GAORIS (NIG) LTD & ANOR v. ACCESS BANK
(2022)LCN/16715(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, July 07, 2022
CA/B/27/2021(R)
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
1. GAORIS NIGERIA LIMITED 2. PRINCE GODFREY A. ORIBHABOR – RESPONDENTS/ APPLICANTS APPELANT(S)
And
ACCESS BANK PLC – APPELLANT / RESPONDENT RESPONDENT(S)
RATIO
WHETHER OR NOT EVERY APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL MUST BE SUPPORTED BY AN AFFIDAVIT
Order 6 Rule 9(2) of the Court of Appeal Rules, 2021 provides:
“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. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the Notice of Appeal.”
This statutory provision has been entrenched in a plethora of cases. Thus, an applicant like the instant applicants who are out of statutory time allowed on filing a notice of appeal or cross-appeal has two hurdles to cross, viz;
(1) He has to show by affidavit evidence good and substantial reason for his failure to appeal when the statutory period and why time should be extended for him to appeal outside that time, and
(2) He must show by his proposed grounds of appeal that prime facie, he has arguable grounds of appeal and annex the proposed ground or grounds of appeal to his affidavit in support of the application. On this, see the following cases –
Customary Court of Appeal Benue State v. Abura Tsegba & Ors. (2010) LPELR–4009 (CA) pp. 10–11 paras. E-A, Ojora v. Bakare (1976) LPELR–2395 (SC) p. 6 paras C–F, Federal Housing Authority v. Kalejaiye (2010) LPELR–1267 (SC) pp. 14–15 paras C–A, Nwora & Ors. v. Nwabueze & Ors (2011) LPELR–8128 (SC) p. 39 paras A–G, Ola v. INEC & Ors. (2012) LPELR–7946 (CA) pp. 13–14 paras F–A, Mansur & Ors. v. Governor, Taraba State & Ors. (2012) LPELR–15184 (CA) p. 26 paras A–D. PER ABUNDAGA, J.C.A.
WHETHER OR NOT ALL ISSUES PLACED BEFORE THE COURT MUST BE CONSIDERED
I now come to the other twin ground which the applicants are required to satisfy to be granted enlargement of time to cross-appeal out of time. Ordinarily, having held that the applicants have not shown good and substantial reasons why they should be granted enlargement of time to cross-appeal, the consideration of this second ground, which is, whether the applicants have shown prima facie that they have arguable ground of appeal, would amount to academic exercise. However, the law mandates that not being the final order, all issues placed before the Court must be considered, in the event, the apex Court holds a view contrary to this Court’s on the issue already decided. See APC & Ors. v. Aguele & Ors (2020) LPELR–51029 (CA) PP. 38–39 paras D–A, Hamman v. Baba (2019) LPELR–48932 (CA) PP. 48–50 paras E–C, Audu v. State (2002) LPELR–7098 (CA), PP. 28–28 paras F–B, Nigerian German Chemicals Plc v. ALL RAY Maritime Services Ltd. (2018), LPELR–50856 (CA) PP. 41–42 paras E–B. PER ABUNDAGA, J.C.A
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): The respondents in this appeal are desirous of filing a cross-appeal, and could not file the said cross-appeal within the statutory period. Therefore, on 8th June, 2021, they filed a motion on notice praying for the trinity reliefs, to wit:
“(a) An order of extension of time within which to seek leave to cross-appeal against part of the judgment of His Lordship, Honourable Justice E. O. Ahamioje of the Edo State High Court delivered on 3rd August 2020 in Suit No. B/83/2010.
(b) An order granting leave to respondents/applicants to file a cross-appeal against the said judgment delivered on 3/8/2020 in suit No. B/83/2010.
(c) An order extending the time within which the respondents/applicants may file a notice of cross-appeal against the said judgment.”
They added to the trinity prayers, an order to deem as properly filed and served the notice of cross-appeal which was separately filed with the motion, the appropriate filing and service fees having been paid. In support of the motion are four (4) grounds.
The motion is supported with an affidavit of 11 paragraphs, sworn to by the 2nd respondent. Annexed to the affidavit is one exhibit, marked exhibit “A”. It is purported to be the notice of cross-appeal.
In opposition to the motion, the appellant as respondent to this application filed a counter affidavit of 5 paragraphs. It was sworn to by one Donald Obakolor, male, litigation secretary in the law firm of Messrs O. A. Omonuwa, SAN, counsel for the appellant/respondent.
In further support of the motion, the applicants filed a further affidavit of 6 paragraphs, sworn to by the 2nd respondent. Annexed as exhibit “B” to the further affidavit is the judgment of the lower Court on appeal, part of which is sought to be appealed against vide the cross-appeal in respect of which an order of extension is sought herein.
Because the motion was filed under the old rules of Court, that is, the Court of Appeal rules, 2016 which made no provision for filing of written addresses, the Court directed that written addresses be filed and exchanged. Pursuant thereto, the applicants filed counsel’s written address which they attached to the further affidavit. It was filed on 22/2/2022. In response thereto, the respondent’s counsel filed his written address in opposition to the motion on 24/2/2022.
Upon the aforestated processes, the motion was fixed for hearing on 5/5/22 at which the motion was argued.
The written addresses were adopted.
The applicants formulated a lone issue for determination which was thus couched:
“Whether the respondents/applicants have adduced good and substantial reasons for their failure to seek leave to cross-appeal and to file their notice of cross-appeal within the time allowed by the Court of Appeal Rules and Act.”
The respondent on his part framed the following lone issue for determination, viz:-
“Have the applicants established good and substantial reasons for their failure to cross-appeal within the time prescribed by law, and a prima facie arguable cross-appeal?”
The two sets of issues both addressed the question whether the applicants are entitled to the grant of this application. Therefore, the issue I find suitable to donate for the determination of this application is;
“Whether given the facts averred in the affidavit and further affidavit of the applicants vis-à-vis the facts also averred in the respondent’s counter-affidavit; and having regard to the notice of cross-appeal (more appropriately, “proposed notice of cross-appeal”) the applicants are entitled to the grant of this application.”
At the onset, it is important to point out that the decision of the lower Court in respect to which this application is brought is a final judgment. Therefore, appeal is as of right under Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The applicants are not required to seek the trinity prayers. All that they require is an order of this Court for enlargement of time within which to appeal, which is what the applicants prayed for in their third prayer (c). Prayers (a) and (b) following from what I have said above are not necessary and are hereby discountenanced.
Learned counsel for the applicants submitted that the delay in filing his cross-appeal was caused by inadvertence of counsel. That he discovered the need to file a cross-appeal after he was served with a copy of the record of appeal and the appellant’s brief of argument. He relied on the case of GTB Plc v. EST. Master Construction Ltd. (2018) 8 NWLR (Pt. 1622) 392.
Counsel also blamed the delay in filing the notice of cross-appeal on the strike action embarked upon by the National Judicial Workers in April, 2021. On this, he relies on Agu v. Cop. (2017) 2 NWLR (Pt. 1549) 254 at pp. 267 paras E–F and 276 paras C–D.
Further submitted is that once an applicant has adduced good and substantial reasons for the default coupled with ground and arguable grounds of appeal which prima facie show good cause, the length of time of default will be of no moment. Counsel refers the Court to the case of Nigerian Laboratory Corporation v. P. M. B Ltd (2012) 15 NWLR (Pt. 1324) 505 at pp. 527–528.
Coming to the grounds of appeal, it is submitted that the grounds of appeal disclosed good and arguable ground of appeal. That it alleged serious error in law in that the learned trial Judge approbated and reprobated at the same time on the issue of post-judgment interest award. Counsel therefore urged the Court to grant the application.
Learned counsel for the respondent submitted that the applicants’ affidavit is completely bereft of evidence upon which the Court can hold that there are good reasons for their failure to cross-appeal within time. It is submitted that the applicants’ affidavit by the Rules of Court must disclose good and substantial reasons for their failure to appeal within the statutory period, and grounds of appeal which prima facie show good cause why the appeal should be heard. Refers to Order 6 Rule 9(2) of the Court of Appeal Rules, 2021, and the case of Ikenta Best Ltd. v. A. G. Rivers State (2008) 6 NWLR (Pt. 1084) 612 at 666 G–607 B. He submits that the conditions are conjunctive; the absence of proof of either condition will deprive the applicants the grant of enlargement of time, which grant is not a matter of course. Reliance is placed on the case of P.M.R. V. EL (Nig.) Ltd. (2010) 12 NWLR (Pt. 1208) 261 at 280 A–E.
Counsel noted that the applicants advanced two reasons for their failure to appeal within time, one being inadvertence of counsel, and the second, the strike action by the Judiciary Staff Union of Nigeria (JUSUN). On the first reason, counsel submitted that the right of appeal enures personally to the applicants and for their sole benefit; that it is not conferred on their legal practitioner. On this, counsel relies on the case of C & C. B. Dev. Co. Ltd. v. Min E. H. & UD (2019) 5 NWLR (Pt. 1666) 484) at 509 D–G, and the case of Bamaiyi v. State (2003) 17 NWLR (Pt. 848) 47 at 64 B – E.
With respect to JUSUN strike, counsel submitted that although the applicants filed a further affidavit, they did not controvert a single paragraph of the respondent’s counter affidavit. Thus, all the depositions in the counter affidavit are deemed admitted by the applicants. Counsel referred to and relied on paragraphs 3 (m-t) of the counter affidavit. It was submitted further that applicants have attempted to use blatant falsehood to move the Court to exercise its discretion in their favour. Counsel contended that a party seeking the discretion of the Court is required to act or conduct himself in good faith and must approach the Court with a clean hand. The Court is therefore urged to reject the counsel’s submission.
On the need to show arguable ground of appeal, it was submitted that the applicants have not shown a prima facie arguable appeal. Counsel refers to Order 34 Rule 4 of the High Court of Edo State (Civil Procedure) Rules, 2018 to submit that an absolute statutory discretion is conferred on the trial Judge to award post-judgment interest on any judgment. Also referred to is the case of Nechil Agencies Ltd. v. Victor Agencies Ltd (2011) LPELR – 4588 (CA) pp. 13 – 14.
It is therefore counsel’s submission that the applicants have failed to show an arguable ground of appeal.
The Court is therefore urged to dismiss their application with significant cost.
RESOLUTION OF THE ISSUE
Order 6 Rule 9(2) of the Court of Appeal Rules, 2021 provides:
“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. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the Notice of Appeal.”
This statutory provision has been entrenched in a plethora of cases. Thus, an applicant like the instant applicants who are out of statutory time allowed on filing a notice of appeal or cross-appeal has two hurdles to cross, viz;
(1) He has to show by affidavit evidence good and substantial reason for his failure to appeal when the statutory period and why time should be extended for him to appeal outside that time, and
(2) He must show by his proposed grounds of appeal that prime facie, he has arguable grounds of appeal and annex the proposed ground or grounds of appeal to his affidavit in support of the application. On this, see the following cases –
Customary Court of Appeal Benue State v. Abura Tsegba & Ors. (2010) LPELR–4009 (CA) pp. 10–11 paras. E-A, Ojora v. Bakare (1976) LPELR–2395 (SC) p. 6 paras C–F, Federal Housing Authority v. Kalejaiye (2010) LPELR–1267 (SC) pp. 14–15 paras C–A, Nwora & Ors. v. Nwabueze & Ors (2011) LPELR–8128 (SC) p. 39 paras A–G, Ola v. INEC & Ors. (2012) LPELR–7946 (CA) pp. 13–14 paras F–A, Mansur & Ors. v. Governor, Taraba State & Ors. (2012) LPELR–15184 (CA) p. 26 paras A–D.
In satisfaction of the first condition, the applicants have advanced two reasons. The first is that they discovered the need to file a notice of cross-appeal when they were served with a copy of the record of appeal and the appellant’s brief of argument, and thus they attributed the delay in filing the notice of cross-appeal to inadvertence on the part of their counsel. Counsel placed reliance on the case of GTB Plc v. EST. Master Construction Ltd. (2018) 8 NWLR (Pt. 1622) 392. Counsel for the respondent sharply disagreed with him. He submitted that the right of appeal enures personally to the applicants and for their sole benefit and is not conferred on their legal practitioner. He contended that there is no evidence before this Honourable Court that the applicants attempted to exercise their right to appeal by instructing their counsel to file a cross-appeal and that their counsel negligently failed to cross-appeal within the statutory time. Counsel also relied on the case of Bamaiyi v. State (2003) 17 NWLR (Pt. 842) 47 at 64 B–E where it was held inter alia that where the need to act timeously proves exceedingly helpful, a deliberate act of negligence on the part of counsel cannot be condoned.
In the case of Ejike & Ors. v. Ukpabi & Ors. (2016) LPELR – 40975 (CA) pp. 8–11 paras E–A, it was held that ill health of applicant or counsel, negligence, mistake, inadvertence or fault of counsel can be justifiable reasons for delay to appeal. It was further held that the Court would readily exercise its discretion to extend the period prescribed for doing an act, if it is shown to the satisfaction of the Court that the failure by a party to do that act within the period prescribed was caused by the negligence or inadvertence of his counsel.
However, in the case of Seven-up Bottling Co. Plc v. Owoseni Florence (2018) LPELR–44854 (CA) pp. 14–22 paras B–E, where it was deposed by the applicant that the task of filing the appeal was assigned to a Junior in chambers who inadvertently and not mindful of the time limit for the filing of the process omitted to file same within which the time permitted by law to seek leave within 14 days, it was held that in the circumstance, the inadvertence of counsel could not avail the applicant. It was reasoned that there was no good and substantial reason for the delay in bringing the application as no reason was proffered for the non–filing of the application by the junior in chambers. It was further held that not being mindful of the time to file the application as deposed is an admission of an error or admission relating to ignorance of law as it pertains to the time frame for bringing the application. Ignorance of the law is not an excuse, it was further held. The Court refused to grant the application on the ground that there was no good and substantial reason for the failure to appeal within time and for want of arguable grounds of appeal.
In the case of GTB v. EST MASTER CONSTRUCTION LTD SC. 744/205 (R) the apex Court departed from a number of cases decided by it in which pardonable inadvertence of counsel was accepted as good and substantial reason for delay; where the delay was partly due to counsel and his clerk, the delay was also held to be satisfactorily explained. Even carelessness of counsel was held to be good reason for the failure to appeal within time provided such carelessness is pardonable. However, the apex Court proceeded to warn that the Courts will not regard this trend as universal “talisman”, the waiver of which will act as panacea in all cases. That the Courts must not only be satisfied that the allegation of the fault of counsel is true and genuine, but must also be satisfied that it is availing having regard to the circumstances of the particular case. The Court having considered the foregoing held:
“Mistake, inadvertence and sickness of counsel can always be distinguished from ineptitude, complete ignorance or malfeasance exhibited by counsel. Thus, the rule that a litigant should not be punished for the mistake or inadvertence of counsel does not extend to a situation where his counsel has exhibited tardiness and incompetence”.
The foregoing pronouncement of the apex Court takes me to the other reasons given by counsel. One of them is that he discovered the need to file a cross-appeal when he was served the record of appeal and the appellant’s brief of argument. I believe counsel is economical with the truth here. Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) entitles all parties to a case a copy of judgment delivered by a Court within seven days. It is the duty of counsel once he gets hold of the judgment, to study it to see if there are areas of disagreement with it and to advise his client accordingly. The applicants cannot tell this Court that their counsel took more than 90 days studying the judgment. He did not have to be served the record of appeal or appellant’s brief of argument for him to discover the need to file a cross-appeal. Counsel’s behavior is nothing short of ineptitude and tardiness which the apex Court has warned Courts not to condone in the case of GTB PLC v. EST MASTER CONSTRUCTION LTD (supra).
The end result of all that I have been trying to put across is that the flag of inadvertence of counsel waived by the applicants to get a reprieve cannot avail them.
The applicants also gave as their reason for failing to appeal within the statutory period the fact that there was a JUSUN strike action which contributed to their delay to file cross–appeal. See paragraph 6 of the applicants’ affidavit. They were however not categorical as to how the JUSUN strike made it impossible to file the notice of cross–appeal within the statutory period. However in paragraphs 3 (m – p) of the counter affidavit the respondent countered any insinuation peddled by the applicants linking their delay to the JUSUN strike. The respondent contended in the said paragraph that the Edo Branch of JUSUN did not join the Nation Wide JUSUN strike. That in fact during the strike the appellant/respondent filed a reply brief in Appeal No. CA/B/291/2019: Access Bank Plc v. Amenz Mart (Nig) Ltd. & Anor in the Registry of the Court of Appeal, Benin Judicial Division. The cover page of the reply brief was attached to the counter affidavit as Exhibit OA4. These dispositions were not countered by the applicants even though they filed a further affidavit on 22/2/2022. These mighty averments having not been challenged, they are deemed admitted and therefore could be relied and acted upon. See: – APC v. IGP & Anor (2021) LPELR–54846 (CA) PP. 16–17 paras D–E, First Bank Plc v. Udeozo & Ors (2017) LPELR–43263 (CA) PP. 16–17 paras B– D, Long-John & Ors v. Blakk & Ors (1998) LPELR–1791 (SC) PP. 31–32 paras F–A, Agu v. Okpoko (2009) LPELR–8286 (CA) PP. 20 21 paras C–B, Oyejobi v. Okegbemi (2013) LPELR – 20476 (CA) P.10 paras. A–F.
In view of the foregoing, I have no hesitation in holding that there is no substance in the applicants’ allusion to the JUSUN strike as a contributory factor to their delay in filing their notice of cross-appeal within the statutory period. In fact, that claim is nothing but total falsehood. Such a blatant lie on oath should not ordinarily go unpunished. It is a settled principle of law that parties seeking the discretion of the Court must come with clean hands: – See Fagbemi v. Omonigbehin & Ors. (2012) LPELR–15359 (CA), P.47 paras A–B, Alagbe & Anor. v. Lawal (2015) LPELR–41897 (CA) P. 13 para D, Aizeboje v. EFCC (2017) LPELR–42894 (CA) P. 22 para B.
The applicants had all the opportunity to file their notice of cross-appeal within the statutory period, but failed to do so, and have rather resorted to shopping for one reason and another to the point of lying under oath to have their way. They were probably under the illusion that an application for extension of time can be granted as a matter of course, probably because, as it is often said, appeal is a constitutional right. Yes, it is, when it is filed within the statutory period. However, once it is not filed within the statutory period, it becomes a matter of discretion which discretion the Court exercises judiciously and judicially based on the materials placed before it.
The applicants herein have not shown good and substantial reasons to assuage this Court to exercise its discretion in their favour.
I now come to the other twin ground which the applicants are required to satisfy to be granted enlargement of time to cross-appeal out of time. Ordinarily, having held that the applicants have not shown good and substantial reasons why they should be granted enlargement of time to cross-appeal, the consideration of this second ground, which is, whether the applicants have shown prima facie that they have arguable ground of appeal, would amount to academic exercise. However, the law mandates that not being the final order, all issues placed before the Court must be considered, in the event, the apex Court holds a view contrary to this Court’s on the issue already decided. See APC & Ors. v. Aguele & Ors (2020) LPELR–51029 (CA) PP. 38–39 paras D–A, Hamman v. Baba (2019) LPELR–48932 (CA) PP. 48–50 paras E–C, Audu v. State (2002) LPELR–7098 (CA), PP. 28–28 paras F–B, Nigerian German Chemicals Plc v. ALL RAY Maritime Services Ltd. (2018), LPELR–50856 (CA) PP. 41–42 paras E–B.
The proposed notice of cross-appeal is annexed to the applicants’ affidavit in support of the motion as Exhibit A. The sole ground of cross-appeal complains against the award of post judgment interest of 20% in favour of the appellant whose counter claim was dismissed. Applicants’ counsel sees this as an act of the lower Court approbating and reprobating at the same time.
However, the respondent’s counsel argued that the learned trial Judge is imbued with absolute statutory discretion to award post-judgment interest on any judgment whatsoever. I have had to consider the judgment of the lower Court annexed to the applicants’ further affidavit as Exhibit “B” in order to verify the claims and counter claims of the parties on this issue. I see that the appellant’s counter claims was considered at pages 30–31 of the judgment. At page 31, the learned trial Judge concluded that the counter claimant (appellant/respondent herein) failed to prove its counter-claim as required by law and proceeded to dismiss it in its entirety. In the circumstances can the argument of the respondent’s counsel that the Court has statutory discretion to have awarded post judgment interest in favour of the respondent be sustained? Definitely not.
In my view therefore, the proposed notice of cross appeal prima facie discloses an arguable ground of appeal.
However, having failed to establish good and substantial reasons for their failure to cross-appeal within time to be entitled to enlargement of time to cross-appeal, this application fails, and is hereby dismissed.
Parties to bear their respective costs for the prosecution of this application.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading before now, the draft of the ruling just delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA.
I adopt the reasoning and conclusion reached in dismissing the Application for enlargement of time to cross appeal. I too hold that the application for enlargement of time fails, the respondents/applicants having failed to establish good and substantial reasons for failure to cross-appeal within time.
I abide by the Order made as to costs.
ADEMOLA SAMUEL BOLA, J.C.A.: Having read the draft of the ruling delivered by my brother, JAMES GAMBO ABUNDAGA, JCA. I do agree with his reasoning and conclusion. The applicants have failed to establish compelling reasons for their failure to cross-appeal within time to be entitled to the enlargement of time to cross-appeal. The application therefore fails and is dismissed accordingly.
Parties to bear their respective costs.
Appearances:
B. O. Eimiuchi For Appellant(s)
Chukwuebuka S. Okeke For Respondent(s)
