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GLOBAL AFCOT CONCEPT & ORS v. UNILORIN MICRO FINANCE BANK LTD (2022)

GLOBAL AFCOT CONCEPT & ORS v. UNILORIN MICRO FINANCE BANK LTD

(2022)LCN/17094(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/IL/99M/2021(R)

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

1. GLOBAL AFCOT CONCEPT 2. ALHAJI NOORDEEN BABA TUNDE SA’AD 3. PROF. JIMOH ABDULGAFAR 4. AHMED ABDULRASHEED ATANDA APPELANT(S)

And

UNILORIN MICRO FINANCE BANK LTD. RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON COMPILING AND TRANSMITTING THE RECORD OF APPEAL AFTER FILING THE NOTICE OF APPEAL

By the provision of Order 8 Rule 4(1) the registrar is allowed 60 days to compile and transmit the record of Appeal after the filing of the Notice of Appeal, failing which it becomes mandatory for the Appellant to compile and transmit the record of Appeal within 30 (thirty) days after the Registrar’s failure or neglect. PER AMADI, J.C.A.

WHETHER OR NOT ILL HEALTH OR POVERTY THAT HINDERS THE PERFECTION OF A COUNSEL’S INSTRUCTION, LEADING TO NON-COMPLIANCE WITH THE RULES OF COURT IS GOOD REASON FOR EXTENDING TIME TO FILE A RESPONDENT’S BRIEF

In the case of Omoregie v Emovon (1982) 6 SC 6, it was held that the two reasons given by the Applicant for failing to file his brief within time namely, appellant’s illness which inhibited his ability to perfect his counsels instructions was not sufficient to grant an extension of time. The application was dismissed by the Supreme Court on the grounds that the reasons were not sufficient to grant the application. It has been settled by judicial authorities that ill-health or poverty which hinders the perfection of a counsel’s instruction which has led to non-compliance with the Rules of the Court within the prescribed time is no good reason for extending time to file brief, in this case for the transmission of the record of appeal see Ajayi v. Omorogbe (1993) 6 NWLR (Pt. 301) 512 at 528. PER AMADI, J.C.A.

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgement): By motion on Notice dated the 28th November, 2021 but filed on 13th December, 2021, the 1st and 2nd Applicants who were the 1st and 2nd defendants in suit NO KWS/19/2015 brought this application for the following prayers:
1. LEAVE of this Honourable Court granting extension of time to Appellant/Applicant to compile and transmit record of Appeal in this Appeal to this Honourable Court.
2. AN ORDER of this Honourable Court deeming the already compiled and transmitted record of Appeal as properly compiled and transmitted.
3. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances of this application.

The grounds upon which this application is brought are as follows:-
i. The judgment in this case was delivered by the trial Court on the 9th day of June, 2015 against the Appellants/ Applicants.
ii. The Appellants/ Applicants filed Notice of appeal against the said judgment on the 14th day of June 2015.
​iii. The record of Appeal could not be transmitted within time due-to the illness of the 2nd Appellant/Applicant, the main Judgment/Debtor and the alpha omega of the 1st Appellant/Applicant.
iv. At the time the 2nd Appellant/Applicant recovered from his illness, he attempted to finance the compilation and transmission of the record of appeal but could not do so due to being financial handicapped.
v. The time within which the Appellants/Applicants have to compile and transmit record of Appeal has lapsed.
vi. The record of appeal has now been transmitted to the Court of appeal on the 28th day of October 2021
vii. Leave of this Honoureble Court is required to compile and transmit record of Appeal to this Honourable Court and to deem same as properly compiled and transmitted.
viii. The Respondent will not be prejudiced by a grant of this application.
ix. It is in the interest of justice to grant this humble application.

The motion is supported by an affidavit of 13 paragraphs and a written address in support thereof.

In his supporting written address counsel raised one issue for determination thus:-
Whether this honourable Court will not exercise its discretion in favour of the Applicants to grant the reliefs contained in the motion, considering the entire facts and circumstances of this application.

Counsel argued that the provision of the Rules of Court in taking procedural step must be obeyed at all times. But where there is non-compliance the Court has the discretionary power to extend the time prescribed. Counsel referred to the case of N. A. Williams & Ors. V. Hope Rising Voluntary Society (1982) 1 ALL NLR (Pt.1) 1. Counsel referred also to paragraphs 5 to 10 of the affidavit in support of this motion and submitted that the applicants have sufficiently explained the circumstances necessitating the filing of this application.

Continuing, counsel submitted that, from the relevant depositions contained in the affidavit in support of this application that the delay in this case was not deliberate and/or intentional but due to the Applicants’ financial constraint, that the record of appeal could not be transmitted within the time prescribed by this Honourable Court. Counsel urged this Court to grant this application.

The 4th application (Ahmed Abdulrasheed Atanda) filed a counter affidavit wherein he denied authorizing anybody to file an appeal over the judgment in this matter. He further deposed to the fact that he has made part payment of the judgment sum in this matter.

The Respondent filed a counter affidavit wherein it was deposed that the Notice of Appeal was not served on the Respondent until after execution has commenced. That the 3rd and 4th Applicants have paid the sum of N1,000,000 each of the judgment sum. That this application was in response of a motion to attach the immoveable property of the 2nd Appellant at the lower Court through an application dated 7/1/2021.

The learned counsel for the Appellant filed a further affidavit of ten (10) paragraphs and a written address in support of the further affidavit. Counsel submitted that “length of delay in filing an appeal against a Judgment of a lower Court is immaterial in so far as there is good and substantial reason for the delay”. Counsel referred to the case of P.M.S Ltd. v Umarco (Nig.) Ltd. & others (2017) ALL FWLR (Pt. 894) 1415 at 1433 and urged the Court to grant this application.

RESOLUTION
The judgment in this case was entered at the lower Court on the 9/6/2015 that is more than 7(seven) years ago. The notice of Appeal was filed on 11/6/2015. The 90 days allowed for transmission of the record of appeal elapsed on or about the 9/8/2015.

By the provision of Order 8 Rule 4(1) the registrar is allowed 60 days to compile and transmit the record of Appeal after the filing of the Notice of Appeal, failing which it becomes mandatory for the Appellant to compile and transmit the record of Appeal within 30 (thirty) days after the Registrar’s failure or neglect.

The notice of Appeal in this matter was filed on the 11/6/2015. 90 days thereafter shall be on the 9/9/2015 thereafter the Appellant shall be in default.
By Order 8 Rule 4(2) of the Court of Appeal Civil Procedure Rules 2021;
“Upon regularization, records filed out of time shall be deemed to have been filed within the ninety day period as stated in Rule 4(1) of this order and not on the day the application for extension of time was granted”.
​The implication of the above provision is that any regularization of the record of appeal in this matter shall relate back to the 10/9/2015 being the 1st date after the expiration of the 90 days window for transmission of the record of appeal. The further implication is that the appellant shall pay default fees from that 10/9/2015 to date.

In his argument in support of this motion the applicant urged this Court to grant this application on 2 (two) reasons.

The first being on ground of ill health. However, he did not supply the particulars as to the illness, the period that he was ill, the nature of the illness and no medical report was attached to support his claim of brief illness. However, in his further address in support of his further affidavit he claimed that he was sick something about 2015-2016, the question is what happened thereafter?

Apart from that, his next reason was poverty. Lack of funds to prosecute the appeal, that is; payment of his lawyer’s professional fees.

The two reasons given by the applicant that is ill health and poverty cannot ground an excuse for non-compliance with the Rules of Court.

In the case of Omoregie v Emovon (1982) 6 SC 6, it was held that the two reasons given by the Applicant for failing to file his brief within time namely, appellant’s illness which inhibited his ability to perfect his counsels instructions was not sufficient to grant an extension of time. The application was dismissed by the Supreme Court on the grounds that the reasons were not sufficient to grant the application. It has been settled by judicial authorities that ill-health or poverty which hinders the perfection of a counsel’s instruction which has led to non-compliance with the Rules of the Court within the prescribed time is no good reason for extending time to file brief, in this case for the transmission of the record of appeal see Ajayi v. Omorogbe (1993) 6 NWLR (Pt. 301) 512 at 528.

The case of the applicants here is made worse by the fact that the 4th Applicant has disassociated himself on oath from this application stating clearly that he did not authorize anybody to appeal the judgment in this matter. Not only that, the judgment being appealed against is a partly executed judgment, in that the 3rd and 4th Respondents stated that they have paid their own portion of the judgment sum.

From the forgoing, this application is purely meant to further delay and frustrate the execution of the judgment in this case. Be that as it, the Court is minded in granting this application subject to the following conditions:
(1) The Applicants shall pay penalty in default from the date of default that is from about the 10/9/2015.
(2) The Applicants shall deposit the unpaid/balance of the judgment sum in this case with the DCR of Ilorin Division of this Court to be paid into an interest yielding account pending the determination of the appeal in the matter.
(3) The Applicants shall fulfill the aforesaid conditions within 14 days failing which the leave or regularization granted by this application shall elapse.
Ruling is entered accordingly.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the ruling just delivered by my learned brother KENNETH IKECHUKWU AMADI, Ph.D. JCA. I agree with his reasoning and final conclusions. I also grant the Appellant/Applicants prayers as per the orders and conditions contained in the lead Ruling.

ISAIAH OLUFEMI AKEJU, J.C.A.: I have read the Ruling delivered by my learned brother, KENNETH IKECHUKWU AMADI, JCA, and I agree with the reasoning and conclusion therein. I grant the application and abide by the terms and conditions set out in the Ruling.

Appearances:

M. D. ZULQURNAIN, ESQ. with him, IBIDAYO IJAYA, ESQ. For Appellant(s)

I. F. YUSUPH, ESQ. For Respondent(s)