GROZZ LTD v. FCMB (2022)

GROZZ LTD v. FCMB

(2022)LCN/16759(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, April 12, 2022

CA/A/61M/2018(R)

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

GROZZ LIMITED APPELANT(S)

And

FIRST CITY MONUMENT BANK PLC RESPONDENT(S)

RATIO

WHETHER OR NOT ALL RULES OF COURT MUST BE OBEYED

THE DUTY OF THE COURT IN EXERCISING DISCRETION IN A MATTER

But that is not all, the Court before finally exercising any discretion in the matter, must of necessity consider whether the grounds of appeal proposed are of such quality as to be termed substantial? I have also carefully perused the grounds of appeal and the particulars of the grounds of appeal, particularly the main ground of appeal, which reveals that applicant’s quarrel or complaint is with regards to the lower Court proceeding to rule on the objection to tender an email print out from one Deji Bankole on the 5th of May, 2014, even though applicant had indicated that he was withdrawing his application. The other grounds are all married to the main ground. The Apex Court in Obikoya vs. Wema Bank Ltd (1989) INWLR (pt. 96) 157, expatiated on the meaning of arguable grounds of appeal, having held that:
“A ground showing good cause why an appeal should be heard is a ground which raises substantial issues of fact and law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of the hand or as totally lacking in substance. It is a ground which evokes a serious debate as to the correction of the decision of the Court below. It is a ground which taxes the intellect and reasoning faculties of the appeal judges. It is a ground which is not frivolous.” PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgement): The instant application brought pursuant to Order 6 Rules 2, 7 and 9 of the Court of Appeal Rules 2016 and under the inherent jurisdiction of the Court, filed on the 6/5/2019 prays for the following orders:
i. An order of this Honourable Court granting extension of time to the Appellant/Applicant within which to seek leave to appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja, Coram Valentine B. Ashi, J, delivered on the 23rd of June, 2017 in Suit no: FCT/HC/CV/2810/15, Between Gross Ltd. V. First City Monument Bank Plc. , on ground of mixed law and facts in terms of the proposed Notice of Appeal attached to the affidavit in support of this application.
ii. An Order of this Honourable Court granting leave to the Appellant/Applicant to appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja, Coram Valentine B. Ashi, J, delivered on the 23rd of June, 2017 in Suit No: FCT/HC/CV/2810/15, between Gross Ltd. V. First City Monument Bank Plc, on ground of mixed law and facts in terms of the proposed Notice of Appeal attached to the affidavit in support of this application.
iii. An order of this Honourable Court granting extension of time to the Appellant/Applicant to file Notice of Appeal and Grounds of Appeal against the judgment of the High Court of the Federal Capital Territory, Abuja, Coram Valentine B. Ashi, J, delivered on the 23rd of June, 2017 in Suit No: FCT/HC/CV/2810/15, between Gross Ltd. V. First City Monument Bank Plc., on ground of mixed law and facts in terms of the proposed Notice of Appeal attached to the affidavit in support of this application.
iv. And for such Order or Orders as this Honourable Court may deem fit to make in the circumstance.

Nine grounds were listed in support of the application, and in support of which is a four paragraph affidavit deposed to by one Aaron Ologe, a legal practitioner in the law firm of Messrs Legal Assent, Solicitors to the Applicant, and hinged on the motion papers, are exhibits titled exhibits A, B and C, being the judgment in suit No. FCT/HC/CV/2810/15, delivered on the 23rd day of June, 2017, the record of proceedings of the lower Court, and the proposed Notice of Appeal. Applicant also filed a further affidavit in support of the Notice of Motion for leave to appeal, accompanied by three exhibits titled exhibits A — C, on the 5/7/2021 and a written address filed on the 26/1/2022. In response to the counter affidavit and written address filed by the respondent herein, counsel filed a reply on points of law on the 14th of February, 2022.

In opposing the application, the learned counsel for the Respondents’ filed an eleven paragraph counter affidavit deposed to by one Daphne Edughele, a legal practitioner in the law firm of Tairu Adebayo & co. Solicitors to the Respondent. A written address in support of the counter affidavit was also filed on the 2nd day of February, 2022. When the application eventually cropped up for hearing on the 15/3/2022 both counsel identified the processes filed, adopted their written addresses as their arguments and urged the Court to grant their respective positions.

In brief, the applicant took out a writ of summons against the respondent claiming for the following reliefs:-
i. A declaration that the defendant has breached, reneged on, failed and frustrated the contract between her and the plaintiff to pay for services procured from the plaintiff.
ii. An order compelling the payment of the sum of N15 million being the sum due as professional fees for services rendered to the defendant or alternatively such sum considered due being amount due as professional fees for services rendered to the defendant by the plaintiff.
iii. An order compelling the payment of 10% interest accrued from amount due in paragraph (b) and accrued interest in paragraph (c) above, until same is liquidated by the defendant.
iv. General damages in the sum of N2, 500, 000
v. Cost of this action in the sum of N1, 000,000.

The defendants filed a statement of defense, wherein it denied liability, contending that even the payment made to them was payment made in error and thereby counter claimed for the amount erroneously paid. Issues having been joined, parties proceeded to call evidence in proof of their various positions. At the close of hearing, written addresses were ordered, filed and adopted, and on the 23rd day of June, 2017, the Court examined the totality of the evidence adduced, rendered the vexed judgment to the effect that plaintiffs case is unmeritorious while the counter claim succeeded.

Dissatisfied with the trial Court’s judgment, and the time to appeal having elapsed, Applicant filed this application seeking for extension of time within which to appeal against that trial Court’s decision.

In line with the practice of the Court, requiring that written addresses be filed along with the application, applicant filed a written address wherein the learned counsel appearing for the applicant identified a single issue for resolution, to wit;
Whether in the circumstance of this case, this Honourable Court can exercise its discretion favor by granting her leave to appeal.

Before moving the application, Mr Johny Agim, the learned counsel representing the applicant, urged the Court to strike out prayer 4 in the motion papers, which application was granted and same struck out being unopposed. On the single issue crafted for the determination of the application, which is whether in the circumstances of this case, this Honourable Court can exercise its discretion in Applicant’s favor by granting her leave to appeal, learned counsel relied on the provision of Order 6 Rule 7 of the Court of Appeal Rules 2021, and contended that the requirement for an application of this nature is premised on the applicant complying with the following in the application:
i. A motion on notice seeking for leave to appeal.
ii. A certified true copy of the decision of the lower Court sought to be appealed against,
iii. Proposed grounds of appeal.
iv. Where leave has been refused by the lower Court, a copy of the order refusing leave.

He submitted that the application filed satisfied those basic requirements enabling the Court exercising its discretion in favor of granting the application, and relied on the case of GTB Plc vs. Diamond Confectionary & Anor (2019) LPELR — 48097 (CA) per Otedola JCA, Otti & Anor vs. Ogah & Ors (2017) LPELR – 41986 (SC) per Ogunbiyi JSC, and Order 6 Rule 7 of the Court of Appeal Rules 2021. He submitted also that from the processes filed, applicant exhibited substantial and good reasons for the grant of the application, and further that the grounds of appeal proposed are substantial and deserving of being argued and considered.

Opposing the application, Mr Tairu Adebayo, the learned counsel for the respondent from the written address filed in support of the counter affidavit proposed a sole issue for the determination of the application, to wit;
Whether the applicant met the requisite conditions provided in law to entitle her to the grant of the prayers sought.

Learned counsel drew the attention of the Court to the provisions of Section 24 (2) of the Court of Appeal Act 2004 with respect to the settled statutory time frame within which any appellant who intends to file an appeal against any decision whether interlocutory or final should adhere to. He states that by the provision of the Act, any appellant desiring to appeal or to file an appeal in respect of an interlocutory or final decision must do so within 14 days or 30 days as the case may be failing which the time to file any appeal is said to have lapsed. Learned counsel then referred to Order 6 Rule 9 of the rules governing this Court which stipulated the grace window offered, subject to certain conditions which need to be satisfied to merit the exercise of the Court’s discretion being exercised in its favor. Also alluding to case law and judicial pronouncements made on the issue, particularly in the cases of Braithwaite & Ors vs. Dalhatu (2016) LPELR – 40301 (SC) and GTB vs. Est Master Construction Ltd (2018) LPELR (SC), contended that applicant having failed in fulfilling those conditions set out in the cases mentioned, applicant cannot and are not entitled to the grant of the application. Still on the other requirement for the applicant to establish good and substantial reasons for failing to appeal within time, counsel submitted that the explanation set forth for the delay is false and unsubstantiated, further stating that the contradictory explanation adduced by the applicant is liable to be discountenanced, and the cases of Royal Exchange Assuarance (Nig) Ltd & Ors vs. Aswani Textile Industries Ltd (1992) LPELR – 2960) (SC) and Atoshi & Ors vs. Agbu & Ors (2018) LPELR – 44477 (CA) were cited and relied upon. He thus argued that based on the falsehood and contradiction shown, the reasons advanced fall short of good and substantial reasons.

On the second requirement necessary for the exercise of the Court’s discretion based on whether arguable grounds of appeal were exhibited in the application, counsel relying on Deme vs. Bule & Ors (2017) LPELR – 44396 (CA) argued that such grounds of appeal must prima facie show good cause why the appeal should be heard. He argued that a perusal of the grounds of appeal seen in the proposed grounds of appeal exhibited by the applicant clearly showed that Section 84 of the Evidence Act was not complied with, and the effect of the non compliance as stated by Uwa JCA in Emzor Pharmaceuticals Ind. Ltd vs. Geencaaf Ventures Ltd and Anor (2021) LPELR — 54695 (CA) is that the necessary conditions laid down by Section 84 of the Evidence Act, 2011 need to be fulfilled before computer generated evidence can be admitted in evidence. He maintained that the application having fallen short of the requirements of the law, the Court’s discretion, which discretion must be exercised judiciously and judicially cannot in the circumstance be extended to the instant application and as such the application should be refused.

Replying on points of law, counsel complained relying on Order 6 Rule 1(b) that the respondent’s written address exceeded the five pages allowed by the rules, and is therefore incompetent, and goes on to contend that contrary to the assertion by the respondent that good and substantial reasons for the delay were not advanced in the affidavit and further affidavit, of the view that indeed good and substantial reasons capable of excusing the delay in the filing of the appeal were shown by their application. On whether the affidavit filed by the applicants was contradictory as contended, it was the contention of learned counsel that the affidavit was not in any way contradictory, and lastly drawing from Akiode & Ors vs. Obi & Ors (2021) LPELR – 56005 (CA), contended that the submissions by the learned respondent counsel through paragraphs 4.9 of his written address, is tantamount to arguing the substantive appeal, at this interlocutory stage which is not permissible. He urged the Court to discountenance the counter affidavit and thereby exercise its discretion in favor of granting the application.

My Lords, permit me to divert a bit and to attend to a preliminary point raised by the applicants pertaining to the written address filed in support of the counter affidavit in opposition to the applicant’s motion. A close examination of the process, i.e. the written address filed in support of the counter affidavit derailed from the commandment of the rules of Court as to the number of pages to be utilized by a party in a written address of this nature. Order 6 Rule 1 (b) of the Court of Appeal Rules 2021 provides as follows:
“Each written address shall not exceed five pages and the reply on points of law shall not exceed three pages.”
Evidently, the respondent’s written address, borne on ten pages completely ran against the mandatory stipulation of the rules. It is indisputable that the breach rendered the process incompetent, and the obvious consequence is obvious, thus the incompetent process is hereby struck out.

It is trite law that rules of Court are not made for fun, but are so made so as to regulate matters in Court with a view to achieving fair hearing and quick dispensation of justice, and any party who fails to obey the rules of Court as in the instant circumstance must abide the consequence thereof. See Mc Investment Ltd vs. CL & CM Ltd (2012) 12 NWLR (pt. 1313) 1, Dambam vs. Lele (2000) 11 NWLR (pt.678) 22, John vs. Blakk (1988) 1 NWLR (pt. 72) 648. I now turn to the merit of the application since the fact that respondent’s brief has been struck out does not in any way obviate the need for the applicant convincing the Court in accordance with the law that the exercise of its discretion in the matter be so exercised in its favor, and to grant its prayers accordingly. I have therefore calmly and dispassionately studied the various submissions made in the application and my understanding is that the substance of the present application turns on whether in the circumstance of this application, the Court can exercise its discretion in the applicant’s favor and thereby grant the applicant leave to appeal. This is against the backdrop that Section 24 (2) of the Court of Appeal Act 2004 stipulated that:
“The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
a. In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision”.
In other words, from the provisions of the law just reproduced, and the various depositions contained in the affidavits of the parties, there is no disputing the fact that the time allowed for the filing of the appeal contemplated against the judgment of the lower Court had lapsed. This view is reinforced from the critical examination of the various affidavits and exhibits filed which I undertook, indicating without any contention thereto that the period allowed for the filing of the notice of appeal as provided for by the act had since elapsed. That notwithstanding, it is apparent that applicant intends to invoke the provisions of Order 6 Rule 9 of the rules governing this Court, which empowered the Court to enlarge the time for the doing of anything to which the rules apply save for that relating to the taking of any step under Order 16 of this rules. Now Rule 7 of the same Order 6, which regulates any application for leave to appeal, makes it a precondition that for the Court to exercise its discretion in granting the application, the applicant has a duty of furnishing the Court with the requirements of good and substantial reasons excusing his failure to appeal within the prescribed period, and to also proceed and to show that the grounds of appeal which he intends to pursue prima facie establishes a good cause why the appeal should be heard. See Lafferi Nigeria Ltd vs. NAL Merchant Bank Plc & Anor (2015) LPELR – 2472 (SC). This Court in Becay International (Nig) Ltd vs. Fidelity Bank Plc (2018) FWLR (pt. 948) 1356 at 1373, per Georgewill JCA, held that:
“In law, since an application for extension of time within which to do or take a step or do something as required by law is one seeking a discretionary remedy and must thus be sustained on sufficient, cogent and convincing materials furnished before the Court by the applicant, it follows therefore that it is not to be granted as a matter of course. Consequently, where no sufficient reason is shown for the delay by an applicant no such indulgence of an extension of time would be granted.”
Ogunbiyi JSC, emphasized the point in Otti & Anor vs. Ogah & Ors (2017) LPELR – 41986 (SC), having held that:-
“It is trite law that in an application of this nature, an applicant for leave to appeal must show by good and substantial reasons why the appeal ought to be heard and this must be exhibited by a notice of appeal showing arguable grounds of appeal if leave is granted. It is also not necessary that the appeal should have merit, but the question is whether there is a right and reason to appeal.”

What then are the reasons proffered by the applicant which may excuse his failure in appealing out of time prescribed by law? In other words, are there any good and substantial reasons adduced by the applicant excusing his delay for not appealing the vexed decision within the time allowed? I have in the circumstance examined the affidavit evidence adduced by the applicant.

Paragraph 3 (iii) of the affidavit in support of the Notice of motion appears to contain the reason for the delay. It provides:
3. That the former counsel instructed to file the notice of appeal wasted a lot of time to apply for the Certified True Copy of the judgment from the Court below and never informed the appellant of the reason for the delay until both parties fell out and before appellant/applicant could instruct our firm, the time allowed for filling of Notice of Appeal has lapsed.
4. That upon briefing our firm to prepare the necessary processes and appeal against the judgment of the FCT High Court, it was discovered that the time allowed for filling appeal against the judgment had elapsed, hence for filling of this application.

Learned counsel by his further affidavit filed in support of the notice of motion, is heard as saying that while the judgment sought to be appealed on was delivered on the 23rd of June, 2017, he was only briefed to handle the appeal sometimes on the 21st of January, 2018 when the former counsel was debriefed, hence the filing of the application for leave to appeal, the time to appeal as of right having elapsed. A calm consideration of the sole reason advanced by the applicant were viewed against the backdrop of the applicant’s constitutional right to appeal, taken along with the fact that the Court is required to accord a liberal attitude in the consideration of any reason that may lead to granting the applicant the right of ventilating his grievance, I am satisfied that the facts alluded by the applicant for his inability to appeal within the time allowed by law, being that his former counsel failed to comply with his directives to appeal the decision, which failure led to his debriefing the said counsel and briefing the instant counsel who then timeously filed the instant application is a good reason sufficient in the eyes of the Court for the delay, and the Court is swayed in granting the application in that regard. See Becay Intl (Nig) Ltd vs. Fidelity Bank Plc (supra), Ngere vs. Okuruket and Ors (2014) ALL FWLR (pt. 742) 1766.

But that is not all, the Court before finally exercising any discretion in the matter, must of necessity consider whether the grounds of appeal proposed are of such quality as to be termed substantial? I have also carefully perused the grounds of appeal and the particulars of the grounds of appeal, particularly the main ground of appeal, which reveals that applicant’s quarrel or complaint is with regards to the lower Court proceeding to rule on the objection to tender an email print out from one Deji Bankole on the 5th of May, 2014, even though applicant had indicated that he was withdrawing his application. The other grounds are all married to the main ground. The Apex Court in Obikoya vs. Wema Bank Ltd (1989) INWLR (pt. 96) 157, expatiated on the meaning of arguable grounds of appeal, having held that:
“A ground showing good cause why an appeal should be heard is a ground which raises substantial issues of fact and law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of the hand or as totally lacking in substance. It is a ground which evokes a serious debate as to the correction of the decision of the Court below. It is a ground which taxes the intellect and reasoning faculties of the appeal judges. It is a ground which is not frivolous.”
See also Deme vs. Bule & Ors (2017) LPELR – 44396 (CA), what then is the applicant complaining about? If his complaint is anchored on the refusal of the Court to allow him withdraw his application for the tendering of the exhibit after the other party had joined issues by objecting to same, can that by itself amount to a substantial ground, and if the applicant is also complaining about the ruling of the lower Court refusing to admit the document sought to be admitted on the grounds of non compliance with Section 84 (2) and (4) of the Evidence Act 2011, qualify in that regard? I have in the instant been referred to our earlier decision on the matter per Ogakwu JCA in Akiode & Ors vs. Obi & Ors (2021) LPELR – 56005 (CA) to the effect that, a party wishing to appeal against the judgment of the trial Court can file one of the grounds of appeal alleging that inadmissible evidence had been admitted during the trial or admissible evidence had been rejected, and that whether the complaint is on wrongful admission or wrongful rejection both are fundamental as the error might have occasioned a miscarriage of Justice. I tend to agree with his lordship. The aggregate of the position which the law seeks to protect has always been that whereas frivolous applications giving rise to unserious appeals be waded out of our dockets, the constitutional right which accords a litigant access to our Courts to ventilate his grievance be not unnecessarily and without a cogent reason be closed against him. In the circumstance of this case, I am of the view that applicant having satisfied the two material considerations for the grant of the exercise of the Courts discretion favorable to his cause, same is hereby granted as prayed.

On the whole therefore the two main conditions having been met, this Court cannot but exercise its discretion in favor of granting the application, and it is hereby granted accordingly.
Applicants shall have 14 days from today to file their Notice of Appeal.

PETER OLABISI IGE, J.C.A.: I agree.

MOHAMMED MUSTAPHA, J.C.A.: I read the draft Ruling just delivered by my learned brother, HAMMA AKAWU BARKA, JCA. I agree with the reasoning and adopt the conclusion therein as mine.