SOCIETY GENERAL BANK (NIG) v. INTEGLOBAL SERVICES LTD & ANOR.
(2010)LCN/3718(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of April, 2010
CA/L/132M/08
RATIO
APPEAL: WHEN WILL AN APPEAL LIE AS OF RIGHT TO THE DECISIONS OF THE FEDERAL OR STATE HIGH COURT TO THE COURT OF APPEAL
It’s instructive, that by virtue of the provision of section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999, an appeal shall lie from the decisions of either the Federal High Court or a High Court to the Court of Appeal as of right in any of the following cases:
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on question as to the interpretation or application of this constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court:-
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise, (iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) in such other cases as may be prescribed by any law in force in Nigeria. PER I. M. M. SAULAWA, J.C.A.
COUNSEL: WHETHER THE SIN OF COUNSEL SHOULD BE VISITED UPON THE LITIGANT
It is trite and well settled principle of law, that the sin of a counsel, characterized by the negligence or inadvertence thereof should not ordinarily be visited upon a litigant, except in extreme circumstances where it’s established that the litigant has deliberately aided or contributed to the counsel’s dereliction of duty. See EFO CO. LTD VS. NDIC (supra) 216; ADEOSUN VS. AKINYEMI (supra) 47; NWANI VS. BAKARI (supra) 333. PER I. M. M. SAULAWA, J.C.A.
EVIDENCE: EFFECT OF UNCONTROVERTED FACTS DEPOSED IN AN AFFIDAVIT
it’s a well founded principle, that where facts deposed to in an affidavit have not been controverted, the court should treat them as true. See BUCKNOR VS. KEHINDE (2007) 1 NWLR (PT. 1016) at 593 para D; THE HONDA PLACE LTD VS. GLOBE MOTORS LTD (2005) 7 SC (Pt.111) 182; AGBAJE VS. IBRU SEAFOODS (1972) 5 SC 60; ISIAKA VS. OGUNDIMU NWLR (pt. 997) at 412 paras A- G; AKANO VS. ADEDIRAN (1975) 1 NMLR 39. PER I. M. M. SAULAWA, J.C.A.
JUSTICES
RACHAEL CHINWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
SOCEITY GENERAL BANK (NIG) Appellant(s)
AND
1. INTEGLOBAL SERVICES LTD
2. ALHAJI YUSUF RABIU Respondent(s)
I. M. M. SAULAWA, J.C.A. (Delivering the Leading Ruling): By the instant application, filed on 25/02/08, the Applicant has prayed this court for the following four reliefs:
‘1. An order of extension of time within which to seek leave to appeal against the Ruling of the High Court of Lagos State delivered by Alogba J. in this suit on 10/10/07.
2. An order granting leave to the Applicant to appeal against the Ruling of the High Court of Lagos State delivered by Alogba J. in this suit on 10/10/07.
3. An order extending the time within which the Applicant will appeal against the Ruling of the High Court of Lagos State delivered by Alogba J. in this suit on 10/10/07.
4. Stay of execution of the order of the lower court as per the ruling of the Honourable Justice Alogba of the High Court of Lagos State delivered on 10/10/2007 pending the hearing and determination of the appeal filed by the Appellant’.
The application is supported by a 14 paragraphed affidavit, deposed on 25/02/08. Attached thereto, are various documents marked as exhibit ‘A-G’, respectively. A further and better affidavit and further – further and better affidavit were also filed on 27/10/08 and 17/11/08 in support of the application. On the part thereof, the Respondents had filed a 26 paragraphed Counter affidavit on 07/7/08, thereby challenging the averments contained in the Applicant’s affidavit in question. Thus, issues having been joined by parties, the learned counsel deemed it appropriate to file and serve their respective written addresses. The Applicants written address was filed by one Mr. Emmanuel Uwadoka, of Mike Igbokwe & Co., on 09/02/09. On the part thereof, Kennedy Ogbujie, Esq; of Dip Okpeseyi & Co, filed the Respondents’ written address on 24/02/09. The Applicant’s counsel equally filed a reply to the Respondents written address on 01/4/09.
However, on 27/01/09 when the application last came up for hearing, the 4th prayer of the motion was struck out by the court at the instance of the Applicant on the same date, the learned counsel adopted the submissions contained in the respective written addresses thereof, thus, the application was reserved for ruling thereon.
The Applicant has formulated three issues in the written address thereof ,or determination, viz:
“1. Is the reason given by the applicant for failure to file its written time which boils down to counsel’s inadvertence not substantial to explain the delay?
2. Whether the grounds of appeal challenging the Wrongful exercise of discretion by the lower court does not prima facie qualify as a good cause why the appeal should be heard?
3. Whether bringing this application under a wrong order of the rules of court will defeat substantial justice?’
Contrariwise, the Respondents raised a single issue in the written address thereof, as follows:
‘WHETHER OR NOT THIS APPLICATION IS COMPETENT?”
On issue No. 1, the Applicant’s learned counsel submitted, inter alia, that order 7 Rule 10(2) of the Court of Appeal rules, 2007 has provided for two requirements regarding an application for an enlargement of time to appeal. The two requirements being: (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. See ISIAKA VS. OGUNDIMU (2006) 13 NWLR (pt. 97) 411 paras F – H; IBODO VS. ENROFIA (1980) 5 – 7 SC 42; ALAGBE VS. ABIMBOLA (1978) 2 SC 89.
It was further submitted that from the Applicant’s affidavit, the Applicant has satisfactorily met the first requirement. See Exhibits ‘A, B & C’; paras 3(ii) & (iii) of the affidavit; and paragraph 3(c) of the further and better affidavit, respectively.
It was contended, that from the fact deposed to in the affidavit, that the Applicant never rested in seeing that the appeal was timeously prosecuted, but there was some laxity on the part of counsel thereof, which prevented the process from being filed within the prescribed time. The court has been urged to exercise its discretion in favour of the Applicant, since the failure to file the appeal within time was not deliberate, but due to the inadvertence caused by the negligence or error of counsel. That, the sin of counsel ought not to be visited on the litigant. See EFP CO. LTD VS. NDIC (2007) 9 NWLR (pt. 1039) 216 SC; ADEOSUN VS. AKINYEMI (2007) 4 NWLR (pt. 1023) 47; NWANI VS. BAKARI (2007) 1 NWLR (pt. 1015) 333; IBODO VS. ENAROFIA (supra).
The facts accounting for the delay deposed in the Applicant’s affidavit have allegedly not been contradicted in the Respondents’ counter affidavit. As such, the court has been urged to treat those facts as true and correct. See BUCKNOR VS. KEHINDE (2007) 1 NWLR (pt. 1016) at 593 paras. D. THE HONDA PLACE LTD VS. GLOBE MOTORS LTD (2005) 7 SC (pt. 111) 182; AGBAJE VS. IBRU SEA FOODS (1972) 58C 50; ISIAKA VS. OGUNDIMU (2006) 13 NWLR (pt. 997) at 412 paras A – C; AKANO VS. ADEDIRAN (1975) 1 NWLR 39.
The court has been urged upon to accordingly resolve issue No.1 in favour of the Applicant.
On issue No.2, the learned counsel submitted that the proposed notice of appeal (Exhibit ‘E’) is in tandem with the second requirement of order 7 Rule 10(2) of the Court of Appeal Rules, 2007 (supra). See EFP CO. LTD VS. NDIC (supra) at 239 paras. D – G.
Ground 1 allegedly attacks the discretion so exercised by the lower court on the particulars, inter alia, that there were no material facts disclosed In the Respondents’ affidavit upon which the court’s discretion could thrive.
Ground 2 similarly questions the manner of the exercise of the lower court’s discretion on the particulars, inter alia, that the lower court failed to recognize and consider the undertaking as to damages before setting aside the its earlier decision. See UDENSI VS. ODUSOTE (2003) 6 NWLR (pt. 817) 558 paras. C-H; ENEKEBE VS. ENEKEBE (1964) 1 All NLR 102; UNIVERSITY OF LAGOS VS. AIGBORO (1985) 1 NWLR (pt. 1).
It was equally argued, that the averments in paragraph 3(a) of the further and better affidavit, to the effect of denying the existence of any two appeals, had not been controverted by the Respondents by way of a further counter affidavit. Thus, the facts deposed to in the said further and better affidavit are deemed to have been admitted by the Respondents. See AG ONDO VS. AG EKITI STATE (2001) 17 NWLR (pt. 743) at 749 – 750 paras G – C; MAERSK LINE VS. ADDIDE INV. LTD (2002) 11 NWLR (pt. 778) at 362 paras C – D; HARRIMAN VS. HARRIMAN (1987) 2 NSCC at 937 paras 30.
The court was urged to also resolve the second issue in the Applicant’s favour.
On Issue No.3, it was submitted that the wrongful citation of order 10 Rules 1 & 2, instead of order 7 Rule 10 of the Court of Appeal Rules, 2007, does not render the application incompetent as it has no effect on the motion. The cases of MANSON VS. HBS (NIG) LTD (2007) 2 NWLR (pt. 1018) at 227 paras G-H; and OKONJE VS. DR. NUDIAGA ODJE (1985) 10 SC 276 at 268 were cited and relied upon for the above submission.
It was finally submitted, that the courts have over the years abandoned technical (justice) in favour of substantial justice. See HMS VS. FIRST BANK (1991) 22 NSCC (Pt.1) 119 at 132; UBA LTD. VS. NWORA (1978) 11-12 SC 1.
On the other hand, the Respondents’ counsel submitted, inter alia, that section 241 (1) (b) of the 1999 Constitution confers a right of appeal where the grounds of appeal are of law alone. However, where the grounds of appeal are of mixed law and fact or facts simpliciter, leave of the High Court or Court of Appeal must be sought and obtained before there can be a valid appeal to Court of Appeal. See section 242(1) of the 1999 Constitution.
Section 14(1) of the Court of Appeal Act was also referred to, regarding leave of either the High Court or Court of Appeal in interlocutory order or decision. That, section 14(2) of Court of Appeal Act and order 7 rule 4 of the Court of Appeal Rules, 2007, provide that an application for leave to appeal shall not be made to the Court of Appeal in the first instance, except where there are special circumstances making it impossible or impracticable to apply to the lower court. See CBN VS. OKOJIE (2002) 8 NWLR (Pt.768) 48 at 62; METAL CONSTRUCTION (WA) LTD. VS. MIGLORE (1990) 1 NWLR (Pt.126) 299; DENTON-WEST VS. MUOMA (2008) 6 NWLR 9Pt.1083) 418 at 445 para C.
It was contended that the present application is defective for not showing special circumstances, which made it impracticable or impossible, to apply to the court below for leave to appeal. The court has been urged to dismiss the application on this ground.
It was further contended, that the Applicant has failed to pray the court for an extension of time to file notice of appeal on grounds not of law alone. Therefore, the application is incompetent. See IN RE: OTUECON (1995) 4 NWLR (Pt.392) 655 at 674; KOKU VS. KOKU (1999) 8 NWLR (Pt.616) 672 at 681-682; ADEYEMI VS. URS IKE-OKIWA & SONS LTD. (1993) 8 NWLR (Pt.309) 37 at 49 paras B-D.
On the Applicant’s issue NO.1, it was submitted, inter alia, that the relief sought is discretionary, as such it’s very crucial for the Applicant to have (established) good and substantial reasons for the delay. That, he who comes to equity, must come with clear hands. It is argued, that the excuse of counsel in advertence has not been substantiated. That, in this case, with obvious lies and indiscretion, equity cannot intervene to save the application. Thus, the court has been urged to refuse same.
On the 2nd issue, it was submitted inter alia, that the grounds of appeal, as exhibited, has not disclosed an arguable appeal, as same is not founded on sound, rational and legal principle. See OLADELE VS. AROMOLARAN (1991) 3 NWLR (pt. 181) 544 at 569.
It was equally contended, that the grounds of appeal did not disclose good cause why the appeal should be heard. See ROSEHILL LTD VS. OKORO VENTURES LTD (2006) 5 NWLR (pt. 974) 444 at 458 paras A – C; order 7 Rule 10(2) Court of Appeal Rules 2007 (supra). That, from the ruling thereof, the lower court, having been sufficiently seized of the facts, applied same judiciously. See AMADI VS. OLUMATI (1995) 7 NWLR (pt. 410) 759 at 752.
The court has been urged upon to accordingly dismiss the application, with substantial costs.
The Applicant submitted, inter alia, in the reply address thereof, that the Respondents having not countered the Applicant’s affidavit, their argument and submissions in pages 3 – 4 (No 3.6 – 3.9) of the written address thereof cannot constitute evidence. See AUTO IMPORT EXPORT VS. ADEBAYO (2005) 19 NWLR (pt. 959) at 105 – 106 paras. G – D SC; YOYE VS. OLUBODE (1974) 10 SC 209; BELLO VS. NBN (1992) 6 NWLR (pt. 67) at 687.
It was submitted, that there is no hard and fast rule under which trinity prayers must be couched, so long as the words contain the satisfactory materiality desired of such an application.
On issues 1 & 2, the argument of the Respondents on the content of the ruling of the lower court is said to be premature. That, the address of counsel, no matter how persuasive or robust, cannot constitute an evidence. See AUTO IMPORT EXPORT VS. ADEBAYO (supra); OLOKO VS. UBE (2001) 13 NWLR (pt.729) at 173 – 174 paras G – B; IBODO VS. NAROFIA (1980) 5 – 7 SC 42; UNIVERSITY OF LAGOS VS. OLANIYAN (1985) 1 NWLR (pt. 1) 156; LAMAI VS. ORBIH (1980) 5 – 7 SC 28.
Thus, the court has been urged to discountenance the Respondents’ written reply, dated 24/02/09, as the submissions (there in) are irreconcilable with the true position of the law.
It’s instructive, that by virtue of the provision of section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999, an appeal shall lie from the decisions of either the Federal High Court or a High Court to the Court of Appeal as of right in any of the following cases:
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on question as to the interpretation or application of this constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court:-
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise, (iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) in such other cases as may be prescribed by any law in force in Nigeria.
It is trite, that this court has the discretionary power to grant an extension of time to an applicant to file an appeal out of time. See order 7 rule 10 of the Court of Appeal Rules, 2007 (supra) thus:
’10 (1) The Court of Appeal may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention to contest an application under rule 8 above.
(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard when time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal’.
Thus, by virtue of the provision of order 7 Rule 10(2) of the Court of Appeal Rules, 2007 (supra), the applicant has an onerous duty to establish the following two special circumstances-
(i) Good and substantial reasons for the failure to appeal within the period prescribed by the rules; and
(ii) Grounds of appeal which prima facie show good cause why the appeal should be heard.
See IWEKA VS. SCOA (2000) SSC 21; ADIC VS. IBRU FOODS LTD (2003) 16 WRN 33; BANK OF BARODA VS. MERCANTILE BANK (NIG.) LTD. (1987) 3 NWLR (Pt.60) 233.
Having accorded an ample consideration upon the nature and circumstances surrounding the application, the submissions of the learned counsel, contained in the respective written addresses thereof, there is reason for me to hold that there two issues that call for determination, viz:
1. Whether the Applicant has established good and substantial reasons for the failure to appeal within the period prescribed by the rules.
2. Whether the proposed grounds of appeal show prima facie good cause why the appeal should be heard.
ISSUE NO.1
Issue No. 1 raises the question of whether or not the Applicant has established a good and substantial reasons for the failure to appeal within the period prescribed by the law. I have critically appraised the averments contained in the affidavits and the annexures thereto in support of the application, the counter affidavit vis-a-vis the learned counsel’s submissions thereon. It is evident from the records, especially the affidavits supporting the application, that the reason so advanced by the Applicant for failure to appeal within the statutory time limit was hinged on the counsel’s alleged inadvertence. See paragraphs 3 (v), (vi), (vii), (viii) & 4 of the affidavit, deposed to by Babatunde Sofobola on 25/02/08, viz:
‘3. I was informed in our law firm by Mr. Emmanuel Uwodoka, one of the counsel in the law firm on 28/1/2008 and I verily believe him as follows:
(v) Pursuant to the Applicant’s instruction, the Principal Counsel, Mr. Mike Igbakwe (SAN) directed Mr. Shola Ogunyemi, one of the Counsel who was as at then in the employment of the law firm to quickly pursue the instruction of the Applicant.
(vi) Few days later, Mrs. Ayokunle Rotimi eagerly inquired whether the instruction has been satisfied and she was informed by the said Mr. Shola Ogunyemi that he had prepared the appeal and that same would be filed within the prescribed time limited by the rules of this court.
(vii) Upon the disengagement of Mr. Shola and due to her inability to reach him any longer both in person and on phone to yet ascertain the statues of the matter, Mrs. Rotimi thereafter approached the Principal Solicitor to further confirm whether on appeal had been lodged within the prescribed period as promised by the said Mr. Shola.
(viii) At this stage, the Principal Solicitor called on him to bring the case file for confirmation and it was then discovered that there was no appeal filed by the said Mr Shola but within which period the time limited by the rules of this court had lapsed and in order to pursue the Applicant’s instruction, having been out of time, he was instructed by the Principal Solicitor to do the needful.
4. The Applicant’s failure to lodge an appeal against the decision of the lower court within the time prescribed by the rules of court is not as of disrespect to this honourable court but owing to the inadvertence of its counsel’.
From the facts deposed to in the affidavit, especially paragraphs 3(v) (vi), (vii), (viii) & 4 alluded to above, it is rather obvious that the Applicant was earnestly desirous of prosecuting the appeal, but his effort was thwarted as a result of the indolent attitudinal disposition of the counsel thereof. It is trite and well settled principle of law, that the sin of a counsel, characterized by the negligence or inadvertence thereof should not ordinarily be visited upon a litigant, except in extreme circumstances where it’s established that the litigant has deliberately aided or contributed to the counsel’s dereliction of duty. See EFO CO. LTD VS. NDIC (supra) 216; ADEOSUN VS. AKINYEMI (supra) 47; NWANI VS. BAKARI (supra) 333.
It was contended, that the Respondents have not controverted the very facts, as deposed in the affidavits, to the effect that the Applicant’s delay in filing the appeal within time was attributed to the counsel’s inadvertence. And it’s a well founded principle, that where facts deposed to in an affidavit have not been controverted, the court should treat them as true. See BUCKNOR VS. KEHINDE (2007) 1 NWLR (PT. 1016) at 593 para D; THE HONDA PLACE LTD VS. GLOBE MOTORS LTD (2005) 7 SC (Pt.111) 182; AGBAJE VS. IBRU SEAFOODS (1972) 5 SC 60; ISIAKA VS. OGUNDIMU NWLR (pt. 997) at 412 paras A- G; AKANO VS. ADEDIRAN (1975) 1 NMLR 39.
However, the principles alluded to above notwithstanding, it remains a trite principle of law that an application for an enlargement to appeal or leave to appeal, as the case may be, is not normally granted as a matter of cause. As alluded to above, the applicant has an onerous duty to establish the twin requirements set out under order 7 Rule 10(1) of the Court of Appeal Rules, 2007 (supra).
In the instant case, the reasons advanced by the Applicant in paragraphs 3(i) – (viii) & 4 of the affidavit in support of the application are rather untenable, to say the least. Considering the facts as deposed to in the affidavit in support of the application, the ruling in contention was delivered on 10/10/07. On that date, the Applicant filed both an application for stay of execution and a notice of appeal against the ruling of the lower court in question. See paragraphs 6 – 12 of the counter affidavit filed on 07/7/08, thus:
‘6. That the Applicant in its said application for stay of execution exhibited a Notice of Appeal dated 1st October, 2007. Attached herewith is the said Notice of Appeal marked as EXHIBIT ‘A’.
7. That this Motion for Stay and the Notice of Appeal was brought within time and the Applicant deliberately refused to move the Court, to frustrate Respondent and the enforcement of order of Court. The application for C.T.C. of Order of 10/10/0 was made about 5 (five) months after the order.
Applicant in not interested in the appeal.
8. That the Notice of Appeal dated 10th October, 2007 served on the Respondent is still valid and subsisting before this Court.
9. That contrary to the averment in paragraph 8, 9, 10, 11, 12 of the Affidavit in Support, the Respondent has a Counter claim of over N57million (Fifty Seven Million Naira) against the Applicant having paid same into its account with the Applicant without accounting for same. Attached is the Respondents Counter claim marked as EXHIBIT ‘A1′.
10. That presently there are two Notices of appeal served on the Respondent by the Applicant. That is, there are two Appeals pending before this Court brought by the Applicant on the same subject matter.
11. That the Applicant’s refusal to prosecute the Appeal is deliberately aimed at denying the Respondent the beneficial enjoyment of its said shares, hence it admitted applying for C.T.C of Order made in October 2007 in February, 2008 as per paragraph 5 of Affidavit in Support.
12. That the Applicant’s failure to seek leave to Appeal the ruling of the High Court within time is consistent with its attitude towards this matter as a whole since instituting same in 2000′.
From the above averments, contained in the counter affidavit, it’s rather obvious that the Applicant had abandoned the appeal since 10/10/07, when the ruling in question was delivered by the court below, until it filed the instant application.
It is evident from the record, that the Applicant’s delay or failure to seek leave to appeal against the ruling in question within time is consistent with the disposition thereof at the lower court. See Ruling of the lower court, dated 10/10/01, lines 17 – 21, & 24 – 25, where in the learned judge of the court below observed, thus:
“Hearing of the substantive suit commenced on 23rd March, 2002 and was further adjourned to 15th and 16th May, 2002 on which day (15th May, 2002) parties and their counsel were absent in court. Several adjournments followed thereafter until 4th March, 2004 when it was again set down for hearing. On that day again, Claimant’s counsel asked for adjournment as their witness was said to be unavailable.
On 26th May, 2004, Claimants’ counsel reported that their witness could not be gotten and even threatened to withdraw representation for the claimant.
From the above highlight, it is rather inarguable that the allegation of counsel’s inadvertence has not been substantiated. It is rather disheartening, that the notorious excuse of counsel’s inadvertence or negligence is being grossly abused to the detriment of the administration of justice. It is a well established equitable maxim, that vigilantibus et non dormentibus jura subservient, that is to the law aids those who are vigilant, not those who are negligent over their rights. See IKENTA SEST NIG LTD VS. RIVERS STATE (2008) 6 NWLR (pt. 1084) 612 at 656 paras. B-D.
In the circumstance, issue No.1 ought to be, and same is hereby resolved favour of the Respondent.
ISSUE NO.2
The 2nd issue raises the question of whether the proposed grounds of appeal show prima facie good cause why the appeal should be heard. It is instructive, that Exhibit ‘E’ attached to the affidavit in support of the application is the very notice of appeal intended by the Applicant to be relied upon if the application is granted. The notice of appeal in question is predicated on the following two grounds of appeal:
GROUND 1
The Honourable court below erred in law in setting its earlier order of interlocutory injunction made against the Respondents notwithstanding the failure of the said Respondents to furnish reasonable ground.
PARTICULARS
a. The burden of proving that the order of interlocutory injunction earlier granted by the court ought to be vacated lay squarely on the Respondents.
b. There were no material facts disclosed in the Respondents’ affidavit to necessitate the order setting the interlocutory injunction as earlier granted by the court.
c. Arising from the above, there was no convincing proof before the court in support of the Respondents’ claim that the 1st Respondent would be prejudiced if the order for interlocutory injunction was not set aside.
GROUND 2
The Honourable court below erred in failing to take into consideration at the time of the ruling, the Appellant’s undertaking as to damages, which was in the court’s record and which failure led to the wrong exercise of discretion there by occasioning a miscarriage of justice.
PARTICULARS
a. The Appellant filed an undertaking as to damages of which the original was in the court’s file at the time of the ruling.
b. The court failed to properly resort to its record to which it is bound before exercising its discretion.
c. The decision of the court would have been otherwise if the said undertaking as to damages were taken into consideration.
As alluded to above, the two conditions precedent stipulated in order 7 Rule 10(2) of the Court of Appeal Rules, 2007 (supra) must be established to have conjunctively existed. In essence, where either or both of the conditions precedent are not established, the court is deprived of the competence to exercise the discretionary power thereof and grant an extension of time to apply for leave to appeal, or to appeal, as the case may be. See ROSEHILL LTD VS. OKPORO VENTURES LTD (2006) 5 NWLR (pt. 974) 444 at 458 paras. A – C.
Thus, in the instant case, the fact that the issue No.1, has been resolved against the Applicant, it goes without saying that the application fails in its entirety.
It is discernible from the ruling (Exhibit ‘E’) attached to the affidavit in support of the motion, that the court below – had exercised the discretion thereof based on relevant facts placed before it by parties. The court evidently took into consideration the conduct of the parties vis-a-vis the balance of justice in the matter. For instance, it was observed by the lower court that the Respondents had since 2002 deposited the share certificate order thereof in court, in compliance with the court’s order, (ii) that, they had been deprived of the use of the said share certificate ever since; (iii) that the Applicant failed to file the undertaking as to damages as ordered by the court upon the grant of the interlocutory injunction in favour thereof. Not surprisingly, the lower court came to the conclusion, inter alia, thus:
“He who comes to equity must do equity. Equity aids the vigilant and not the indolent.
As yet the Claimant has not proved its claim against the Defendants, but has had the benefit of the equitable jurisdiction of the Court which has withheld property of the Defendants from them for its benefit, so that if it eventually proved its case against them, it could have something to fall upon along with other collateral used in securing the loan.
That however does not entitle it having had such benefit, to go to sleep as it were justice delayed is justice denied; and justice holds the balance between the interest of the Claimant and the Defendant, it should not unfairly on the side of either of them.”
In a nutshell, having critically appraised the averments deposed to in the affidavit, counter-affidavit and the annextures thereto vis-a-vis the submission of the learned counsel in the respective written addresses thereof, I uphold the Respondents learned counsel’s contention that the proposed two grounds of appeal are rather frivolous.
What’s more, the rulings of the lower court in question being an interlocutory decision, it goes without saying that the Applicant ought to have first applied to the court below before coming to this court. See section 14(1) of the Court of Appeal Act (supra) and order 7 Rule 4 of the Court of Appeal Rules, 2007 (supra). See CBN VS. OKOJIE (2002) 8 NWLR (Pt.768) 48 at 62; METAL CONSTRUCTION (WA) LTD. VS. MIGLORE (1990) 1 NWLR (Pt.126) 299, to the effect, inter alia, that where a challenge is made regarding improper exercising of discretionary power, it will necessarily involve facts and circumstances, thus at best, a question of mixed law and facts.
In that regard, I uphold the submission of the Respondents’ learned counsel to the effect (i) that the proposed notice of appeal (exhibit ‘E’) attached to the affidavit in support of the application, raises the issues of facts, or at best of mixed law and facts; (ii) that, the Applicant never applied to the lower court for leave to appeal. No reason, talk less of special circumstances, was proffered in the affidavit, which made it impracticable, or rather impossible, to apply to the court below for leave to appeal.
In the light of the above postulations, it is rather obvious that the 2nd issue sought to be answered in the negative, and same is hereby resolved in favour of the Respondent, as well.
Hence, having resolved both issues 1 & 2 in favour of the Respondents, it has become inevitable that the present application is rather grossly unmeritorious, and ought to be dismissed. Consequently, the application is hereby dismissed by me.
The Respondents shall be entitled to costs, which is assessed at N20,000,00 against the Applicant.
RAPHAEL CHIKWE AGBO, J.C.A.: I have read in draft the ruling just delivered by my learned brother I. SAULAWA J.C.A., and I agree completely with the reasoning and conclusions. The applicant’s averment in the supporting affidavit that counsel in chambers was instructed to file the appeal and he lied he had filed it while in fact he had not is not an averment the respondents could have reacted to in their counter-affidavit as they were not in a position to determine the correctness of the averment. It was incumbent on the applicant rather making the averment to put the offending counsel on notice of the allegation of unprofessional conduct made against him to enable him react to the allegation. This the applicant did not do in this case. I also dismiss this application with N20,000.00 costs to the respondent.
REGINA OBIAGELI NWODO, J.C.A.: I have had the privilege of reading before now the lead Ruling of my learned brother, SAULAWA, J.C.A. just delivered agree with his conclusion that this application is devoid of merit.
I also dismiss the application and abide by the consequential orders made therein.
Appearances
Adolphus NwachukwuFor Appellant
AND
Oladipo Okpeseyi (SAN);
A. O. Lawrence and
Tawa Ashorobi (Miss)For Respondent
