NAZEEDES BORNER (NIG) LTD v. HONGYE AMIP CONCEPT LTD
(2022)LCN/17184(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/EK/43M/2021(R)
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Abdul-Azeez Waziri Justice of the Court of Appeal
Between
NAZEEDES BORNER NIGERIA LIMITED APPELANT(S)
And
HONGYE AMIP CONCEPT LTD RESPONDENT(S)
RATIO
CONDITIONS THAT MUST BE FULFILLED BEFORE AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH AN APPEALLANT MAY TAKE PROCEDURAL STEPS CAN SUCCEED
What conditions must an applicant fulfill before an application for extension of time within which an appellant may take procedural steps can succeed?
MOHAMMED JSC in OLATUNBOSUN v. TEXACO (NIG.) PLC. & ANOR (2012) LPELR-7805 (SC) CHIEF T. O. S. BENSON v. NIGERIA AGIP OIL CO. (1982) 5 S.C. 1 explained it thus
“There is no doubt that an application for an enlargement of time within which an Appellant may take certain procedural steps to succeed, all the applicant is required to do is to establish good substantial or exceptional reasons or circumstances, to explain satisfactorily the delay in taking steps the grant of the enlargement of time applied for.” PER AWOTOYE, J.C.A.
WHETHER OR NOT THE SIN OF A COUNSEL CAN BE VISITED ON HIS CLIENT
The sin of counsel should not be visited on his client. See SALEH v. MONGUNO (2006) 15 NWLR Pt. 1001 P. 26.
According to PETER-ODILI JSC in OGUNPEHIN v. NUCLEUS VENTURE (2019) LPELR – 48772 (S.C)
“It is correct and indeed trite in law that parties are not visited with punishment arising from the mistake or inadvertence or negligence of counsel when the mistake or inadvertence of counsel is in respect of procedural matters in which case the Court would show interest and lean towards accommodating the parties determination of the case on the merits. See CBN v. AHMED (2001) 11 NWLR (PT. 724) 369 at 394; OGUNDOYIN v. ADEYEMI (2001) 13NWLR (1980) 5-7 SC. 42 at 52; BELLOW AKANBI v. MAMUDU ALAO (1989) 3NWLR (PT. 108) 118; BOWAJE v. ADEDIWURA (1976) 6 SC. 143.” PER AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgement): This is the ruling in respect of the motion on notice filed by the appellant/applicant on 15/6/2021 praying as follows:
1. “An Order for enlargement of time within which the Appellant/applicant may apply to this Court for an order relisting Appeal No. CA/EK/43/2021 between NAZEEDES BORNER NIGERIA LIMITED VS. HONGYE AMIP CONCEPT LIMITED which was struck out on 23rd day of January, 2018 by this Honourable Court for failure of the Appellant to comply with the Order of the Court awarding cost to the Respondent on 19th of October 2015.
2. An Order of this Honourable Court relisting Appeal No. CA/EK/81/2014 Between NAZEEDES BORNER NIGERIA LIMITED VS. HONGYE AMIP CONCEPT LIMITED which was struck out on 23rd January, 2018 for failure to comply with the Order of Court made on 19th of October, 2015 directing the Appellant to pay cost to the Respondent.
3. An Order of this Honourable Court granting leave to the Appellant/applicant to file and argue an additional ground of appeal against the judgment of the lower Court in Suit No: HAD/40/2013 between HONGYE AMIP CONCEPT LIMITED VS NAZEEDES BORNER NIGERIA LIMITED delivered on 11th day of April, 2014 challenging the jurisdiction of the trial Court to entertain the matter.
Prayers 4 and 5 of the application as reflected on the motion paper were withdrawn by the applicant and struck out. The surviving prayers in this application are:
(i) Prayer for extension of time to apply for relisting of Appeal No CA/EK/81/2014
(ii) Prayer for relisting of the said appeal
(iii) Prayer for leave to file and argue additional ground of appeal against the judgment of the lower Court.
The grounds of the application are as follows:
1. The appeal was struck out on the ground that the Appellant failed to comply with the orders of this Honourable Court made on 19th October, 2015 awarding cost in favour of the Respondent and against the Appellant.
2. The Court’s orders as to cost were never brought to the attention of the Appellant company by its erstwhile counsel Izuchukwu Okorie, Esq.
3. The Appellant is desirous of diligently prosecuting this appeal and have therefore complied with the order of this Court by paying the costs awarded to the Respondent pursuant to which this appeal was struck out.
4. The appeal raises serious issues of jurisdiction as it relates to the competent of the writ of summons issued and served on the Appellant who resides outside jurisdiction without a leave to issue and serve.
5. The Appellant/Applicant as soon as after having the knowledge of the position of this appeal has complied with the order of this Honourable Court as to cost, and is desirable of expeditiously pursuing the appeal.
6. The Appellant/Applicant had earlier filed similar application before this Honourable Court on 6th day of March 2020, but same was struck out on 14th May, 2021 for carrying the Appeal No. of the substantive Appeal already struck out by this Corut on 23rd January, 2018.
7. The order of Court sought to be set aside is not a decision on the merits and the Court has the discretion to set same aside.
The application is supported by 25 paragraph 3-10 and paragraph 14-21 of the affidavit in support of the Motion on Notice.
Learned counsel for the applicant, Olalekan Olatawura, adopted his written address in support of the Motion on Notice. He urged the Court to grant the application.
The Respondent opposed the application by filing a 20 paragraph counter affidavit on written address prepared by A. O. OKEYA his counsel. Most relevant of the averments in the counter affidavit are paragraphs 4, 7, 8, 11 – 15 of the counter-affidavit.
Learned counsel for the Respondent, A. O. OKEYA filed written address on 16/12/2021 which was deemed filed on 8/3/2022. He based his argument on the issues proffered by the applicant and urged the Court to dismiss the application.
I have deeply considered the submission of learned counsel on both sides. What conditions must an applicant fulfill before an application for extension of time within which an appellant may take procedural steps can succeed?
MOHAMMED JSC in OLATUNBOSUN v. TEXACO (NIG.) PLC. & ANOR (2012) LPELR-7805 (SC) CHIEF T. O. S. BENSON v. NIGERIA AGIP OIL CO. (1982) 5 S.C. 1 explained it thus
“There is no doubt that an application for an enlargement of time within which an Appellant may take certain procedural steps to succeed, all the applicant is required to do is to establish good substantial or exceptional reasons or circumstances, to explain satisfactorily the delay in taking steps the grant of the enlargement of time applied for.”
The question to ask in this application is, has the applicant adduced good substantial or exceptional reasons for this application to be granted?
His reasons are:-
i) Appeal No CA/EK/81/2014 was struck out on 23/1/2018 for failure to comply the Order of Court awarding costs on 19/10/2015.
ii) A previous similar application before this application was filed on 6/3/2020 but struck out on 14/5/2021 for carrying the Appeal No. of the substantive appeal that was struck out on 23/1/2018.
iii) One major cause of delay as can be gathered from paragraphs 7-12 of the affidavit in support is the lack of diligence on the part of its former counsel IZUCHUKWU OKORIE.
The said paragraphs 7-12 of supporting affidavit state:
“1. That the Appellant/applicant perfected fully the brief of its erstwhile counsel, Izuchukwu Okorie, Esq. to handle the appeal to its logical conclusion at the Court of Appeal.
2. That I have kept contact and indeed constantly called our erstwhile in Court of which he has always obliged.
3. That the erstwhile counsel, Izuchukwu Okorie, Esq. as a matter of fact did file and Appellant’s Brief on behalf of the Appellant/Applicant long before the appeal was struck out for non-compliance with the order of Court as to the awarded costs, which made this Honourable Court to find as a fact on 23/1/2018 that the issue of want of diligent prosecution was a non-issue.
4. That our erstwhile counsel has always given us the impression that everything was in order each time we call to get an update in respect of the pending appeal.
5. That surprisingly, we were informed on the 22nd day of February, 2020 by one of our bankers (Zenith Bank) that there is a ganishee order Nisi attaching all the Appellant/Applicant accounts as a result of the execution of the judgment which is the subject of this appeal.
6. That further to the averment in para 11, I immediately placed over 20 calls to our erstwhile counsel Izuchukwu Okorie through his phone number 08033008259 in order to be properly informed of the state of affairs in relation to the proceedings in Court but we got no response from him”.
Learned counsel for the Respondent in his counter-affidavit did little in counter acting the allegation of the applicant as regard its lawyer, IZUCHUKWU OKORIE. See paragraphs 5, 6 – 9 of the counter affidavit.
It seems clear to me in the circumstance that the delay of the applicant which has resulted in this application is largely as a result of the sin of its counsel.
The sin of counsel should not be visited on his client. See SALEH v. MONGUNO (2006) 15 NWLR Pt. 1001 P. 26.
According to PETER-ODILI JSC in OGUNPEHIN v. NUCLEUS VENTURE (2019) LPELR – 48772 (S.C)
“It is correct and indeed trite in law that parties are not visited with punishment arising from the mistake or inadvertence or negligence of counsel when the mistake or inadvertence of counsel is in respect of procedural matters in which case the Court would show interest and lean towards accommodating the parties determination of the case on the merits. See CBN v. AHMED (2001) 11 NWLR (PT. 724) 369 at 394; OGUNDOYIN v. ADEYEMI (2001) 13NWLR (1980) 5-7 SC. 42 at 52; BELLOW AKANBI v. MAMUDU ALAO (1989) 3NWLR (PT. 108) 118; BOWAJE v. ADEDIWURA (1976) 6 SC. 143.”
I am minded to allow the parties to ventilate their respective grievances in the interest of justice. I am satisfied with the reasons adduced by the applicant for the delay. It would be unfair to visit the sin of the applicant’s counsel on him in the circumstances of this case.
In the circumstance, ORDER AS PRAYED in term of prayers 1 – 3 of the application
i) Appeal No. CA/EK/81/2014 BETWEEN NAZEEDES BORNER NIGERIA LTD VS HONGYE AMIP CONCEPT LTD is hereby relisted.
ii) Leave for the appellant to file appeal against the judgment of the lower Court in Suit No. HAD/40/2013 BETWEEN HONGYE AMIP CONCEPT LTD. VS. NAZEEDES BORNER NIG. LTD delivered on 11/4/2014 challenging the jurisdiction of the trial Court to entertain the matter is hereby granted.
Appellant is to file Amended Notice of Appeal in line with EXHIBIT F attached to the affidavit in support of motion on notice. I award N200,000 as cost in favour of the Respondent.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
ABDUL-AZEEZ WAZIRI, J.C.A.: I have been afforded a copy of the lead ruling prepared and delivered by TUNDE O. AWOTOYE, JCA before now. I am satisfied with my Lord’s reasoning and conclusion in granting the application in terms of prayers 1-3 on the face of the motion paper. I also abide by the consequential order made including the issue of cost awarded against the Applicant and in favour of the Respondent.
Appearances:
E. E. NWORIE For Appellant(s)
A.O. OKEYA with him, A. N. AKINGBADE For Respondent(s)
