ALHAJI BUKAR BAKI & SONS (NIG) LTD & ANOR v. JAIZ BANK & ANOR
(2022)LCN/16183(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/G/23M/2021(R)
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
1. ALHAJI BUKAR BAKI & SONS NIGERIA LIMITED 2. ALHAJI SHU’AIBU BUKAR BAKI APPELANT(S)
And
1. JAIZ BANK PLC 2. DR. YAKUBU FOBUR RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE RIGHT OF APPEAL A FINAL JUDGEMENT FROM THE DECISION OF A HIGH COURT TO THE COURT OF APPEAL
The law is certain and trite, that in respect of a final Judgment from the decision of a High Court, the Applicants have a right of appeal to this Court within three (3) months from the delivery of the Judgment – Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Therefore, what they are seeking from this Court vide this application is simply an extension of time within which to appeal, the time prescribed by law having long since lapsed. The conditions for the grant of the application are as rightly articulated by both Counsel in their Written Addresses. They are:
1. An applicant’s affidavit must set forth good and substantial reasons for the failure to appeal within the prescribed period i.e., three (3) months;
2. An applicant must disclose Grounds of Appeal which prima facie show good cause why the appeal should be heard;
In Elias V Eco Bank Nigeria Plc (2019) LPELR-46527 (SC6-8, E-C, Ariwoola, JSC articulated the conditions as follows:
“There is no doubt that the indulgence being sought by the applicants is discretionary. Therefore, in order to secure or obtain such discretionary indulgence from the Court, an applicant is required to meet certain conditions. Although the Court has an absolute discretion in the matter, the discretion must be exercised judicially upon settled principles. Generally, the right to appeal is constitutionally guaranteed and an aggrieved party cannot be robbed or denied of such right. PER SANKEY, J.C.A.
THE POSITION OF LAW ON THE TIME WITHIN WHICH AN AGGRIEVED PARTY MAY APPEAL
However, the same Constitution prescribes the time within which an aggrieved party may appeal. And failure to file such an appeal timeously has given an opposing party a certain right, which, before the Court will accede to extension of time to appeal, it must be satisfied that, indeed, the justice of the situation demands the Court’s indulgence in extending the time within which to appeal a decision of the Court of Appeal:
(i) The application must set forth good and substantial reasons for the failure to appeal within the prescribed time and
(ii) The proposed Notice of Appeal must contain grounds of appeal which, prima facie, show good cause why the appeal should be heard.”
Also, in Musa V AG Taraba State (2014) LPELR-24183(CA) 12-14, Sankey JCA held inter alia as follows:
“Thus, in the exercise of the power to grant an extension of time to appeal, the Court is called upon to exercise discretion. The grant of extension of time ought not to be done if the excuse offered is patently untrue or crafted to gain an undue advantage.”
See also Jesso Maritime Resources Ltd V The MT Mother Benedicta (2019) LPELR-48903(SC) 4-6, per Galinje, JSC; R. Laywers Import-Export V Jozebson Industries Co. Ltd (1988) LPELR-2934(SC) 57-58, D-A, per Uwais, JSC (later CJN).
It is thus trite that a party who seeks for an extension of time to appeal must furnish the Court with tangible reasons explaining away his tardiness in filing the appeal within the statutory time. This is in addition to his Notice of Appeal disclosing prima facie arguable grounds to warrant the grant of the hearing of the appeal. In other words, such an application which is at the discretion of the Court is not granted as a matter of routine. Satisfaction of the twin conditions is sine qua non for such an applicant to earn the favourable discretion of the Court. PER SANKEY, J.C.A.
THE MEANING OF THE TERM “ABUSE OF COURT PROCESS”
In Allanah V Kpolokwu (2016) LPELR-40724(SC) 13-14, C, Sanusi JSC explained the term abuse of process with clarity thus:
“The common feature of abuse of process of Court centres on improper use of judicial process by a party in litigation aimed or targeting on interference with due administration of justice. To my mind, some of the features of abuse of Court process include the undermentioned features, even though they are by no means exhaustive. These features are:
(i) Filing of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous actions on the same matter between the same parties even where there is in existence a right to commence the action.
(ii) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
(iii) Where two or more similar processes are used in respect of the exercise of the same right, for instance, a cross appeal and a respondent’s notice,
(iv) Where two actions are instituted in Court, the second one asking for relief which may however be obtained in the first, the second action is, prima facie, vexatious and an abuse of Court process.”
See also the locus classicus on abuse of process: Okafor V AG & Com. for Justice (1991) LPELR-2414(SC) 34, A-D, per Karibi-Whyte, JSC. PER SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgement): By a motion on notice filed on 15th March, 2021, the Applicants herein approached this Court seeking the following reliefs:
1. “An ORDER of this Hon. Court enlarging time within which the Applicants (Alhaji Bukar Baki & Sons & Sons Limited And Alhaji Shu’aibu Bukar Baki) may appeal against the decisions contained in the judgment of the Federal High Court of Nigeria, Maiduguri Judicial Division, in Suit No. FHC/MG/CS/34/19, presided over by His Lordship Hon. Justice Jude K. Dagat, which Judgment was delivered on 4th July, 2019, time for filing the appeal having lapsed.
2. And for such further orders as this Hon. Court may deem fit to make in the circumstances.”
There are eight (8) grounds for the application set out therein.
In support of the application is a 21-paragraph affidavit deposed to by the 2nd Applicant. Attached to the affidavit are the Judgment of the Federal High Court Maiduguri Division sought to be appealed against and the Proposed Notice and Grounds of Appeal marked as Exhibits A and B respectively. In obedience to the Rules of this Court, the Applicants filed a Written address on 27-01-22.
Upon service of these processes on the Respondents, the 1st and 2nd Respondents filed separate counter affidavits of five paragraphs each in response to the Applicants’ affidavit on 26-11-21. Attached to the 2nd Respondent’s affidavit is Exhibit YIC1, a Certified True Copy of a Writ of Summons and other processes filed in the High Court of Borno State in Maiduguri on 14-08-20. In addition, the Respondents filed their joint Written Address on 26-01-22 in line with the Rules of Court.
At the hearing of the application on 16-02-22, learned Counsel for the Applicants, H.N. Nwoye Esq., moved his motion and adopted the submissions in the Applicants’ Written Address in urging the Court to grant the application. In respect of the Written Address filed by the Respondents, Counsel urged the Court to discountenance it as incompetent because it was filed one day outside the 5 days granted for same to be filed.
As an alternative submission, Counsel submits that the submissions in the Respondents’ Written Address are not cogent or substantial enough to defeat the application. This he contends is in view of the admissions and concessions made therein, in particular concerning paragraph 13 of the Applicants’ affidavit vis-à-vis paragraphs 3 (c) (d) (f) & (h) of the Respondents’ affidavit. Counsel therefore urged the Court to grant the application as prayed.
In response, learned Counsel for the Respondents, M.K. Gurumyen Esq., conceded that the Respondents’ Written Address was filed out of time with one day. However, he urged the Court to deem it as duly filed and served.
Counsel relied on the paragraphs contained in the two counter affidavits of the Respondents filed on 26-11-21 as well as Exhibit YIC1. Counsel relied on the submissions in the Respondents’ Written Address filed on 03-02-22 in urging the Court to dismiss the application as it is an abuse of Court process.
In the Applicants’ Written Address, Counsel distilled one issue for determination as follows:
“Whether the Applicants are entitled to their prayers for enlargement of time to appeal against the judgment of the Federal High Court, Maiduguri in Suit No. FHC/GM/CS/34/19 delivered against them, time for doing so having lapsed.”
In arguing the sole issue, Counsel submits that the Applicants are entitled to the grant of relief one for the following reasons:
1. There is no defect in the competence of the process as the Rule under which the application is brought is disclosed, the grounds for bringing the motion are set out, an affidavit in support of the motion is filed, the Judgment and the Notice of Appeal are exhibited.
2. The Applicants’ affidavit deposed to reasons why they did not file their appeal within time in paragraph 13 of their supporting affidavit.
Counsel submits that these are the requirements for the grant of such an application. He relies on AG Kwara State V Popoola (2020) 12 NWLR (Pt. 1738) 358, 360, 363-366 among others. He contends that the Respondents did not deny the reasons for the delay deposed to in paragraph 13 of the affidavit. Rather, by paragraph 3(e) of their counter affidavits, they admitted paragraphs 1-10 and 16 -17 of the Applicants’ supporting affidavit.
With regard to paragraph 3(i) of the Respondents’ counter affidavit and Exhibit YIC1, Counsel submits that they are of no moment in the consideration of factors for the grant of an application of enlargement of time to appeal. There is no deposition in the counter affidavits or the exhibit disclosing that the Applicants have appealed against the Judgment for which time is herein sought to be extended.
Counsel submits that the Applicants are entitled to the prayers sought and undertook to file the Appeal in terms of Exhibit B to their affidavit at the trial Court within seven (7) days from the grant of the Order. He submits that the Court is empowered to grant the application pursuant to Section 24(4) of the Court of Appeal Act, Cap 36 LFN 2004.
In response, the Respondents in their Written address, framed one issue for determination thus:
“Whether or not, from the contents of the Applicants’ affidavit in support of their application, they have satisfied the conditions spelt out under Order 6, Rule 9(2) of the Court of Appeal Rules, 2021 to warrant this Hon. Court exercise its discretion in their favour.”
Counsel submits that the grant of such an application for extension of time is discretionary. Therefore, an applicant seeking for the exercise of such discretion must fulfill the following conditions:
1. An applicant’s affidavit which must set forth good and substantial reasons for the failure to appeal within the prescribed period i.e., three (3) months;
2. An applicant must disclose Grounds of Appeal which prima facie show good cause why the appeal should be heard.
The two conditions must co-exist together. However, the applicant need not show that his ground of appeal will succeed on appeal. He only needs to show that they are arguable. For the above submissions, reliance is placed on a number of authorities including Optimum Construction & Development Ltd V Ake Share-Holders Ltd (2021) LPELR-56229(SC).
Counsel submits that the Applicants, by their affidavit and proposed grounds of appeal, have not satisfied any of the two conditions necessary for the grant of the application. He contends that paragraphs 1-12 of the affidavit contain a history of what transpired before, during and after the filing of the application at the Federal High Court by the Respondents. In paragraph 12, the Applicants proffered the reason for their inability to appeal as being due to circumstances beyond their control. The meaning of this is unclear and such has never been a justification for failure to appeal within time as prescribed by law. Also, paragraphs 13-16 do not justify the Applicants’ failure to file their appeal within time. Therefore, he urged the Court to find that the supporting affidavit of the Applicants has not set out good and substantial reasons for failing to appeal within time.
Counsel further submits that the grounds of appeal do not prima facie show good cause why the appeal should be heard. The five (5) proposed grounds of appeal do not raise any substantial issue of fact or law for the consideration of the Court. He submits that for a ground of appeal to raise a substantial issue of fact or law, it must evoke serious debate as to the correctness of the decision of the lower Court. He relies on Nwora V Nwabueze (2011) 15 NWLR (Pt. 1271) 467. Counsel further submits that the Proposed Grounds of Appeal are frivolous in view of the pendency of Exhibit YIC1 before the Borno State High Court No. 3 Maiduguri wherein they seek to set aside Exhibits A and B referred to in the Applicants’ affidavit.
Finally, Counsel submits that the Applicants having failed to satisfy the two conditions for the grant of such an application under Order 6 Rule 9 of the Court of Appeal Rules, 2021, it should be dismissed.
RESOLUTION OF SOLE ISSUE:
I have given a calm and in-depth consideration to the application of the Applicants, as well as the opposition to it by the Respondents. As submitted by the Applicants’ Counsel and admitted by the Respondents’ Counsel, the Respondents’ Written Address was filed one day out of time. In the interest of a determination of the application on its merits, the oral application to deem the said Written Address as duly filed and served is granted as prayed. It is therefore deemed duly filed and served on 16-02-22, the date on which the application was heard by the Court.
The law is certain and trite, that in respect of a final Judgment from the decision of a High Court, the Applicants have a right of appeal to this Court within three (3) months from the delivery of the Judgment – Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Therefore, what they are seeking from this Court vide this application is simply an extension of time within which to appeal, the time prescribed by law having long since lapsed. The conditions for the grant of the application are as rightly articulated by both Counsel in their Written Addresses. They are:
1. An applicant’s affidavit must set forth good and substantial reasons for the failure to appeal within the prescribed period i.e., three (3) months;
2. An applicant must disclose Grounds of Appeal which prima facie show good cause why the appeal should be heard;
In Elias V Eco Bank Nigeria Plc (2019) LPELR-46527(SC6-8, E-C, Ariwoola, JSC articulated the conditions as follows:
“There is no doubt that the indulgence being sought by the applicants is discretionary. Therefore, in order to secure or obtain such discretionary indulgence from the Court, an applicant is required to meet certain conditions. Although the Court has an absolute discretion in the matter, the discretion must be exercised judicially upon settled principles. Generally, the right to appeal is constitutionally guaranteed and an aggrieved party cannot be robbed or denied of such right. However, the same Constitution prescribes the time within which an aggrieved party may appeal. And failure to file such an appeal timeously has given an opposing party a certain right, which, before the Court will accede to extension of time to appeal, it must be satisfied that, indeed, the justice of the situation demands the Court’s indulgence in extending the time within which to appeal a decision of the Court of Appeal:
(i) The application must set forth good and substantial reasons for the failure to appeal within the prescribed time and
(ii) The proposed Notice of Appeal must contain grounds of appeal which, prima facie, show good cause why the appeal should be heard.”
Also, in Musa V AG Taraba State (2014) LPELR-24183(CA) 12-14, Sankey JCA held inter alia as follows:
“Thus, in the exercise of the power to grant an extension of time to appeal, the Court is called upon to exercise discretion. The grant of extension of time ought not to be done if the excuse offered is patently untrue or crafted to gain an undue advantage.”
See also Jesso Maritime Resources Ltd V The MT Mother Benedicta (2019) LPELR-48903(SC) 4-6, per Galinje, JSC; R. Laywers Import-Export V Jozebson Industries Co. Ltd (1988) LPELR-2934(SC) 57-58, D-A, per Uwais, JSC (later CJN).
It is thus trite that a party who seeks for an extension of time to appeal must furnish the Court with tangible reasons explaining away his tardiness in filing the appeal within the statutory time. This is in addition to his Notice of Appeal disclosing prima facie arguable grounds to warrant the grant of the hearing of the appeal. In other words, such an application which is at the discretion of the Court is not granted as a matter of routine. Satisfaction of the twin conditions is sine qua non for such an applicant to earn the favourable discretion of the Court.
In order to satisfy these conditions, the Applicants in their affidavit deposed to by the 2nd Applicant, stated inter alia thus:
“4. That the Respondents instituted Suit No. FHC/MG/CS/34/19 before the Federal High Court of Nigeria, Maiduguri Division, (as Court of first instance) against the Applicants by way of Ex parte Originating Summons.
5. That the learned trial Court delivered judgment in the suit on 04-07-19. Copy of the Judgment is attached and marked as Exhibit A.
7. That the Applicants became aware [of] Exhibit A when the Respondents as judgment creditors entered my premises and evicted my family with the support and aid of well-armed police officers from Maiduguri Command of the Nigeria Police Force.
8. That the Applicants then engaged Counsel (A.A. Modu Esq. of A.A. Modu & Co.) to handle the situation for them.
9. That upon the instruction in paragraph 8 above, the learned Counsel opted to set-aside the judgment by the trial Court, which applicant (sic) was dismissed by the learned trial judge on 14th July, 2020. Copy of the Ruling of the trial Court dismissing the Applicants Application is attached and marked Exhibit B.
10. That the Applicants now engaged another Counsel (H.N. Nwoye Esq.) to study the processes of the trial Court and take appropriate steps.
11. That the Applicants’ new Counsel informed me in his office at Gombe Chemist Building, Opposite NNPC Mega Station, Gombe, on Monday, 1st day of February, 2021 at 3:00pm, while preparing for the application that this affidavit supports, which I believe to be true as follows:
a. That there is need to file an appeal against the decisions contained in the judgment of the trial Court.
b. That the applicants had three (3) months to file the appeal.
c. That unfortunately the three (3) months period has lapsed.
d. That an application is now required to seek enlargement of time within which the applicants may appeal to this Court against that judgment.
12. That I know that the applicants could not file the appeal within three (3) months due to circumstances beyond them i.e., that the non filing of the Notice of Appeal within time is the reason for the now sought enlargement of time before this Court.
13. That the reasons for the delay i.e., non filing of the Applicants Notice of Appeal within three (3) months, are as follows:
a. That soon after being aware of the judgment, i.e., after the eviction of my family, I briefed counsel to take appropriate steps in early September, 2019 and that was within time to appeal.
b. That Counsel then opted to file an application to set aside the judgment and ruling was delivered 14th July, 2020, dismissing the application.
c. That before the ruling could be delivered the three (3) months period to appeal has already lapsed.
d. That it is as a result of option to file the application instead of appealing that the applicants (litigants not Counsel) could not appeal within time.
18. That I read the proposed Notice of Appeal, that the grounds of appeal contained in paragraph 3 raise issue of competence of the process filed/jurisdiction, burden/onus of proof, evaluation of evidence, fair hearing, infamous conduct, etc, that are all arguable, good and substantial grounds. Copy of the Proposed Notice of Appeal is attached and marked as Exhibit C.”
In response to these depositions, the Respondents in their counter affidavits deposed to by the Litigation Secretary in the Law Firm of Dr. Yakubu Fobur & Co., Counsel to the Respondents, stated inter alia as follows:
3. “That on November 24, 2021 at about 10:00am in our office in Kano in the course of preparing this affidavit I was informed by Dr. Yakubu Fobur Esq. whom I have no reason to doubt him whatsoever as follows:
a) That he was served with the applicants’ Motion on Notice filed on March 15, 2021 seeking an extension of time to appeal against the Ruling of the Federal High Court of Nigeria, Maiduguri Judicial Division delivered on July 04-, 2019.
b) That after going through the affidavit in support of the application, I have his instructions to say that paragraphs 1-10 of the affidavit are true.
c) That he is not in a position to deny or admit paragraph 11 of the said affidavit.
d) That paragraph 12 of the supporting affidavit is not true.
e) That paragraph 13 of the supporting affidavit may not be true.
f) That paragraphs 14 and 15 of the supporting affidavit are not true.
g) That paragraphs 16 and 17 of the supporting affidavit are true.
h) That paragraphs 18, 19 and 20 of the supporting affidavit are not true.
i) That the same Applicants in this application have filed a suit before the Borno State High Court of Justice, Maiduguri Judicial Division in Suit No. BHC/34/2021 against the Respondents challenging the sale of the security of the facility which is the subject matter of this application. A photocopy of the Certified True Copy (CTC) of the Court process i.e., Writ of Summons and other processes are shown to me and are hereunto annexed to this affidavit and referred to as Exhibit YIC 1.”
From the depositions in the Applicants’ affidavit, it is quite apparent that in fulfillment of the first condition for the grant of an application of this nature, they attribute their delay in filing an appeal on the decision of their erstwhile Counsel, Modu, Esq., to file an application to set aside the decision. In satisfaction of the second condition, they contend that the proposed appeal raises among others, issues of competence of the suit, thus touching on the jurisdiction of the Federal High Court to have entertained it, and fair hearing. These are fundamental issues of law which should ordinarily persuade the Court to grant the application.
From the affidavit and Exhibit A attached thereto, i.e., the Judgment of the Federal High Court, the said judgment was delivered on 04-07-2019 while the Ruling on the application to set aside the Judgment also before the Federal High Court was delivered on 14-07-20. I take judicial notice of the fact that this application seeking an extension of time to appeal was filed on 15-03-21. The Applicants are completely silent about why it took them so long after the Ruling refusing their application to set aside the Judgment to approach this Court for leave to appeal. In other words, no explanation has been given for the delay in action from 14-07-2020 to 15-03-21. The question is, having not explained this period of delay amounting to about eight (8) months, is this Court left to speculate that the Applicants had good reason for the delay? I think not.
As for the fulfillment of the second condition, I am of the view that the Applicants, having raised an issue of jurisdiction and fair hearing in the Proposed Notice of Appeal, both being substantial issues of law, same is fulfilled. However, by law, both conditions are required to co-exist before this Court can grant an application for leave to appeal. Fulfilling one condition without the other will render the application not grantable. Case law is replete with decisions on this point.
See for instance the case of County & City Bricks Dev. Co. Ltd V Hon. Minister of Environment, Housing & Urban Development (2019) LPELR-46548(SC) 41-44, D-A, Peter-Odili, JSC held:
“Another area to be brought into this discourse has to do with what is required for the agitation of the discretion of the Court of Appeal to extend the time already expired and that has to do with the two conditions which are conjunctive and not disjunctive therefore they must go together… Indeed, the Court of Appeal laid emphasis in the fact of the ground of appeal being a challenge to jurisdiction of the trial Court. Strong as that point is, it cannot override the missing angle being the other condition which is the good and substantial reason for the delay. That missing link makes it impossible for a favourable exercise of the discretion for an appeal out of time. See FGN V AIC (2006) 4 NWLR (Pt. 970) at page 363, one of the proposed grounds of appeal was the issue of jurisdiction, but the Court refused to extend the time. It held:
“On the 2nd requirement, i.e., ground of appeal which prima facie show why the appeal should be heard. Although there is a ground which seeks to challenge the jurisdiction of the trial Court, yet the requirement of the law both requirements i.e., good and substantial reason and ground of appeal which prima facie show cause why the appeal should be heard, are interwoven such that they must co-exist. If one is satisfied the other is not then the whole application will collapse.”
To make matters worse for the Applicants is the information brought to the notice of the Court by the Respondents that, after the Federal High Court delivered its Ruling on 14-07-20 refusing the Applicants’ application to set aside its Judgment, to wit: the same Judgment which the Applicants by this application, are seeking leave to appeal, they proceeded post-haste within one month, to the Borno State High Court Maiduguri to file a fresh suit, as in the Exhibit YIC1 on 14-08-2020. The Writ of Summons filed in this suit is also clearly in respect of the subject matter of the Judgment of the Federal High Court, Maiduguri Division which the Court refused to set aside and in respect of which the Applicants by this application, are now seeking leave to appeal. For ease of reference, I will extract the relevant portions.
Gleaned from the Judgment of the Federal High Court in Suit No. FHC/MG/CS/34/19 between Jaiz Bank Plc & another V Alhaji Bukar Baki & Sons & another filed on 04-07-2019 (Exhibit A to the Applicants’ affidavit), the following reliefs were sought:
1. “An order giving directions to the Receiver, i.e., Dr. Yakubu Fobur Esq., to take physical possession of the land, premises of Alhaji Shuaibu Bukar Baki lying being and situate at Plot No. 96 Anas Road, Pompomari Residential Layout off Airport Road, Maiduguri, Borno State of Nigeria for the purposes of carrying out the receivership activities.
2. Upon the grant of prayer 1 above, an order directing the Nigeria Police Force, Borno State Command to provide necessary security to the Receiver in the process of taking physical possession of the housing estate of the Alhaji Shuaibu Bukar Baki (In Receivership) and thereafter, to avoid any breach of law and order.”
In granting the application, the learned Judge of the Federal High Court Maiduguri Division, held inter alia at pages 3 -5 of its Judgment (Exhibit A to the Applicants’ affidavit) as follows:
“The affidavit evidence shows that the 1st Respondent secured a credit facility from the 1st Applicant in the sum of Forty Million Naira (N40, 000, 000.00) only and the parties executed a Tripartite Legal Mortgage. The security for the facility is the landed property of the 2nd Respondent (the alter ego of the 1st Respondent) situate and being at No. 96 Anas Road, Pompomari Residential Lay-out, off Airport Road, Maiduguri, Borno State. The 1st Respondent has refused/neglected to service the facility and on 21st June, 2019 the 1st Appellant exercised its powers under the Tripartite Deed of Legal Mortgage by appointing the 2nd Applicant as a Receiver over the charged assets of the 2nd Respondent. The debt balance outstanding against the 1st Respondent as at 20th June, 2019 is N22, 750, 796.07k.
I am convinced from the evidence before the Honourable Court that the Applicants have presented sufficient materials to enable the Honourable Court exercise its discretion in their favour. The law is clear from the provisions of Sections 390 and 391 of CAMA that a Receiver or Manager of any property or undertaking of a company may be appointed out of Court under the power contained in any instrument and may apply to the Court for direction in relation to any particular matter arising in connection with the performance of his functions…
In the circumstances of this case and in view of the prayers sought which this Court is sufficiently empowered to grant, I hold that the present application has merit. Prayers 1 and 2 are hereby granted as prayed.”(Emphasis supplied)
The same Applicants, in the suit filed at the High Court of Borno State on 14-08-2020 (Exhibit YIC1 attached to the Respondents’ counter affidavit) against the Respondents herein, soon after their motion to set aside the Judgment in Exhibit A was refused and dismissed, sought reliefs in respect of the same subject matter. Some of the relevant reliefs in the Writ of Summons which the Applicants seek in the pending suit are reproduced hereunder as follows:
a) “A DECLARATION that the “TRIPARTITE DEED OF LEGAL MORTGAGE” registered as No. 408 at page 408 in Volume 15 in the Lands Registry at Maiduguri on the 12th day of June, 2016 is null and void, invalid and therefore of no effect whatsoever as same was procured by fraud, illegalities and deception.
b) …
c) A DECLARATION that the “TRIPARTITE DEED OF LEGAL MORTGAGE” registered as No. 408 at page 408 in Volume 15 of the Lands Registry at Maiduguri between the Claimants and the 1st Defendant herein is of no effect whatsoever as the entire process was shrouded in fraud, lack of disclosure, deception and misrepresentation as the alleged quantum of facility granted was manipulated.
d) …
e) …
f) A DECLARATION that the appointment of the 2nd Defendant herein as Receiver/Auctioneer in respect of the property of the 2nd Claimant covered by Right of Occupancynumber BO/56079 while there was no notice duly served on the Claimants as regards money owed or outstanding against the Claimants and therefore null and void and that same is wrongful in law.
g) A DECLARATION that the forceful seizure of the 2nd Claimant’s landed property covered by Statutory Certificate of Occupancy number BO/56079 by the Defendants without following the due process of law is wrongful in law and an infringement of the 2nd Claimant’s Fundamental Right to own property as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
h) …
i) …
j) AN ORDER OF COURT setting aside the “TRIPARTITE DEED OF LEGAL MORTGAGE” registered as number 408 at page 408 in Volume 15 in the Lands Registry in Maiduguri.
k) AN ORDER OF PERMANENT INJUNCTION restraining the Defendants jointly and severally either by themselves, agents, servants, privies or whosoever is acting through them from tampering with the quit (sic) enjoyment of that house lying and situated at Maiduguri and covered by the Right of Occupancy number BO/56079.” (Emphasis supplied)
The Writ was issued by Usman Tatama Esq of Usman, Usman & Co., Maiduguri.
What has become apparent from the portions of the Judgment of the Federal High Court, Maiduguri delivered on 04-07-19 and the reliefs in the suit filed by the Applicants herein at the High Court of Borno State Maiduguri filed on 14-08-20 is that following the Judgment of the Federal High Court over the Tripartite Deed Legal Mortgage, as a result of which the Applicants were ejected from the property in question, the Applicant tried to have the Judgment set aside by the same Court. When this failed, (Exhibit B), it then approached the Borno State High Court to seek the substantive reliefs set out above. This suit, as is apparent from the reliefs sought, seek to both set aside the Tripartite Deed of Legal Mortgage and an order of permanent injunction restraining the Respondents herein from further tampering with the quiet enjoyment of the Applicants’ property from which they were ejected on the authority of Exhibit A.
Now side by side with this suit, which is still pending before the Borno State High Court, the Applicants have again approached this Court by this Motion on notice, to seek leave to appeal out of time against the same Judgment in Exhibit A. The reliefs they propose to seek in the Proposed Notice of Appeal (Exhibit C) are as follows:
“The Appellants seek that their appeal be allowed, that the judgment of the trial Court in favour of the Respondents and all actions done in purported execution thereof be set aside by the Court, that the suit of the Respondents be struck out for being incompetent, a nullity or dismissed for lacking in merit.” (Emphasis supplied)
Rather surprisingly, the Applicants did not bring the existence of this suit filed by them and pending before the Borno State High Court to the notice of this Court in their application and supporting affidavit. Having not also filed a further affidavit in answer to the depositions in the Respondents’ counter affidavit and kept mute over Exhibit YIC1, the presumption is that all the averments therein, including paragraph 4 (i) of the counter affidavit where the Writ of Summons, Exhibit YIC1 is exhibited, is true, same having not been challenged or controverted in any way. Thus, the extant position is that there is already in existence another suit at the Borno State High Court challenging in effect, the Judgment of the Federal High Court Maiduguri Division and the execution carried out in furtherance of that Judgment.
That being the case, a summary the facts placed before this Court by both parties vide their affidavit evidence is that the Applicants herein, in expressing their dissatisfaction with the Judgment and subsequent Ruling of the Federal High Court Maiduguri (Exhibits A and B), have since filed a suit before another Court (Exhibit YIC1), to wit: the Borno State High Court, seeking reliefs against the Respondents herein, (beneficiaries of Exhibits A and B), in respect of the same subject matter (the Tripartite Deed of Legal Mortgage) and the same property of the Appellants which was taken into Receivership by reason of the Orders in Exhibit A. More significantly, the Applicants by paragraph (f) of their reliefs in the Writ of Summons (Exhibit YIC1), ask that the Borno State High Court should declare the 2nd Respondent’s Receivership in Exhibit A “null and void, and that same is wrongful in law.”
With this pending suit under their belt, the Applicants have again approached this Court with this motion on notice seeking the leave of Court to file an appeal against the same Judgment in Exhibit A, for which they have already approached another competent Court of law, to wit: the Borno State High Court, Maiduguri vide a Writ of Summons (Exhibit YIC1).
With all due respect, this is a classic case of an abuse of the process of Court. The Applicants cannot approach the Borno State High Court challenging and seeking to set aside the Receivership and the execution of the Judgment and Orders of the Federal High Court as issued in Exhibit A, and at the same time, approach this Court seeking to file an appeal to challenge the same Judgment. The reliefs in the Proposed Notice of Appeal ask that the suit giving rise to Exhibit A be struck out and the execution carried out pursuant the said Judgment be set aside.
In Allanah V Kpolokwu (2016) LPELR-40724(SC) 13-14, C, Sanusi JSC explained the term abuse of process with clarity thus:
“The common feature of abuse of process of Court centres on improper use of judicial process by a party in litigation aimed or targeting on interference with due administration of justice. To my mind, some of the features of abuse of Court process include the undermentioned features, even though they are by no means exhaustive. These features are:
(i) Filing of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous actions on the same matter between the same parties even where there is in existence a right to commence the action.
(ii) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
(iii) Where two or more similar processes are used in respect of the exercise of the same right, for instance, a cross appeal and a respondent’s notice,
(iv) Where two actions are instituted in Court, the second one asking for relief which may however be obtained in the first, the second action is, prima facie, vexatious and an abuse of Court process.”
See also the locus classicus on abuse of process: Okafor V AG & Com. for Justice (1991) LPELR-2414(SC) 34, A-D, per Karibi-Whyte, JSC.
The abuse in the instant application is the multiplicity of actions in different Courts between the same parties in regard of the same subject matter and on the same issues. Should this Court proceed to grant leave to appeal as sought in this application, the two subsisting matters being heard side by side will no doubt set the Borno State High Court and this Court on a collision course. This is so because where verdicts are rendered by each Court which do not coincide, there will be a case of conflicting Judgments between the decision of the State High Court and the appellate Court.
The best-case scenario is where the Applicants are successful in both Courts and the Judgments are ad idem. But even then, it is still an abuse of Court process because filing both matters simultaneously amounts to forum shopping or betting/gambling, as if the Applicants are saying, “if we lose in this Court, we may win in the other”. Therefore, it is my considered view that the suit earlier filed at the Borno State High Court on 14-08-20, which is still pending between the same parties, and the Proposed Appeal in respect of the same subject matter, seeking similar reliefs, cannot be heard simultaneously alongside each other. One must give way to the other. This application is therefore vexatious and an abuse of Court process. The justice of the application does not warrant the Court’s indulgence and exercise of discretion in favour of the Applicants.
Consequently, for all the reasons aforementioned, I find that the Applicants have failed to meet the conditions for the grant of the application. In addition, the application is an abuse of the process of this Court.
Accordingly, the application is without merit. It fails and is dismissed.
Costs are awarded to the Respondents against the Applicants in the sum of N200, 000.00 only.
IBRAHIM SHATA BDLIYA, J.C.A.: I have read in advance the ruling just rendered by my learned brother, JUMMAI HANNATU SANKEY, JCA. I agree with the reasoning and conclusion that the depositions in the affidavit and the further affidavit have not sufficiently explained the reason for the failure to file the Notice of appeal within the prescribed period.
Furthermore, a study of the grounds of appeal read along with their particulars have not revealed a prima facie case, the reason why the appeal should be heard. On these grounds, the application cannot be granted. It has no merit. I dismiss same. The respondents are entitled to costs, which I assessed in the sum of N200,000 only.
EBIOWEI TOBI, J.C.A.: I read in draft the ruling of my learned brother J. H. Sankey, JCA dismissing the application filed by the Applicant seeking for leave for extension of time to appeal against the judgment of the Federal High Court. I agree with the reasoning and conclusion reached therein, I will however make a point or two to emphasis the point made by my learned brother. Counsel should not take any application for granted as there are conditions that need to be satisfied before any application is granted. For an application of this nature, the two conditions that need to be satisfied before granting same are:
1. The affidavit evidence must state the reasons why the appeal was not filed within time and in doing so must explain the lapse in the period of the delay. While the law does not anticipate a per minute, hour or daily explanation for the delay, however, there must be reasonable explanation explaining why the appeal was not filed within the period.
2. The Applicant must show that there are substantial grounds of appeal, this means that the grounds of appeal are not frivolous but rather there are triable issues disclosed in the grounds of appeal.
See Virgin Atlantic Airways vs Amaran (2021) 12 NWLR (pt 1789) 91; L.F.S. Ltd vs Alj. J.A (2012) 1 NWLR (pt 1281) 371; Okereke vs James (2012) 16 NWLR (pt 1326) 339.
The Applicant in the affidavit seems to give as reasons for the delay, the decision of his counsel in bringing a motion to set aside the judgment instead of filing an appeal. This is the purport of paragraphs 12 and 13 of the affidavit in support. I will not reproduce those paragraphs again as my lord has quoted them in the lead judgment. It is customary for litigant to always blame some unfortunate actions taking by counsel on their behalf on counsel. It is also fashionable for counsel not to feel offended provided they can get what they want. The well-known principle litigants rely on here is that Court should not visit the mistake of counsel on litigant. See R. Lauwers import-Export vs Jozebson Industries Co. Ltd (1988) 3 NWLR (pt 83) 429; Kotoye vs Saraki (1995) 5 NWLR (pt 395) 256; Haruna vs Modibbo (2004) 16 NWLR (pt 900) 487; Daniel vs FRN (2014) 8 NWLR (pt 1410) 570; N.N.P.C. vs Samfadek & sons Ltd (2018) 7 NWLR (pt 1617) 1.
This principle like all legal principles has an exception. This principle only works in favour of litigation on the procedural mistake made by counsel. It does not extend to decisions made by counsel on behalf of his client in the conduct of the case of his client. The kind of error anticipated by the principle does not include deliberate decisions taken by Counsel on behalf of his client. The principle only covers errors on procedural irregularity and not errors in relation to how counsel conducted the case. See Trans Nab Ltd vs Joseph (1997) 5 NWLR (pt 504) 176.
The mistake or error that the litigant wants to take advantage of is, the well consider and deliberate decision of his client to file a motion to set aside the judgment instead of filing the appeal. Is this a mistake that can be accommodated by the principle. The answer is clearly in the negative. This is not a mistake of counsel but a well thought out decision which has back fired. If the strategy has succeeded, the Applicant would have benefited from it. It is therefore not proper for litigant to now abandon the counsel for the decision he took on his behalf. A litigant is bound by the decision taken by his counsel in the process of conducting his case for him. That step and decision taken by Counsel cannot come within the purview of mistake of counsel. In Agumadu vs Agumadu (2022) 2 NWLR (pt 1813) 127, the apex Court held as follows:
“Court for justice sake, cannot visit the error or inadvertence of counsel on the litigant. In the instant case, the counsel to the appellants presented seemingly cogent reasons for the failure to file the appellants’ brief of argument within the time stipulated by the Court of Appeal Rules, which were tilted towards the mistake of counsel, and thus should not be visited on the appellants to warrant the order of striking out the appeal for want of diligent prosecution. The Court of Appeal, however, considered the reasons for the appellants’ default and judicially and judiciously struck out the appeal for want of diligent prosecution. Furthermore, there are mistakes of counsel that the litigant must inescapably bear the brunt of. The present case unfortunately falls within the sphere of such mistakes.
There are exceptions to the rule that inadvertence or error of counsel should not be visited on the litigant. Failure or inadvertence of counsel to file notice of appeal within time is fatal. Where there has been a failure of strategy or tactic on the part of counsel, the litigant cannot escape such blunders committed by his counsel because if the strategy had worked, both the counsel and his client would have taken full credit. Accordingly, they must also take full responsibility for the failure of the strategy. Mischief, ineptitude or strategic blunders are not envisaged by the rule that inadvertence of counsel should not be visited on the litigant. The rule cannot be applied to foist injustice on another party. [Asore v. Lemomu (1994) 7 NWLR (Pt. 356) 284; Okwelumev. Anoliefo (1996) 1 NWLR (Pt. 425) 468; N.N.P.C. v. Samfadek & Sons Ltd. (2018) 7 NWLR (Pt. 1617) 1 referred to.] (P. 157, paras. D-G)
Although the mistakes of a counsel ought not to be visited on the litigants, the appellants herein showed a total lack of interest, seriousness and commitment towards the prosecution of the appeal. After they changed their counsel in 2009, they did not find out the status of their appeal until it was struck out in 2011. Therefore, their argument about not visiting the mistakes of counsel on the litigant did not avail them.”
A party that is seeking the discretion of a Court has a duty to act in good faith. Instead of pursuing the appeal, the Applicant went to file another suit over the same subject matter which is Exhibit YIC1. This information the Appellant did not disclose. This speaks volume.
The circumstance of this case does not support the granting of this application. I also see no reason to grant this application. For the fuller reasons in the lead ruling by my learned brother, J. H. Sankey, JCA I also dismiss this application. I abide by the consequential order.
Appearances:
H.N. Nwoye, Esq. For Appellant(s)
M.K. Gurumyen, Esq. For Respondent(s)