments in the original address. I therefore discountenance those aspects of the applicant’s reply.
The application of the applicant is in the main a 2 – pronged application for;
(1) Extension of time to appeal;
(2) Stay of enforcement of judgment.

I shall consider the application under those heads.
(1) Extension of Time to Appeal
By Section 24(2) of the Court of Appeal Act, 2004, a notice of appeal to the Court of Appeal against a final decision of a court in a civil matter must be given within 3 months of the decision. The judgment sought to be appealed against was given on 3/2/2006, while the application for exension of time to appeal was filed in the court on 25/9/2013, i.e., 7 years after the delivery of judgment. By Section 24(4) of the same Act, the court may extend the period within which to appeal. For an applicant for extension of time to succeed, he must satisfy two conditions. viz:
(i) There must be good and substantial reasons for failure to appeal within the prescribed period, and
(ii) There must be 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.
It must be stated that the two conditions are cumulative and the application is not granted as a matter of course or perfunctorily. See NIGERIAN LABORATORY CORPORATION V. PACIFIC MERCHANT BANK LIMITED (2012) 15 NWLR (1324) 505 and UBERE V. COMMISSIONER OF POLICE (2005) 6 NWLR (921) 360, 378 – 379. However where the proposed grounds of appeal complain of lack of jurisdiction or competence and it prima facie appears so, it may not be necessary to inquire into the reasons for the delay. See UKWU V. BUNGE (1997) 8 NWLR (518) 527, and ENYIBROS FOODS PROCESSING COMPANY LIMITED V. NATIONAL DEPOSIT INSURANCE CORPORATION (2007) 9 NWLR (1039) 216, 244 (also reported in (2007) 3 SC (11) 175.

Counsel for the applicant submitted that the grounds of appeal disclose the issue of jurisdiction and also show substantial and arguable grounds. Counsel for the respondent argued to the contrary. Where it is contended that the grounds of appeal raise issue of jurisdiction or that the grounds are substantial, the court is enjoined to consider the grounds to see if they prima facie disclose issue of jurisdiction or substantial grounds. In the case of UBENE V. COMMISSIONER OF POLICE supra. 377, it was held by this court that the court should not shrink from examining the proposed grounds of appeal.
Ground one of the notice of appeal – Exhibit LD9 of the applicant’s supporting affidavit – essentially complains that the lower court conducted proceedings and entered judgment against the applicant on 3rd February, 2006 after the Central Bank of Nigeria had revoked the banking license of the applicant, appointed the NDIC as its provisional liquidator and constituted an Interim Management Committee to oversee the winding up of the applicant on 15th January, 2006. This is said to be contrary to Section 425(1)(a) of the Companies and Allied Matters Act (CAMA) Section 41(1) of the Banking and other Financial Institutions Act and Section 40(1) of the Nigerian Deposit Insurance Commission Act.
The revocation of the banking license of the applicant is said to have been published in an Official Gazette dated 16th January, 2006 – Exhibit LD5 attached to the supporting affidavit. A look at Exhibit LD5 shows that the schedule containing the names of the bank whose licenses were revoked is conspicuously missing. Whether this is deliberate or not, I do not know but I sincerely hope it is not deliberate. The consequence is that the applicant has not placed sufficient materials before this court to enable the court to determine if there is a genuine issue of jurisdiction raised in the ground of appeal.

It is the duty of an applicant lo place sufficient materials before the court to assist the court exercise its discretion in his favour. See UNIVERSITY OF LAGOS V. OLANIYAN (1985) 1 NWLR (1) 156, 169.

This is also apart from the fact that the judgment does not mention anything about the revocation of applicant’s banking license.
I have also considered ground 2 of the grounds of appeal in the light of the judgment of the lower court. I do not think that it discloses any substantial issue to warrant the exercise of the court’s discretion in the applicant’s favour.
The sum of what I have said so far is that the grounds of appeal do not prima facie show good cause why the appeal should be heard.
As regards good and substantial reasons for failure to appeal within time, it is noteworthy that the applicant deposed that it could not appeal in time because its banking license was revoked and its Managing Director removed. It is further deposed that after the Federal High Court set aside the revocation of its license, it resumed banking operations on 4th March, 2013 and immediately took steps to appeal. See paragraph 9(v), (vi) (viii) (x) (xv) and (xvi) of the supporting affidavit. However, there is no cogent explanation for the delay of 6 months between 4th, March, 2013 and 25th September, 2013, when this application was filed. It is apparent that the applicant slumbered until it was jolted out of its slumber by the service on it of a garnishee order nisi relating to the judgment debt. The applicant shall have no help from this court as equity does not aid the indolent. The application for extension of time to appeal is without merit. It therefore fails along with the prayer for an order deeming the already filed notice of appeal as properly filed and served.
(2) Stay Of Enforcement Of Judgment

The application for stay of the enforcement of the judgment of the lower court is predicated on the existence of a valid appeal against the judgment the enforcement of which is sought to be stayed. See Section 17 of the Court of Appeal Act.

There is no valid appeal upon which a stay of enforcement of the judgment of the lower court can be granted
Even if there is a valid appeal, the applicant would still have the burden of showing special or exceptional circumstance to warrant grant of stay since courts do not make a practice of denying a judgment creditor of the fruit of his judgment.

I agree with counsel for the respondent that the bare assertion by the applicant that the execution of the judgment would destroy the applicant’s right of appeal and that it will be difficult, if not impossible, to recover the judgment debt from the respondent is not good enough. The applicant ought to go further and demonstrate how its right of appeal would be destroyed by exhibiting its audited report showing its assets and liabilities. See PAMOL NIG. LIMITED V. ILAH AGRIC PROJECT LIMITED supra. 54. The applicant, in respect of the assertion that it will be impossible to recover the judgment debt from the respondent, must prove that the respondent is a person of straw. See SIRPI ALUSTEEL CONST. NIG LTD V. SNIG NIGERIA LIMITED (2000) 2 NWLR (644) 229, 239.

The applicant has failed to satisfy these requirements. His application must therefore fail.
On the whole the application is without merit and I accordingly dismiss it in its entirety.
I assess the costs of this application at N50,000:00 in favour of the respondent.

MOORE A. A. ADUMEIN, J.C.A.: I had a preview of the ruling of my learned brother, Ekanem, JCA just rendered.
I agree that the appellant/appellant’s application lacks merit and I also dismiss it with N30,000.00 costs in favour of the respondent against the appellant/applicant.

MOHAMMED MUSTAPHA, J.C.A.: I read before now the ruling just delivered by my learned brother, Joseph E. Ekanem, JCA. I agree that this application lacks merit and equally dismiss same.
I also abide by the order for N50,000.00 cost to be paid to the respondent.

Appearances

Folorunsho Ariyo, Esq (with him, O.C. Obayuwuna (Miss) and L. Dunkwu (Miss)For Appellant

AND

T.A.B. Oladipo, Esq (with him, K.C. Ogbonna, Esq)For Respondent