GUARANTY TRUST BANK PLC v. DIAMOND CONFECTIONERY & ANOR
(2019)LCN/12629(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of February, 2019
CA/K/100/M/2018(R)
RATIO
ACTION: CONDITION TO SEEK EXTENSION OF TIME
“The law is trite that an applicant who in essence seeks extension of time to appeal or seek leave to appeal, is required to satisfy the following conditions:
1. Provide good and substantial/sufficient reasons for failing to appeal or seek the requisite leave to appeal within the time prescribed by law.
2. Grounds of appeal which prima facie show good cause why leave and or time should be extended for the intended appeal to be heard.
See Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016 and the cases of STATE OF EKITI VS. ADERIYE & ORS. (2016 LPELR – 40681 (CA) and RIBADU VS. DALHATU (2012) LPELR – 19729 (CA).” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
GUARANTY TRUST BANK PLC Appellant(s)
AND
1. DIAMOND CONFECTIONERY INDUSTRIES LTD.
2. KANO PLASTIC PRODUCTS LTD. Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Lead Ruling):
This ruling pertains to a motion on notice dated the 29th day of January 2018 and filed on the 2nd day of February, 2018, whereby the applicant sought for the grant of the following prayers:
1. AN ORDER for extension of time within which the Appellant/applicant may seek leave to appeal against the ruling of Kano State High Court of Justice No.4 as contained in the ruling of Hon. Justice A. T. Badamasi delivered on the 8th day of November, 2017 in Suit No. K/269/2015 Diamond Confectionary Industries Ltd Vs. Guaranty Trust Bank Plc.
2. AN ORDER granting leave to the Appellant/applicant to appeal against the Ruling of the Kano State High Court of Justice No 4 as contained in the ruling of Hon. Justice A. T. Badamasi delivered on the 8th day of November, 2017 in Suit No. K/269/2015 Diamond Confectionary Industries Ltd. Vs. Guaranty Trust Bank Plc.
3. AN ORDER granting leave to the Appellant/applicant to file a notice of appeal against the Ruling of the Kano State High Court of Justice No. as contained in the ruling of Hon. Justice A. T. Badamasi delivered on the 8th day of November, 2017 in Suit No. K/269/2015 Diamond Confectionary Industries Ltd. Vs. Guaranty Trust Bank Plc.
4. AN ORDER staying execution of the Ruling/Order of the Kano State High Court of Justice No. K/269/2015 Diamond Confectionary Industries Ltd. Vs. Guaranty Trust Bank Plc pending the hearing and determination of the appeal.
5. AND for such further orders as this Honourable Court may deem fit to make in the circumstances of this application.
The said application was supported by an affidavit of 8 paragraphs, further affidavit also of 8 paragraphs. On the 2nd day of May, 2018 this Court directed parties herein to file written addresses. In compliance therewith, the applicant filed its written address. In opposition to the application, the respondents filed a joint counter affidavit on the 30th day of April, 2018. Towards determination of the application, learned counsel for the applicant put forward a single issue in respect thereof. The issue is reproduced below as follows:
Whether the applicant has satisfied the conditions for the grant of this application
It is instructive to observe that the respondents failed and/or neglected to comply with the directive of this Court wherein the parties were ordered to file written addresses in place of their oral arguments in support or opposition to the application. Also, the respondent and their counsel were absent on the 13th day of November, 2018 when this application was scheduled for hearing and no word was heard from them explaining their absence, despite the service of hearing notice and other requisite Court processes on them. In this circumstance, the only legal address or argument to be considered in the determination of this application would be that of the applicant alone.
LEGAL ARGUMENT.
The learned counsel for the applicant commenced with the submission and rightly so, that an application for extension of time within which to appeal would succeed if the applicant can show by affidavit evidence the following:
a. Good and substantial reasons for failure of the applicant to appeal within the prescribed period; and
b. Grounds of appeal which prima facie show good cause why the appeal should be heard.?
He referred us to the cases of NATIONAL INLAND WATERWAYS AUTHORITY VS. THE SHELL PETROLEUM DEV. CO. OF NIG. LTD. (2008) ALL FWLR (PT. 433) 1402 and UNION BANK OF NIGERIA PLC. VS. JAMTHI (2012) ALL FWLR (PT. 613) 2003.
The learned counsel for the applicant then stated, that the applicant has by its supporting affidavits, established that the ruling of the Kano State High Court sitting at Kano (hereinafter referred to as the lower Court) delivered by Hon. Justice A. T. Badamasi, J. on the 8th day of November, 2017; in respect of which it was invoking the grant of “trinity prayers’ introduced a novel issue which requires special deliberation especially by stakeholders in the banking sector.
Additionally, that before they could critically examine the ruling and take a stand, the time permitted by law within which to appeal against the said ruling had elapsed, hence, this application. The learned counsel for the applicant thereby submitted, that from the affidavit evidence the applicant has sufficiently explained the reason for the delay in bringing the present application in consonance with the first requirement? and he urged this Court to so hold. He supported his submission with the cases of OSAYOMI VS. GOVERNOR, EKITI STATE (2014) ALL FWLR (PT. 751) 1573; NGERE VS. OKURUKET (2014) ALL FWLR (PT. 742) and FRANCIS VS. OSUNKWO (2000) ALL FWLR (PT. 14) 2469 among others.
On the second requirement, the learned counsel for the applicant submitted that the applicant’s ground of appeal disclosed good ground which prima facie shows good cause why the appeal should be heard. The learned counsel thereby contended, that “this Court has a duty to ensure that a would be appellant who has good grounds of appeal which prima facie shows a good cause why the appeal should be heard is not denied an opportunity to appeal. Indeed, the Court must encourage such litigant who it is satisfied that the right of appeal is pursued in good faith.? Reference/reliance was placed by the learned counsel on the case of UNION BANK OF NIG. PLC VS. JAMTHI (Supra).
The law is trite that an applicant who in essence seeks extension of time to appeal or seek leave to appeal, is required to satisfy the following conditions:
1. Provide good and substantial/sufficient reasons for failing to appeal or seek the requisite leave to appeal within the time prescribed by law.
2. Grounds of appeal which prima facie show good cause why leave and or time should be extended for the intended appeal to be heard.
See Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016 and the cases of STATE OF EKITI VS. ADERIYE & ORS. (2016 LPELR – 40681 (CA) and RIBADU VS. DALHATU (2012) LPELR – 19729 (CA).
I have carefully considered the applicant’s affidavit and further affidavit in support of his motion on notice vis–vis the counter affidavit filed by the respondents, and I am of the considered viewpoint that the applicant has by its affidavits put forward good and sufficient reasons why it delayed in filing its appeal and or in bringing this application. The applicant stated in its affidavit that the complaint/challenge against the ruling it is seeking leave to appeal was novel to it and thus required proper and extensive considerations in order for it to determine the proper step(s) to take in the face of the long term implications of the ruling.
The respondents made a belated effort to dispute the fact that the applicant did not undertake any extensive consideration of the ruling as claimed and that the applicant intentionally delayed the taking of step to appeal against the ruling. Also, that it brought this application in order to frustrate the committal proceeding commenced against it at the lower Court. The facts deposed to in the respondent’s counter affidavit particularly with regard to the events that took place in the applicant’s company, are unreliable and can be classified as mere guess work, because the person that deposed to the counter affidavit and the person who allegedly furnished him with those facts are not staff of the applicant or by any means stated their source of information. Therefore, I am constrained from according their opposition any meaningful consideration. Thus, I am of the firm viewpoint that the applicant has by its affidavits established good and substantial reasons why this Court should exercise its discretion favourably in its favour.
On the second requirement, I have also carefully examined the applicant’s proposed ground of appeal and I am satisfied that the ground of appeal prima facie showed good cause why time should be extended and leave be granted for the applicant to appeal against the said ruling of the lower Court.
It is to be noted, that Order 6 Rule 7 of the Rule of this Court also specified the requirements for obtaining leave to appeal as follows:
a. Motion on notice seeking for the leave;
b. A certified true copy of the decision of the lower Court sought to be appealed against;
c. A copy of the proposed grounds of appeal; and
d. Certified true copy of the ruling of the lower Court refusing the application, where it has earlier been made to the lower Court.
The applicant in this case has also satisfied the relevant requirements stated above as regards its application.
In sum, I am of the firm viewpoint that the applicant has fulfilled all the requirements of the law for the favourable disposition in the exercise of our discretionary power, by granting the 1st, 2nd, and 3rd prayers in its motion on notice and same are hereby granted by me. On the 13th day of November, 2018 when the instant application came up for hearing/adoption of written addresses, Okitikpi Esq. of counsel for the applicant applied to withdraw prayer 4 on the applicant’s motion paper. The said prayer 4 which prayed for an order staying execution of the ruling/order of the lower Court appertaining to the instant application, was struck out, based on the application by the learned applicant’s counsel for its withdrawal.
In the premise and having held as done above, it is hereby ordered as follows:
(i) Time is hereby extended till today for the applicant to seek the leave of this Court to appeal against the ruling of the High Court of Kano State, sitting at Kano (‘lower Court’) Coram:
Hon. Justice A. T. Badamasi, J., and delivered on the 8th day of November, 2017 in Suit No. K/269/2015, between Diamond
Confectionery Industries. Ltd. Vs. Guaranty Trust Bank Plc.
(ii) Leave is hereby granted to the applicant to appeal against the afore described ruling
(iii) Time is hereby extended for the applicant to file its notice of appeal against the said ruling. The applicant?s notice of appeal shall be filed within 14 (fourteen days with effect from today – 01/02/2019.
(iv) No order is made with regard to costs.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the Ruling of my learned brother, Massoud Abdulrahman Oredola JCA. The Applicant, I hold, has satisfied the conditions stipulated in Order 6 Rules 7 and 9 of the Court of Appeal Rules 2016 for the grant of an enlargement of time to appeal and for leave to appeal to this Court from the decision of the lower Court.
I am accordingly in agreement with the Ruling of my learned brother, Massoud Abdulrahman Oredola JCA, and also grant leave as ordered by His Lordship.
Appearances:
T. Okitikpi Esq.For Appellant(s)
Respondents absent but duly notified.For Respondent(s)
