ASSOCIATED ELECTRONIC PRODUCTS (NIG) LTD.v. AADE INDUSTRIAL & INVESTMENT COMPANY LTD
(2010)LCN/3769(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of May, 2010
CA/L/410M/09
RATIO
COURT: CAN A COURT GRANT AN APPLICATION ANCHORED ON A TISSUE OF LIES
From the above it is clear that this application is anchored on a tissue of lies. It is brought mala fides. Seeking a discretion in court is activating its jurisdiction in equity. An applicant seeking a discretionary order must come with clear hands. The applicant has not placed before this court sufficient explanation of its failure to file its appeal within time to enable this court exercise its discretion in its favour. Where a party lies to the court, even if it has compelling grounds of appeal or the grounds of appeal are founded on jurisdiction, the court will refuse such an application founded on a tissue of lies. PER RAPHAEL CHIKWE AGBO, J.C.A
APPEAL: CONDITIONS TO BE FULFILLED BEFORE THE COURT GRANTS AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
Order 7 Rule 10 (2) of the Court of Appeal Rules, 2007 laid down two conditions which applicant must satisfy before the court could exercise its discretion in its favour. The two conditions are:
(1) Applicant has to set forth good and substantial reasons for failure to appeal within the prescribed period.
(2) Exhibit a notice of appeal the grounds of which prima facie must show good cause why the appeal should be heard.
It is also settled that the two conditions must be satisfied conjunctively. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
ASSOCIATED ELECTRONIC PRODUCTS (NIG) LTD. Appellant(s)
AND
AADE INDUSTRIAL & INVESTMENT COMPANY LTD Respondent(s)
RAPHAEL CHIKWE AGBO, J.C.A: (Delivering the leading Judgment) In this application filed on 22/5/09 the applicant is seeking an order enlarging the time within which the appellant may file an appeal against the judgment of the High Court of Lagos State delivered on 25th October, 2005 in Suit No. ID/2819/98. The application is supported by a nine paragraph affidavit and a five paragraph further affidavit deposed to on 4/2/10 to which is annexed two exhibits being the judgment of the High Court of Lagos State in Suit No. ID/2891/98 and a copy of a notice of appeal filed at the High Court of Lagos State registry on 22/5/09. The respondent on 30/10/09 filed a counter affidavit containing 20 paragraphs with 13 exhibits annexed.
In the contentious judgment the subject matter of this appeal the trial court had adjudged as follows:
“In conclusion this court makes the following orders:
(1) The 1st and the 3rd defendants are hereby struck out.
(2) All the claims of the claimant fail and hereby dismissed.
(3) The counterclaims of the defendants succeed in part
(i) Declaration be and is hereby made that the agreement made between the 2nd defendant and the claimant on or above 20/9/96 for the sale of the property in dispute is valid and binds the claimant.
(ii) Order of specific performance be and is hereby made of the said agreement.
(iii) Order be and is hereby made that the claimant and its Directors do execute and provide all necessary and proper documents to procure the effective transfer of the property to the 2nd defendant.
(iv) The claim of N5 Million Naira for Solicitors costs is referred to the taxing master (Chief Registrar) pursuant to Order 49 1.3 of the Rules.”
In arguing his motion applicant’s counsel anchored his argument upon the fact that the failure to appeal within time was as a result of mistake of applicant’s counsel who failed to file on time as instructed and that mistake of counsel should of be visited on the litigant. He further argued that he had six substantial grounds of appeal and that it is not the duty of the court at this stage to determine the merit of the appeal. He relied on Enyreros v. NDIC (2007) 9 NWLR (pt 1039) 239. The respondents in reply referred to their counter affidavit and argued that the applicant has not satisfied the conditions for grant of extension of time set out in Order 7 Rule 10 (2) of the rules of this court. Counsel argued that the applicant has not placed before this court cogent and sufficient reason for appealing more than 3 years after the judgment.
By S. 24 (2) of the Court of Appeal Act 2004, where a person desires to appeal to the Court of Appeal, he shall give notice of appeal, where the appeal is against a final decision in a civil cause or matter, within three months of the delivery of the judgment. This court may enlarge the time within which to appeal provided the applicant can be accommodated within the provisions of Order 7 Rule 10 (2) of the Court of Appeal Rules 2007. By the provisions of Order 7 Rule 10 of the Court of Appeal Rules 2007, for an application for extension of time to succeed, the applicant must establish by affidavit evidence good and substantial reasons for failure to appeal within the stipulated time and exhibit a notice of appeal the grounds of which prima facie must show good cause why the appeal should be heard. These two conditions are to be satisfied conjunctively. See Ukwu vs. Bunge (1997) 8 NWLR (pt.518) 527. Where the proposed grounds of appeal complains of want of jurisdiction and it prima facie appears so, it may not be necessary to inquire into the reason for the delay in bringing the appeal as want of jurisdiction is always a good and substantial reason why an appeal should be heard. See Ukwu vs. Bunge supra.
The reason given by the applicant for filing the appeal more than three years after the judgment was mistake of counsel. But did he establish it? For full appreciation of this application, it is necessary to reproduce in full the applicant’s affidavit in support which reads thus:
“I ABUBAKAR ANAFI, male, Nigerian, Muslim, and Legal Practitioner of 6, Broad Street, Lagos do hereby make oath and state as follows:
1. I am a legal practitioner in the law firm of G. Elias & Co., Solicitors to the appellant/applicant (the ‘Applicant’). By virtue of my position I am conversant with the facts of this suit. I have the authority of both applicant and my employer to depose to this affidavit.
2. The information deposed to herein, except where otherwise stated, was supplied to me by Mr. Olumide K. Oyebanjo, the Managing Director of the applicant (whom I verily believe) on April 7, 2009 at our offices in the course of reviewing this matter.
3. The High Court of Lagos State per His Lordship the Honourable Justice A. Olateru Olagbegi delivered its final judgment in suit No.10/2891/98. In the said judgment, the court held that (a) the agreement made between the applicant and the respondent to the sale of the property in dispute is valid and binds the applicant; (b) specific performance be made of the said agreement; and (c) the applicant and its directors execute and provide all necessary and proper documents to procure the effective transfer of the property to the respondent.
4. The appellant was dissatisfied with the judgment of the learned trial judge and as a result, the applicant instructed its counsel at that time, Mr. Imam-Lawal to appeal against the judgment, but the erstwhile counsel inadvertently failed to file the appeal. The applicant subsequently disengaged the said counsel and engaged our firm to lodge an appeal against the judgment on its behalf.
5. The inadvertence and failure of the applicant’s former counsel in filing a notice of appeal against the judgment was not known to the applicant until on or about March 23, 2009 when it was served with FORM 49 dated February 27, 2009 (Notice to Show Cause). At that time, the time to appeal had elapsed.
6. The failure of the applicant to file its appellant’s notice of appeal with the time prescribed by the rules of this Honourable Court was not a deliberate disregard of the rules of this honourable court nor was it meant to prejudice the respondent.
7. I know as counsel that leave of this Honourable Court is required to enlarge the time for the applicant to appeal out of time and to deem as properly filed and served and its already filed and served notice of appeal.
8. It is in the interest of justice to grant this application and the respondent to this appeal will not be prejudiced thereby.
9. I deposed to this affidavit in good faith, conscientiously and in accordance with the Oaths Act, Cap 01, laws of the Federation, 2004.”
The further affidavit only exhibited the judgment and the notice of appeal which has already been filed. It is noteworthy that, while in paragraph 4 of the affidavit in support, the deponent named MR. IMAM LAWAL as the offending counsel, nowhere was it stated that the deponent or the deponent’s chambers accosted MR. IMAM-LAWAL on this allegation of infamous conduct. The belief expressed by the deponent does not in any way vest on the allegation the halo of correctness, the information being only that passed on to the deponent by the Managing Director of the applicant. Equally important is the fact that the applicant did not say when it instructed MR. IMAM LAWAL to appeal against the judgment. In any case, can it be believed that an aggrieved litigant who has instructed counsel did not know that his instruction to appeal was not carried out and did not ask until three years later in 2009 when it was served with form 49? Appellant’s counsel in arguing the application strangely ignored the respondent’s counter-affidavit. In the said counter affidavit the respondent exhibited nine letters as exhibits AA1 to AA9 which were correspondences between the applicant and respondent between 27 November, 2006 and 30th November, 2007. A letter written by the applicant dated November 30th, 2007 and signed by its Managing Director Olumide Oyebanjo and marked exhibit AA9 in the counter affidavit is most interesting bears reproduction:
“November 30, 2007.
Dear Sir,
Re: Suit No. 10/2891/98
Associated Electronic Products (Nigeria) Ltd. vs. Chief S.I.A. Adegbite & Ors. Request for Execution of Deed of Assignment in Respect of Property Known as Oduduwa Crescent, G.R.A. Ikeja
I refer to your letter of 21 November, 2007 to Messer Adeyemi Adetunji and Associates and his reply to you on 26 November, 2007, copies of which I received today and your letter of 28 November, 2007 which I am just receiving.
I must point out that although it is correct to say that I was aware that Deeds of Agreement were sent to the then Receiver, the Receivership had not effectively terminated. For your information, the Receivership ended formally on the 17th day of June, 2007 without full handover of Statement of Affairs. Our Solicitors are still on the matter.
I wonder why the Receiver who pursued the case against you so diligently could not execute the Deed of Assignment when the Receivership was still on technically.
Not withstanding, I will take steps to ensure that the issues are resolved. You will agree with me that, as a corporate organization; a director and Company Secretary must attest to the transfer.
As activities are not going on in the organization presently I will make efforts to contact a Director of the Company soonest.
In view of this, you may wish to withdraw the ultimatum given in the Receiver’s letter.
Please, be rest assured of our readiness to comply with the orders of the court.
Yours faithfully,
SGD
OLUMIDE OYEBANJO
ACTING MANAGING DIRECTOR.
This letter is very funny indeed. As at 30th November, 2007, more than two years after the judgment being sought to be appealed against, the applicant was still assuring the respondent of its readiness to resolve the issues between the parties, From the above it is clear that as at November 30, 2007, the applicant had not instructed any counsel to appeal against the judgment of the trial court.
Furthermore, exhibits AA 10 and AA 11 filed by the respondent and not challenged by the applicant shows that form 48 – notice of consequence of disobedience of court order was served on the applicant on 16-9-08. The applicant’s contention that it was only when it was served with form 49 in 2009 that it became aware that, its instruction to appeal was not complied with does not hold water.
From the above it is clear that this application is anchored on a tissue of lies. It is brought mala fides. Seeking a discretion in court is activating its jurisdiction in equity. An applicant seeking a discretionary order must come with clear hands. The applicant has not placed before this court sufficient explanation of its failure to file its appeal within time to enable this court exercise its discretion in its favour. Where a party lies to the court, even if it has compelling grounds of appeal or the grounds of appeal are founded on jurisdiction, the court will refuse such an application founded on a tissue of lies. In the instant case the grounds of appeal have nothing to do with jurisdiction.
This application is dismissed with N30,000.00 costs to the respondent.
ADZIRA GANA MSHELIA, J.C.A. I had the advantage of reading in advance the ruling just delivered by my learned brother Agbo, J.C.A. I entirely agree with his reasoning and conclusion that the application is devoid of merit and that it be refused. I only wish to add a few words of mine.
The Judgment being sought to be appealed against was delivered on the 25th day of October, 2005. The application under consideration was filed on 22/5/09. It is obvious that applicant did not appeal within the prescribed period of 3 months being a final judgment. Applicant having lost its right of appeal is now seeking for a discretion to be exercised in its favour. One who asks the court to grant him indulgence must show something which entitles him to the exercise of it. Order 7 Rule 10 (2) of the Court of Appeal Rules, 2007 laid down two conditions which applicant must satisfy before the court could exercise its discretion in its favour. The two conditions are:
(1) Applicant has to set forth good and substantial reasons for failure to appeal within the prescribed period.
(2) Exhibit a notice of appeal the grounds of which prima facie must show good cause why the appeal should be heard.
It is also settled that the two conditions must be satisfied conjunctively.
In the instant case the facts averred in paragraphs 4 – 6 of the affidavit in support clearly showed that the delay in filing the appeal within the prescribed period was attributed to the fault of counsel. It has to be noted that it is not in all cases that the court would grant extension of time on the ground that the delay to appeal within the prescribed period was due to mistake of counsel. The courts must be satisfied not only that the allegation of the fault of counsel is true and genuine, but also that it is available having regard to the circumstances of the particular case. See Ikenta Best (Nig) Ltd v. A. G. Rivers State (2008) 6 NWLR (Pt.1084) 612. It is apparent from the facts deposed to in the counter-affidavit of the respondent that applicant’s reliance on fault of counsel is not true and genuine. The two correspondences referred to in the lead ruling clearly showed that the application is brought in bad faith. The application is anchored on falsehood. I agree with my learned brother that he who comes to equity must come with clean hands. In the circumstance, I am of the firm view that applicant is not entitled to the exercise of court’s discretion in its favour.
For the above reasons and the fuller reasons given in the lead ruling, I too, refuse the application with costs as assessed in the lead ruling.
REGINA OBIAGELI NWODO, J.C.A. I have been privileged to read before now the Judgment of my learned brother Agbo, J.C.A. just delivered. I agree with the reasoning contained therein and the conclusion arrived thereat. I abide by the order as to cost.
Appearances
SAMSON OMOTIFor Appellant
AND
DR. A. A. OLAWOYIN with him JEROME OKORO and MISS O. A. ADUROJAFor Respondent
