NIGERIA DEPOSIT INSURANCE CORPORATION V. GLOBUS ENTERPRISES LTD & ORS
(2010)LCN/3973(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of July, 2010
CA/K/415/M/08
RATIO
JUDICIAL PRACTICE: WHAT THE PRINCIPLE OF JUDICIAL PRACTICE ENTAILS ; MEANING OF THE WORDS “ACTING JUDICIALLY”
As is now well known, the principles of law on judicial practice require that a discretionary power vested in a court should always be exercised judicially and judiciously. Acting judicially simply means the consideration of the interest of both sides in a case and weighing them in order to arrive at a fair decision while to act judiciously, imports showing sound reasoning and judgment marked by wisdom and good sense in arriving at a decision in a given case. PER MOHAMMED LAWAL GARBA J.C.A
APPLICATION FOR EXTENSION OF TIME: CONDITIONS THAT MUST BE SATISFIED BY AN APPLICANT SEEKING FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL
Learned counsels are right that the law requires that for an application of the nature of the present one to succeed and merit being granted by a court, the twin conditions stated in the provisions of Order 7 Rule 10 (2) of the Court of Appeal Rules, 2007 (Order 3 Rule 4 (2) of the 2002 Court of Appeal Rules) must be satisfied together. The twin conditions are: (a) good and substantial reasons for failure to appeal within the prescribed period, and (b) grounds of appeal which prima facie show good cause why the appeal should be heard. These conditions are required to be proved by the facts deposed to by an Applicant in the affidavit which was filed in support of the application. PER MOHAMMED LAWAL GARBA J.C.A
ISSUE OF JURISDICTION: WHETHER WHERE A GENUINE ISSUE OF JURISDICTION IS PRIMA FACIE DISCLOSED OR RAISED IN THE GROUNDS OF APPEAL CONTAINED IN THE PROPOSED NOTICE OF APPEAL IN SUPPORT OF THE APPLICATION, THERE MAY NOT BE THE NEED TO LOOK AT OR CONSIDER THE REASONS FOR THE DELAY FOR THE GRANT OF THE APPLICATION
However it is also the law that where a genuine issue of jurisdiction is prima facie disclosed or raised in the grounds of appeal contained in the proposed notice of appeal in support of the application, there may not be the need to look at or consider the reasons for the delay for the grant of the application. The reason is that the issue of jurisdiction being fundamental and intrinsic to or in judicial proceedings is considered as good and substantial reason why an appeal should be heard and would therefore show good cause, prima facie, for the grant of the application. See Ukwu V. Bunge (supra); NNPC V. O. E. (Nig) Ltd (2008) 8 NWLR (1090) 583. PER MOHAMMED LAWAL GARBA J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
THERESA N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
NIGERIA DEPOSIT INSURANCE
CORPORATION Appellant(s)
AND
1. GLOBUS ENTERPRISES LTD
2. ALHAJI KAMILU ILA
3. ALHAJI MAHMOUD ILA Respondent(s)
MOHAMMED LAWAL GARBA J.C.A (Delivering the Leading Judgment): The Applicant’s motion filed on the 24/11/08 prays for the following reliefs:
“1. An order enlarging the time within which the Applicant may seek leave to appeal against the decisions of the Kano State High Court contained in the Ruling and judgment of the Honourable Justice Patricia Mahmoud delivered on the 9th day of May, 2006 and 26th day of June, 2007 in suit No. K/593/99.
2. An order granting leave to the Applicant to appeal against the decisions of the Kano State High Court contained in the Ruling and judgment of the Honourable Justice Patricia Mahmoud delivered on the 8th day of May, 2006 and 26th day of June, 2007 in suit No. K/593/99.
3. An Order extending the time within which the Applicant may appeal against the decision of the Kano State High Court contained in the Ruling and judgment of the Honourable Justice Patricia Mahmoud delivered on the 8th day of May, 2006 and 26th day of June, 2007 in suit No. K/593/99 out of time, the time limited for the appeals having elapsed.
4. And for such order or further orders as this Honourable Court may deem fit and just to make in the circumstance.”
It is supported by a 23 paragraphs affidavit sworn to by Lateef Ibrahim of Suite 25 Mangal Plaza, ‘Near Shagalinku Restaurant, Area Eleven, Garki, Abuja and to which were annexed documents marked as follows:
(a) a file copy of the letter of instruction by the Applicant to Messrs Mahmoud Gazali & Co, to represent it in suit No. K/593/99 and to oppose the motion joinder of the Applicant as Exhibit ‘1’.
(b) a copy of learned counsel for the 1st – 3rd Respondents’ letter to the Applicant on the judgment delivered in suit No. K/593/99, as Exhibit ‘2’.
(c) a certified copy of the judgment in suit No. K/593/99, as Exhibit ‘3’
(d) the notice of appeal against the decision of the lower Court, as Exhibit ‘4’.
On their part, the Respondents to the motion filed a 4 paragraphs Counter affidavit to which was attached a copy of the Respondents counsel’s letter to the Managing Director of the Applicant dated the 5/6/2008, A Exhibit ‘RYA’ and opposed the prayers sought by the Applicant.
Pursuant to an order by the Court, learned counsel filed written addresses in support of their respective positions in the motion. The Applicant’s written address was filed on the 22/2/10 while the Respondents’ written address was filed on the 5/3/10 and the two addresses were adopted by the learned counsel on the 24/5/10 at the oral hearing.
The submissions by the learned counsel for the Applicant are that the procedure for applying for leave to appeal in the circumstances of the motion are now trite, citing the case of F.B.N. Plc V. Obiechina (1994) 4 NWLR (240) 583 @ 591. He said for the application to succeed, the Applicant has to show in his affidavit, good and substantial reasons for the failure to apply within the prescribed time and that the Notice of Appeal must contain grounds of appeal which prima facie show good reasons why the appeal should be heard. Reference was made to Order 7, Rule 10(2) of the Court of Appeal Rules, 2007 and Gwando V. Maidova (1990) 4 NWLR (147) 805 @ 814:
According to the learned counsel, the Applicant has satisfied these twin conditions for by paragraph 13 of the supporting affidavit the Applicant has shown that it was never aware of the two decisions until the receipt of Exhibit ‘2’ on the 27 of October, 2008 which was about 13 months after the period within which to appeal had lapsed. He said on receipt of Exhibit ‘2’ the Applicant acted swiftly by briefing counsel and causing this application to be filed and coupled with the fact that the lower court was not sitting, this prevented the Applicant from filing the appeal within the time prescribed by law. It was further submission of learned counsel that the Applicant by the depositions in paragraph 13 of its affidavit has amply given reasons for its inability to file the two appeals within time and relied on the cases of Akinpelu V. Adegbore (2008) 10 NWLR (1096) 531 and Okereke V. NDIC (2003) 2 NWLR (804) 218. He urged us to so hold for he said the depositions were not specifically denied or controverted.
Furthermore, it was submitted that Exhibit ‘4’ contain grounds which prima facie, show good and substantial reasons why the appeal should be heard. That grounds 2 and 3 are on the issues of fair hearing and jurisdiction while ground 5 raises the issue that the Applicant being an agent of a disclosed principal, cannot be sued together with its principal in view of section 425 of the Companies and Allied Matters Act (CAMA). Learned counsel said ground 6 also raises the issue of jurisdiction under section 417 of CAMA and so all the grounds contained on Exhibit 4 go to show good and substantial reasons why the appeal should be heard. He said the Applicant is not obliged to show that the appeal will succeed if the leave was granted and that all they needs show is that the grounds are arguable on the authority Kigo V. Hoolman Bros. (1980) NSCC 204 @ 211. It was further submitted that though the two conditions above must be present, where however the grounds of appeal complain of lack of jurisdiction and it prima facie appears so it may not be necessary to inquire into the reasons for the delay.
Reliance was placed on Bintumi V. Fantami (1998) 13 NWLR (581) 264) @ 272 and Ukwu V. Bunge (1997) 8 NWLR (518) 527 and it was argued that the Applicant has shown that there are serious issues of jurisdiction to be determined at the appeal and so there may be no need to even look into the reason for the delay.
In conclusion, the court was urged to hold that the Applicant has made out a good case for the exercise of the Court’s discretion in its favour and to grant the motion as prayed.
The learned counsel for the Respondents raised the issue whether the Applicant has satisfied the necessary conditions as stipulated by law to be entitled to the reliefs sought by it, as the one that call for determination in the motion. He set out the two conditions in his written address and relying on Order 7, Rule 10 (2) of Court of Appeal Rules, 2007 and the cases of Ogundimu V. Kasunmu (2006) 8 MJSC, 19 @ 25; NNPC V. Lilleker Bro. Nig. Ltd (2005) ALL FWLR (272) 358 @ 367-8; Major S. Ibrahim V. Gban (1996) 8 NWLR (467) @ 506, said that the two must be satisfied together and at the same time. That failure to satisfy any one of the conditions brings about the failure of the motion. It was the submission of the learned counsel that the Applicant has failed to provide good and substantial reasons for not filing the appeal timeously and that the averments in the Applicant’s affidavit are all a bundle of misrepresentation of facts as to what transpired in the lower court on 8th of May, 2006. According to him, on the said date, the lower court granted an order for substitution and not joinder of the Applicant for the then Plaintiffs on the application of the learned counsel who represented the Applicant. He said the Applicant did not attach the record of proceedings of the lower court to enable the court to see what transpired on the 8/5/06 and so has withheld evidence under section 149 of the Evidence Act. Furthermore that Exhibit 3 shows that the Plaintiffs counsel applied for joinder of the Applicant and it was granted since there was no objection from the Respondents. Also it was submitted that by paragraph 13(a) of the Applicant’s affidavit shows that it was aware as at the date of writing Exhibit 1 that there was a pending motion for its joinder as a party which it failed to oppose and the Applicant did not aver that after its instructions to counsel, a Counter affidavit was filed in the said motion. Similarly, that a party to a legal dispute cannot claim breach of fair hearing where he has willfully absented himself from hearing. Citing the cashes of Inokoju V. Adeleke (2007) 3 MJSC 1 @ 215 and Eke V. Ogbonda (2007) ALL FWLR (357) 1456 @ 1479 on the submission and it was pointed out that by Exhibit 1 it is clear that the Applicant was aware of the motion to join it in the suit but failed to avail itself of the opportunity to be heard as it did not file any process until judgment was delivered. In addition, the Respondents had averred that it was the Chambers of Alex Iziyon, SAN & Co. that appeared for the Applicant and were at all times aware of the matter Applicant had failed to bring the record of proceedings of the lower court which is germane to the motion, the motion must fail.
On whether the Applicant’s grounds 1 of appeal show good and substantial reasons why the appeal should be heard, it was submitted that grounds 2, 3 and 9 which raise the issue of fair hearing would not avail the Applicant who as shown earlier failed to utilize the opportunity to be heard. Also that ground 5 is not arguable since the Applicant was substituted for the original Plaintiffs on application by its counsel at the lower court and that ground 6 is not good, substantial or arguable since the Applicant did not aver that the Respondent filed the action without the leave of the lower court. It was further submitted that the issue of jurisdiction must be genuinely raised for it to avail a party for the reliefs being sought and that the Applicant has failed to raise such a genuine issue of jurisdiction. The case of Unilorin V. Oluwadare (2008) ALL FWLR (441) 839 @ 861 was cited on the point. In conclusion we were urged to hold that the Applicant has failed to present good and substantial reason for the delay or grounds why the appeal should be heard and refuse the reliefs sought in the motion.
By Order 7, Rule 10 (1) of the Court of Appeal Rules, 2007 this Court has the discretionary power to extend or enlarge the time provided by the Rules for the doing of anything to which the Rules apply except the filing of notice of intention not to constest an application under Rule 8. Under the provisions of this rule, the Court is empowered to allow the doing of anything required to be done within a prescribed period of time after the expiration of such time limit by enlarging or extending such time. As is now well known, the principles of law on judicial practice require that a discretionary power vested in a court should always be exercised judicially and judiciously. Acting judicially simply means the consideration of the interest of both sides in a case and weighing them in order to arrive at a fair decision while to act judiciously, imports showing sound reasoning and judgment marked by wisdom and good sense in arriving at a decision in a given case.
I have carefully read the Rules of Court under Order 7, relevant to the present motion and in respect of which the discretion in Rule 10 (1) was granted to the court for enlargement of time, but cannot find any Rule which prescribed or limited the time within which a person who requires the leave of court to appeal against the decision of a lower court to this Court had to make the application for leave. In other words, I have been unable to find any of the Rules set out under Order 7 which requires that an application for leave to appeal to this Court has to or must be made, filed or brought within a prescribed or limited period of time. This I must say is because there is no such Rule under Order 7 or any other Order in the entire Rules. All that Order 7 provided for are for applications for leave to appeal or enlargement of time to appeal and not enlargement of time within which to make the application for leave to appeal.
I am aware of the provisions of section 24 (2)(a) and (3) of the Court of Appeal Act (CAA) which are as follows:
“2. 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 there months where the appeal is against a final decision;
(3) Where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to Court of Appeal”
Subsection (4) of section 24 provides the court with the discretionary power to extend the periods prescribed in subsections (2) and (3) above.
As may be observed, the provisions of subsection (3) provides that an Applicant for leave to appeal in the lower court or court below shall in addition to the period prescribed in subsection (2) be allowed a further period of fifteen days from the date of the determination of the application by that court, to make another application to this Court. The provisions are clearly made to allow for a further application to this Court within fifteen (15) days after the determination of a similar application by the court below. So the limitation period of fifteen days prescribed applies when an application for leave to appeal was first made to the court below and the Applicant wishes or desires to make a similar further application to this Court. In such a situation, the Applicant has to make such further application to this Court within the fifteen days prescribed in subsection (3). Where he fails to do so within the limited period of fifteen days, then he has to seek for enlargement of time within which to do so in this Court before he can properly file such an application. However, where an Applicant in this Court did not first make his application for leave to appeal before the court below, the provisions of subsection (3) as to the limitation of the time within which to make a further application to this Court would not apply since the application to this Court would in the circumstance be a fresh or initial application for leave to appeal and not a further one as envisaged by the provisions.
Where an Applicant makes an initial application to this Court, then the provisions of subsection (2) of section 24 would come into play and apply.
It is under the provisions of the subsection that an Applicant has to make the application for leave within fourteen (14) or three (3) months as the case may be if he makes the application first to this Court.
The established principle of law on the judicial practice in relation to applications such as the present motion, however, is that such an Applicant requires to seek what are now known popularly as the trinity prayers in order for the application to be competent. This is the position in cases such as Bowaji V. Adediwura (1976) 6 SC, 143; Akpasubi V. Uweni (1986) 11 SC, 132; Reg. Trustees of CAC V. Uffiem (1998) NWLR (569)312 @ 319-20; Adeyemi V. Y.R.S Ike Oluwa & Sons Ltd (1993) 8 NWLR (309) 27; S.G.B Nig. Ltd V. I.F.L. Ltd (2000) 1 NWLR (640), 319 @ 327 and many others. I do not have the option to ignore or not to be guided by these decisions in spite the fact that the Court is invited to exercise a judicial discretion in the motion. Because judicial discretion has to be exercised judiciously and judicially as stated earlier, a court must be guided by established principles decided in previous cases in which such or similar discretion was exercised in the exercise of its own discretion as the peculiar facts and circumstances of the case may allow.
Learned counsels are right that the law requires that for an application of the nature of the present one to succeed and merit being granted by a court, the twin conditions stated in the provisions of Order 7 Rule 10 (2) of the Court of Appeal Rules, 2007 (Order 3 Rule 4 (2) of the 2002 Court of Appeal Rules) must be satisfied together. The twin conditions are:
(a) good and substantial reasons for failure to appeal within the prescribed period, and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
These conditions are required to be proved by the facts deposed to by an Applicant in the affidavit which was filed in support of the application. In addition to the cases cited on the point by learned counsel (supra), see also Unilag. G. Olaniyan (No. 1) (85) 1 NWLR (1) 156, F.H.A. V. Abosede (1998) 2 NWLR (537), 177 @ 185-6; Osalumhense V. Agboro (2005) 16 NWLR (951) 204. However it is also the law that where a genuine issue of jurisdiction is prima facie disclosed or raised in the grounds of appeal contained in the proposed notice of appeal in support of the application, there may not be the need to look at or consider the reasons for the delay for the grant of the application. The reason is that the issue of jurisdiction being fundamental and intrinsic to or in judicial proceedings is considered as good and substantial reason why an appeal should be heard and would therefore show good cause, prima facie, for the grant of the application. See Ukwu V. Bunge (supra); NNPC V. O. E. (Nig) Ltd (2008) 8 NWLR (1090) 583. It may be remembered that any defect in the jurisdiction of a court would render its proceedings null and void ab initio no matter how well they were otherwise conducted. This position of the law is so trite that it is unnecessary to make reference to decided authorities to support it. However like I stated earlier, for the issue of jurisdiction to warrant the grant of an application of this nature, it has to be genuine, serious and in the con of the facts and circumstances disclosed in the affidavit evidence before the court, a strong and substantially arguable point. Consequently a mere mention or assertion that a court lacks jurisdiction in the grounds of appeal is not sufficient without facts contained in both the affidavit evidence and the judgment of a trial cour: which support it. Adeyemi V. Oshibanjo (1988) 3 NWLR 83) 483; CEDAR Stationary Ltd V IBWA Ltd (2000) 15 NWLR (690) 338. I should point out here that an Applicant is not required at this stage to show or prove that any of the grounds of the proposed appeal including that on the issue of jurisdiction would succeed at the appeal. All that is required in law is that the grounds must be arguable and have a chance to succeed at the appeal N.I.W.A. V. SPDCN Ltd (2008) 13 NWLR (1103) 48, Ikenta Best V. Att-General, Rivers State (2008) 6 NWLR (1084 612.
Now, the facts on which the Applicant predicates its application can be said to be in two classes or sets. The first set are the facts contained in the averments in paragraphs 4, 5, 6, 8, 9, 12 and 13 (b) – (j) of the affidavit filed in support of the application. The averments are to the effect that the Applicant did not know or was not aware that it was joined as a party in the suit in the lower court on 8th of May, 2006 it was not served with any processes filed therein or notice of hearing and only knew about the judgment on receipt of Exhibit 2 on 27/10/2008, by which time, the time within which to appeal had lapsed.
The second set of the facts are those contained in the averments in paragraphs 10 and 11 of the affidavit which simply say that the Applicant is an agency of the Federal Government over which the lower court lacks the jurisdiction to entertain a claim against. In paragraph 3 (a) and (b) of the Respondents Counter affidavit the averments of the Applicant that it was not aware of its joinder in the suit until the judgment therein was received, were denied and said to be false. Details of the facts in support of the denial were set out in paragraph 3 (c) – (m) of the Counter affidavit.
However I have observed that there is no averment in the Counter affidavit to deny, challenge or controvert the Applicant’s averments in paragraphs 10 and 11 of the affidavit in support of the application which prima facie raise the issue of want of jurisdiction on the part of the lower court to entertain the suit against the Applicant being an agency of the Federal Government. Since it is not denied that the Applicant is an agency of the Federal Government, whether or not the lower court which is a State High Court has the requisite judicial authority and power in the name of jurisdiction to entertain an action involving or against it, would be decided at the appeal. However the unchallenged averments in paragraphs 10 and 11 of the Applicant’s affidavit have in them, a genuine issue and raise a real question of jurisdiction of the lower court over the suit involving the Applicant which should be decided at the appeal of the Applicant. The question or issue raised in paragraphs 10 and 11 of the Applicant’s affidavit is exactly and precisely contained in GROUND FOUR contained in Exhibit 4 attached thereto; i.e. the proposed Notice of Appeal. Ground four in my view, clearly raises a genuine and real issue or question of jurisdiction that requires decision at the appeal and so shows good cause, prima facie, why the appeal should be heard. It is a substantial and Constitutional point or issue of law to be determined and pronounced upon by this Court in respect of the jurisdiction of a State High Court in suits of the nature decided by lower court. In the above premises and in line with the decisions in the cases of Ukwu V. Bunge and NNPC V. O.E, (Nig) Ltd (supra), there is no need to look at or consider the reasons for the delay or failure to file the appeal within the period prescribed by law. This is clearly a situation that is an exception to the general position of the law as stated earlier, that the Applicant has to satisfy the twin conditions set out before now, for the grant of the application.
It is a situation which calls for and warrants a liberal approach by the court in consideration of the application because of the fundamental and radical nature of the issue of jurisdiction of a court in judicial proceedings.
In the final result, for the reasons set put above, I find merit in the Applicant’s application and grant it as prayed. Accordingly, time is hereby enlarged within which the Applicant may seek leave to appeal and leave is granted to the Applicant to appeal against the Ruling and final Judgment of the Kano State High Court delivered on 8/5/2006 and 26/6/2007 respectively in suit No. K/593/99. Time is also extended within which the Applicant may file the appeal and notice of the appeal shall be filed within thirty (30) days from today.
JOHN INYANG OKORO, J.C.A: I read in draft the ruling just delivered by my learned brother, Garba, JCA and I agree that the Application ought to be granted as prayed. I adopt all the reasoning of my learned brother leading to the grant of this application as mine since they are in tandem with the rules of this court. I abide by all the consequential orders made in the lead ruling.
THERESA NGOLIKA ORJI-ABADUA, (J.C.A.): I, agree.
Appearances
Malam Mohammed Shuaib, ESQFor Appellant
AND
J. A. Kehinde OlaitanFor Respondent
