UBA & ANOR v. ALPHACELL TECHNO LTD & ANOR
(2022)LCN/16525(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, March 16, 2022
CA/A/421/M/2018(R)
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
1. UNITED BANK FOR AFRICA PLC 2. BAYO ADEGOKE APPELANT(S)
And
1. ALPHACELL TECHNO LIMITED 2. REAL CLASSIC GLOBAL SERVICES LIMITED (Trading Under The Name And Style Of Collar & Cuff Drycleaners) RESPONDENT(S)
RATIO
WHETHER OR NOT THE SINS OF A LEGAL COUNSEL CAN BE CONDONED BY THE COURT
I have carefully gone through the application and the affidavit accompanying same, as well as the counter affidavit and the further affidavit along with the exhibits attached. Having said that, it is important to state from the onset that the sin of counsel, especial where the inadvertence borders on ineptitude cannot be condoned, under any guise. It is for the same reason that this Court held in OBI & ANR V UGWA & ANR (2016) LPELR-41616-CA among other things that:
“…From the proceedings of the lower Court reproduced supra the appellants were not diligent in the prosecution of their defence to the claims of the respondents. The excuse of their counsel’s fault in not doing the needful as required…cannot justify the noncompliance with the said provisions of the aforesaid order. For as pointed out in FCT v, Abdullahi (2010) All FWLR (Pt. 507) P. 179 at 195. The law is definitely settled that no litigant should be punished for sin or mistake of counsel. It is however also the law that sin of counsel or mistake of counsel is not a magic wand and it ought to be appreciated that the Court do not and are indeed not to condone inordinate delay or lack of diligence on the part of litigants and counsel.” PER MUSTAPHA, J.C.A.
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgement): This is an application filed on the 26th of October, 2021, pursuant to Section 242 of the 1999 Constitution, as amended, Order 6 Rules 2 and 7 of the Court of Appeal Rules 2016 and the inherent jurisdiction of this Court. The application seeks:
1. An Order of this Court extending time within which to seek leave to appeal against:
a) The garnishee order absolute made by the FCT High Court on the 5th of May, 2016, in suit No FCT/HC/CV/2399/2012 between UNITED BANK FOR AFRICA PLC & ANOR V. ALPHACELL TECHNO LTD & ANOR.
b) The ruling of the High Court of the FCT in suit No FCT/HC/CV/2399/2012 between UNITED BANK FOR AFRICA PLC & ANOR V. ALPHACELL TECHNO LTD & ANOR.
2. An Order for leave of this Court to appeal against the said garnishee order absolute and ruling delivered on the 5th of May, 2016 and 15th June, 2017 respectively between UNITED BANK FOR AFRICA PLC & ANOR V ALPHACELL TECHNO LTD & ANOR.
3. An Order extending time within which to file the notice and grounds of appeal against the order absolute and ruling delivered on the 5th May, 2016, and 15th of June, 2017 respectively between UNITED BANK FOR AFRICA PLC & ANOR V. ALPHACELL TECNO LTD & ANOR.
4. An Order to deem the notice and grounds of appeal filed on the 25th day of October, 2021 as properly filed and served.
5. An Order to use and rely on the records of proceedings in appeal No CA/A/339/2018 for argument in appeal in CA/A/421/2018.
6. An Order to deem the appellant’s brief of argument dated and filed on the 25th of October, 2012 using the records of proceedings in appeal No CA/A/339/2018 as properly filed and served.
7, An Order to depart from the rules of this Court.
The grounds for the application were that:
GROUNDS OF APPEAL
1. On the 15/2/2016, the trial Court made an Order that the Appellant should be served with a fresh hearing notice against 5/5/2016.
2. On the 5/5/2016, the trial Court made the Garnishee Order Absolute Against the Appellants/Applicants without them being put on notice as ordered by the Court.
3. On the 19/5/2016, the Appellants/Applicants though their former counsel filed an Application on Notice brought pursuant to Section 36 of the 1999 Constitution; Order 7 Rule 1; Order 20 Rule 3; Order 35 Rule 5 of the High Court of the FCT, Abuja (Civil Procedure) Rules 2004, seeking among others reliefs, an order of the trial Court setting aside the Garnishee Order Absolute made against the Appellants/Applicants on 5/5/2016 and granting them leave to defend.
4. By the Ruling of the trial Court delivered on the 15/6/2017, the Court refused to grant the reliefs sought by the Application on Notice filed by the Appellants/Applicants on 19/5/2016 and directed the Appellants/Applicant to immediately pay the amount standing in the credit balance of the judgment debtor’s account to the judgment creditor.
5. Consequent upon the refusal by the trial Court to set aside the Garnishee Order Absolute made against the Appellants/Applicants, Forms 48 and 49 were issued and served on the 1st Appellant and One Bayo Adegoke a staff of the 1st Applicant,
6. Writ of Attachment and Sale of Goods dated 20/6/2017 were taken out and executed against the 1st Appellant/Applicants property on 18/7/2017.
7. The name of the 2nd Appellant was added in Form 48 and 49 taken out against them, even though he was not a party to the case.
8. The Appellants have debriefed their former counsel and briefed G Ofodile Okafor (SAN) & Company who having gone through the record deem it necessary to appeal against the Garnishee Order Absolute for want of jurisdiction and the Ruling of 15/6/2017 for lack of judicious exercise of discretion by the trial Court,
9. The Applicants brought an application to delete the name of Bayo Adegoke and to set aside the Writ of Attachment and Sale.
10. The High Court in a considered Ruling delivered on 27/3/2018 dismissed both applications.
11. The Appellants have appealed against the Ruling and appeal entered as CA/A/339/2018.
12. The Applicants now wish to appeal against the Garnishee Order Absolute dated 5/5/2016 and the Ruling delivered on 15/6/2017.
13. The delay in filing this application within time was due to the pending application to set aside Forms 48 and 49 and the Writ of Execution and Sale of Goods in Appeal No: CA/A/339/2018.
14. With the dismissal of the motions to set aside Forms 48 and 49 and the Writ of Execution and Sale of Goods, there is need now to appeal against the Garnishee Order Absolute and the Ruling of 15/6/2017.
15. The Appellants/Applicants now seek leave of this Honourable Court to Appeal against both the Garnishee Order Absolute and the Ruling of the High Court of the FCT, Wuse Zone 2, Abuja, delivered by Hon. Justice A.S Adepoju on the 15/6/2017 in Suit NO: FCT/HC/2399/20212.
The application is supported by a 31 paragraph Affidavit deposed to by Emmanuel C. Ike with the certified copy of the proceedings of the 15th of May, 2016 attached as Exhibit 1, the CTC of the order absolute, Exhibit 2, the CTC of the ruling, the CTC of the affidavit to show cause exhibit 4, the CTC of the notice of appeal exhibit 5 and the copy of the motion exhibit 6.
The 1st Respondent filed a 6 paragraph Counter Affidavit deposed to by Blessing Ameh in opposition to the motion on the 31st of December, 2021; attached are: copies of the cheques, the 1st Respondent’s letter, the letter from the bankers to the High Court of the FCT and a copy of the motion on notice filed by the office of G.O. Ofodile Okafor and company marked as Exhibits 1,2,3 and 4 respectively.
In response, the applicants filed a 16 paragraph further and better affidavit deposed to by Emmanuel C. Ike Esq., on the 4th February, 2022; both parties filed written addresses.
The applicants formulated two issues for determination in their written submissions as follows; whether the reasons for the delay in appealing within time are good and substantial; and whether the grounds of appeal prima facie show good cause why the appeal should be heard.
It is submitted under the first issue while referring to UNIVERSITY OF LAGOS V OLANIYAN (1985) 1 NWLR part 1156 at 166 and CCB NIG LTD V OGWURU (1993) 3 NWLR part 284 that the reason for the delay can be blamed on counsel, for reasons of which the litigant should not be made to suffer; and also that the right to appeal is a constitutional right, and the object of the Court is to do substantial justice between the parties.
On the second issue, it is submitted that while referring to Order 6 Rule 9 (2) of the Court of Appeal rules 2016, that all the applicants need to show is that the grounds of appeal prima facie disclose arguable and substantial reasons; the Court was referred to UKWU V BUNGE (1997) 8 NWLR part 518 page 527.
That grounds one and three raise issues of jurisdiction, and other reliefs are within the powers of this Court to grant especially as all the necessary processes have either been transmitted or filed before this Court.
Learned senior counsel urged this Court to grant the application as prayed.
In response, it is submitted for the 1st Respondent while referring to FEDERAL HOUSING AUTHORITY & ANOR V KALEJAIYE that applications of this nature are not granted as a matter of course, and that the applicants who have the option to appeal but chose to ignore it are rather filing several applications to set aside the order absolute and challenge the writ of execution; that the applicants ought not to be indulged.
It is further submitted that the issue of jurisdiction cannot be raised in order to have the application granted, learned counsel referred this Court to FEDERAL HOUSING AUTHORITY & ANOR V KALEJAIYE supra.
Learned counsel urged the Court to dismiss the application with cost.
In response, it is submitted for the applicant that this Court being a Court of justice ought to hear and determine the case on its merit, and that hearing the application for leave is not a waste of time.
RESOLUTION:
I have carefully gone through the application and the affidavit accompanying same, as well as the counter affidavit and the further affidavit along with the exhibits attached. Having said that, it is important to state from the onset that the sin of counsel, especial where the inadvertence borders on ineptitude cannot be condoned, under any guise. It is for the same reason that this Court held in OBI & ANR V UGWA & ANR (2016) LPELR-41616-CA among other things that:
“…From the proceedings of the lower Court reproduced supra the appellants were not diligent in the prosecution of their defence to the claims of the respondents. The excuse of their counsel’s fault in not doing the needful as required…cannot justify the noncompliance with the said provisions of the aforesaid order. For as pointed out in FCT v, Abdullahi (2010) All FWLR (Pt. 507) P. 179 at 195. The law is definitely settled that no litigant should be punished for sin or mistake of counsel. It is however also the law that sin of counsel or mistake of counsel is not a magic wand and it ought to be appreciated that the Court do not and are indeed not to condone inordinate delay or lack of diligence on the part of litigants and counsel.”
Applications of this nature are not granted as a matter of course. The applicants’ reasons for the delay as stated in paragraph 14 of the supporting affidavit is simply that: “…due to the pending application to set aside forms 48 and 49 and the writ of execution and sale of goods stated above, and the inability of the former counsel to decide whether or not to appeal” is not reason enough for delay if indeed the applicants are serious.
While the grounds of appeal may be said to be reasonable in the circumstances, the reasons advanced in paragraph 14 in my considered view leave much to be desired, it is clear from the provisions of Order 6 Rules 2 and 7 referred to above that the Rules of this Court do not create any basis for an assumption, that leave to appeal is granted as of course. The decision by this Court regarding whether or not leave to appeal is grantable to an applicant for the indulgence is always based or predicated on good and substantial reasons disclosed in the affidavit in support for not appealing within the prescribed time and grounds of appeal which prima facie show why the appeal should be heard.
Grounds 1 and 3 of the notice of appeal, i.e. Exhibit 5 attached in support of the affidavit accompanying the application raise the issue of jurisdiction, which to my mind, is no longer an issue that can be flaunted as a basis for the grant of the application; this much is borne out by FEDERAL HOUSING AUTHORITY & ANOR V KALEJAIYE & ANOR supra.
Be that as it may, in the overall interest of justice, and the general desire to see that cases are heard and determined on their merits, the application is granted in terms of prayers 1, 2 and 3 only. The other prayers are either unreasonable or unnecessary and therefore struck out. The applicants have 14 days within which to file the Notice of Appeal before the Lower Court.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the draft of the Ruling delivered by my learned brother Mohammed Mustapha, JCA.
The substance of this motion is an appeal to the discretion of this Court for extension of time to seek leave to appeal against certain Rulings of the FCT High Court of Justice as stated on the motion paper. I have carefully read the affidavit in support of the motion and I am of the view that this is a proper case in which the discretion of the Court should be exercised in favour of the Applicants. I accordingly agree with my learned brother that the Application has merit and same is hereby granted in terms of prayers 1, 2 and 3 of the motion paper only. I abide by the consequential orders made in the lead Ruling.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the Ruling just delivered by my learned brother Mustapha, JCA. I concur with the reasonings expressed and the conclusion reached thereby in allowing the Applicants’ prayers only in part; albeit reluctantly owing to their lackadaisical attitude on the importance of the timeline within which to appeal.
In effect, I too allow and grant the Applicants’ Motion in terms of the prayers listed as numbers “1” to “3” on same. I abide by the consequential Order made in the lead Ruling.
Appearances:
G. Ofodile Okafor SAN with him E. C Ike Esq. and Peace O. Okafor For Appellant(s)
Adetila Olulenu, Esq. for the 1st Respondent. For Respondent(s)