STERLING BANK PLC v. B. OLABODE JOHNSON (2011)

STERLING BANK PLC v. B. OLABODE JOHNSON

(2011)LCN/4601(CA)

The Court of Appeal of Nigeria

On Friday, the 3rd day of June, 2011

CA/L/581M/2010

RATIO

ENLARGEMENT OF TIME TO APPEAL: CIRCUMSTANCES UNDER WHICH AN APPLICATION FOR EXTENSION OF TIME WILL SUCCEED

By S. 24(2) of the court of Appeal Act 2004, where a person desires to appeal to the Court of Appeal, he shall give notice of appeal, where the appeal is against a final decision in a civil cause or matter, within three months of the delivery of the judgment. This court may enlarge the time within which to appeal provided the applicant can be accommodated within the provisions of Order 7 Rule 10(2) of the Court of Appeal Rules 2011. By the provisions of Order 7 Rule 10 of the Court of Appeal Rules 2011 for an application for extension of time to succeed, the applicant must establish by affidavit evidence good and substantial reasons for failure to appeal within the stipulated time and exhibit a notice of appeal the grounds of which prima facie must show good cause why the appeal should be heard. These conditions are to be satisfied conjunctively. See Ukwu vs. Bunge (1997) 8 NWLR (pt. 518) 527. PER RAPHAEL CHKWE AGBO, J.C.A.

DELAY IN BRINGING AN APPEAL: WHETHER A COURT NEEDS TO INQUIRE INTO THE REASON FOR THE DELAY WHERE A GROUND OF APPEAL COMPLAINS OF WANT OF JURISDICTION AND IT PRIMA FACIE APPEARS SO

where the proposed grounds of appeal complains of want of jurisdiction and it prima facie appears so, it may not be necessary to inquire into the reason for the delay in bringing the appeal as want of jurisdiction is always a good and substantial reason why an appeal should be heard. See Ukwu vs. Bunge supra. PER RAPHAEL CHKWE AGBO, J.C.A.

APPLICATION FOR EXTENSION OF TIME TO APPEAL: CONDITIONS AN APPLICANT MUST SATISFY FOR THE COURT TO GRANT AN APPLICATION FOR EXTENSION OF TIME

In an application of this nature, the applicant must satisfy the two mandatory preconditions laid down by Order 7 Rule 10(2) of the Court of Appeal Rules 2011, namely: (a) Good and substantial reasons for failure to appeal within the prescribed period and (b) The grounds of appeal must prima facie show good cause why the appeal should he heard. See E.F.P. Co. Ltd v. NDIC (2007) 9 NWLR (Pt. 1039) 216. Olumegbon v. Kareem (2002) 98 LRCN 1152 at 1164. The two conditions mentioned above must co-exist. See Isiaka v. Ogundimu (2006) 13 NWLR (Pt.997) 401.

APPLICATION FOR EXTENSION OF TIME TO APPEAL: WHETHER FAILURE TO OBTAIN THE RECORD OF PROCEEDINGS OR COPY OF JUDGMENT IS A GOOD REASON FOR THE DELAY IN BRINGING AN APPEAL

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

STERLING BANK PLC Appellant(s)

AND

B. OLABODE JOHNSON Respondent(s)

RAPHAEL CHKWE AGBO, J.C.A. (Delivering the Leading Judgment): The respondent, a legal practitioner had performed certain legal services for the applicant. A dispute had arisen between them regarding the respondent’s fees leading to the respondent’s filing of suit no. LD/1023/2001 at the Lagos State High Court.
In a judgment delivered on 2nd February 2007, the trial court adjudged as follows:
“In conclusion I hold that the claimant claim succeeds and I hereby enter judgment as follows:
(a) That the defendant shall pay to the claimant the sum of USD500,000.00 (Five hundred thousand naira) being the legal fees in respect of professional legal services rendered to the defendant.”
The respondent thereafter levied execution. Between 6th July 2007 and 9th February 2010 the applicant file three applications seeking extension of time to appeal each of which was struck out for one defeat or the other. This application filed on 2/6/10 also seek extension of time to appeal against the judgment delivered on 2nd February 2007.
The application is supported by a twenty-eight paragraph affidavit and two further affidavits. The respondent on the other hand filed a 17 paragraph affidavit.
The parts of the applicant’s affidavit in support of the application are reproduced hereunder:-
Affidavit in Support
“I, EVI CONSTANCE IGBRUDE, Nigerian, Female, Christian of 20, Marina, Lagos do make oath and state as follows:
1. That I am a legal practitioner in the law firm of Ajumogobia & Okeke, counsel to the applicant and by virtue of the schedule of my duties I am conversant with the facts of this case.
2. The facts deposed hereunder are facts within my personal knowledge and facts disclosed to me by Mr. Patrick Osu, counsel charged with the responsibility of conducting this suit, whom I verily believe.
I have the consent of the applicant to depose to this affidavit.
4. In a judgment delivered on the 2nd of February 2007 by Honourable Justice Oyekan-Abdullahi in suit No. LD/1023/2001, the High court of Lagos state, Lagos entered judgment against the defendant in favour of the respondent in the sum of $US500,000.00, a sum which is equivalent to the sum of N60,911,133.40 (sixty Million Nine Hundred and Eleven Thousand, one Hundred and Thirty Three Naira Forty Kobo).
5. I know that Nal Merchant Bank who was the defendant at the court of first instance changed its name to sterling Bank plc sometime in December 2005. Attached herewith and marked as “Exhibit EC1” is a copy of the certificate of Incorporation evidencing the change of name.
6. I am informed by Mr. Patrick Osu aforesaid and I verily believe him that:
(a) Upon returning from court on the 2nd of February 2007, a letter was written by Mr. Kehinde Holloway, an Associate in the firm, to the defendant notifying it of the decision of the court;
(b) Being dissatisfied with the judgment of the court, the defendant responded to our letter instructing our firm to file an appeal against the judgment and take all necessary steps to protect the interest of the bank. Attached herewith and marked “Exhibit EC2” is a copy of the said letter;
(c) Upon receiving the defendant’s instructions, Mr. Patrick Osu Esq. instructed Mr. Kehinde Holloway of counsel to immediately prepare an appeal against the said judgment and also file an application for stay of execution;
(d) Mr. Kehinde Holloway prepared the Notice of Appeal and a Motion for stay of Execution as instructed, which was also approved by Mr. Patrick osu for filing at the court of Appeal;
(e) Mr. Kehinde Holloway was further instructed to apply for a certified true copy of the judgment of the lower court to enable him prepare and file additional grounds of appeal;
(f) After submitting the application to obtain the judgment of the lower court, Mr. Kehinde Holloway, proceeded on leave on the 2nd of March 2007 without handing over the assignment to any other counsel in the firm;
(g) upon resuming on the 2nd of April 2007 after his leave, Mr, Kehinde Holloway did not follow up with the matter and nothing was therefore done in furtherance of the instructions to obtain a certified true copy of the judgment delivered by Honourable Justice oyekan-Abdullahi on the 2nd of February 2007 in order to prepare and file additional grounds of appeal against the judgment as no other counsel in the firm was aware of the pending assignment;
(h) In April 2007, Mr. Kehinde Hoiloway had to operate from the firm’s Port Harcourt office to attend to several pending oil spill litigation suits that were filed against a client of the firm;
(i) while Mr. Holloway was working from the firms port Harcourt office, he lost track of the present matter;
(j) It was upon the attempt to levy execution by the Judgment Creditor sometime in June 2007 it was also discovered that the initial Notice of Appeal and Motion for Stay of Execution Mr. Osu instructed the said Kehinde Holloway to file had not been filed;
(k) on the 18th of June 2007, a certified true copy of the judgment of the court was obtained from the courts registry. Attached herewith and marked “Exhibit Ec3” is a copy of the said judgment;
(l) The defendant’s officer Mr. sunny Kanabe on the 21st day of June 2ao7 in a telephone conversation with Mr. patrick osu of counsel, inquired about the progress of the appeal. Mr. Patrick osu informed him that we had just obtained a certified true copy of the judgment of the Lagos state High Court delivered by Honourable Justice Oyekan-Abdullahi and that an appeal will be fifed shortly;
(m) upon obtaining the judgment of the court, Mr. olumayowa owolabi, another counsel in the firm was instructed to prepare the Notice of Appeal and file same;
(n) Mr. olumayowa owolabi prepared the Notice of Appeal and thereafter gave instructions to the litigation officers in chambers to file same and assumed that the appeal had been filed until he found out after a perusal of the case file in chambers on the 5th of July 2007 that the Notice of appeal had not been filed;
(o) On the 5th of July 2007, the Sheriffs of this Honourable Court visited the head offices of the applicant and attached some of the vehicles of the applicant in an attempt to satisfy the judgment debt.
(p) on the 6th of July 2007 Mr. owolabi immediately proceeded to the court of Appeal Lagos and ensured that the Notice of Appeal and an application seeking for an order extending the time to file the said Notice of Appeal was filed as the appellant/applicant was already out of the time prescribed by the Rules of this Honourable court to file the Notice of Appeal. Attached herewith and marked “Exhibit EC4″ is the applicant’s motion dated 6th July 2007 seeking an order for extension of time to file a Notice of Appeal against the decision of the High Court of Lagos State, Lagos in Suit No. LD/1023/2001 contained in the judgment delivered by Honourable Justice Oyekan-Abdullahi on the 2nd of February 2007.”
The respondent’s counter affidavit challenges the credibility of the reasons given in the applicant’s affidavit and exhibited a letter dated 13th Jun e 2007 written by the applicant to the Deputy Sheriff, High court of Lagos state. The said letter bears reproduction:
“13th June 2001
The Deputy Sheriff
High Court of Lagos State
Lagos Judicial Division
Lagos.
Dear Sir,
SUIT NO.LD/1023/2001 – OLABODE JOHNSON v. NAL MERCHANT BANK
We are counsel to the defendant in the above mentioned suit hereinafter referred to as “our client”.
On the 2nd of February 2007, the Hon. Justice Oyekan-Abdullahi entered judgment in the sum of (Five Hundred Thousand Unites States Dollars) 5500,000.00 in favour of the claimant. Our client has instructed us to file a Notice of Appeal against the judgment, together with an application staying execution of the judgment pending the determination of the appeal.
However, we have had difficulties obtaining a copy of the judgment of the court and this has made it impossible to prepare the Notice of Appeal and Motion for Stay of Execution. We are aware that the time limited for filing an appeal against the judgment has since expired; however, we are making efforts to obtain a copy of the judgment to enable us immediately file the Notice of Appeal.
Please take notice that our client intends to exercise its constitutional right of appeal and we urge you to ensure that this right is preserved.
Yours faithfully,
AJUMOGOBIA & OKEKE”
By S. 24(2) of the court of Appeal Act 2004, where a person desires to appeal to the Court of Appeal, he shall give notice of appeal, where the appeal is against a final decision in a civil cause or matter, within three months of the delivery of the judgment. This court may enlarge the time within which to appeal provided the applicant can be accommodated within the provisions of Order 7 Rule 10(2) of the Court of Appeal Rules 2011. By the provisions of Order 7 Rule 10 of the Court of Appeal Rules 2011 for an application for extension of time to succeed, the applicant must establish by affidavit evidence good and substantial reasons for failure to appeal within the stipulated time and exhibit a notice of appeal the grounds of which prima facie must show good cause why the appeal should be heard. These conditions are to be satisfied conjunctively. See Ukwu vs. Bunge (1997) 8 NWLR (pt. 518) 527.

The bumbling negligence of different counsel set out above in the applicants affidavit in support beggars credulity. The applicant’s failure to file a notice of appeal within time was clearly influenced by the reason given in its letter to the Deputy sheriff of the High court of Lagos State and not the incredible rate of serial irresponsible conduct of counsel. That tale is falsified by the letter of 13th June 2007 which expressly stated that their inability to obtain a copy of the judgment of the court had made it impossible for them to prepare the notice of appeal. Failure to obtain the judgment of the trial court has never been accepted as sufficient reason for not appealing within the time specified by the Court of Appeal Act. This is because the appellant can file an appeal founded on the omnibus ground only and later file additional grounds of appeal on obtaining the judgment of the court.
The judgment of the trial court was delivered on 2/2/2007. The applicant’s time to file its appeal lapsed on 2nd May 2007. As at 13th June 2007 the applicant was still insisting that it needed to have a copy of the judgment before filing its appeal. I find that position untenable.
The annexed proposed grounds of appeal do not challenge the jurisdiction of the trial court. This application must fail and it is hereby dismissed with N30,000.00 costs to the respondent.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I had read the lead ruling just delivered by my learned brother R.C. Agbo, JCA. I had also gone through the motion papers, the affidavit in support thereof, the exhibits annexed therewith vis-a-vis the submissions of learned counsel.
Hence’ having adopted the reasoning and conclusion reached in the lead ruling as mine, I too am of the view that the instant application lacks merit. The application is accordingly hereby dismissed by me. I abide by the costs of N30,000 awarded to the Respondent.

ADAMU JAURO, J.C.A.: I have had the advantage of reading the lead ruling just delivered by my learned brother Agbo, JCA. I am in complete agreement with the reasoning and conclusion therein.
In an application of this nature, the applicant must satisfy the two mandatory preconditions laid down by Order 7 Rule 10(2) of the Court of Appeal Rules 2011, namely:
(a) Good and substantial reasons for failure to appeal within the prescribed period and
(b) The grounds of appeal must prima facie show good cause why the appeal should he heard.
See E.F.P. Co. Ltd v. NDIC (2007) 9 NWLR (Pt. 1039) 216. Olumegbon v. Kareem (2002) 98 LRCN 1152 at 1164. The two conditions mentioned above must co-exist. See Isiaka v. Ogundimu (2006) 13 NWLR (Pt.997) 401.

The failure to obtain record of proceedings or copy of judgment is not a good reason for the delay. The appeal can initially be filed on the omnibus ground in order to meet the time deadline and subsequently the notice of appeal can be amended by filing additional grounds upon receipt of the judgment. See Ayinla v. S.C.O.A (1953) 20 NLR 154 Fagoroye v. C.O.P (1959) SC NLR 1.
The two conditions having not been satisfied the application is bound to fail. For the above and fuller reasons contained in the lead ruling, the application is hereby dismissed by me. I abide by the consequential order as to costs.

Appearances

Patrick A. Osu with him Toyin T. AdigunFor Appellant

AND

Peter Olomola with him Olumide HassanFor Respondent