FINETEX LIMITED V. INTERCONTINENTAL BANK LTD (FORMERLY INTERCONTINENTAL MERCHANT BANK LTD) & ANOR (2009)

FINETEX LIMITED V. INTERCONTINENTAL BANK LTD (FORMERLY INTERCONTINENTAL MERCHANT BANK LTD) & ANOR

(2009)LCN/3339(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 30th day of June, 2009

CA/K/55/07

JUSTICES

BABA ALKALI BA’ABA OFR Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

THERESA N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria

Between

FINETEX LIMITED – Appellant(s)

AND

1. INTERCONTINENTAL BANK LTD (FORMERLY INTERCONTINENTAL MERCHANT BANK LTD)

2. BOLA OLOTU (RECIEVER) – Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A: (Delivering the Lead Ruling): The Applicant in this proceeding prays this Court via its Motion on Notice dated 10/5/05 but filed on 13/5/08 for the following orders;

(1) An Order granting an extension of time within which to seek leave to appeal against the decision of the Federal High Court, Kaduna, per Honourable Justice A.M. Liman, delivered on the 18th day of July, 2003 in Suit No. FHC/KD/CP/18/2002.

(2) An Order granting leave to the Appellant/Applicant to appeal against the decision of the Federal High Court, Kaduna, per Honourable Justice A.M. Uman delivered on the 18th day of July, 2003 in Suit No. FHC/KD/CP/18/2002.

(3) An Order granting an extension of time to the Appellant/Applicant to appeal against the decision of the Federal High Court, Kaduna, per Honourable Justice A.M. Uman delivered on the 18th day of July, 2003 in Suit No. FHC/KD/CP/18/2002.

(4) An Order granting the Appellant/Applicant leave to file, argue and treat the grounds of Appeal challenging the decision of the Federal High Court, Kaduna per Honourable Justice A.M. Uman, for which leave is sought as additional ground of appeal and the said ground is numbered 1 in the annexed Notice of Appeal marked herein as Exhibit “2”.

(5) Leave to amend the Notice and Grounds of Appeal dated 3rd day of March, 2004 by incorporation of the proposed additional grounds and the reliefs sought therein as reflected in the amended Notice of Appeal annexed hereto as Exhibit “3”.

(6) An Order deeming the Amended Notice of Appeal annexed to this application as Exhibit “3” as duly filed and served, the appropriate filing fees having been paid.

(7) An Order extending the time within which the Appellant/Applicant can file its Brief of Argument in this Appeal.

(8) For such further or other orders as this Honourable Court may deem fit to make in the circumstances.

Filed in support of the application is an affidavit of four paragraphs deposed to by one Rahila Saidu, a litigation clerk in the law firm of the Applicant’s Counsel with three annexures described as Exhibits 1, 2 and 3.

The Respondents for their part filed a Counter-affidavit of thirteen paragraphs, sworn to by one Vincent Olowoyo, a litigation officer in the Law firm of the Respondents’ Counsel.

In the affidavit in support of the Motion, it was averred that the Applicant had earlier filed a Notice of Appeal dated 3/3/04 against the Ruling of the Federal High Court delivered on 30/1/04 via its former Counsel, Messrs J.B. Dauda & Co. However on 2/5/08, the Applicant retained the services of the present Counsel, Jim A. Omoigberale, and KSM, to represent it in the said appeal. On perusing the documents or processes handed over to him, Learned Counsel discovered there was need for an appeal to be lodged against the consent judgment entered in favour of the parties by the Federal High Court Kaduna on 18/7/2003 in Suit No. FHC/KD/CP/18/2002, a copy of which was attached as Exhibit 1 and that since it was a consent judgment, there was needed to obtain the leave of this Court. It was further averred that the appeal is being challenged on the ground that the suit was incompetent and that the Federal High Court lacked the jurisdiction to have entertained the same. It was also said that there is need to amend the Notice of Appeal so that the original notice and the grounds for which leave is being sought can be incorporated into the Notice of Appeal and embodied in one and the same document.

The Applicant further averred at paragraphs 3 sub-paragraph (l), (m) and (n) thus;

“(l) That the failure to appeal within time was caused by the fact that the Applicant initially filed its appeal against the refusal by the lower Court to set aside the purported consent judgment and had been pursuing this appeal without realising that it had not yet appealed against the consent judgment entered on 18/7/2003.

(m) That this omission was only discovered by the Applicant’s new Counsel, Jim Omoigberale when he was going through the records preparatory to filing the brief of argument.

(n) That if this honourable court grants the Applicant’s prayers, the Applicant will be able to prepare and file its Brief of Argument which would encompass the said additional grounds as well as the original grounds initially filed in the Notice of Appeal dated 3rd March, 2004”.

The original Notice of Appeal dated 3/3/2004, the new grounds of appeal and a copy of the proposed Notice of Appeal, and the proposed, Amended Notice of Appeal with the original and additional Notices and their grounds of appeal embodied therein were, annexed as Exhibits “A”, “2” and “3” respectively.

The thrust of the Counter-affidavit of the Respondent is that this application was brought in bad faith to overreach and outwit the Respondents who in all sincerity, with absolute belief and spirit of an out of Court amicable, re-negotiation and re-settlement, accepted a far lower sum of N17, 413,765: 14k instead of N42, 033,954:42k, and, discharged the Applicant from all obligations in this case. The Appellant had collected the title deeds, and deed of release to its mortgaged property assets.

It was further stated in the counter-affidavit that the appeal has been overtaken by events and has become a mere academic exercise thus it is in the interest of justice to refuse the application and estop the Applicant. It was also averred that he grant of it will be prejudicial to the Respondent while the refusal will not hurt the Applicant.

Submitting in respect of the application, Learned Counsel for the Applicant, J.M.A. Omoigberale, KSM stated that the unchallenged reasons adduced by the Applicant for its delay in filing this appeal together with the jurisdictional issue raised by the Applicant in its proposed ground of appeal is sufficient enough to swaying this Court in granting the application. He cited the cases of Enyibros Food Processing Company Ltd v. Nigerian Deposit Insurance Corporation (2007) 3 SCNJ p.250 at 268-269 where the Supreme Court held thus;

“…it becomes very clear that where a complaint in any ground of appeal is about failure to observe due process and non-fulfillment of any condition precedent to the exercise of jurisdiction, such as payment of filing fees, giving judgment in a matter under the undefended list of pleadings without first and foremost ordering a transfer of the matter from the undefended list to the general cause list and pleading; and hearing a matter on a date other than the agreed adjourned date by the parties and the court clearly, to my mind raises issues of jurisdiction of the court to entertain the matter for non-fulfillment of conditions precedent.

On the issue as to whether 2nd Respondent did satisfactorily explain his reasons for the delay in presenting the application, I agree with the lower court that he did…

… that apart, having found as a fact that the grounds of appeal raise substantial and arguable issues of jurisdiction of the trial court that alone is enough for the lower court to have granted the application particularly as jurisdiction is the live wire of any adjudication…”

He further cited the cases of Okanem Otu v. ACB International Bank (2008) LSCNJ 189 at 201, 211-212 and Austin Mwane v. Union Bank of Nigeria Plc. (2004) ALL FWLR Part 239 p.1007 at 1016 paras. B-D, 1020, E-H in support.

In response to the Counter-affidavit of the Respondents, Learned Counsel cited the case of the Registered Trustees of National Association of Community Health Practitioners of Nigeria & 2 ors v. Medical and Health Workers Union of Nigeria and others (2008) 1 SCNJ p.348 at 378 and submitted that payment of the judgment sum does not in any way take away the Applicant’s constitutional right of appeal nor does it derogate from the substantiality of the grounds of appeal which complained that the entire proceedings of the trial court including the judgment are void and liable to be set aside. He then urged this Court to grant the Applicant’s prayers.

In his reply address, Learned Counsel for the Respondent, Bola Olotu Esq., firstly submitted that the Appellant’s Motion on Notice dated 10/5/08 is incompetent for non-compliance with the provisions of Order 7 Rule 7(b) of the Court of Appeal Rules 2007. He contended that by the said order, it was mandatory for the Applicant to attach as an Exhibit to the affidavit in support of the Motion, a certified true copy of the decision of the Court below being sought to be appealed against, but this, the Applicant has completely failed to do. He stated that the proceedings of the said 18/7/2003 attached as Exhibit 1 cannot be regarded as the consent judgment; it is at best the proceedings of that day. According to Learned Counsel, the consent judgment is contained in the Appendix A which is the terms of settlement but, this also, the Applicant failed to attach as an Exhibit. He, also, stated that Exhibit 1 attached to the said application is not a certified true copy as mandatorily required by Order 7 Rule 7(b) of the Court of Appeal Rules 2007. Learned Counsel then cited the cases of Osinupebi v. Saibu (1982) 7 S.C. 104, General Oil Ltd v. Oduntan (1990) 7 NWLR Part 163 p.423 at 439 para. E-G, and, Ubene v. C.O.P (2005) ALL FWLR Part 277 p.948 at 955-956 paras. H-D in support.

Counsel further referred to Order 7 Rule 10(2) of the Court of Appeal Rules 2007 and paragraphs 3 sub-paragraph (l) and (k) of the Applicant’s affidavit in support of the Motion and submitted that the only reason why it took the Applicant five years from 18th July, 2003 till the date the application was filed, was lack of diligence. He contended that the Applicant failed to disclose good and substantial reason for its failure to appeal within the prescribed period.

Counsel further submitted that a careful study of paragraph 3 subparagraphs (a), (d), (e) and (m) of the Applicant’s affidavit in support would reveal that it was the Applicant’s Counsel who, on his own, filed the present application. He contended that the action of the Counsel for the Applicant is contrary to the provisions of Order 25 Rule (a) of the Rules of Professional Conduct in the Legal Profession, to the effect that it is an unprofessional conduct for a lawyer to proffer advice to bring a law suit, ferment strife or instigate litigation.

Also, he made reference to Order 7 Rule 10 (2) of the Rules of this Court and submitted that the only ground of appeal contained in the Applicant’s proposed Notice of Appeal, i.e. Exhibit 2, relates to and can at best be described as procedural irregularities which the Applicant should have raised at the lower Court but he never did. Counsel cited several authorities and stressed that the issue of the appropriate person and/or judge issuing originating process and its non-compliance had been held to be procedural irregularities.

He then argued that the Applicant has not fulfilled the conditions under which the application may be considered, that is to say, on the issue of grounds of appeal showing good cause why the appeal should be allowed and by setting forth good and substantial reasons for failure to appeal. He further referred to several other authorities in support of his contention.

I must note that there were other issues raised by the Respondent’s Counsel in his address but, my attention was quickly drawn to a very fundamental issue he raised, particularly the first one as to the competence of this application with regard to the requirements of Order 7 Rule 7 (b) of the Court of Appeal Rules, 2007, which provides as follows;

“7(7) The application for leave to appeal from a decision of a lower Court shall contain copies of the following items, namely –

(b) a certified true copy of the decision of the Court below sought to be appealed against”.

It is clear on the above provision that it is mandatory to attach, as one of the documents required, a certified true copy of the decision of the Court below sought to be appealed against. In the instant application, the document attached as Exhibit 1 which appears to be the record of proceedings of the lower Court on the date the consent judgment was entered, i.e. 18/7/03, was not certified by the Registrar of the Court below. The said document was not in the least certified, and that being the case, there is no other way this Court can be convinced as to or vouch for its authenticity or originality or that it was the actual decision of the said Federal High Court being sought to be appealed against.

Having failed to do so, this application is therefore incompetent. See the cases cited by the Learned Counsel for the Respondent in this respect.

Accordingly, this application is hereby struck out. There will be cost of N10, 000 to the Respondents against the Applicant.

BABA ALKALI BA’ABA, J.C.A: I agree.

JOHN INYANG OKORO, J.C.A: I have had the advantage of reading before now the ruling of my learned brother, ORJI -ABADUA, JCA just delivered and I agree that this application lacks merit and ought to be struck out. I entirely agree with the reasons and conclusion in the lead ruling of my learned brother which I adopt as mine and also order that this application be struck out. I also subscribe to the order on costs.

Appearances

Jim A. Omoigberale, K.S.M.For Appellant

AND

Bola Olotu Esq. with R. Ani Esq.For Respondent