YAMO NIGERIA LIMITED & ANOR v. INTERCONTINENTAL BANK PLC & ANOR
(2014)LCN/6814(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of January, 2014
CA/L/226M/13
RATIO
WORDS AND PHRASES: GROUNDS OF APPEAL
Grounds of appeal are the complaints of the Appellant on the Judgment appealed against. It is the error of law or facts alleged by an Appellant as the defect in the judgment appealed against, upon which Appellant seeks to rely to set the Judgment aside. See: OLADELE V. STATE (1991) 1 NWLR (PART 170) 708, AZAATSE V. ZEGEOR (1994) 5 NWLR (PART 34) 76. IDIKA V. ERISI (1988) 2 NWLR (PART 78) 563. Per TIJJANI ABUBAKAR, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
YAMO NIGERIA LIMITED
ALHAJI YUSUF MUSA ORINLOWO – Appellant(s)
AND
1. INTERCONTINENTAL BANK PLC
2. CENTRAL BANK OF NIGERIA – Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Lead Ruling): The Applicants brought this motion pursuant to Order 7 Rules 3 and 4 of the Court of Appeal Rules, Section 24 of the Court of Appeal Act and under the inherent jurisdiction of this court; praying for:
1. AN ORDER extending the time within which to seek leave to appeal against the Ruling of High Court of Lagos in Suit No. LD/2247/2002, per Hon. Justice Olateru Olagbegi delivered on the 19th February 2013.
2. Extension of time within which to appeal against the Ruling of the High Court of Lagos in Suit No. LD/2247/2002 per Hon, Justice Olateru Olagbegi delivered on the 19th February 2013.
3. LEAVE, to appeal against the Ruling of the High Court of Lagos in Suit No. LD/2247/2007, per Hon. Justice Olateru Olagbegi delivered on the 19th February 2013.
AND, FOR SUCH, further or other orders as this Honourable Court may deem fit to make in the circumstance.
Applicant’s grounds for the application are:
1. The grounds of appeal are of mixed law and fact.
2. The Appellants had filed a similar application at the lower court on the 26th day of February 2013 accompanied with an affidavit of urgency.
3. The 14 days within which to seek leave at the lower court had already expired, on the 5th day of March 2013, prior to the hearing of the Application on the 6th day of March 2013 by the High Court of Lagos State.
Applicants application was filed on the 8th day of March 2013 by learned counsel Gabriel Osikoya Esq. supported by 22 paragraph affidavit sworn to by Ojuolape Cole (Miss) Counsel in C. O. I. Josephs Chambers, counsel for the Appellants/Applicants.
The Appellants/Applicants also filed three further affidavits dated 21st May 2013, 20th May 2013 and 10th June 2013, they also filed written address in support of the motion dated 8th March 2013 and reply on points of law filed on 10th June 2013.
On the part of the Respondents, they filed counter affidavit and written address in opposition to the motion dated 8th March 2013.
Both parties filed written addresses in line with the order of this court made on 18th April 2013 directing parties to file written addresses, parties therefore adopted their addresses at the hearing of the application on 29th November 2013.
Appellants/Applicants address was filed on 2nd May 2013. The Applicants submitted to this court the following sole issue for determination.
“Whether, this court can grant the prayers being sought by the Appellants/Applicants vide their motion on notice on the 8th day of March 2013.”
Learned Senior counsel Molajo SAN argued the application on behalf of the Applicants, even though the said address was filed by Gabriel Osikoya learned counsel.
Learned senior counsel referred this court to order 7 rule 4 of the Court of Appeal Rules 2011; and said this court has inherent powers to grant an application made to it in the first instance, if it can be shown that, such an application can no longer be made or granted by the lower court. He referred to paragraphs 13-22 of the Affidavit in support of the Application and said the Applicants applied timeously to the lower court on 20th day of February 2013 with an affidavit of urgency, and on 4th May 2013, the lower court fixed the application for hearing, the lower court did not eventually hear the application as it felt the application was a surplusage having granted similar application in favour of the Applicants. That the application was to be heard on 6th March 2013, but the fourteen days limited by the rules of court had already elapsed on 5th March 2013, counsel said since the fourteen days had already elapsed, it was practically impossible for the Applicants to obtain leave of the lower court to file their Notice of Appeal as the period prescribed by law had expired by affluxion of time. Learned senior counsel referred this court to OHUKA V. STATE (1998) 1 NWLR (PART 72) 539 at 551, and said the mere fact that a thing cannot be done excuses the doing of it.
Learned counsel said Appeal is an exercise of constitutional right, Appellants are entitled to exercise the right without any form of impediments particularly having done everything practicable on their part to ensure that the application was heard at the lower court.
Learned counsel said grant or refusal of application for leave is at the discretion of the court, but such discretion must be exercised judicially and judiciously taking into consideration the materials placed before the court; counsel relied on NNSC v. SABANNA (1988) 2 NWLR PART 74) 23 AT 55.
Learned counsel said Applicants had placed before the court sufficient materials to warrant the exercise of its discretion in their favour, He therefore urged the court to grant the application.
The Respondents formulated and argued two issues for determination:-
1. “Whether taken into consideration the facts and circumstances of this case, the application dated 8th March 2013 ought to be granted by this court.
2. Whether the application dated 8th March 2013 is not incompetent having been filed without the order appeared against”.
Learned senior counsel Idigbe filed Respondents written address; on issue number one, counsel said, Appellants/Applicants filed similar application before the lower court, that same is still pending, it has not been withdrawn counsel referred to order 7 rule 3 of the Court of Appeal Rules 2011 and said where the application is refused by the lower court, applicant may file similar application before this court within fifteen days, learned counsel also referred to order 7 rule 7 and said, Applicant for leave shall file notice of motion for leave to appeal, Certified True Copy of the decision of the court below, copy of the proposed grounds of appeal, and where leave has been refused by the lower court a copy of the order refusing leave.
Learned counsel said, by order 7 rule 7 the Appellants/Applicants, must satisfy this court on the position of same application before the lower court, it is not sufficient for the Appellants/Applicants to just contend that the lower court had lost jurisdiction without withdrawing the application at the lower court.
With regards to Applicants submission on order 7 rule 4, learned senior counsel said, failure and laxity of the Appellants to withdraw the application before the lower court does not constitute special circumstance. Learned counsel therefore urged this court to refuse the application.
On the second issue dealing with incompetence of the application, counsel said the application contravenes order 7 rule 7 of the Court of Appeal rules 2011, that Appellants have not exhibited the order which formed the basis of their appeal. Learned counsel said the ruling exhibited is not in respect of adjournment, counsel also said grant of adjournment is discretionary and an appellate court will not interfere with the way the trial court exercises its discretion except where the Appeal Court is satisfied that it is in the interest of justice to do so, he relied on APGA v. UMEH (2011) 8 NWLR PART 1250 PAGE 544 AT 579. That Appellants have not shown that they suffered any injustice.
Learned counsel for the Respondent said the application is academic as the adjourned date has come and gone and that Applicants are afraid that Respondents motion before the lower court if heard and determined will succeed on the merit. Learned counsel urged this court to refuse the application.
Learned counsel for the Appellants/Applicants filed reply on points of law. He exhibited Notice of discontinuance of the application pending before the lower court dated 30th May 2013 (Exhibit A10), learned counsel said the application had already expired by affluxion of time prior to filing the application to discontinue same, fourteen days after 19th February 2013, the lower court had ceased to have jurisdiction over the application.
On Respondents submission that the ruling appealed against was not exhibited; learned counsel referred the court to paragraphs 7, 8, 9, 14, 15, 16, 17, 18 and 19 of the affidavit in support of Appellant/Applicants application deposed to on 8th March 2013, learned counsel said the paragraphs contain the decision appealed against; counsel further submitted that none of the depositions in the stated paragraphs was controverted, the facts contained therein must therefore be taken as duly established, he relied on AJOMALE V. YADUAT (NO. 2) 1991 5 NWLR PART 191; counsel said Applicants filed exhibit A9 showing the proceedings of 19th February 2013.
Learned counsel for the Applicants said the Applicants have shown that they have arguable grounds of appeal and that is all the Applicant is expected to show at this stage, he relied on HOLMAN BROTHERS NIG. LTD V. KIGO NIG LTD & ANOR (1980) 8-11 SC 43 AT 63.
Learned counsel urged this court to grant the application to enable parties exercise their constitutional right of appeal to this court, for the Appeal to be heard and determined on the merit.
Order 7 (10) (2) of the Court of Appeal Rules 2011 provides as follows:-
(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.
From the above, every application for leave to appeal out of time, must disclose, good and substantial reasons for the delay in appealing against the decision of the court, and grounds of appeal which show good cause why the appeal must be heard, that is to say, the applicant must show that he has arguable ground of appeal. It is settled that these two conditions must coexist. See: IN RE ADEWUNMI (1988) 3 NWLR (PART 83) 483, CO-OPERATIVE AND COMMERCE BANK NIG. LTD. V. OGWURU 1993 3 NWLR (PART 284) 630.
The only duty on this court in the determination of this application is to be satisfied that the above two conditions are disclosed from the materials filed by the applicant and whether the Respondent has successfully rebutted the depositions by the Applicant.
Applicant’s affidavit in support sworn to by Ojuolape Cole (Miss) is relevant especially paragraphs 2 – 19 reproduced as follows:-
2. “That the Appellants/Applicants commenced Garnishee Proceedings before the Lower Court on the 4th day of October 2012, by their Application filed on the same date. Attached herewith and marked Exhibit A is a copy of the Appellant/Applicants application dated 4th October 2012, with the accompanied affidavits, Exhibits and Written Submission.
3. That the Lower Court on the 9th day of March 2012 granted the aforesaid Appellants/Applicants’ Application and made an order Nisi in favour of the Appellants/Applicants against the Central Bank of Nigeria with a return date of 30th October 2012. Now shown to me and marked Exhibit A1 is a copy of the Order Nisi dated 9th October 2012 of the Lower Court made in favour of the Appellants/Applicants.
4. That on the 28th day of October, 2012, Intercontinental Bank Plc filed an application in terms of the process exhibited herewith and marked Exhibit A2.
5. That the Appellant/Applicants by their Notice of Preliminary Objection dated the 5th November 2012 challenged the competence of exhibit A2. Exhibited herewith and marked Exhibit A3 is a copy of the Notice of Preliminary Objection and the affidavit filed by the Appellants/Applicants.
6. That the Appellants/Applicants Notice of preliminary Objection was argued before the Lower Court on the 30th day of January 2013.
7. That on the 19th day of February 2013 the Lower Court delivered is Ruling on the Appellant/Applicants’ Notice of preliminary objection, striking out the Motion on Notice dated and filed 29th October 2012. Attached herewith and marked Exhibit A4 is the Ruling of the Lower Court delivered on the 19th day of February 2013.
8. That, the Lower Court did not in its Ruling decide only the competence of the Motion on Notice dated and filed 29th October 2012, but decided other issues on which parties did not address the court and none of which were raised before the Court for Ruling.
9. That being dissatisfied with the aforesaid part of the Ruling of the Lower Court, the Appellants/Applicants instructed our Chambers to file an Appeal against the Ruling.
10. That our Chambers immediately prepared the Appellants/Applicants’ Notice of Appeal against the aforesaid part of the Ruling of the Lower Court. Attached herewith and marked Exhibit A5 is a copy of the Appellants/Applicants’ proposed Notice of Appeal.
11. That the Appellants/Applicants’ proposed Notice of Appeal contains grounds of appeal that are of mixed law and fact and as such the leave is required to file and argue the same.
12. That in furtherance to the foregoing, the Appellants/Applicants filed a motion of Notice before the Lower Court on the 26th day of February 2013 accompanied with an Affidavit of Urgency praying for the Leave of the Lower Court to file the Appellants/Applicants’ Notice of Appeal and indicating therein the need to hear and determine the application within 14 days from the 19th February 2013. Attached herewith and marked Exhibit A6 is a copy of Appellants/Applicants’ Motion on Notice dated 26th February 2013 with the accompanied Affidavit of Urgency and attached exhibit and Written Submission.
13. That on the 4th day of March 2013, the Lower Court fixed the hearing of the Appellants/Applicants’ Motion on Notice dated 26th February 2013 for hearing on the 6th day of March 2013.
14. That on the 6th day of March 2013, when the Appellants/Applicants application was about to be taken, Counsel to the respondent informed the Lower Court that the time within which the Appellant/Applicants may seek of the Lower Court had already elapsed.
15. That the Counsel to the Appellants declined the request and on the prompting of the Lower court moved the application. Attached herewith and marked Exhibit 47 is a copy of the Ruling of the Lower Court granting the Appellants’ application dated 26th February 2013.
16. That the 14 days within which the Appellants/Applicants may seek the leave of the Lower Court to file their Appeal had already lapsed on the 5th day of March 2013 to the hearing of the application on the 6th day of March 2013.
17. That there is need to further seek the leave of this Honourable Court to enable the Appellants file a competent Notice of Appeal.
18. That the 1st Respondent had already filed is Notice of Appeal in this matter against the part of the Ruling of the Lower Court delivered on the 19th day of February 2013.
19. That had the Lower court heard and determined the Appellants/Applicants’ similar application dated 26th February, 2013 timeously, there would not have been a further need for the present application.”
The Respondents filed counter affidavit on 18th April 2013 sworn to by martins Nwanko paragraph 3 of the counter affidavit is also reproduced as follows:-
3. “That I was informed by Tochukwu Chikwendu, of counsel in chambers on the 11th day of April, 2013 and I verily believe him as follows:
a. That the Appellant/Applicant served on the Respondent a motion on notice for extension of time dated 8th March, 2013.
b. That paragraphs 5 and 6 of the affidavit in support of the motion are couched in a manner intended to mislead, this Honourable Court.
c. That the purported Motion on Notice dated the 26th February 2013 was not served on the Respondent or the Firm of Punuka Attorneys and Solicitors representing the Respondents.
d. That neither the Respondents for the Counsel to the Respondent was aware of the purported Motion on Notice dated the 26th February 2013.
e. That the said Motion was in addition to not being served, not at any time moved in the Lower Court or withdrawn by the Appellants herein.
f. That it is only when such application is moved and refused or withdrawn at the lower court that such application can be brought to the Court of Appeal seeking for the order which the lower Court refused.
g. That the Appellant cannot bring such an application for leave to appeal to the Court of Appeal first when the application has not been made to the lower court.
h. That the Appellant has in flagrant disrespect and disregard for the clear position of the law brought this application to this court without first bringing same at the Lower Court.
i. That the grounds of appeal are not arguable being against the exercise of the discretion of the Court the adjournment granted by the Court.
j. That the learned Judge Lower Court has the discretion to adjourn matters before him to any date convenient to the Court.
k. That the appeal has become purely academic as the matter came up on the 13th of March 2013 and the court continued with the hearing of the matter and at the instance of the Appellant’s application the matter was further adjourned to the 25th of April 2013
l. That adjournment is an inherent discretion which every court possesses.
m. That the said adjournment of the Lower Court has not in any way prejudiced the Appellants.
n. That this Appeal is intended to deprive the Lower Court of the jurisdiction to continue with this matter”.
The Applicants swore to further affidavit filed on 2nd may 2013. The Appellants/Applicants said, in paragraph 7, 8, 9 and 10 as follows:-
7. “That the Lower Court can only entertain the Appellants/Application Exhibit A7 within fourteen days for the 19th day of February 2013.
8. That on the 25th day of April 2013, when the matter came up before the Lower Court, the learned trial Judge advised parties to go and pursue their Appeals before this Honourable Court and declined to proceed with the matter.
9. That the Record of Appeal has since been settled by all the parties and the Appellants are only awaiting the grant of the instant application to enable them transmit the record of Appeal from the Lower Court to this Honourable Court.
10. That the 1st Respondent had equally filed an Appeal before this Honourable Court against the aforesaid Ruling of the Lower Court delivered on the 19th day of February 2013”
Appellants/Applicants also filed another further affidavit exhibiting proceedings of the Lower Court Exhibit 49 proceedings of 19th February 2013 and exhibit A10 discontinuing the application filed on 26th February 2013 before the Lower Court.
The depositions in Appellants/Applicants further affidavit, show that the Lower Court indicated that the application for leave would not be taken since 14 days had already elapsed; I think since there is no rebuttal of this fact, it therefore serves as good and substantial reason for bringing the application late, Applicants reason for the delay is therefore bound to be accepted. It is hereby accepted.
I examined the notice of appeal dated 26th February 2013. The sole ground of appeal reads:
“The learned trial Judge erred in law, when having held the application dated 29th day of October 2012 to be incompetent, he refused to proceed to make the order Nisi (made the 9th day of October 2012) Absolute as prayed by the Appellants counsel.”
Grounds of appeal are the complaints of the Appellant on the Judgment appealed against. It is the error of law or facts alleged by an Appellant as the defect in the judgment appealed against, upon which Appellant seeks to rely to set the Judgment aside. See: OLADELE V. STATE (1991) 1 NWLR (PART 170) 708, AZAATSE V. ZEGEOR (1994) 5 NWLR (PART 34) 76. IDIKA V. ERISI (1988) 2 NWLR (PART 78) 563.
At this stage, it is not the business of this court to determine the prospects of the ground of appeal, the duty on this court at this stage is just to examine the ground and if necessary point out any absurdity, flaws or draw backs which may render the ground unarguable. See: UBA V. NDACHE (1998) 3 NWLR (PART 541) 331. I find the ground of appeal arguable.
On the whole therefore I am of the view that the Appellants/Applicants gave good and substantial reasons for the delay, and the sole ground of appeal is prima facie arguable, it is therefore proper to let the Appellants ventilate their grievance on appeal.
The Application is therefore granted as prayed.
1. Time is extended for the Applicants to seek for Leave to Appeal against the Ruling of Olateru Olagbegi J. delivered on the 19th day of February 2013. In Suit No. LD/2247/2002.
2. Time is extended for the Applicant within which to appeal against the ruling of the High Court of Lagos in Suit No. LD/2247/2002 delivered by Olateru Olagbegi J. on the 19th day of February 2013.
3. Leave is granted to Applicants to Appeal against the said Ruling delivered on 19th February 2013. Applicants are granted 14th days to file their Notice of Appeal from today.
No order as to cost.
JOSEPH SHAGBAOR IKYEGH, J.C.A: I had the honour of reading in advance the succinct ruling prepared by my learned brother, Tijjani Abubakar, J.C.A., and I entirely agree with the considered ruling that the applicants furnished good and substantial reason(s) for their failure/inability to seek leave to appeal and to appeal within time as the applicants had filed the application for leave to appeal within the statutory period at the court below, but the court below could not take the application within the prescribed statutory period thus rendering the application in that court stale for effluxion of time necessitating the present application.
I too find the proposed ground of appeal, prima facie, arguable. I would grant the application in terms of the trinity prayers sought in the motion paper. Parties to bear their costs.
RITA NOSAKHARE PEMU, J.C.A: I had the advantage of reading in draft, the lead Ruling of my brother TIJJANI ABUBAKAR JCA and I agree with his opinion and conclusion.
The Application is meritorious and it is one that should be granted as prayed.
I abide by the consequential order made as to costs, that there should be no order as to costs.
Appearances
T. A. Molajo SAN with O. Enebeli and D. OwoyomiFor Appellant
AND
C. Chiwaje (Mrs)For Respondent
