B.C. KASH MICRO FINANCE BANK LIMITED & ANOR v. MR. FATAI BAKARE
(2019)LCN/12957(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/AK/294M/2018(R)
RATIO
DIFFERENCE BETWEEN THE COMPETENCY OF A SUIT AND ABSENCE OF CAUSE OF ACTION
There is a world of difference between the existence of a competent suit and the absence of cause of action. A justification for a finding of liability is also an entirely different consideration.PER MOHAMMED AMBI-USI DANJUMA J.C.A.
APPLICATIONS: WHETHER APPLICATIONS CAN BE GIVEN IN FORM OTHER THAN WRITING
Applications shall be in writing and may in the exercise of discretion be permitted or be allowed by the Court to be orally made in Court.PER MOHAMMED AMBI-USI DANJUMA J.C.A.
APPEAL: APPLICATION FOR EXTENSION OF TIME: GROUNDS UNDER WHICH IT WON’T BE GRANTED
Even if good reasons had been shown for the indulgence of this Court to be exercised in granting extension of time to seek leave and leave to appeal, I am unable to grant same in this application as the Applicant has not shown, contrary to his supporting affidavit that a valid Notice of Appeal is intended to be filed timerously. Exhibit B relied upon in that respect is one Notice of Appeal seeking to appeal against the decision of the High Court of Ilesa State contained in the Ruling of Honourable Justice I. O. Adeleke dated Monday 28th November, 2017.PER MOHAMMED AMBI-USI DANJUMA J.C.A.
ACTS: PROVISIONS OF AN ACT MUST ALWAYS BE FOLLOWED TO THE LATTER
When the law directs that an act be done in a particular way, unless the act was done in that particular way prescribed, such an Act done otherwise is illegal. Ojong v. Duke (2003) 14 NWLR (Pt. 841) 581; Inakoju vs. Adeleke (2007) 4 NWLR (Pt. 1025) 423 and recently Saraki vs. FRN (2018) 16 NWLR (Pt. 1646) page 405 at 406 a Para. G. PER MOHAMMED AMBI-USI DANJUMA J.C.A.
APPLICATION: AN ILLEGAL APPLICATION CANNOT BE ENTERTAINED
The illegal application cannot be entertained. Courts of law must ensure the observance of the Rule of law by maintaining a stable and balanced scale between the contending parties. The application, therefore fails and is struck out for incompetence.PER MOHAMMED AMBI-USI DANJUMA J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. B.C. KASH MICRO FINANCE BANK LIMITED
2. B.C. COOPERATIVE SOCIETY BANK AND INVESTMENT LIMITED Appellant(s)
AND
MR. FATAI BAKARE Respondent(s)
MOHAMMED AMBI-USI DANJUMA J.C.A.(Delivering the Lead Ruling): The application seeks for the following orders:
1. EXTENSION OF TIME within which the Appellants/Applicants may apply to seek leave to appeal against the Ruling of Hon. I. O. Adeleke of the High Court of Justice, Osun State, Ilesa Judicial Division in Suit No: HIL/37/2017 ? Mr. Fatai Bakare v. B. C. Kash Micro Finance Bank Ltd. & Anr delivered on 28th November, 2017.
2. AN ORDER granting leave to the Appellants/Applicants to appeal against the Ruling of Hon. I. O. Adeleke of the High Court of Justice, Osun State, Ilesa Judicial Division in Suit No: HIL/37/2017 Mr. Fatai Bakare v. B. C. Kash Micro Finance Bank Ltd. & Anr delivered on 28th November, 2017.
3. EXTENSION OF TIME within which the Appellants/Applicants may file Notice of appeal against the Ruling of Hon. I. O. Adeleke of the High Court of Justice, Osun State, Ilesa Judicial Division in Suit No: HIL/37/2017 ? Mr. Fatai Bakare v. B. C. Kash Micro Finance Bank Ltd. & Anr delivered on 28th November, 2017.
4. AN ORDER deeming the Appellants/Applicants? Notice of
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Appeal already filed and served as being properly filed and served.
5. AN SUCH FURTHER order or others as the Honourable Court may deem fit to make in the circumstance.
The Grounds of the application are as follows: –
1. To enable the Appellants/Applicants exercise their constitutional right of appeal;
2. To upturn the Ruling of the trial Court which has occasioned a miscarriage of Justice.
The Application which is brought pursuant to Order 6 Rule 9 (1) and (2) of the Court of Appeal Rules, 2016 and under the inherent jurisdiction of this Court is supported by an affidavit of 15 paragraphs deposed to by one Friday Oshomagbe, a legal practitioner in the Chambers of the Applicant?s counsel. The said (15) fifteen paragraphs affidavit is reproduced verbatim as follows: ——————————————-
There are annexed to the said application the drawn up order or the enrolled order of the Court as made; it is marked Exhibit A and the purported Notice of Appeal is also annexed as Exhibit B.
The Applicant had urged the right of fair hearing as the reason for seeking extension of time to
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seek leave to appeal as, per the affidavit evidence; the application of the 2nd Respondent on preliminary objection to the action by the intended 1st Appellant was not considered but rather the 2nd Appellant was joined as a defendant, hence the application for leave to appeal that order of its joinder.
There is no doubt that no matter how well conducted, a proceeding may be, where there is a denial of hearing, there is a nullifying effect thereof, as the resultant consequence, in law. See Orugbo v. UNA (2002) 9 ? 10 SC 61, pages 16 17, Enaye Sisami Richard Abah v. Eribo Monday & Ors. (2015) LPELR 24712 (SC).
The aforesaid notwithstanding, since the Court will not at an interlocutory stage determine the merit of the claim which has not been entered as a substantive Appeal, it must be noted that the application must first be shown to have been properly before this Court, before the Court may be seized of the jurisdiction to entertain same. This is more so that the application seeks the exercise of the discretionary powers and jurisdiction of the Court.
The instant application does not and is not accompanied by or with a certified
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true copy of the Ruling sought to be appealed. The certified enrolled Order of Court annexed as Exhibit A is, certainly, not such a Ruling as envisaged by the Rules of Court.
The purport of the Ruling being annexed, is to enable the Court to peruse with a view to ascertaining whether the trial judge considered or did not avert his mind to the application or preliminary objection said to have been made and the reasons for the Ruling. This would have been a compass in arriving at a finding whether there was a recondite case warranting the grant of leave to appeal.
This is also more so that interlocutory applications against interlocutory Rulings are seldom allowed now. See Court of Appeal (fast track), Directions, 2014 S. I. No. 40, 2014, 4 (e). Active case Management includes discouraging interlocutory appeals and requiring parties, except in the most deserving cases, to subsume their interlocutory matters under a final appeal or under the substantive suit at the trial Court. The Courts would rather that objections and interlocutory applications that would not determine the entirety of the appeal, in lamine, be taken up at the hearing of
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the substantive case and judgment delivered encompassingly.
In the instant application, a joinder of a second defendant, the 2nd Appellant, had been made; and upon application, of the 1st Applicant. Even if found at the hearing that one of the defendants is a non legal personality, it will be so adjudged and without prejudice to the subsisting plaintiff or 2nd so called Appellant in this application.
That there was no privity of contract between the 1st Appellant and the Applicant was a matter to be determined on evidence to be led at the trial Court. It could not have grounded a good reason to stultify or frustrate the hearing of the case; it did not make the constitution of the suit incompetent or one devoid of a cause of action. Whether a joinder may not be made of a party to a cause having no legal defendant is yet to be determined. That could be a defence on the merit whether there was a cause of action to warrant joinder thereto of another Defendant.
There is a world of difference between the existence of a competent suit and the absence of cause of action. A justification for a finding of liability is also an
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entirely different consideration. Applications shall be in writing and may in the exercise of discretion be permitted or be allowed by the Court to be orally made in Court.
Even if good reasons had been shown for the indulgence of this Court to be exercised in granting extension of time to seek leave and leave to appeal, I am unable to grant same in this application as the Applicant has not shown, contrary to his supporting affidavit that a valid Notice of Appeal is intended to be filed timerously. Exhibit B relied upon in that respect is one Notice of Appeal seeking to appeal against the ?decision of the High Court of Ilesa State contained in the Ruling of Honourable Justice I. O. Adeleke dated Monday 28th November, 2017.
This Court has no jurisdiction to entertain an appeal against the decision of any State High Court other than against the decision of those States set out in the constitution of the Federal Republic of Nigeria, 1999 as Amended. There is no such State in Nigeria as Ilesa State.
Therefore, a ?High Court of Ilesa State is not within the purview of the jurisdictional
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competence of the Court of Appeal.
It is, therefore, not suprising that no such decision of that court was annexed to this application. Section 9 (2) of the Court of Appeal Rules 2016, prescribes that the grounds of appeal which prima facie shows good cause why the appeal should be heard, shall be shown.
I had earlier on alluded to the absence of non disclosure of good cause why the appeal should be heard. To crown it all, on the basis of the non compliance with the Rules of this Court, specifically Order 6 Rule 7 of the Court of Appeal Rules, 2016 which provides as follows:
?The application for leave to appeal from a decision of a lower Court shall contain copies of the following items namely-
(a) Notice of motion for leave to appeal (form 5)
(b) A certified copy of the decision of the Court below sought to be appealed against;
(c) Copy of the proposed grounds of appeal; and
(d) Where leave has been refused by the lower Court, a copy of the order refusing leave. The application herein is incompetent; therefore, in the circumstances.
Aside the condition (a) (supra) and the in-applicable condition (d), the
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Applicant herein is, in total non compliance and violent violation by their non compliance with the Order 6 Rule 7 of the Rules of this Court; Rules of Court are meant to be obeyed and more so in this instance of the imperative use of the phrase ?shall?.
The total absence of justification to grant this application is further accentuated and aggravated by the non challance relating the avoidance of stating the date of counsel?s late briefing by the Applicant, as asserted; it has not been stated in the affidavit, at paragraph 10 thereof let alone what transferred in the interregnum.
By and large, I am constrained, in law, to decline the supplication for our indulgence, as the right of an aggrieved person to ventilate his grievances in a Court of law, particularly on appeal, must be exercised within the ambit of the law applicable.
When the law directs that an act be done in a particular way, unless the act was done in that particular way prescribed, such an Act done otherwise is illegal. Ojong v. Duke (2003) 14 NWLR (Pt. 841) 581; Inakoju vs. Adeleke (2007) 4 NWLR (Pt. 1025) 423 and recently Saraki vs. FRN (2018) 16 NWLR (Pt. 1646) page 405 at 406 a Para. G
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The illegal application cannot be entertained. Courts of law must ensure the observance of the Rule of law by maintaining a stable and balanced scale between the contending parties. The application, therefore fails and is struck out for incompetence.
A costs of N20, 000 (Twenty Thousand Naira Only) is awarded in favour of the Respondent.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: Having read in draft the Ruling just delivered by my learned brother, Mohammed Ambi-Usi Danjuma, JCA I found exhibition of justice to the application in accordance with the law.
The application in Motion on Notice brought pursuant to Order 6 Rule 9(1) and (2) of the Court of Appeal Rules, 2016 and under the inherent jurisdiction of this Court cannot see the light of the day in its circumstance. It is therefore struck out for being incompetent.
PATRICIA AJUMA MAHMOUD, J.C.A.: My learned brother Mohammed Ambi-Usi Danjuma, JCA had obliged me with a copy of the ruling just delivered. I completely agree with the sound reasoning therein and the conclusion reached that there is no merit in this application.
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As a matter of practice, leave to appeal is rarely refused. This does not however mean that it is granted as a matter of course. The application for the leave to appeal from the decision of the lower Court is governed by ORDER 6(7) of the RULES OF COURT, 2016. The rule provides that such application shall contain the notice of motion for leave to appeal; a certified copy of the decision of Court sought to be appealed against; copy of the proposed grounds of appeal and where leave has been refused by the lower Court, a copy of the order refusing leave. All these conditions must co-exist. See the decision of this Court in ROSEHILL LTD V OKPORO VENTURES LTD (2005) LPELR – 7540. In the instant application a certified copy of the decision of the Court below is not annexed to the application. Neither is a copy of the proposed grounds of appeal. This without more renders the application incompetent.
It is also instructive to note that this appeal is an interlocutory appeal. This Court will not normally exercise its discretion to grant leave to appeal on an interlocutory matter except if such an interlocutory appeal would determine the
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entirety of the matter before the lower Court. This has not been shown to be the case in this application.
I am therefore in total agreement with my learned brother in the lead ruling that the jurisdiction of this Court has not been properly activated due to the incompetence of the application for non compliance with the Rules of Court. The provisions are mandatory hence an application that does not comply with them is incompetent. I hereby strike out this application for being incompetent.
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Appearances:
Clement Onwuenwanor, Esq. with him, Friday Oshomagbe, Esq.For Appellant(s)
Folorunso Apataku, Esq.For Respondent(s)
Appearances
Clement Onwuenwanor, Esq. with him, Friday Oshomagbe, Esq.For Appellant
AND
Folorunso Apataku, Esq.For Respondent
