MR. IBIDOLAPO BALOGUN v. WEMA ASSETS MANAGEMENT LIMITED & ORS
(2015)LCN/7968(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of July, 2015
CA/L/867C/2013(R)
RATIO
APPEAL: APPLICATION FOR LEAVE TO APPEAL; WHETHER IN AN APPLICATION FOR LEAVE TO APPEAL, AN APPLICANT IS REQUIRED TO SHOW THAT THE APPEAL WOULD SUCCEED IF LEAVE WERE GRANTED
When dealing with an application for leave to appeal, an Applicant is not required to show that the appeal would succeed if leave were granted. It is sufficient to show that there is an arguable appeal. In other words, it is enough to show a prima facie case that the Court from whose decision leave to appeal is sought has committed an error of law, or has failed to exercise his discretion judicially or has based the exercise of discretion on wrong principles. See IROEGBU VS OKWORDU (1990) 9-10 SC 199; HOLMAN BROTHERS (NIG) LTD VS KIGO (NIG) LTD (1980) NSCC; SHITTU VS OSIBANJO (1988) 7 SC (PT 111) PAGE 1; ALAGBE VS ABIMBOLA (1978) 2 SC 39; OBIKOYA VS WEMA BANK LTD (1989) 1 NWLR (PT 96) 157; AKINPELU VS ADEGBORE (2008) 10 NWLR (PT 1096) 531. In ODOFIN VS AGU (1992) NWLR (PT 1229) 350 it was emphasized that where leave to appeal against a decision is required and time to seek leave to appeal and file Notice of Appeal has expired, it is imperative that a “tripod – application” be filed, that is a prayer for (a) extension of time to seek leave to appeal, (b) leave to appeal; and (c) extension of time to appeal. For there to be a valid appeal, the three reliefs must be sought and granted. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
GARNISHEE PROCEEDINGS; THE NATURE OF A GARNISHEE PROCEEDINGS
A Garnishee proceedings is a product of and linked to the monetary judgment of a Court. It is a post judgment proceedings in nature and not an interlocutory process as alluded to by counsel for the Respondent. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
MR. IBIDOLAPO BALOGUN Appellant(s)
AND
1. WEMA ASSETS MANAGEMENT LIMITED
2. WEMA BANK PLC
3. NICON INSURANCE PLC Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Lead Ruling): The Applicant herein had by a motion on notice dated and filed on 23-10-2013 prayed this Court for the following orders:-
1. “An Order of this Honourable Court for extension of time within which the 2nd Defendant/Applicant will seek leave to appeal against the Ruling of the Honourable Justice G.M. Onyeabo sitting at the High Court of Lagos State, Tafawa Balewa Square Lagos Delivered on 19 June 2013 in suit no. LD/1071/09.
2. An Order of this Honourable Court granting leave to the Applicant to appeal against the Ruling of the Honourable Justice G.M. Onyeabo sitting at the High Court of Lagos State, Tafawa Balewa Square Lagos delivered on 19 June 2013 in suit No. LD/1071/09.
3. An Order of this Honourable Court for extension of time within which the 2nd Defendant/Applicant will appeal against the Ruling of the Honourable Justice G.M. Onyeabo sitting at the High Court of Lagos State, Tafawa Balewa Square Lagos delivered on 19 June 2013 in suit No. LD/1071/09.
4. And for such further orders as this Honourable Court may deem fit to make in the circumstance of this case.”
The grounds for the application as set out by the Applicant in the motion prayer are as follows:-
1. The Garnishee Order nisi dated 19th June 2013 was made by the lower Court while the Appellant’s Appeal against the judgment was pending on appeal.
2. The Court of Appeal cannot hear a matter concurrently with the Lower Court.
3. The Applicant’s proposed notice of Appeal which borders on jurisdiction and fair hearing is substantial enough to warrant the exercise of this Honourable Court jurisdiction in favour of the Applicant in extending time within which to seek leave to appeal the Ruling of the lower Court delivered on 19th June 2013.
The said application is supported by a 15 paragraph affidavit deposed to by Elochukwu Nwankwo, a Legal Practitioner. Paragraphs 3 to 14 thereof are relevant and they are herein below set out as follows:-
3. “The 1st and 2nd Respondents commenced an action at the High Court of Lagos State against the Applicant and 3rd Respondent by a Writ of Summons 1 July 2009.
4. The lower Court delivered its ruling in the matter on 2nd July 2010 by the Honourable Justice Ishola in favour of the 1st and 2nd Claimants/Respondents for N165,156,396.65 and interest thereon.
5. The Applicant being dissatisfied with the said ruling mentioned in paragraph 4 filed a notice of appeal dated 30 July 2010 after which the record of appeal in the matter was duly transmitted to the Court of Appeal.
6. The lower Court being aware of the fact of the pending appeal went ahead to grant a garnishee order nisi on 19 June 2013 in the matter being subject of appeal.
7. The Applicant being dissatisfied with the garnishee order nisi made by the lower Court on 19 June 2013 appealed against the said order but mistakenly inserted the appeal number in the appeal against the order of the lower Court of 2 July 2013.
8. That it was only when the matter came up before the Honourable Court on 8 October 2013 that the counsel to the 1st and 2nd Respondents drew our attention and that of the Honourable Court to the said defect hence this application to enable the Applicant file.
9. That the Applicant now requires the leave of this Honourable Court to file a notice of appeal.
10. That the unfortunate mistake is entirely that of the Applicant’s counsel and should not be visited on the Applicant in the interest of justice.
11. That Applicant’s proposed notice of appeal discloses substantial grounds of appeal as it borders on jurisdiction of the Honourable Court below to hear the matter. Herewith attached and marked exhibit A is a copy of the proposed notice of appeal.
12. That it is in the interest of justice that this application be granted.
13. That the Applicant shall prosecute the appeal judiciously with all seriousness and shall take all reasonable steps to ensure that the record of appeal is transmitted and the appeal heard expeditiously.
14. That the Respondents will not be prejudiced if this application is granted.
The proposed Notice of appeal containing three grounds of appeal was also attached to the affidavit in support as Exhibit ‘A’.
The Respondents opposed the application by filing a counter affidavit of 5 paragraphs deposed to by one Miss. Francess Ogie. Paragraphs 2 to 4 thereof reads thus:-
2. That paragraphs 2-7 of the supporting affidavit is true and false in its entirety there was no valid appeal against the garnishee proceedings initiated at the High Court nor any valid appeal against the judgment of the lower court delivered on the 2nd day of July, 2010.
3. The Proposed Notice of Appeal attached (as Exhibit ‘A’ does not contain valid grounds of appeal upon which this Honourable Court will grant leave to the Appellant/Applicant to Appeal.
4. The founding process upon which the application is predicated has been struck out since the 16th day of January, 2014 by this Honourable Court.
The Applicants also filed a further affidavit of 8 paragraphs wherein in paragraphs 4 and 5 it was deposed to as follows:-
4 “That when the matter came up on 3 November 2014 for hearing of the Application, it was observed by counsel that a certified true copy of the Garnishee Order Nisi and not the Ruling against which the Appeal is being filed was attached to the affidavit in support of the motion.
5. That the Honourable Court made an Order directing counsel to file a further affidavit attaching the Ruling before the next hearing date of 21 January 2015. Herewith attached and marked Exhibit A is a certified true copy of the record of proceedings containing the Ruling delivered on 19 June 2013 by the Honourable Justice G.M. Onyeabo of the High Court of Lagos State.”
Pursuant to the Order of this Court, the parties filed written addresses. The Applicant’s written address is dated and filed on 19-9-2014 and the sole issue for determination therein is:-
“Whether or not the court can grant an order extending the time within which the 2nd Defendant/Applicant may seek leave to appeal and an order granting leave to the 2nd Defendant/Applicant to appeal against the Ruling of the Honourable Justice G.M. ONYEABO of the High Court of Lagos State delivered on 19th June, 2013 in Suit NO LD/1071/09.”
It was submitted therein by learned counsel for the Applicant that although an order extending time within which an Applicant may appeal is solely at the discretion of the Court, such discretion should be judiciously and judicially exercised. He added that it is trite law that a Court shall be moved to exercise its discretion to enlarge time to appeal in favour of an Applicant if the following conditions are fulfilled:-
(1) The Applicants must by way of an affidavit evidence show good and substantial reasons for failure to appeal within the statutory period.
(2) The Applicant must sub-join his proposed grounds of appeal which said grounds should show good cause why the Appeal should be heard. See OKWELUME VS ANOLIEFO (1996) 1 NWLR (PT 425) 468. And AMAECHI VS OMEHIA (2013) 16 NWLR (PT 1381) 417.
Learned counsel referred to paragraphs 10, 11, 12, 14, 15, 16 and 17 of the Affidavit in support to contend that cogent and enough reasons were adduced therein to move this Court to exercise its discretion in favor of the Applicant as the grounds of appeal show good and substantial cause why the appeal should be heard as it touches on jurisdiction of the lower Court as well as the right of the Applicant to fair hearing.
He added that the main reason for the delay in filing the Notice of Appeal within time was due to the mistake of counsel which ought not to be visited on the litigant. He cited the following cases:-
IMEGWU VS OKOLOCHA (2013) 9 NWLR (PT 1359) 347; S.CC (NIG) LTD VS OUR LINE LTD (1996) 4 NWLR (PT 444) 551; AHMED VS TRADE BANK PLC (1996) 3 NWLR (PT 437) 460; AMAECHI VS OMEHIA (2013) 16 NWLR (PT 1381) 417.
He then urged this Court to grant the application.
The Respondents in their written address dated and filed on 3-10-14 raised the issue for determination as follows:-
“Whether this Honourable Court can grant this application.”
Arguing on the said Issue, learned counsel for the Respondents referred to the case of NAOC LTD VS OGINI (2011) 2 NWLR (PT 1230) 131 at 150 to submit that following from the said decision the Applicant cannot be an aggrieved or claim to be an aggrieved party on the order nisi made on 19-6-2013 because no decision that affected his right was made by the Court on that day.
He submitted that the right of appeal must be based on the existence of a decision of the Court which is against the Applicant. But the Order Nisi made by the lower Court on 19-7-2013 was for the Garnishees to show cause which does not affect the legal position or the circumstances of the Applicant who was not a party to the proceedings and therefore has no right of appeal on the said Order. Vide DENTON WEST VS MOUMA (2008) 6 NWLR (PT 1083) 418 at 442.
He also referred to Section 14(1) of the Court of Appeal Act 2004 to say that the Order Nisi having been made exparte, the Applicant cannot appeal against it.
He then urged this Court to dismiss the application.
I have considered the submission of learned counsel for the parties and also read their affidavits and counter-affidavit.
The salient facts as deposed to in the affidavit in support is to the effect that the lower Court delivered a Ruling on the 2-7-2010 in which the sum of N165,156,396.65 with interest was awarded against the Defendants in the Suit. The Applicant herein was the 2nd Defendant. He appealed against the said Ruling and transmitted the Record of Appeal. But while the said Appeal is still pending to the knowledge of the lower Court, it went ahead to grant on Garnishee Order Nisi on 19-6-2013, hence the Applicant as the 2nd Defendant therein is now seeking leave to appeal also against the Order Nisi. He had earlier filed similar application but inserted a wrong appeal number hence the need to file a fresh application given that the earlier mistake was that of the Applicant’s counsel.
The Respondents in their counter-affidavit are simply stating that there was no valid appeal against the judgment of the lower Court delivered on 2-7-2010 and that the proposed Notice of Appeal attached as Exhibit A does not contain valid grounds of appeal.
Also that the following process upon which the application is predicated has been struck out by this Court since 16-1-2014.
Starting with the proposed Notice of Appeal, which has three grounds of Appeal that reads thus:-
“GROUND 1:
The Learned Trial Judge erred in law when her Lordship made a consequential Order by grunting a Garnishee Order Nisi on the 19th June 2014 when the appeal against the judgment of the High Court is still pending on Appeal.
GROUND 2:
The Learned Trial Judge erred in law when her Lordship thereafter adjourned the matter for hearing of the garnishee proceedings as well as the hearing of the allegedly disputed portion or balance of the Claimant’s claims.
GROUND 3:
The Learned Trial Judge erred in law when her Lordship refused the 2nd Defendant/Appellant’s counsel the opportunity to respond by way of counter affidavit or written address on points of law to the motion exparte dated 12th October 2012 coming up for the first time despite being present in Court on the said date of the 19th June 2013.”
At least, ground 1 raises the issue of the competence of the proceedings at the lower Court on the 19-6-2013 which lead to the grant of the Garnishee Order Nisi after being informed and the Trial Judge even made a statement that there is a pending appeal against the judgment on which the Garnishee proceedings was being held. This alone to my mind constitutes a substantial and valid ground of appeal.
When dealing with an application for leave to appeal, an Applicant is not required to show that the appeal would succeed if leave were granted. It is sufficient to show that there is an arguable appeal. In other words, it is enough to show a prima facie case that the Court from whose decision leave to appeal is sought has committed an error of law, or has failed to exercise his discretion judicially or has based the exercise of discretion on wrong principles. See IROEGBU VS OKWORDU (1990) 9-10 SC 199; HOLMAN BROTHERS (NIG) LTD VS KIGO (NIG) LTD (1980) NSCC; SHITTU VS OSIBANJO (1988) 7 SC (PT 111) PAGE 1; ALAGBE VS ABIMBOLA (1978) 2 SC 39; OBIKOYA VS WEMA BANK LTD (1989) 1 NWLR (PT 96) 157; AKINPELU VS ADEGBORE (2008) 10 NWLR (PT 1096) 531.
In ODOFIN VS AGU (1992) NWLR (PT 1229) 350 it was emphasized that where leave to appeal against a decision is required and time to seek leave to appeal and file Notice of Appeal has expired, it is imperative that a “tripod – application” be filed, that is a prayer for (a) extension of time to seek leave to appeal, (b) leave to appeal; and (c) extension of time to appeal. For there to be a valid appeal, the three reliefs must be sought and granted.
In the instant application the tripod prayers are present and it was deposed to in the affidavit in support that the delay was caused by the mistake of counsel who had earlier filed an application for leave to appeal but under a wrong appeal number.
Learned counsel for the Respondents had also argued that the Applicant is not a party to the Suit or the Garnishee proceedings of 19-6-2013. A perusal of record of proceedings of the said 19-6-2013 at the lower Court showed the name of the Applicant as the 2nd defendant. It cannot therefore be right to contend that the Applicant cannot be aggrieved by the Order Nisi made on 19-6-2013 when the said Order is pursuant to the recovery of the sum of N165,156,396.65 from the Applicant through his account with the Garnishee bank and which judgment he had made known to the lower Court that he had appealed against and the learned Trial Judge infact alluded to it on the said 19-6-2013 before going ahead to grant a Garnishee Order Nisi.
A Garnishee proceedings is a product of and linked to the monetary judgment of a Court. It is a post judgment proceedings in nature and not an interlocutory process as alluded to by counsel for the Respondent.
In the final result, I am of the view that this application deserves that the pendulum of discretion swings in favour of the Applicant. It is accordingly granted and I make the following orders:-
(1) Time is extended to today within which the Applicant will apply for leave to appeal against the ruling of the High Court of Lagos State delivered by G.M. ONYEABO J. (MRS.) on 19-6-2012 in Suit No LD/1071/09.
(2) Time is hereby extended today within which the Applicant will appeal against the said Ruling delivered on 19-6-2013 in Suit No LD/1071/09.
(3) The Applicant is granted 7 days from today to file his Notice of Appeal against the said Ruling.
Parties to bear their costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: My lord, Samuel Chukwudumebi Oseji, JCA afforded me the opportunity of reading in draft the Ruling just delivered by him. I agree with the reasoning and conclusion reached in the Ruling. I have nothing more to add.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading before today the draft Ruling just delivered by my learned brother Samuel Chukwudumebi Oseji, JCA.
I agree with the reasoning and conclusion contained therein. I also grant the application and abide the consequential orders made in the Ruling.
Appearances
A. OnahFor Appellant
AND
A. O. Fawehimi-Eboka for the 1st and 2nd RespondentsFor Respondent
