RCN NETWORKS LIMITED & ANOR v. GUARANTY TRUST BANK PLC (2018)

RCN NETWORKS LIMITED & ANOR v. GUARANTY TRUST BANK PLC

(2018)LCN/12272(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of December, 2018

CA/L/888/2014(R)

JUSTICE

TOM SHAIBU YAKUBU justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR justice of The Court of Appeal of Nigeria

Between

1. RCN NETWORKS LIMITED

2. ALHAJA SI-NURAINA ABIOLAAppellant(s)

AND

GUARANTY TRUST BANK PLCRespondent(s)

RATIO

THE FUNDAMENTAL OBJECTIVE OF THE COURT OF APPEAL (FAST TRACK) PRACTICE DIRECTIONS, 2014

The fundamental objective of the Court of Appeal (Fast Tack) Practice Directions, 2014, made under the hand of the Hon. President of the Court of Appeal, ZAINAB A. BULKACHUWA, CFR., pursuant to Section 248 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Section 8(2) of the Court of Appeal Act, 2004; is stated in paragraph 3. (a) of the said Practice Directions, thus: “3 (a) This Practice Direction is a set of directions with the fundamental objective of enabling the Court to deal with fast-track appeals quickly and efficiently.”
The above direction admits of no ambiguity, so it needs no further interpretation. But there is need to decipher and know what a fast- track appeal, means. The said term is defined in paragraph 1 of the aforementioned Practice Directions, inter alia:

“fast- track appeal” means any of the following:

– Debt appeals

– Appeals pertaining to or connected with:

– Corruption;

– Human Trafficking

– Kidnapping

– Money Laundering

– Rape

– Terrorism

Appeals by or against such national human rights, intelligence, law enforcement, prosecutorial or security agencies such as the Economic and Financial Crimes Commission, Independent Corrupt Practices Commission, National Human Rights Commission, the State Security Service.”

The phrase “debt appeal” is defined at Paragraph 1 of the Court of Appeal (Fast Track) Practice Directions, 2014, thus:

“debt appeal” means an appeal to the Court by or against a debt resolution agency in connection with the agency’s statutory duties, functions, objects, operations, powers or transactions;”

Furthermore, the phrase: debt resolution agency is also defined at the same paragraph 1 of the aforementioned Practice Directions, thus:

“debt resolution agency” includes the Asset Management Corporation of Nigeria;”.

WHETHER OR NOT A LITIGANT IS SANCTIONED FOR THE DEFAULT OR FAILURE TO TAKE ANY ACTION BY A COURT OFFICIAL

And it is well settled law, which is trite, that a litigant is not to be sanctioned for the default or failure to take any action by a Court official. Chukwuma Ogwe & Anor v. Inspector General of Police & Ors (2015) LPELR -24322 (SC); Ede v. Mba (2011) 18 NWLR (pt. 1278) 236 @ 266; Duke v. Akpabuyo Local Govt. (2005) 12 S.C.N.J. 280 @ 293; C.C.B. (Nig) Plc v. Attorney General, Anambra State & Anor (1992) 8 NWLR (pt.201) 528. In effect, I am satisfied that in the circumstances of this matter, that the appellants are diligent in prosecuting their appeal. PER YAKUBU, J.C.A.

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Lead Ruling): The respondent had filed a motion on notice on 24th January, 2018, praying for the dismissal of this appeal for want of diligent prosecution, thus:

MOTION ON NOTICE

BROUGHT PURSUANT TO ORDER 6 RULE 1 AND ORDER 20 RULE 5 OF THE COURT OF APPEAL RULES 2016; PARAGRAPH 2(A), PARAGRAPH 8(3) AND (4), AND PARAGRAPH 7(A) OF THE COURT OF APPEAL (FAST TRACK) PRACTICE DIRECTIONS 2014 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT

GROUNDS FOR THE RELIEF SOUGHT

1. The Appellants/Respondents filed their Appellants’ brief on the 13th of November, 2014 and subsequently brought an application dated 2nd April, 2015 to holistically amend the Notice of Appeal.

2. Despite the filing of the aforesaid application, the Appellants/Respondents have neither taken any step to diligently prosecute the aforesaid application nor the instant appeal till date, but have chosen to commence a fresh suit at the Lagos State High Court -SUIT NO: D/6312MFHR/18 RCN NETWORKS LTD. V. GTB & ORS, for similar claim already decided upon by the Lower Court and further accorded legal cloak

by Honourable justice Oke-Lawal of the Lagos State High Court in SUIT NO.: LD/574/i3 RCN NETWORKS LTD. V. GTB PLC by a ruling delivered on 23rd day of June, 2016 on same subject matter.

3. The reliefs sought in the fresh suit filed at the Lagos State High Court -SUIT NO: LD/6312MFHR/18 RCN NETWORKS LTD. V. GTB & ORS, by the appellant/respondent mirrors the additional grounds for the proposed amendment notice of appeal exhibited in support of the Appellant/Respondent application dated 2nd April, 2015.

4. The filing of the fresh suit at the Lagos State High Court -SUIT NO: LD/6312MFHR/18 RCN NETWORKS LTD. V. GTB & ORS, in the pendency of this instant appeal is an affront on this Honourable Court.

5. The instant appeal emanates from a suit affirming an outstanding indebtedness and same qualifies for fast track under the Court of Appeal (Fast Track) Practice Directions 2014.

6. Failure of the Appellants/Respondents to diligently prosecute this appeal.

7. The Appellants/Respondents have not paid the judgment sum into the Court as required by the Rules of this Honourable Court.

8. The rules of this Court allows for the instant application to be made.

9. The reliefs sought are such that this court is empowered to grant.

In support of the application, is an affidavit containing 13 paragraphs, to wit:

AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE

I, IKECHUKWU NDUKA, Male, Christian, Nigerian Citizen of 50/52 Broad Street (5th floor) Lagos State, do hereby solemnly and sincerely declare that I make this solemn declaration conscientiously believing same to be true, and by virtue of the provisions of the Oaths Act, state as follows:

1. I am a Litigation Officer with the firm of Jireh & Greys Attorneys Counsel to the Respondent/Applicant herein and by virtue of which I am conversant with the facts of this case.

2. I have the authority of the Respondent/Applicant and that of my employer to depose to this affidavit, and the facts herein deposed are facts disclosed to me by Michael Ogunjobi, a legal practitioner in the employment of the Respondent/Applicant’s counsel, seised of the facts of the instant appeal in our office on the 23rd day of January, 2018 at about 2pm and of which I verily believe to be true as follows:

3. The Federal High Court, Lagos Judicial Division coram Honourable justice C.J. Aneke in his judgment of 20th June, 2014 granted reliefs in favour of the Respondent/Applicant against the Appellants/Respondents.

4. The Appellants/Respondents being dissatisfied with the said judgment of Court, filed a Notice of Appeal dated 30th June, 2014 at the Federal High Court, Lagos Registry.

5. The Appellants/Respondents filed their Appellant’s brief on the 13th of November, 2014 and subsequently brought an application dated 2nd April, 2015 to holistically amend the Notice of Appeal.

6. Despite the filing of the aforesaid application, the Appellants/Respondents have neither taken any step to diligently prosecute the aforesaid application nor the instant appeal till date, but have chosen to commence a fresh suit at the Lagos State High Court in SUIT NO: LD/6312MFHR/18 RCN NETWORKS LTD. V. GTB PLC & ORS, for similar claim already decided upon by the Lower Court and further accorded legal cloak by Honourable justice Oke-Lawal of the Lagos State High Court in SUIT NO.: LD/574/13 RCN NETWORKS LTD. V. GTB PLC are attached by a ruling delivered on 23rd

day of June 2016 on by Honourable justice Oke-Lawal of the Lagos State High Court in SUIT NO.: LD/574/13 RCN NETWORKS LTD. V. GTB PLC are attached and marked EXHIIBT J & G 1 & 2 respectively.

7. The reliefs sought in the fresh suit filed at the Lagos State High Court -SUIT NO: LD/6312l/MFHR/18 RCN NETWORKS LTD. V. GTB & ORS by the Appellants/Respondents mirrors the additional grounds in the proposed amended Notice of Appeal exhibited in support of the Appellants/Respondents’ application dated 2nd April, 2015.

8. The filing of the fresh suit at the Lagos State High Court -SUIT N0: LD/6312MFHR/18 RCN NETWORKS LTD. V. GTB & ORS, in the pendency of this instant appeal is an affront on this Honourable Court.

9. The Appellants/Respondents have failed to pay into the Court, the judgment sum being N970, 793, 041.15 (Nine Hundred and Seventy Million, Seven Hundred and Ninety Three Thousand, Forty One Naira and Fifteen Kobo) being the aggregate of the debt which Honourable justice C.J. Aneke had found the Appellants/Respondents liable to pay to the Respondent/Applicant and costs of N50,000 (Fifty Thousand Naira) awarded in favour of the Respondent/Applicant.

10. The Appellants/Respondents have failed to take any positive step towards the speedy determination of the instant appeal since 2015 when they filed an application to holistically amend the Notice of Appeal.

11. The tardiness and failure of the Appellants/Respondents to diligently prosecute their appeal confirms that the Appellants/Respondents are not interested in this appeal but use same as dilatory tactics to frustrate Respondent/Applicant from reaping the fruit of the judgment of the lower Court given in its favour.

12. In consequence of the foregoing, I verily believe that it will be in the interest of justice to dismiss the instant Appeal before this Honourable Court since the Appellants/Respondents are unwilling to prosecute same.

13. I make this affidavit in good faith believing the content to be true and in accordance with the Oaths Act, LFN 2004.

The appellants, in opposing the application, filed a counter affidavit of 4 paragraphs, to wit:

COUNTER AFFIDAVIT

I, OKAFOR ATANATUS, Male, Nigerian citizen, litigation clerk of 198, Igbosere road, Lagos does hereby make oath and state as follows:

(1) That I am a litigation clerk in the employment of Charles Anthony LLP, counsel to the Appellants/Respondents and by virtue of this fact, I am conversant with the facts of this case.

(2) That I have the authority and consent of the Appellants/Respondents and that of my employers to depose to this affidavit.

(3) That MUYIWA LATUNDEDADA Esq. who is counsel in chambers well seised of this matter informed me in Chambers at about 2pm on Monday 12th March 2018, during a briefing on the matter and I verily believe him as follows:

i. That on the 7th March 2018, while he was in Court for this matter, he was served with a Motion on Notice dated 24th January 2018 by Counsel for the Respondent/Applicant.

ii. That paragraphs 3 and 5 of the Affidavit in support of the said Motion are true.

iii. That paragraphs 6, 7, 8, 9, 10, 11 and 12 of the Affidavit in support are not true and are vehemently denied.

iv. With regards to paragraph 6, the Appellants/Respondents aver that save for Exhibits J&G 1 & 2, which are admitted, they took all reasonable steps to diligently prosecute the motion dated 2nd April

2015 and the Appeal. The Appellants/Respondents through their counsel Charles Anthony LLP, made several follow- ups at the Court of Appeal Registry Lagos and wrote letters dated; 8th May 2015, 15th February 2016 and 5th December 2017, requesting the Deputy Chief Registrar of Court of Appeal Lagos to give the said Motion a date. Copies of the said letter are hereby shown to me and marked Exhibits A, B and C.

v. That given the circumstances, Exhibits A, B, and C and visits to the Courts registry to follow-up on same are the steps any litigant and or his counsel is expected to take.

vi. With further regards to paragraphs 6 and 7 of the affidavit in support the Appellants/Respondent state that the Respondent/Applicant took advantage of the delay by the Court registry in fixing a date for the hearing of the said Motion of 2nd April 2015 to sell off the property of 2nd Appellant/Respondent allegedly used as collateral to a third party. As at the time the said property was sold by the Respondent/Applicant, the said Motion dated 2nd April 2015 was pending and the same has been served on the Respondent/Applicant through its counsel.

vii. That the aforesaid conduct of the Respondent/Applicant necessitated the institution of Suit No: LD/6312MFHR/18-RCN NETWORKS LTD VS GTB & ORS whose claims and reliefs are different from the ones in Suit No: LD/574/13- RCN NETWORK LTD VS GTB PLC, in that in the latter suit, the bona-fides of the Tripartite legal mortgage was not challenged and there had been no sale of the property allegedly used as collateral by the 2nd Appellant/Respondent.

viii. With regards to paragraphs 7 and 8 of the affidavit in support, the reliefs sought in SUIT NO: LD/6312MFHR/18-RCN NETWORKS LTD VS GTB&ORS do not mirror the additional grounds in the proposed amended Notice of Appeal, which as at the time it was filed, there was no sale of the 2nd Appellants property allegedly used as collateral. The said fresh Suit at the Lagos High Court do not constitute an affront on this Honourable Court.

ix. With regards to paragraph 9, the Appellants/Respondents say that despite the pendency of the motion dated 2nd April 2015, there has been a purported sale of the 2nd Appellants property allegedly used as collateral by the Respondent and or its agents.

x. With regards to paragraphs 10, 11 and 12 of the Affidavits in support the Appellants/Respondents aver that they have through their counsel taken every reasonable step to prosecute this Appeal.

(4.) That I make this Affidavit in good faith believing the content to be true and in accordance with the Oath Act LFN 2004.

In response to the Counter Affidavit, the respondent filed A Further Affidavit of 4 paragraphs, thus:

FURTHER AFFIDAVIT IN SUPPORT MOTION ON NOTICE DATED 24TH JANUARY, 2018

I, MAJEED BALOGU ,Male, Muslim, Nigerian citizen, Legal Practitioner, of Bookshop House 5th Floor, 50/52 Broad Street, Lagos do hereby make oath and depose as follow:

1. I am counsel in the law firm of Jireh & Greys Attorneys, counsel to the Respondent herein and I have the Respondent’s authority and the consent of my employer to depose to this affidavit.

2. I have seen a copy of the Counter Affidavit of the Appellants dated 16th of March, 2018 filed in opposition to the Respondent’s Application to dismiss the Appeal dated January 24, 2018 and the facts herein deposed are within my knowledge and based on facts garnered upon a review of the case file in

the instant suit save as otherwise stated, which I verily believe to be true and correct and by which I state as follows:

a. The Appellants never served the Respondent with any copy of letters by the Appellants seeking hearing date for their motion before the Court.

b. The Appellants attempted only once in each of the years of 2015, 2016 and 2017 to write for their motion to be set down for hearing.

c. The sale of the property was further to the judgment of the Hon. justice Aneke of the Federal High Court delivered on the 20th June, 2014.

d. No stay of execution was ordered on the judgment.

e. The Appellants have exhibited a complete lack of diligence in the pursuit of their Appeal.

3. It is in the interest of justice that the application of the Respondent be granted.

4. I depose to this affidavit in good faith believing the content to be true and in accordance with the Oaths Act.

In view of the contentious nature of the application, learned counsel to the parties were directed to file and exchange their respective written addresses. The applicant’s written

address was dated and filed on 13th March, 2018 whilst the respondent’s written address was dated and filed on 17th April, 2018. Thereafter, the applicant’s reply on points of law dated 4th June 2018, was filed on 6th June, 2018.

The learned senior counsel to the respondent’s contention in the application, is that although the appellants had filed their appellants’ brief of argument, they filed an application to amend their notice of appeal and refused to prosecute their appeal. It is his contention that this appeal being under the 2014 Court of Appeal (Fast Track) Directions, the appellants’ brief of argument, which was filed on 13th November, 2014, 31 days later than they ought to have filed it, was in contravention of Paragraph 8(3)&(4) of the aforementioned Fast Track Directions, 2014. Furthermore, it is the contention of the respondent, that the record of appeal, was not compiled and transmitted within the time stipulated in Paragraph 13(3) of the same 2014 Fast Track Directions, because the said record of appeal was compiled and transmitted to this Court, after 91 days between the date that the notice of appeal was filed and the date the record of appeal was compiled and transmitted to

this Court. Therefore, according to the respondent, the record of appeal has not been properly laid before this Court. Finally, the respondent contend that the appellants failed and neglected to prosecute the application they had filed since 2nd April,2015 to amend their notice of appeal, but instead went to file a fresh Suit NO: LD/6312MFHR/18 which is of the same subject matter with the pending appeal herein. And that this is tantamount to an abuse of the process of Court. He urged that the appeal be dismissed for want of diligent of prosecution.

In his responses to the respondent’s contentions, the appellants’ learned counsel, submitted that the Respondent/ Applicant is not a “debt resolution agency” as defined at Paragraph 1 of the Court of Appeal ( Fast Track) Practice Directions, 2014.

Therefore, according to him, all the arguments proffered by the respondent/applicant’s counsel should be discountenanced, because this appeal is not governed by the Court of Appeal (Fast Track) Practice Directions, 2014. He also submitted that assuming but without conceding that the aforementioned 2014 Practice Directions, governs this

appeal, the said Practice Directions came into force only on 8th December, 2014 whereas the appellants’ brief of argument had been filed since 13th September, 2014. With respect to the question of the non – prosecution of the appellants’ application for amendment of their notice of appeal, it is his submission that the appellants, having applied to this Court vide exhibits A, B and C attached to their Counter Affidavit, they cannot be accused of not being diligent in prosecuting their appeal. And that if the officials of the Court delayed in fixing the date for the hearing of the said application for amendment of appellants’ notice of appeal, the fault of the Court officials, cannot be visited on the appellants. He relied on Famfa Oil Ltd v. A.G. Federation (2003) 18 NWLR (pt.852) 453 @ 469. Regarding the filing of a fresh suit by the appellants against the respondent at the Lagos State High Court in Suit NO: LD/6312MFHR/18, respondent’s counsel submitted to the effect that it was because the respondent had started disposing of the property of the 2nd appellant while the appeal herein is pending, that the said fresh action was filed so that the

purported sale of the 2nd appellants’ property, be set aside.

Resolution:

“3 (a) This Practice Direction is a set of directions with the fundamental objective of enabling the Court to deal with fast-track appeals quickly and efficiently.”

The above direction admits of no ambiguity, so it needs no further interpretation. But there is need to decipher and know what a fast- track appeal, means. The said term is defined in paragraph 1 of the aforementioned Practice Directions, inter alia:

“fast- track appeal” means any of the following:

– Debt appeals

– Appeals pertaining to or connected with:

– Corruption;

– Human Trafficking

– Kidnapping

– Money Laundering

– Rape

– Terrorism

Appeals by or against such national human rights,

intelligence, law enforcement, prosecutorial or security agencies such as the Economic and Financial Crimes Commission, Independent Corrupt Practices Commission, National Human Rights Commission, the State Security Service.”

The phrase “debt appeal” is defined at Paragraph 1 of the Court of Appeal (Fast Track) Practice Directions, 2014, thus:

“debt appeal” means an appeal to the Court by or against a debt resolution agency in connection with the agency’s statutory duties, functions, objects, operations, powers or transactions;”

Furthermore, the phrase: debt resolution agency is also defined at the same paragraph 1 of the aforementioned Practice Directions, thus:

“debt resolution agency” includes the Asset Management Corporation of Nigeria;”.

The above provisions are very clear and in simple English Language and they do not require any interpretation. They are to be given their ordinary grammatical and purposive meaning. Nigerian Army v. Brigadier General Maude Aminu (2010) 1 S.C.N.J.250. It does not require any hard thinking for any person who understands English Language, that this appeal is not by or against a debt resolution

agency and neither the 1st appellant nor the respondent, is a debt resolution agency. Therefore, the submissions of the respondent/applicant’s counsel in respect of the appellants’ brief of argument and the record of appeal, being incompetent, are disingenuous and paled into insignificance. This appeal is not governed by the Court of Appeal (Fast Track) Practice Directions, 2014. I so hold.

I have perused Exhibits A, B and C attached to the appellants’ Counter Affidavit against this application. It is clear to me that the appellants took steps to get their application for the amendment of their notice of appeal, fixed for hearing. The appellants have no power and it is not their function to fix date for the hearing of the said application for the amendment of their notice of appeal. Having applied to the relevant Court official vide Exhibits A,B and C, attached to their Counter Affidavit, in order for a date to be fixed for their application for the amendment of their notice of appeal, the ball was in the Court of the said Court official to play. And it is well settled law, which is trite, that a litigant is not to be sanctioned for the default or failure

to take any action by a Court official. Chukwuma Ogwe & Anor v. Inspector General of Police & Ors (2015) LPELR -24322 (SC); Ede v. Mba (2011) 18 NWLR (pt. 1278) 236 @ 266; Duke v. Akpabuyo Local Govt. (2005) 12 S.C.N.J. 280 @ 293; C.C.B. (Nig) Plc v. Attorney General, Anambra State & Anor (1992) 8 NWLR (pt.201) 528. In effect, I am satisfied that in the circumstances of this matter, that the appellants are diligent in prosecuting their appeal.

The respondents contention with respect to the filing of a fresh Suit No: LD.6312MFHR/18 by the appellants at the Lagos State High Court when this appeal, is pending in this Court, is not denied by the appellants. The respondent submitted that the facts which gave rise to this appeal are not the same with the facts in the fresh suit, in question. So, what are the full facts in the fresh Suit No: LD/6312MFHR/18, pending at the Lagos State High Court, at appellants instance? And without the filing and exchange of pleadings by the parties in that action, can the facts supporting the respondents allegation of the said action, being an abuse of the process of Court be deciphered? I do

not think so. In the circumstances, I am of the considered and firm opinion that the respondents allegation that the aforementioned fresh suit is an abuse of the process of Court, is like putting the cart before the horse. I hold that the same is premature. Hence, the respondents submissions on that point, to my mind are unmeritorious.

In sum, the respondents application for the dismissal of the appellants appeal, on all grounds canvassed by respondents learned counsel, woefully failed and the application, is consequently dismissed.

I award costs N100, 000.00 for the prosecution of the application, in appellants favour, against the respondent.

TIJJANI ABUBAKAR, J.C.A.: My lord and learned brother, TOM SHAIBU YAKUBU, JCA granted me the privilege of reading in draft the Ruling just rendered.

I am in total agreement with the entire reasoning and conclusion and therefore adopt the entire Ruling as mine with nothing extra to add, I agree and join in holding that the application by the Respondent is lacking in merit and therefore deserves to be dismissed, it is hereby dismissed

by me, I also abide by all consequential orders including order on costs.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother TOM SHAIBU YAKUBU JCA afforded me the opportunity of reading in draft before today the lead Ruling just delivered and I agree with the reasoning and conclusion contained therein, adopt the Ruling as mine with nothing further to add.

Appearances:

For Appellant(s)

N. I. Quakers, SAN with him, Oladayo Ogwube, Esq. and Majeed Balogun, Esq.For Respondent(s)

Appearances

For Appellant

AND

N. I. Quakers, SAN with him, Oladayo Ogwube, Esq. and Majeed Balogun, Esq.For Respondent