BANILUX NIGERIA LIMITED & ORS v. MR. BABATUNDE AYINLA BAMGBOSE & ORS
(2018)LCN/12185(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/L/1160/2014(R)
RATIO
APPEAL: DISMISSAL OF APPEAL
“In determining good and sufficient cause to warrant the exercise of the discretion to relist or restore an appeal dismissed for want of prosecution due to the failure to compile and transmit the record of appeal, the reason for the applicants failure to compile and transmit the record of appeal within the time stipulated by the Rules of Court is an important factor for consideration, and such other factors like delay in making the application to restore the appeal. See: Federal Radio Corporation of Nigeria vs Iwuoha 2013 1 NWLR Pt.1335 p.207; Katol Investment Ltd Vs UACN Property Dev. Co Plc (2012) 16 NWLR (Pt.1273)211.” PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. BANILUX NIGERIA LTD
2. MRS. MARY OMOWUNMI ILUYEMI
3. MODUPE AIYEMOBOLA ILUYEMI Appellant(s)
AND
1. MR. BABATUNDE AYINLA BAMGBOSE
2. MR. WAHAB AGBOOLA BAMGBOSE
3. MR. ADEWALE OLUWOLE Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Lead Ruling):
The motion on Notice filed on 12-6-17 by the Applicants prays for the following orders:-
1. An order for extension of time within the Appellants/applicants may bring an application to set aside the judgment/Ruling of this Honourable Court dated 18th January in suit No: CA/L/1160M/2014
2. An order setting aside the judgment/Ruling of this Honourable Court dated 18th January, 2017 dismissing Appeal No: CA/L/1160M/2014 for failure to Compile and Transmit Record of Appeal within time.
3. An order relisting on the cause list Appeal No: CA/L/1160M/14 dismissed by this Honourable Court on the 18th January, 2017 for determination on the merit.
4. An order for extension of time within which the Appellants/Applicants shall Compile and Transmit the Record of Appeal to this Honourable Court.
5. An order deeming as properly compiled and transmitted to this Honourable Court the Record of Appeal already compiled and transmitted to this Honourable Court.
The grounds upon which the application rested is given thus:-
1. The Appellants/Applicants filed Notice of Appeal dated 5th August, 2014 against the judgment of the High Court of Lagos State dated 18th June, 2014.
2. The Appellants/Applicants failed to Compile and Transmits Record of Appeal to this Honourable Court within time prescribed by the Court’s Rules.
3. Upon the Application by the Respondent, this Honourable Court dismissed the Appeal No: CA/L/1160M/14 on the 18th January 2017 for failure of the Appellants/Applicants to Compile and Transmit Record of Appeal within time.
4. The Appellants/Applicants were not aware of the Respondent’s Motion dated 30th April, 2015 and the hearing date of the motion as the Appellants/Applicants’ counsel failed to notify the Appellants.
5. The Appellants/Applicants have now compiled and transmitted the Record of Appeal to this Court have served same on the Respondents and are ready and willing to prosecute the Appeal diligently.
6. This Honourable Court has discretionary competence to grant the orders being sought by the Appellants/Applicants.
7. The granting of this application will allow the hearing and determination of the Appeal No: CA/L/1160M/14 on the merit to meet the justice of the Appeal.
The application is supported with an affidavit of 18 paragraphs which in the main deposed that the failure to compiled and transmit the record of appeal which led to the dismissal of their appeal was due to the inadvertence of their former counsel who failed to compiled and transmit the records within the time prescribed by the rules of this Court. The Counter Affidavit filed by the Respondents on 6-6-18 in opposition to the application in paragraphs 3-6 there of deposed thus:-
1. That I am a Legal Practitioner in the Chambers of Messrs Chris Abugo and Company Legal Practitioners for the Respondents herein and by virtue of which fact I am conversant with the facts of the Suit and of which I depose to herein.
2. That I have the consent and authority of my employers to depose to this Affidavit.
3. That I have read the Grounds of and the Affidavit in Support of the Appellants’ Notice of Motion sworn to be Abiola Oloruntobi Iluyemi on 12/6/2017 and say as follows:-
i. That judgment was delivered on 18/6/2014 by the Lower High Court of Lagos State per His Lordship Hon. Justice M.A. Dada in Suit No. LD/58/93 between the Parties, Exhibit ‘B’ annexed to their Application.
ii. That on 05/08/2014 the Appellants filed their Notice of Appeal, Exhibit ‘C’ annexed to their Application.
iii. That from said 05/08/2014, the 90 days within which the Registrar of the Lower High Court and the Appellants should have compiled the Records of Appeal and transmit same to this Honourable Court of Appeal expired on or about 3/11/2014.
iv. That the Appellants did nothing and on 30/4/2015, the Respondents filed their Motion on Notice to dismiss the Appellants’ Appeal for failure to compile and transmit their Record of Appeal within the time limited by the Rules of this Honourable Court of Appeal.
v. That the Respondents’ said Motion on Notice dated and filed 30/4/2015 was served on the Appellants’ Counsel by the Sheriff of this Court who swore to the Affidavit of Service and filed same.
vi. That this Respondents’ Motion came up on 23/1/2015, 28/4/2016 and on 10/10/2016 based upon the Hearing Notice issued and served on Parties.
This Hearing Notice was received in the Appellants’ Counsel’s Chambers by Blessing Agada on 11/8/2016 at 11.35am.
On said 10/10/2016, the Court rose at 1.00pm without taking the Respondents’ Motion and adjourned same to 18/1/2017.
vii. On said 18/1/2017, when the case was called, the Representative of Banilux Nigeria Ltd was present in Court, the Respondents were present. The Records of Proceedings of this Honourable Court of said 18/1/2017 binds all parties and this Court.
The Representative of Banilux Nigeria Ltd presented a letter dated 17/1/2017 to this Honourable Court written by Oladisun Delano Esq (of Counsel’s Chambers which filed the Notice of Appeal on 05/08/2014, Exhibit ‘C’ of their motion herein) to seek adjournment of the Respondents’ Motion on Notice of 30/4/2015.
This Honourable Court discountenanced the Letter, allowed us to move our Application and delivered the Ruling of 18/1/2017 dismissing the Appeal and awarded cost of N40,000.00 (Forty Thousand Naira) only which cost have not been paid till date.
This Ruling is Exhibit ‘D’ of their Motion herein.
vii. That from the above, the Appellants’ Ground 4 and paragraphs 7, 8,9,10,11 are falsehood. They do not show good cause why they failed to compile and transmit the Records of Appeal within the time prescribed by the Rules of Court since after 05/08/2014 when they filed their Motion of Appeal except to continue to deny the Respondents from Enjoying the fruits of the judgment they have in this Suit since 18/6/2014, after 21 years of litigation and the death of all their family members that were sued in 1993 and the first set of substitutes.
viii. That the present 2nd Appellant (MRS MARY OMOWUNMI ILUYEMI) and 3rd Appellant (MODUPE AIYEMOBOLA ILUYEMI) defended the Suit at the lower High Court as the ONLY Administrative of the Estate of Late Olabanji Iluyemi, as they applied to Court and were so joined by Order of the Lower High Court on 2/6/2011 by their own application as so initiated their Appeal on 05/08/2014 in that same capacity.
ix. That the Appellants engaged themselves in various Courts, (as we know of one case before the Hon. Chief Judge. Hon. Justice Olufunmilayo Atilade (Rtd) that culminated in the Appellants? Exhibit ?A? annexed to this their Motion filed on 12/6/2017 at 1pm.
x. That if the Appellants’ Exhibit ‘A’ dated 4/12/2014 and certified on 04/04/2016 and have been in their possession since 04/04/2016 then NOT all the proper Appellants are before this Honourable Court and in this particular Application and this is deliberately to made.
xi. That is this Exhibit ‘A’ is true, then the Representative of the First Appellant (Banilux Nigeria Ltd) who brought the Oladisan Delano Esq Letter dated 17/2017 to Court in 18/1/2017 and the Appellants have been deceiving and lying to this Honourable Court.
4. That is the Appellants’ Application to set aside the Ruling of 18/1/2017 (their Exhibit ‘D’) should have been brought within Fourteen (14) days from 18/1/2017 and the period expired on or about 01/02/2017 or such longer period that this Court may allow for good cause.
5. That the grant or refusal of the Appellants’ Application herein is therefore entirely a matter within the discretion of and plea to the exercise of the Equitable jurisdiction of this Honourable Court of Appeal in their favour for good cause which good cause must be shown in the Applicants’ Affidavit.
6. That the Applicants’ Ground 4 and the reasons in paragraphs 7,8,9,10 and 11 of their Affidavit are falsehood and are not hard truthful facts which show good cause and or deserving of this Honourable Court of Appeal’s discretion being exercised in their favour..
A further affidavit in reply to the Respondents Counter Affidavit was filed on 11-6-18 by the Applicants which in the main deposed that contrary to the averments of the Respondents in paragraph 3 of their Counter Affidavit the applicants were not represented in Court by anybody on 18th January 2017 the day their appeal was dismissed and that the person who submitted the letter for adjournment on the said 18th January, 2017 as claimed by the Respondents in paragraph 3(vii) of their Counter Affidavit is from the Applicant’s former counsel Oladisun Delawo Esq and not the Appellants representative. In compliance with the order of this Court the parties filed and adopted their addresses. The Applicant’s Written Address was filed on 26-6-18 and the lone issue distilled is whether the applicants have placed sufficient materials before us upon which we may exercise our discretion in favour of the Applicants.
In arguing the application learned counsel for the applicants in the Written Address submitted that the grant of the application is at the discretion of this Court. In this regard counsel drew our attention to paragraph 10.11 and 15 of the affidavit in support of the motion to show that the application to relist was filed within time, via a motion on notice dated 24-1-17 which was however withdrawn and substituted with the instant motion which contained all the prayers needed for relisting. The major plank of the argument of the Applicants is that the failure to compile and transmit the record was on account of the negligence and complacency of their former counsel who not only failed to compile and transmit the record of appeal within the time prescribed by the Rules but also failed to informed them of the date fixed for hearing of the motion for dismissal of the appeal.
Learned counsel urge us not to visit the sin of their former counsel on the Applicant?s. Learned counsel relied on the following cases OGOLO V OGOLO 2000 FWLR (PT 15) PG 2661; SANNI V AGARA (2008) FWLR PT 432 PG 1185.
Learned counsel for the applicants urge us to grant the application in the interest of Justice. On their part the Respondents in the Written Address filed on 12-7-18 raised the following issue for determination:
Whether the Appellants/Applicants have in the Affidavit in support of their Motion on Notice dated and filed on 12/6/2017 and in the Further Affidavit of 11/6/2018 shown good cause why they failed to comply with Order 6 Rule 12 of the Court of Appeal Rules, 2016 after the dismissal on 18/1/2017 of their Appeal that was brought on 05/08/2014 when the Notice of Appeal was filed in the Registry of the Lower High Court of Lagos State.
Arguing the issue learned counsel for the Respondents submitted that the Applicants have not shown by their affidavit good cause why this Court should exercise its discretion in their favour.
It is contended by learned counsel for the Respondents that the instant application was not filed within the purview of Order 6 Rules 12 of the Rules of this Court 2016 as it was filed beyond the fourteen days from the date of the Ruling of this Court. It was submitted that reference should also not be made by the applicants to motion filed by them on 24-1-2017 having been withdrawn and struck out on 13-6-18.
Learned counsel urge us to refuse the application. In the reply on points of law the Applicants urge us to discountenanced the Counter-Affidavit filed by the Respondents particularly paragraphs 3 iii vi viii ix x xi 4 5 6 and 7 as offending Section 115 (1) (2) of the Evidence Act.
The records of this Court shows that the lower Court delivered judgment in favour of the Respondents on the 18th of June 2014 and consequent upon which the Applicants filed a Notice of Appeal dated and filed on 5th of August 2014.
The Applicants thereafter failed to compile and transmit the records of appeal and the Respondent on 30th of April 2015 filed a motion on notice to dismiss the appeal for failure to compile and transmit the record of appeal and the application was served on the Applicants counsel. The Applicants did not file any Counter Affidavit to the said motion on notice.
The records further shows that on 18th January 2017 when the Respondent’s motion came up for hearing Applicants former counsel sent a letter dated 17th January 2017 seeking for adjournment. The Court discountenanced the request for adjournment on the ground that counsel for the Applicant was aware of the motion since it was filed in 2015 and the date of hearing but have not taken any serious step to prosecute the appeal. The motion seeking for dismissal of the Appeal was heard and granted and the appeal was dismissed.
The step the Applicants failed to take in the conduct of their appeal and which led to the dismissal of their appeal was the compilation and transmission of the records of appeal. Order 8 Rule 18(1) of the Court of Appeal Rules 2016 provides that if the registrar has failed to compile and transmit the records under Rule 1 and the Appellant has also failed to compile and transmit the records in accordance with Rule 4, the Respondent may by notice of motion move the Court to dismiss the appeal.
The application herein is an invitation by the Applicants to the Court to exercise its discretion in favour of the restoration of the appeal. The law is trite that an Applicant who seeks the exercise of a Court’s discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Courts discretion. SCOA (Nig) Plc Vs Omatshola (2009) 11 NWLR (Pt.1151) 106; Alamieyesiegha Vs Federal Republic of Nigeria (2006) 16NWLR (Pt.1004) 1.
The question that arises in this application is whether the Applicants disclosed facts in their affidavit in support showing a ‘good and sufficient cause’ why this appeal should be restored to the cause list.
In determining good and sufficient cause to warrant the exercise of the discretion to relist or restore an appeal dismissed for want of prosecution due to the failure to compile and transmit the record of appeal, the reason for the applicants failure to compile and transmit the record of appeal within the time stipulated by the Rules of Court is an important factor for consideration, and such other factors like delay in making the application to restore the appeal.
See: Federal Radio Corporation of Nigeria vs Iwuoha 2013 1 NWLR Pt.1335 p.207; Katol Investment Ltd Vs UACN Property Dev. Co Plc (2012) 16 NWLR (Pt.1273)211.
Adverting my mind to the grounds of the application and the affidavits in support of the Application it is crystal clear that the fulcrum of the case of the Applicants in the application was that the dismissal of the appeal was due to the negligence of their former counsel and that this Court should not visit the sins of their counsel on them.
Now while it is correct that Courts will not normally visit the sins of counsel on litigants that Rule is however not of universal application, as there are exceptions to the Rule, where a counsel has exhibited tardiness and incompetence the Court should not indulge him.
A litigant should also be vigilant and diligent in respect of his cases. See: Prudent Bank Plc & Ors Vs Obadaki 2010 LPELR ? 9200 (CA).
In the instant case the notice of appeal was filed on 5th August 2014 and the time within which the Registrar of the lower Court and the Applicants should compiled and transmit the records of appeal expired on 3rd November, 2014. The Respondent?s motion on notice to dismiss the appeal was filed on 30th April, 2015 and the Applicants were duly served but the Applicants failed to take any step in the compilation and the transmission of the record of appeal, failed to also respond to the motion on notice filed by the Respondent for the dismissal of the appeal.
It was on the date fixed for the hearing of the motion to dismiss the appeal that a representative of the 1st Applicant came with a letter from counsel for the Appellant seeking for an adjournment.
From the affidavit evidence before us, I am satisfied that the Applicants have no interest in the prosecution of the appeal. I need point out that the essence of the principle of law is to always strike a balance and ensure that substantial justice is done to both the party whose counsel committed the mistake and the adverse party who will be denied the fruits of the judgment entered in his favour. In such cases like the instant matter before us the Courts are incline to lean in favour of the adverse party who is not at fault. See PDP Vs Mr William Ballantyne & Ors 2011 LPELR 9123 CA.
Learned counsel for the Applicants have not placed before us sufficient materials to ginger me into exercising my discretion in favour of granting the application.
In the final analysis I find the application lacking in merit and same is hereby dismissed.
There shall be costs of One Hundred Thousand Naira (N100,000.00) in favour of the Respondents against the Applicants.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read in print the ruling prepared by my learned brother, Jamilu Yammama Tukur, J.C.A., with which I agree.
Appearances:
A. A. Farinmade with him, J.T. Adebara and I.O. Izonoba For Appellant(s)
Chris Abugo For Respondent(s)
