WEMA BANK v. MERIDEN SAS & ORS
(2022)LCN/16612(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, July 04, 2022
CA/A/370D/M/2016(R)
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
WEMA BANK APPELANT(S)
And
1. MERIDEN SAS 2. ABUJA INTERNATIONAL HOTELS LIMITED 3. UNITED BANK FOR AFRICA PLC RESPONDENT(S)
RATIO
THE POSITION OF LAW ON GRANTING AN APPLICATION SEEKING THE COURT TO EXTEND TIME WITHIN WHICH TO APPEAL
However, it should be noted that, the fact that the Application has not been opposed, does not mean that it will be automatically granted. This is because, an application of this nature, which seeks extension of time to appeal is not granted as a matter of course. It is generally granted at the discretion of the Court, and which discretion must be exercised judicially and judiciously. In the exercise of such discretion, there are no hard and fast rules that the Court must follow in every given case. Each case must therefore be considered in the light of its peculiar circumstances. However, as a guide, Order 6 Rule 9(2) of the Court of Appeal Rules, 2021 stipulate that:
“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…”
It is apparent therefore, that an Application for extension of time to appeal shall:
(a) depose in the affidavit in support, 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.
There are several judicial decisions of the Supreme Court and this Court which have given judicial impetus to this statutory prescription. For example, see Mba v. Spring Bank Plc. & Ors. (2012) LPELR-7951 (CA); ANPP v. Albishir (2010) 9 NWLR (Pt. 1198) 118; Banjoko & Ors. v. Alayande (2014) LPELR-24395 (CA); Lafia Local Government v. Gov. Nasarawa State (2012) 17 NWLR (Pt. 1328) 94; Nigerian Laboratory Corp. v. P.M.B. Ltd. (2012) 15 NWLR (Pt. 1324) 505 and Agbaso v. Iwunze & Ors. (2019) LPELR-48906 (SC). PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgement): By a Motion on Notice which was filed on the 10th day of December, 2021, the Applicant, Wema Bank Plc. sought the following relief(s):
1. Enlargement of time within which the Applicant may file it’s Notice and Grounds of Appeal against the decision of Hon. Justice G. O. Kolawole of the Federal High Court, Abuja Division delivered on the 16th day of May, 2016 in Suit No: FHC/AD/CS/496/2011.
2. And for such orders or further orders as this Honourable Court may deem fit to make in the circumstances.
The Grounds upon which the Application is premised are as follows:
1. The trial Court’s decision was rendered on 16/5/2016 wherein the Court made a garnishee order absolute against the Applicant.
2. On the 15/06/2016; the Applicant filed a Motion on Notice praying the trial Court to set aside the garnishee order absolute amongst other prayers on the ground inter alia; that the Court lacked jurisdiction to issue the garnishee order absolute against the Applicant and that it was denied fair hearing.
3. Unfortunately, the application was not listed for hearing until 21/11/2016 on which day the trial Court struck out the application as a result of the objection raised by the 1st Respondent.
4. The 1st Respondent’s objection was hinged on Appeal No. CA/A/370A/2016 in which the Applicant herein was named a Respondent. The trial Court did not allow the Applicant argue the application.
5. The applicant filed an application before this Court on 27/01/2017 praying for enlargement of time to appeal and another one on 21/01/2019.
6. Unfortunately, this Court could not take the first application until the second one was filed.
7. On 2/12/2021 when the application came up before the Court, applicant withdrew the application dated 27/01/2017 and sought the leave of Court to argue the one dated 21/01/2019.
8. The Court declined to hear the application on the ground inter alia, that the application dated 27/01/2017 already withdrawn and struck out and the one filed 21/01/2019 had the same motion numbers and accordingly struck out the application.
9. The decision of the trial Court substantially affects the interest of the Applicant.
The Motion is supported by an Affidavit of 6 paragraphs deposed to by one Habila A. Akwanga, a Litigation Manager in the Law Firm of Messrs Adekola Mustapha & Co, counsel for the Applicant. Attached to the Affidavit are eight documents marked as Exhibits “A”-“H” respectively. Accompanying the Application is a Written Address. Upon being served the 1st Respondent’s Counter-Affidavit, the Applicant filed a Further Affidavit of 13 paragraphs.
In opposition to the Application, the 1st Respondent filed a Counter Affidavit of 23 paragraphs deposed to by one Onyeka Enunwa, a counsel in the Law Firm of ODITAH, counsel for the 1st Respondent. Attached to the Counter Affidavit are Exhibits OE1-OE13 respectively. Accompanying the Counter Affidavit is a Written Address of 10 pages, also filed on the 27/1/2022.
At the hearing of the Application on the 06/4/2022, learned counsel for the Applicant contended that, the Respondent has no competent Counter-Affidavit as the Counter Affidavit filed on the 27/1/22 was filed out of time. That no extension of time was granted for the Respondent to file the Counter Affidavit out of time. Furthermore, that the Written Address in opposition to the Application exceeds the five (5) pages as required by Order 6 of the Court of Appeal Rules, 2021. We were accordingly urged to strike out the Counter Affidavit filed on the 27/1/2021 and the Written Address accompanying the said Counter Affidavit. Learned counsel for the Respondent did not respond to the submission of learned counsel for the Applicant.
Now, Order 6 Rule 1(a) of the Court of Appeal Rules, 2021 stipulate that:
“1(a) Every application to the Court shall be by Notice of Motion, stating the Rule under which it is brought, the grounds for the reliefs sought and shall be supported by an affidavit and a Written Address:
Provided that the Respondent(s) shall have five (5) days within which to file processes in response (if any) to the notice of motion…”
(Underlined by me for emphasis)
The proviso to Order 6 Rule 1(a) cited above is clear in its meaning. It does not require any technical rule of interpretation to understand. It simply means that, where a respondent to an Application desires to oppose same, he shall file his response, which generally is a Counter Affidavit, within five (5) days of being served the Application. In the instant case, the 1st Respondent did not deny that it filed the Counter Affidavit outside the five (5) days stipulated by the Proviso to Order 6 Rule 1(a) of the Court of Appeal Rules. All learned counsel for the 1st Respondent could urge on us, is that we exercise our discretion in deciding the matter. I do not think that Order 6 Rule 1(a) gives the Court any discretion in the matter save where there is an application for extension of time to file the Counter-Affidavit. In the instant case, there was no such application, either orally or in writing. On that not, I hold that, the Counter Affidavit of the 1st Respondent, filed out of time is incompetent. It is hereby struck out.
On the 1st Respondent’s Written Address, Order 6 Rule 1(b) of the Court of Appeal Rules, 2021 stipulate that:
“Each written address shall not exceed five (5) pages …”
Here again, the stipulation cited above is very clear and need no clarification. It only means that, A Written Address either in support of or in opposition to an Application under Order 6 Rule 1 of the Court of Appeal Rules shall not exceed five (5) pages. In the instant case, the Written Address filed by the 1st Respondent in opposition to the Application, far exceeds the five (5) pages prescribed by the Rules. The said Written Address has nine (9) pages and therefore cannot be overlooked under the de minimis rule. I therefore hold that the 1st Respondent’s Written Address filed along with the Counter Affidavit is incompetent and is hereby struck out.
It will be seen therefore that the Application is rendered bare of any opposition. However, it should be noted that, the fact that the Application has not been opposed, does not mean that it will be automatically granted. This is because, an application of this nature, which seeks extension of time to appeal is not granted as a matter of course. It is generally granted at the discretion of the Court, and which discretion must be exercised judicially and judiciously. In the exercise of such discretion, there are no hard and fast rules that the Court must follow in every given case. Each case must therefore be considered in the light of its peculiar circumstances. However, as a guide, Order 6 Rule 9(2) of the Court of Appeal Rules, 2021 stipulate that:
“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…”
It is apparent therefore, that an Application for extension of time to appeal shall:
(a) depose in the affidavit in support, 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.
There are several judicial decisions of the Supreme Court and this Court which have given judicial impetus to this statutory prescription. For example, see Mba v. Spring Bank Plc. & Ors. (2012) LPELR-7951 (CA); ANPP v. Albishir (2010) 9 NWLR (Pt. 1198) 118; Banjoko & Ors. v. Alayande (2014) LPELR-24395 (CA); Lafia Local Government v. Gov. Nasarawa State (2012) 17 NWLR (Pt. 1328) 94; Nigerian Laboratory Corp. v. P.M.B. Ltd. (2012) 15 NWLR (Pt. 1324) 505 and Agbaso v. Iwunze & Ors. (2019) LPELR-48906 (SC).
In the instant case, the Applicant has deposed in paragraphs 3(a), (b), (c), (d), (e) and (f) of the Affidavit filed in support of the motion as follows:
“3(a) That on the 16th day of May, 2016 Honourable Justice G. O. Kolawole of the Federal High Court, Abuja Division delivered a ruling in an application made by the 1st Respondent against the Applicant to make a garnishee order nisi previously issued against the Applicant absolute. Copy of the Court ruling is herewith attached and marked as Exhibit A.
(b) That on behalf of the Applicant and on its instruction, he filed a Motion on Notice on 15/06/2016 praying the trial Court to set aside the garnishee order absolute on ground of jurisdiction and denial of affair hearing. Copy of the motion is herewith annexed and marked as Exhibits B.
(c) On the 21/11/2016 when the application came up for hearing, the 1st Respondent herein, raised objection to the hearing of the application on the ground inter alia that (Wema Bank Plc.) the Applicant is a Respondent in appeal No: CA/A/370A/2016 filed by United Bank for Africa; the 3rd Respondent herein, and the Court without hearing the application on merit or even hearing the Applicant on the objection, struck out the application. A copy of the trial Court ruling of 21/11/2016 is herewith annexed and marked as Exhibit C.
(d) That the Applicant is dissatisfied with both decisions of the trial Court and accordingly instructed our office to appeal the main decision of 16/5/2016.
(e) That the instruction to appeal the main decision of 16/05/2016 was given on the 9th day of January, 2017 after the office resumed from Christmas/New-year annual vacation by which the time allowed the Applicant to appeal had elapsed.
(f) That consequent upon that instruction, a proposed Notice of Appeal along with a Motion on Notice praying the Court for enlargement of time to appeal was prepared and filed on 27/01/2017. Copy of which is herewith annexed and marked Exhibit D.
My understanding of the above depositions is that, a garnishee order absolute was made against the Applicant on the 16/5/2016. Displeased with the order, the Applicant filed a motion on the 15/06/2016, praying the Court to set aside the garnishee order absolute made against it on the 16/5/2016. The said motion was not heard until the 21/11/2016 when same was struck out on an objection raised by the 1st Respondent. It is apparent therefore, that the Applicant has not been slothful in challenging the garnishee order absolute made against it by the trial Court. The Applicant had the right to make the choice of first seeking to have the garnishee order absolute set aside. When that path faded away, the Applicant then took the option of seeking the discretion of this Court to appeal. For the above reason(s), I am of the view that the Applicant cannot be condemned for undue delay in appealing the garnishee order absolute.
That is however, not the end of the matter, as the Applicant has to go further to show that he has grounds of appeal which prima facie show good reasons why the appeal should be heard. I have studiously studied the seven (7) grounds of appeal. I am satisfied that the grounds of appeal, particularly Grounds 1, 2, 3 and 4 raise substantial issues of law. Grounds 5 and 6 raise serious issues of mixed law and fact making them necessary to be heard by this appeal. On that note, I am satisfied that, the Applicant has raised grounds of appeal which prima facie require that they be heard.
Having held above, I am of the view, which I hold, that this motion has merit. It is hereby granted. Consequently, I hereby order as follows:
1. THAT time is extended for the Applicant within which to appeal against the decision of the Federal High Court, Abuja Division, delivered on the 16th day of May, 2016 in Suit No: FHC/ABJ/CS/496/2011.
2. The Notice of Appeal is to be filed within fourteen (14) days from the date of delivery of this ruling.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft, the decision of my learned brother, HARUNA SIMON TSAMMANI, JCA, which has just been delivered.
I entirely agree with, and do not desire to add to the said decision.
I adopt the entire decision as mine, with nothing more to add.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft, the ruling delivered by my learned brother Haruna Simon Tsammani, JCA. I agree entirely with the lucid reasonings and unassailable conclusion expressed in the leading ruling. I adopt those reasonings as mine; by which I too find merit in the Applicant’s Motion for extension of time to appeal. Accordingly, I too hereby grant the Applicant’s lone prayer seeking to appeal out of the time allowed under the Rules. I abide by the consequential order made in the lead ruling.
Appearances:
Adekoya Mustapha, SAN, with him, A. Apoyemi and A. Agoro, Esq. For Appellant(s)
Onyeka Onunwa, Esq. – for 1st Respondent
Abdulwahab Abayomi, Esq., with him, Sylvia Okonkwo, Esq. – for 2nd Respondent
3rd Respondent not represented For Respondent(s)
