LOPIN (NIGERIA) LIMITED & ANOR v. WEMA BANK PLC.
(2014)LCN/7002(CA)
In The Court of Appeal of Nigeria
On Thursday, the 8th day of July, 2010
CA/L/920M/2009
RATIO
WHETHER A NOTICE OF INTENTION TO CONTEND CAN BE SUSTAINED WHEN IT FALLS OUTSIDE THE CASE PLEADED BY THE PARTIES
It should be noted that a notice of contention is not at large as to embrace an issue either abandoned at the lower court or has not been taken and pronounced upon. In a way, the notice of intention to contend cannot be sustained where the new contention is on fact not litigated or where it falls outside the case as pleaded by the parties. See American Cynamide Company v. Vitality Pharmaceuticals Ltd (1991) 1 NWIR (Pt.71) 15, Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (Pt.1006) 608, Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt.271) 517. Ibe v. Onuorah (1999) NWLR (Pt.638) 340, E.I.I.A. v. C.I.E. Ltd (2006) 4 NWLR (Pt. 969) 114, UBN Plc v. Jeric (Nig.) Ltd. (1998) 2 NWLR (Pt.536) 63. Per ADAMU JAURO, J.C.A.
Juctice
CLARA BATA OGUNBIYI Juctice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Juctice of The Court of Appeal of Nigeria
ADAMU JAURO Juctice of The Court of Appeal of Nigeria
Between
1. LOPIN (NIGERIA) LIMITED
2. PLASTEX (NIGERIA) LIMITEDAppellant(s)
AND
WEMA BANK PLC.Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Ruling): The applicants herein by an application dated 9th March, 2010 and filed on the 16th March 2010, prayed this court for the following reliefs:-
“1. AN ORDER extending the time within which the Respondent/Applicant may file a Respondent’s Notice in this appeal as contained in the Proposed Notice of Intention to Contend That Judgment Should be Affirmed on Grounds Other Than Those Relied on by the Court Below referred to as Exhibit AA1 in the Affidavit in Support and herewith attached.
2. AN ORDER granting Leave to the Respondent/Applicant to raise as fresh issue on appeal the ground contained in the Proposed Notice of Intention to Contend That Judgment Should be Affirmed on Grounds Other Than Those Relied On By The Court Below, that is Exhibit AA1.
3. AN ORDER granting Leave to the Respondent/Applicant to file its Respondent’s Notice in the Registry of this Honourable Court, the Record of Appeal having been transmitted and/or entered or filed in the Registry of this honourable court.
4. AND for such further order and other orders as the Honourable Court may deem fit to make in the circumstances.”
The grounds upon which the application is anchored as reflected on the face of the motion paper are as follows:-
“a. The Respondent/Applicant has not filed its Respondent’s Notice due to circumstances beyond its control and as such has been out of time to file same, as explained in the Affidavit in Support.
b. The Respondent/Applicant intends to raise the lone ground contained in its notice, Exhibit AA1, as a fresh issue on appeal.
c. The lone ground is on the point of jurisdiction and fundamentally goes to the root.”
In support of the application is a 10 paragraphs affidavit with an exhibit, the proposed notice of intention to contend annexed and marked exhibit AA1.
In moving the application, Dr. A. I. Layonu SAN leading Mr. Kunle Ayorinde for the respondent/applicant relied on paragraphs 3, 4, 5 and 6 of the affidavit and the proposed notice of intention to contend marked as exhibit AA1. Learned senior counsel stated that the notice of intention to contend relates to the jurisdiction of the lower court, in that the originating process was not filed by a legal practitioner in terms of Okafor v. Nweke (2007) 3 SC (Pt.11) 55. Learned senior counsel submitted that the issue was not canvassed at the lower court, which explains why he is seeking to raise it as a point of jurisdiction. Learned senior counsel further submitted that the respondents notice is the appropriate procedure to adopt in contending that the ruling of the lower court be affirmed based on the decision in Okafor v. Nweke (supra). In concluding, learned senior counsel urged the court to grant the application.
In opposing the application, Mr. E. O. Ereruka for the respondents/appellants stated that the applicant has not satisfied the requirement as to good and substantial reason for the delay in filing the respondent’s notice. Learned counsel submitted that a respondent’s notice must be based on the pleadings settled before the lower court, not a complain as to the signing of the originating process. In support of this contention reference was made to the case of U.B.N. Plc v. Jeric (Nig) Ltd (1998) 2 NWLR (Pt 536) 63 at 62. In concluding, learned counsel urged that the application be dismissed. In a short reply, learned counsel for the applicant stated that the length of delay is immaterial provided there are good reasons and reference was made to Ukwu v. Bunge (1997) 8 NWLR (Pt.518) 527. Learned counsel therefore urged the court to grant the application.
The brief facts giving rise to this application are as follows.
The appellants as plaintiffs in the court below instituted an action and the respondent as defendant challenged same as being statute barred. The plaintiff on his part filed a preliminary objection dated 7/7/05 praying for the dismissal of the defendants motion as it constitutes an abuse of court process. The two applications were heard and in a ruling delivered on 20/3/06, the plaintiffs suit was struck out for being statute barred. Distressed by the said ruling, the plaintiffs appealed against same by their notice of appeal dated and filed 24/7/09 pursuant to an order of court made on 13/7/09. The respondent filed this application on 16th March, 2010 seeking extension of time to file a respondents notice, leave to raise fresh issue and leave to file the respondent’s notice. The ground raised in the respondent’s notice is to the effect that the originating process was signed by one “Lateef Adegbite & Co” who is not a legal practitioner. The relief sought is that the decision of the court be affirmed on the ground contained in the respondent’s notice.
The grant of the reliefs sought in an application of this nature is discretionary and the discretion must be exercised judicially and judiciously. For an applicant to succeed, the two conditions stated in Order 7 Rule 10(2) of the Court of Appeal Rules 2007 must be satisfied. The conditions are:-
(a) Good and substantial reasons for failure to appeal within the prescribed period; and
(b) Grounds of appeal which prima facie good cause why the appeal should be heard.
The two conditions stated above must co-exist for the application to succeed. See Isiaka v. Ozundimu (2006) 13 NWLR (Pt 997) 401. E.F.P. Co. Ltd v. N.D.L.C. (2007) 8 NWLR (Pt 1039) 216, Doherty v. Doherty (1964) 1 All NLR 299.
The ruling of the lower court which is now on appeal was delivered on 26th March, 2006 and the notice of appeal filed on 24th July 2009, pursuant to an order of court made on 13th July, 2009. The instant application was filed on 16th March, 2010 and the reasons given for the delay are captured in paragraphs 3, 4, 5 and 6 of the affidavit and are hereby reproduced thus:
“3. That the Respondent/Applicant’s inability to file its Respondent’s Notice was due to the fact that the case file had been closed and relegated into the archives by its Counsel believing that the Appellants/Respondents were not going to appeal anymore as time had already lapsed without receiving any Notice of Appeal from the Appellants.
4. That non-filing of the Respondent Notice within time was also occasioned by mistake of the Litigation Officer of the Respondent/Applicant’s Counsel who was instructed to dig out the case file from the archives and refer same to one of the Counsel in Chambers for necessary action but he proceeded on leave without carrying out the instructions and thereby occasioning this much delay in filing the Respondent Notice as the Principal counsel in Chamber was wrongly led to believe that the Respondent Notice had been filed.
5. That the Respondent/Applicant decided to file a Respondent’s Notice on a fresh issue not canvassed in the court below because the Judgment of the lower court could be affirmed on the ground of the fresh issue which I believe as Counsel is a fundamental point on jurisdiction and competence.
6. That the Appeal has been properly entered in this Honourable Court and thus the need to file the Respondent’s Notice in the Registry of this Honourable Court.”
The reason given for the delay in this application was the mistake of the litigation officer of the respondent’s/applicant’s counsel and the believe that appellant’s were not appealing as the time for filing an appeal had lapsed. Indeed it is true and correct that the appellant’s filed their appeal out of time pursuant to a leave granted by this court on 13th July, 2009. The delay in filing the main appeal to my mind is not a good reason for failure to file to respondents notice, because the respondent’s time begins to run on being served the notice of appeal. See Order 9 Rule 4 of the Court of Appeal Rules 2007. Furthermore the motion for extension of time to file the appeal must have been served on the respondent now applicant, subsequent to which a notice of appeal was also served. The aforementioned documents served on the respondent now applicant are enough to place the respondent on the red alert and ever-ready to file the respondents notice. Paragraph 4 of affidavit placed blame also on the litigation officer in the chambers. The name of the litigation officer was not stated and litigation officer whose conduct was impugned was not served the affidavit for his response. Consequent upon the foregoing, the reasons advanced for the delay are not good and substantial. The first requirement therefore has not been fulfilled. See ANPP v. Albishir (2010) 8 NWLR (Pt 1198) 118 at 139 and 145. On this score alone the application ought to be refused, but a consideration will now be made as to the second requirement.
As regards the second condition, the applicant is expected to establish that the ground(s) raised in the respondent’s notice are prima facie arguable. The ground raised in the proposed notice of intention to contend i.e exhibit AA1, is a challenge to the originating process in the lower court as having been signed by one “Lateef Adegbite & Co” not a legal practitioner called to the Nigerian Bar. The relief sought in the proposed notice of intention to contend is for the ruling of the lower court to be affirmed on the ground that the originating processes were signed in the name of a law firm, hence incompetent. I have carefully studied the ruling in contention which is now an appeal, and cannot find any place where the issue as to the signature on the originating processes was either raised or considered in the ruling.
It should be noted that a notice of contention is not at large as to embrace an issue either abandoned at the lower court or has not been taken and pronounced upon. In a way, the notice of intention to contend cannot be sustained where the new contention is on fact not litigated or where it falls outside the case as pleaded by the parties. See American Cynamide Company v. Vitality Pharmaceuticals Ltd (1991) 1 NWIR (Pt.71) 15, Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (Pt.1006) 608, Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt.271) 517. Ibe v. Onuorah (1999) NWLR (Pt.638) 340, E.I.I.A. v. C.I.E. Ltd (2006) 4 NWLR (Pt. 969) 114, UBN Plc v. Jeric (Nig.) Ltd. (1998) 2 NWLR (Pt.536) 63. In view of the foregoing, the sole ground raised in the proposed notice of intention to contend, having not arisen from the ruling or the settled pleadings, cannot be said to have prima facie shown good cause. The applicant has not satisfied the second condition.
Having failed to satisfy the two requirements, the application is lacking in merit and it hereby dismissed. The sum of N20,000.00 is assessed as cost in favour of the Appellants/Respondents against the Applicant.
CLARA BATA OGUNBIYI, J.C.A.: I agree with the lead ruling of my brother Adamu Jauro JCA that the application at hand and seeking an order for an extension of time within which to file a Respondent’s notice in this appeal is devoid of any merit. I also refuse and dismiss same in the same terms per the orders made there in the lead ruling inclusive of costs.
HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in advance the lead ruling just rendered by my learned brother Jauro, JCA and agree entirely with the reasons and conclusion that the application is devoid of merit and deserves nothing less than an outright dismissal.
It will be pertinent to emphasise the salient issue in the application to file the respondent’s notice, which must be premised on the decision of the court below. Raising of fresh issue presupposes that such issue was not canvassed and decided upon at the court below. In other words, it is extraneous to the decision appealed against.
In the circumstance, the double edged virus inherent in the application has rendered it unmeritorious. The first is that there must be a prior application for leave to raise and argue such fresh issue on appeal duly sought for and granted which in this case is lacking. The second being that the belated application, by which respondent’s notice is sought to be ushered in, must be loaded with sufficient attributes to cross the pass mark of the twin conditions prescribed under Order 7 rule 10 (2) of the Court of Appeal Rules 2007. For the reasons so meticulously enunciated in the lead ruling, which I need not repeat, the applicant has woefully failed to cross that haddle.
My learned brother Mahmud Mohammed, JCA (as he then was) in Adewole v. Adesanoye (1998) 3 NWLR (pt.541) 175 at 202, paras D-G observed as follows:
“For the respondents to successfully canvass new points of law challenging the jurisdiction of the trial court to entertain the appellant’s case on grounds which were not heard by the trial court, it is not just enough for the respondents to raise the new points in their respondents’ notices. They must in addition seek and obtain leave of the Court of Appeal to raise the new points in this appeal as required by order 3 rule 14 (3) of the Court of Appeal Rules 1981 (as amended). Therefore, in the absence of leave of the Court of Appeal, the new points being raised by the respondents in their respective respondents’ notices are incompetent and cannot be determined by the court.”
I cannot agree more. The respondent/applicant’s motion is, for the above and the more detailed reasons in the lead ruling, completely bereft of merit. It therefore has to be, and same is hereby dismissed by me.
I subscribe to the consequential order made in the lead ruling as to cost.
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Appearances
Mr. E. I. ErerukeFor Appellant
AND
Dr. A. I. Layonu SAN with Mr. Kunle AyorindeFor Respondent
