GREEN PALMS NIGERIA LIMITED v. CASAGRANDE NIGERIA LIMITED
(2014)LCN/7595(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of December, 2014
CA/I/M55/2014
RATIO
STATUTORY INTERPRETATION; ORDER 7 RULE 10(2) OF THE COURT OF APPEAL RULES 2011; WHETHER THE WORD ‘SHALL’ IN THE STATUTE CONNOTES WHAT IS MANDATORY AND WHETHER THE USE OF THE WORD SHALL IN THE PROVISION AFFECTS THE DISCRETIONARY POWER OF THE COURT
While it is true that the word “shall” connotes what is mandatory, there should be no knee jerk approach to viewing that word. The word should be construed within the con in which it is used because it is not in every case that the word “shall” imports a mandatory meaning in its use. See Umeanadu v. A.G. Anambra State (2008) 9 NWLR (Pt. 1091) p.175. What does Order 7 rule 10(2) of the Court of Appeal Rules 2011 say? It provides as follows:
“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……”
I cannot see how the use of the word “shall” in the above provision affects the discretionary power of the court. Who determines if the affidavit in support of an application for enlargement of time has set forth good and substantial reasons for failure to appeal? It is surely the court.
How does the use of the word “shall” handcuff the exercise of that obviously discretionary power? It is the duty of the court to look at the facts stated in the affidavit evidence before it and then decide if the facts contained therein are sufficient or not sufficient to grant an application for an enlargement of time. per. OBIETONBARA DANIEL-KALIO, J.C.A.
PRACTICE AND PROCEDURE: MISTAKE OF THE COUNSEL; THE PRINCIPLE THAT THE MISTAKE OF COUNSEL ARE NOT VISITED ON THE LITIGANTS
I make bold to say that the law has not changed. It is very much alive and well. Even the authorities cited by the learned senior counsel say so eloquently. In Trans Nab Ltd. v. Joseph (supra) cited by the learned senior counsel, the court from the quotation given by the learned senior counsel himself, stated thus:
“It is not only where there are procedural irregularities that a mistake of counsel are not visited on litigants …” Meaning that the concept of law that mistakes of counsel should not be visited on clients is very much alive and well.
Again in Akanbi v. Alao (supra) cited by the senior counsel, we find the following passage:
“If there is lapse in his office, his clerks forgetting to file some papers, he forgetting the date of hearing or such like procedural errors, of course, the client should not be made to suffer.”
The established legal principle of not visiting the sins of counsel on the litigant did not die so that the principle that in some cases litigants must bear the resultant hardship caused by counsel that have not performed in the expected professional manner or degree may live. Both principles exist and have their due place under the canopy of the law. I need not say more on this. per. OBIETONBARA DANIEL-KALIO, J.C.A.
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
GREEN PALMS NIGERIA LIMITED Appellant(s)
AND
CASAGRANDE NIGERIA LIMITED Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the lead Ruling): This Ruling is on an application for an extension of time within which to appeal. Judgment was given against the applicant Green Palms Nigeria Ltd in a counter-claim of the Respondent Casagrande Nigeria Ltd wherein the respondent by way of a counter-claim sought –
(1) A declaration that the applicant does not have a right of way or easement on the respondents land at Ijade village on the Lagos/Sokoto Highway in Abeokuta North Local Government Area;
(2) A declaration that the opening up of a road over the respondent’s land by the applicant is wrongful, unlawful and a breach of the respondent’s right to quiet enjoyment of its possession;
(3) An order directing the applicant to close up the road wrongfully constructed on the respondent’s land and to remove all culverts, bridges and other construction on the road through the respondent’s land;
(4) The sum of N20,000 being damages for trespass by the applicant on the respondent’s land; and
(5) An order of injunction restraining the applicant by itself, its agents, servants, privies and any other person whatsoever from further trespassing on or in anyway disturbing the quiet enjoyment of the respondent of its land or any portion of it or from generally interfering with the operation of the respondent’s quarrying licence.
The Respondent’s claim against the applicant by way of the counter-claim was adjusted by way of an amendment. By the amendment, the respondent in addition to the reliefs earlier mentioned, also sought a declaration that the road constructed by the applicant in February and March 2004 over the area covered by the Respondent’s Quarry Licence Nos.QLS.27616 and QLS.27617 both dated 12th January, 2004 is wrongful, illegal and contrary to the provisions of the Minerals and Mining Act. The claim for damages was significantly revised. By the amendment, the respondent by way of its counter-claim, sought from the applicant the sum of N100,000,000.00 as special and general damages for trespass.
The lower court accepted that the respondent had proved its counter-claim and therefore granted the reliefs claimed by the respondent almost in their entirety except that instead of the N100,000,000 claimed as general and special damages against the appellant, it awarded the sum of N70,325,000.00. The judgment was delivered on 30/9/11. It was not until 27/2/2012 that the applicant, according to its averment in the affidavit in support of its motion filed on 14/2/14, got to know that the respondent had been given judgment. On that day according to the affidavit in support, Bailiffs of the High Court accompanied by armed policemen entered the applicant’s premises with a Writ of Execution and proceeded to attach the applicant’s machines and equipment. Jolted by that act, the applicant has approached this court via the motion on notice referred to and seeks the following orders:
1. An order of extension of time within which the Applicant can appeal against the judgment of Hon, Justice P. A. Onamade of the High Court of Ogun State, Abeokuta Judicial Division on 30th September, 2011 in Suit No. AB/68/2004; Between Green Palms Nigeria Limited and Casagrande Nigeria Limited;
2. An order of this honourable court stopping the sale of the properties of the Applicant attached on 27/2/2012 based on the judgment of Hon. Justice P. A. Onamade sitting in the High Court of Ogun State,
Abeokuta Judicial Division delivered on 30th September, 2011 in Suit No. AB/68/2004.
The Motion on Notice was supported by an affidavit of 12 paragraphs as well as 7 exhibits. The applicant also filed on 13/11/14, a further affidavit of 19 paragraphs deposed to by Abass Nurudeen a legal practitioner and also, a Supporting Affidavit of 13 paragraphs deposed to by Olukunmi Lalude, also a legal practitioner. Both the further affidavit and the supporting affidavit were filed in response to the Respondent’s counter affidavit which counter affidavit of 27 paragraphs was deposed to by Femi Onakoya, a legal practitioner. The counter affidavit was filed on 21/2/14.
When the motion came up for hearing before us on 24/11/14, applicant’s learned counsel Afolabi Fashanu SAN withdrew prayer 2 in the motion paper and moved in terms of prayer 1 only. He submitted that all that is required at this stage is that there are good grounds for hearing the application. The merits of the case he emphasized, are not required to be considered at this stage.
Learned Counsel contended that the reasons for not filing an appeal in time have been stated in the affidavit in support of the application. In a nutshell, the reason he argued, is that the Director of the applicant who briefed counsel in the matter died and the applicant company was not aware of the matter in court until execution was levied on the applicant company. He contended that the failure to bring the application on time was due to the fault of counsel. He cited the case of Elobisi v. Onyeonwu (1989) 5 NWLR (Pt. 120) p.224 at 232. He submitted that the length of delay in bringing the application should not deter the court. He cited the case of Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 NWLR (Pt. 387) p.20 at p.26. He urged us to exercise our discretion in favour of the applicant.
M. A. O. Okunlaja SAN in his submission in opposition to the application argued that in order to obtain an extension of time to appeal, Order 7 rule 10(2) of the Court of Appeal Rules 2011 must be complied with. The word ‘shall’ used in that provision, the learned SAN contended, shows that good reasons must be adduced for the application to succeed. He referred us to CCB (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (Pt. 284) p.630 at 641. In a letter dated 28/11/14 addressed to the Registrar, Court of Appeal Ibadan and copied to the applicant’s learned counsel, respondent’s counsel M. A. O. Okulaja SAN cited more case law to underscore the mandatory nature of the word “shall” in Order 7 Rule 10(2) of the Court of Appeal Rules 2011. He cited the following cases: Seaview Investment Ltd. v. Munis (1991) 6 NWLR (Pt. 195) p.67 at p.88; Anya v. ANN. Ltd. (1992) 6 NWL (Pt. 195) p.67 at 88; (I believe there must be an error in the citation of the above two cases since (1991) 6 NWLR and (1992) 6 NWLR cannot both be part 195 of the Nigeria Weekly Law Report); Sekoni v. UTC Nig. Plc. (2006) ALL FWLR 1620/1634, 1636; Awoniyi v. Madam Animotu Eletu (1963) 2 ALL NLR 99; CCB (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (Pt. 284) p.630/640, 641 and Ikenta Best (Nig.) Ltd. v. A.G. Rivers State (2008) 6 NWLR (Pt. 1084) 612/642.
The Learned Senior Counsel submitted that the reasons given by the applicant in its affidavit in support of the motion are not acceptable.
It was contended with particular reference to paragraph 3(b) and (c) of the affidavit in support that where a legal practitioner is engaged to handle a case and uses his skills and judgment in handling the case, if he turns out to be wrong, his client is bound by the outcome of his error. We were referred to Gov. of Benue v. NCC Ltd. (1997) 3 NWLR (Pt. 495) p.610/615; Onyemelukwe v. WACC (1995) 4 NWLR (Pt. 387) p.44/55; SCC (Nig.) Ltd. v. Our Line Ltd. (1996) 4 NWLR (Pt. 444) p.551/561. Still on this point, respondent’s learned senior counsel in his letter aforementioned contended that the law has changed from when it was the vogue that a client should not be punished for the sins of his counsel. He urged that in the last 25 years the appellate courts have been moving away from that stand. Under a heading in his letter titled “when mistakes of counsel can be visited on client”, the learned senior advocate cited the following cases, Igweshi v. Atu (1993) 6 NWLR (Pt. 300) p.484 at 496; Trans Nab Ltd. v. Joseph (1997) 5 NWLR (Pt. 504) 176/197; Akanbi v. Alao (1989) 3 NWLR (Pt. 108) p.118 at 142-143: Governor of Benue State v. NCC Ltd. (1997) 3 NWLR (Pt. 495) p.610/615: Onyemelukwe v. WACC (1995) 4 NWLR (Pt. 387) 44/56 and SCC (Nig.) Ltd. v. Our Line Ltd. (1996) 4 NWLR (Pt. 444) 551/561 It was contended that the grounds of appeal are not substantial and can be dismissed with a wave of the hand. We were urged to dismiss the application.
In his letter addressed to the Registrar of the Court of Appeal Ibadan earlier mentioned, Respondent’s Learned Senior Counsel argued that the implication of the word “shall” in Order 7 Rule 10(2) of the Court of Appeal Rules 2011 is that the rule is mandatory and the court does not have any discretion under the Rule but to apply the law strictly. While it is true that the word “shall” connotes what is mandatory, there should be no knee jerk approach to viewing that word. The word should be construed within the con in which it is used because it is not in every case that the word “shall” imports a mandatory meaning in its use. See Umeanadu v. A.G. Anambra State (2008) 9 NWLR (Pt. 1091) p.175. What does Order 7 rule 10(2) of the Court of Appeal Rules 2011 say? It provides as follows:
“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……”
I cannot see how the use of the word “shall” in the above provision affects the discretionary power of the court. Who determines if the affidavit in support of an application for enlargement of time has set forth good and substantial reasons for failure to appeal? It is surely the court.
How does the use of the word “shall” handcuff the exercise of that obviously discretionary power? It is the duty of the court to look at the facts stated in the affidavit evidence before it and then decide if the facts contained therein are sufficient or not sufficient to grant an application for an enlargement of time.
I also wish to make a comment on the submission in the letter of the respondent’s learned counsel where he contended in amplification of his earlier submission in court that the law has changed from when it was the vogue that a client should not be punished for the sins of his counsel. I make bold to say that the law has not changed. It is very much alive and well. Even the authorities cited by the learned senior counsel say so eloquently. In Trans Nab Ltd. v. Joseph (supra) cited by the learned senior counsel, the court from the quotation given by the learned senior counsel himself, stated thus:
“It is not only where there are procedural irregularities that a mistake of counsel are not visited on litigants …”
Meaning that the concept of law that mistakes of counsel should not be visited on clients is very much alive and well.
Again in Akanbi v. Alao (supra) cited by the senior counsel, we find the following passage:
“If there is lapse in his office, his clerks forgetting to file some papers, he forgetting the date of hearing or such like procedural errors, of course, the client should not be made to suffer.”
The established legal principle of not visiting the sins of counsel on the litigant did not die so that the principle that in some cases litigants must bear the resultant hardship caused by counsel that have not performed in the expected professional manner or degree may live. Both principles exist and have their due place under the canopy of the law. I need not say more on this.
Now, in this case, one has to be very careful in considering the reasons given for not appealing within time as some of the reasons given in the affidavit in support border on what may arise in the appeal proper should the extension of time to appeal now sought by the applicant be granted. Suffice it that the applicant stated that it only became aware of the judgment on 27/2/12 when the respondent levied execution. This in my view will be a good enough reason to grant the application.
The respondent in its counter-affidavit stated that since judgment was delivered on 30th September 2011 the applicant has been filing different applications to frustrate the respondent. However the respondent did not proffer any evidence in proof of this position. It will be presumed that the failure of the respondent to produce evidence that the applicant has since the judgment been filing different applications to frustrate the respondent shows that the production of such evidence would if produced have been unfavourable to the respondent. See Section 167 of the Evidence Act 2011. It is therefore safe to say that the claim that the applicant became aware of the judgment when execution was levied has not been effectively debunked. I therefore accept that reason as good enough to grant the application before us.
Accordingly, it is ordered that the applicant be and is hereby granted an extension of time of 14 days from today within which to appeal against the judgment of Hon. Justice P. A. Onamade sitting in the High Court of Ogun State Abeokuta Judicial Division on 30th September 2011 in Suit No. AB/68/2004 between Green Palms Nigeria Limited and Casagrande Nigeria Limited.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Obietonbara Daniel-Kalio, JCA gave me the privilege to read in advance, the Ruling he has just delivered.
I agree with the reasoning and conclusion of my learned brother that the Applicant be granted an extension of time within which to appeal the judgment of the Ogun State High Court in Suit No. A8/68/2004, delivered by P. A. Onamade, J on the 30/9/2011. Accordingly, the Applicant is granted extension of time within which to so appeal.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the privilege of reading before now the Ruling delivered by my brother Obietonbara Daniel-Kalio, JCA.
I adopt my learned brother’s view and conclusion in the Ruling and grant the order sought, extending the time within which the applicant would appeal against the judgment of P. A. Onamade (as he then was), sitting in the High Court of Ogun State Abeokuta Judicial Division on 30/9/2011 in Suit No. 48/68/2004.
Appellant to file his Notice of Appeal within 14 days from today.
Appearances
Afolabi Fashanu, SAN with Lukman AbdullahiFor Appellant
AND
M. A. O. Okulaja, SAN with Oludolapo OkunnigaFor Respondent
