EBUN INDUSTRIES LIMITED V. SCOA NIGERIA PLC.
(2011)LCN/4478(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of April, 2011
CA/L/129/2010
RATIO
INTERPRETATION OF STATUTE : PROVISION OF ORDER 7 RULE (2) OF THE COURT OF APPEAL RULES 2007 AS TO THE CONDITIONS THAT MUST BE SATISFIED BY AN APPLICANT SEEKING FOR ENLARGEMENT OF TIME TO APPEAL
Order 7 Rule (2) of the Court of Appeal Rules 2007 says: “Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and by Grounds of Appeal which prima facie show good cause why the appeal should be heard.”(Underlined for emphasis) The provisions in that Rule is mandatory. “SHALL” “MUST” are peremptory expressions. See EZEADUKWA V. MUDAKA (1997) 8 NWLR PT. 578 635 AT 656. OGWUCHE & ORS V. MBA & ORS 1994 4 NWLR PT. 336., 75.” “Good and substantial grounds” must have (in the intendment of the draughtsman) not included frivolous grounds or excuses but good and substantial grounds, for example where it touches on jurisdiction.” PER RITA NOSAKHARE PEMU, J.C.A
Before Their Lordships
RAPHAEL CHIKWE AGBOJustice of The Court of Appeal of Nigeria
OLUKAYODE ARIWOOLAJustice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria
Between
EBUN INDUSTRIES LIMITEDAppellant(s)
AND
SCOA NIGERIA PLC.Respondent(s)
RITA NOSAKHARE PEMU, J.C.A (Delivering the Lead Ruling):This is a motion on Notice brought pursuant to Order 7 Rules (1) and 10(1) and (2) of the Court of Appeal Rules 2007; Section 6 (6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 16 and 25 Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria; whereby the Appellant/Applicant seeks the following order from this Honourable Court.
(i) An order extending the time within which to appeal against the ruling of Honourable Justice M.A. Dada (Mrs.) of the High Court of Lagos State, Ikeja Judicial Division in Suit No.: ID/901/2002 SCOA
Nigeria Plc. v. Ebun Industries Limited delivered on February 1st, 2007.
(ii) An order granting a stay of execution or enforcement or further execution of enforcement of the judgment of Honourable Justice M.A. Dada (Mrs.) of the High Court of Lagos State, Ikeja judicial Division in Suit No. ID/190/2002 SCOA Nigeria Plc. v. Ebun Industries Limited delivered on March 6th, 2006 pending the determination of this application.
The motion is dated and filed 15th of February 2010.
Arguing the application on the 26th of January 2011 learned counsel for the Applicant, Charles Okeh Esq. applies to withdraw prayer 2.
Having applied to withdrawn prayer 2, same is hereby struck out.
This leaves me with prayer 1.
On the 26th of January 2011 when this application was moved, learned counsel submits that the application is supported by a 21 Paragraphs affidavit with nine exhibits annexed. He submits that Exhibit “AB6” is the Ruling of the Judge. The proposed Notice of Appeal is attached as Exhibit “AB7”.
Learned counsel urges this Honourable Court to grant the application, but he makes no mention of a Counter Affidavit deposed to by Andrew Chukwuma, Litigation Manager of 5, Idowu Taylor Street, Victoria Island, Lagos and filed by Charles Onyekwere Esq., learned counsel for the Respondent.
In his reply, Charles Onyekwere Esq. submits that the entire application is misconceived.
From records, the Respondent had filed a Counter Affidavit in opposition to this application on the 7th of October 2010 of thirty-five (35) Paragraphs, deposed to by one Andrew Chukwuma, Litigation Manager of 5, Idowu Taylor Street, Victoria Island, Lagos.
I have taken a cursory look at the Application before me, and has painstakingly perused the facts deposed to in the supporting affidavit and the counter affidavit as well as the respective exhibits attached thereto.
The counter affidavit has thirty-five (35) paragraphs filed on the 7th of October 2010 and I must say it is copious, particularly in view of the facts deposed to therein. I find it pertinent to reproduce verbatim the facts deposed to in paragraphs 10, 12, 13, 16, 17, 18, 19, 20, 21, 22, 29, 24, 25, 26, 27, 29, 29, 30, 31, 32, 33, and 34. Paragraph 10.
“Upon receiving and acknowledging service of the court processes, the Appellant/Applicant did not take steps to comply with the new Rules of Court”
Paragraph 12.
“Prior to this time, the Respondent had filed a Motion on Notice in Court dated 14th November 2003 praying the Court to enter final judgment in its favour upon the default of the Appellant/Applicant in filing its defence which the Appellant/Applicant did not challenge rather it filed a preliminary objection dated 15th day of January 2004 which it abandoned, and same was struck out on 7th of June 2004 for want of diligent prosecution.”
Paragraph 13.
“The said motion on Notice dated 14th November 2003 could not be moved until the new High Court
of Lagos State Civil Procedure Rules came into effect and as a result a similar Motion was filed on the 7th of October 2005 praying for an order of final judgment in the matter on the Grounds that the Appellant/Applicant failed to comply with the 2004 Lagos State High Court Rules, This said Motion was duly served on the Appellant/Applicant by the Bailiff of the Court below on the 25th of January 2006”
Paragraph 16.
“On the 6th of March 2006, when the matter eventually came up the Appellant/Applicant conspicuously and deliberately aborted Court as a result the Respondent’s motion was moved and granted”
Paragraph 17.
“After the judgment of the Court below in respect of the Respondents motion for judgment at the Court below was delivered, the Appellant/Applicant filed a Motion on Notice dated 26th April 2006 praying the Court below for an order staying execution of judgment and for an order setting aside the judgment delivered on the 6th of March 2006”
Paragraph 18.
“Argument on the Motion was taken by both parties in Court and on the 7th day of February, 2007, ruling was delivered in respect of the said motion in favour of the Respondent and the said reliefs were accordingly dismissed”
Paragraph 19.
‘The Appellant/Applicant in its usual attitude and manner did not do anything whatsoever until the Respondent completed execution processes and consequently denied execution on the Appellant/Applicant’s property on the 20th of July 2007″
Paragraph 20.
“Sometime in July 2007, the Appellant/Applicant filed in this court a Motion on Notice dated 25th July 2007 seeking for extension of time within which to appeal against the judgment of Honourable justice M.A, Dada (Mrs.) of the High court of Lagos state, Ikeja and for an order staying further execution of the judgment of Honourable justice M.A. Dada (Mrs.), Attached herewith exhibited and marked As Exhibit “JO1″ is the Appellant’s motion with the accompanying affidavit”
Paragraph 21.
“In reply to the above motion, the Respondent filed a counter affidavit dated 23rd October 2007 urging the Honourable Court to dismiss the motion as it lacks merit. Attached herewith and marked as Exhibit “JO2″is the Respondent’s counter affidavit”
Paragraph 22.
“On 10th July 2008 when this matter came up for hearing, the Appellant’s/Applicant’s counsel who appeared on that day stood before the court and applied to withdraw prayer two of the said motion which is also prayer two in this present motion”
Paragraph 23.
“Pursuant to paragraph 6 above, the Honourable Court struck out prayer two in the said motion”
Paragraph 24.
“Appellant’s counsel decision to withdraw the said prayer two on the said motion came as a result of the decision of this Honourable court in a similar application which came before the afore stated motion wherein the court dismissed the prayer as it amounts to denying the judgment creditor the fruits of its labour particularly where execution had already commenced as in the instant case”
Paragraph 25.
“Upon the withdrawal and striking out of prayer two on that said motion, parties argued the only prayer left which was for extension of time to appeal and after hearing both counsels’ arguments and submission before it, the Honourable Court dismissed the said motion with N10, 000.00 (Ten Thousand Naira Only) cost which has not been paid up till now. Attached herewith and marked Exhibit ”JO3” is the Ruling of this Honourable Court in respect of the said application”
Paragraph 26.
“The Appellant/Applicant thereafter filed a motion in this Honourable Court seeking leave to appeal to the Supreme Court against the ruling of this Honourable Court aforesaid. The Appellant/Applicant however, did not take steps to ensure that the application was heard within the period stipulated for seeking leave to appeal, and the Respondent had to write to the presiding judge of this Honourable Court for a date to be given.
Attached herewith and marked Exhibit “JO4″ is the Respondent’s counsel’s letter. The Appellant/Applicant however subsequently withdraw the application”
Paragraph 27.
“The Appellant/Applicant then filed a Motion on Notice dated 28th October 2009 before the Supreme Court for extension of time within which to seek leave to appeal, leave to appeal, extension of time to appeal and stay of execution of the judgment of the High Court. Attached herewith and marked Exhibit JO5 in the said application”.
Paragraph 28.
“The Respondent in reply filed a Counter affidavit dated 29th January, 2010, stating the Appellant/ Applicants’ various frustrating tactics till date.
Attached herewith and marked Exhibit JO6 is the Respondents’ Counter Affidavit”.
Paragraph 29.
“The Appellant/Applicant in its characteristic manner then filed a Notice of Withdrawal dated 8th February, 2070, withdrawing its application before the Supreme Court. Herewith attached and marked Exhibit JO7 is the Appellant/Applicant’s Notice of Withdrawal.”
Paragraph 30.
“The Appellant/Applicant’s Motion came up before the Supreme Court on 15th February, “….” and on the said date, the Motion was struck out pursuant to the Notice of Withdrawal filed by the Appellant/Applicant, and costs of N10, 000.00 awarded against the Appellant/Applicant and in favour of the Respondent. The Appellant/Applicant is yet to pay the cost till date.”
Paragraph 31.
“The Appellant/Applicant has now filed this application asking this Honourable Court to extend time within which to appeal against the Ruling of the Court below refusing to set aside the judgment, and for stay of execution of the judgment of the Court below which has been executed”.
“Paragraph 32.
“The Appellant/Applicant has so far brought series of applications as out listed above in various Courts in respect of the same Suit”.
Paragraph 33.
“The Appellant/Applicant’s Motion for extension of time to appeal against the judgment which the Court below refused to set aside was determined by this court on its merits and refused. The instant application is thus cleverly seeking to re-apply for the same reliefs which have been earlier refused by this Honourable Court”.
Paragraph 34.
“Paragraph 19 of the Appellant/Applicant’s Affidavit in support is false. The properties that were removed and attached were the Appellant’s properties located in the Appellant’s/Applicant’s premises, More so, the execution of the Appellant’s/Applicant’s properties was done in the full glare of the Appellant/Applicant’s officials including one of the Appellant’s/Applicant’s
No objection was raised by the said officials as to any of the properties attached.”
I had taken Pains to reproduce the paragraphs in the Respondent’s Counter Affidavit.
Looking at these depositions vis-a-vis the facts deposed to in supporting affidavit to this application, it seems to me that Appellant/Applicant is relying in the main on the fact that there was a problem of relocation of one of the Counsel in his Counsel’s chambers, and negligence on the part of Counsel. For instance in paragraph 6 of the supporting affidavit he had this to say:
Paragraph 6 “That I was informed by Mr. John Olono, a relatively new counsel in Oyewole and Oluborode and I believe him that Mr. Oluborode, apparently because the matter had been recognized at the he was relocating, omitted to include the file on his handing over notes when he was leaving.”
Paragraph 7 is instructive:
“That in the circumstances, our Counsel lost track of this matter which eventually resulted in lodgment being entered against us on March, 6th 2006. A copy of the judgment is now produced and shown to marked “AB4”.
Paragraph 10
“Not long after the application was filed however, the other partner in the firm of our solicitor, Mr. Gboyega Oyewole, was appointed Attorney General in Ekiti state by the default Sole Administrator of that State during the State of emergency which was proclaimed in October 2006, a position which was reappointed to till date by the subsequent Governor of the State.”
Notably is that the Applicant filed no reply to the important facts admitted by the Applicant? See ALAGBE v. ABIMBOLA 1978 2 SC 39. BUHARI V. OBASANJO 2003 17 NWLR PT 550 AT 587.
Order 7 Rule (2) of the Court of Appeal Rules 2007 says:
“Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and by Grounds of Appeal which prima facie show good cause why the appeal should be heard.”(Underlined for emphasis)
The provisions in that Rule is mandatory.
“SHALL” “MUST” are peremptory expressions. See EZEADUKWA V. MUDAKA (1997) 8 NWLR PT. 578 635 AT 656. OGWUCHE & ORS V. MBA & ORS 1994 4 NWLR PT. 336, 75.
“Good and substantial grounds” must have (in the intendment of the draughtsman) not included frivolous grounds or excuses but good and substantial grounds, for example where it touches on jurisdiction.
A cursory look at Exhibit “JO1” attached to the Counter Affidavit shows that a similar application was filed by the Appellant/Applicant on the 25th of July, 2007.
Exhibit “JO3” attached to the Counter Affidavit shows that Motion for extension of time of 25th of July 2007 was refused the Applicant vide Enrolment of Order filed on the 7th of August, 2008 in the Court of Appeal.
Exhibit “JO5” attached to the Counter Affidavit shows that the Applicant had in an application dated 28th of October, 2009 sought four reliefs, including one for extension of time to seek leave to appeal to the Supreme Court against the decision of the Court of Appeal, Lagos Division dated July 10th 2008 in Appeal No. CAL/L/514/2007 on issues of fact and of mixed law and facts, for an order granting leave to appeal to the Supreme Court, for an order for extension of time within which the Appellant may appeal and for an order for stay of execution; with a proposed Notice of Appeal attached thereto.
By Notice of withdrawal dated 8th February 2010, the Appellant withdraw its application dated 28th October 2009.
He had now filed this application dated and filed 15th February 2010.
The motion in Exhibit “JO1” attached to the Counter Affidavit is in pari-materia with the present motion. This constitutes an abuse of the process of the Court by the Applicant and same is highly deprecated.
In paragraph 18 of the affidavit in support of this motion the Applicant had said:
“That we respectfully seek the leave of this Honourable Court to appeal and for extension of time to do so.”
There is no where in the supporting affidavit that the Applicant deposed, as to the cogency of the Grounds of Appeal in relating to the judgment or Ruling sought to be appealed against. See GAMBONI V. BINTUMI (2010), 15 NWLR. Pt. 1217 at 463; ISPAKA V. OGLINDIMU 2006.13. NWLR Pt.997.407; WLLIAMS V. MOKWE 2005 12 NWLR P.345.
I am of the view that the Applicant has not, for the reasons earlier adduced, supplied sufficient reasons to arouse the sympathy of this Court in exercising its discretion in its favour. He has failed to exhibit good and substantial reasons as required by the Rules of this Court to enable this court grant him his prayer. This is fatal to the application.
The result is that the entire application as it is devoid of merit. It fails is one that should be dismissed and same is hereby dismissed in it’s entirety, with N10, 000.00 (Ten Thousand Naira only) costs in favour of the Respondent and against the Appellant/Applicant.
RAPHAEL CHIKWE AGBO, J.C.A: I have read before now the ruling just delivered by PEMU JCA and I agree that there is want of merit in the application. I too dismiss it with N10, 000.00 costs to the respondent.
OLUKAYODE ARIWOOLA, J.C.A: I was privileged to have read the draft of the leading ruling just delivered by my learned brother, Pemu, JCA. I agree entirely with the reasoning therein and the conclusion thereat.
I abide by the consequential orders in the said leading ruling including the order on costs.
Appearances
CHARLES OKOHFor Appellant
AND
CHARLES ONYEKWERE WITH HIM A. A. AKPOMRETAFor Respondent
