African International Bank Ltd V. G. M. O. Nworah & Sons Company Ltd (2001)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

This is a ruling in respect of a preliminary objection raised by Afam Akputa Esq., learned counsel for the respondent, against an application brought on behalf of the appellant/applicant for an order restoring their appeal dismissed on 10/10/2000 for non-compliance with order 3 rule 20 of the Court of Appeal Rules. The full application of the appellant/applicant (hereinafter to be referred to simply as the “applicant”) was worded as follows:-

“TAKE NOTICE THAT the Honourable Court will be moved on the Thursday 18th day of January, 2001 at the hour of 9 O’clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the above named appellant/applicant praying the court for the following orders:-

1. AN ORDER setting aside certificate of noncompliance, dated 4/9/2000, issued in this appeal by the Assistant Chief Registrar of Enugu State High Court purportedly pursuant to Order 3 rule 20 of the Court of Appeal Rules on ground that the same is premature, malicious and/or fraudulent, and null and void; or
2. IN THE ALTERNATIVE, an order restoring the appeal dismissed on 10/10/2000; and
3. If the appeal is restored, an order extending the time within which appellant shall comply with provisions of Order 3 rules 10 and 11 of Court of Appeal Rules;
4. AN ORDER directing the Assistant Chief Registrar of Enugu State High Court to compile and transmit to the court the record of appeal in this appeal within one month from this order or as the court may deem fit;
5. AN ORDER restraining the respondent, the Assistant Chief Registrar of Enugu State High Court and United Bank for Africa Plc or any of them from withdrawing, interfering with, releasing or otherwise dealing with the judgment sum of N14,960,094.03 save as deposit in interest yielding account pending determination of this application and/or the appeal;
6. AN ORDER staying execution of Enugu State High Court judgment for N14,960,094.03 dated 8/2/2000, sequel to order of the court dated 10/10/2000 until final determination of this application and/or the appeal.

AND FOR SUCH further or other orders as the court may deem fit to make in the circumstances. Dated the 22nd day of December, 2000.”

The said application was supported by three affidavits viz;- 1st, a 39-paragraph affidavit sworn to by one Mohammed Sani Tsaibu, a Senior Manager of the Enugu Branch of the applicant bank, sworn to at the Appeal Court Registry, Enugu on 15th day of January, 2001; and a second 29-paragraph affidavit sworn to by Zanda Izundu, the learned Legal Practitioner representing the applicant in this application, sworn to on the same date and place, and the 3rd one a 19-paragraph affidavit sworn to by one Chiegwu Chioma (Miss), a law office secretary in the chambers of Zanda Izundu & Co., the learned counsel for the applicant, also sworn to on the same date and place. Mr. Izundu’s affidavit was supported by 25 Exhibits marked as Exhibits A, B, B1, B2, B3, C, D, E, F, FF, G, GG, H, H1, J, K, KI, K2, K3, K4, K5, L, M, N, & N1. It is not necessary to describe each of these exhibits, as the objection was argued purely on law. However, the sum total of the three affidavits and the numerous exhibits in support was that on 8/2/2000, the Enugu State High Court NO.2 presided over by Agbo J. gave judgment in Suit No, E/324/92, in favour of the respondent, awarding it N14,960,094.03 as special and general damages for breach of contract and N5,000.00 costs. Following an appeal lodged against the said judgment by the applicant, and a subsequent application for stay of execution pending determination of the appeal, the lower court granted the said stay of execution conditioned on the judgment sum being deposited at United Bank for Africa Plc, Station Road Branch, Enugu as requested by the respondent. On 31/8/2000, the applicant duly complied with the Court’s Order by paying the said sum of N14,960,094.03 to the U.B.A. and notifying the Assistant Chief Registrar (A.C.R) Enugu State High Court accordingly. Thereafter applicant’s solicitor by name Zanda Izundu Esq., informed the applicant that he was expediting the hearing of the appeal, by beginning to compile the records of appeal himself to avoid delay in the High court Registry.

However, in spite of the above, and without inviting the applicant’s counsel to come and settle records, the A.C.R. of the High Court, one Mr. A.O. Iloputa, forwarded a “Certificate of noncompliance” with conditions of appeal thereafter dismissed the appeal. Neither the applicant nor its counsel was aware of any noncompliance, nor about cause of issuing certificate or the dismissal of the appeal.

Ultimately, the applicant became aware of the above facts for the very first time on 12/10/2000 when the A.C.R. personally went to the U.B.A. Branch at Station Road, Enugu demanding immediate release of the deposited sum to the respondent armed with a Court of Appeal Order of dismissal. It was at that juncture that the UBA Manager rang the applicant bank to inform them of what was happening. It was on knowing these facts that the applicant briefed another counsel by name O. Akpamgbo Esq., to apply to the Court of Appeal, Enugu to restore their appeal that was erroneously dismissed, as their regular counsel Mr. Zanda Izundu was out of the country at that time.

Finally, the applicant deposed that they never received any invitation from the A.C.R. or the High Court Registry to come to court for settlement of records; they were never requested to pay the paltry sum of N1,318.00 for compilation of records, nor were they ever informed that their appeal was dismissed by the Court of Appeal for “non-compliance”. They therefore prayed the court to restore their appeal to be heard on the merit.

It was in response to the above averments of the applicant that the respondent counsel filed his 8-points preliminary objection dated and filed on 16/1/2001. For completeness, the said preliminary objection is reproduced in full as follows:-

“NOTICE OF PRELIMINARY OBJECTION BY THE RESPONDENT (HEREIN) ORDER 3 RULE 15

TAKE NOTICE that the respondent herein named intends at the hearing of the appellant/applicant’s motion on notice filed on 15/1/2001 rely upon the following preliminary objection on points of law, notice whereof is hereby given to you viz:

“That the application filed on 15/1/2001 for hearing on 18/1/2001 is incompetent and an abuse of process of court; the honourable court lacked both the competence and jurisdiction to entertain the application and the reliefs sought therein.”

GROUNDS OF THE OBJECTION

1. The application is incurably defective and the court lacks the jurisdiction to entertain same:-

(a) The grounds in support of their application have not been provided as required by law. Order 3 rule 3(1) Court of Appeal Rules (1981) as amended.

2. The appellant/applicant’s 38 paragraphed affidavit in support of their motion filed on 15/1/2001 failed to comply with schedule 1 section 13 of the Oaths Acts.
3. Relief 1 on the motion paper filed on 15/1/2001 not being maintainable on these grounds:-

i) No leave of court was sought nor obtained for extension of time within which to fulfil the statutory conditions of appeal.

ii) The honourable court lacked the power to waive a statutory requirement as a precondition for the existence of a valid appeal.

iii) No application before the court to waive the conditions of appeal and the honourable court cannot grant a relief not sought.

4. The honourable court lacked the competence and jurisdiction to entertain the relief 2 namely: ‘IN THE ALTERNATIVE, an order restoring the appeal dismissed on 10/10/2000 on these grounds.

i) The order of dismissal having been drawn-up and transmitted to the Registrar of the lower court.

ii) The Assistant Chief Registrar of the Enugu State High Court, having issued a valid order to UBA Plc to release the res to the winner of the appeal (the respondent) M/s G.M.O. Nworah and Sons Co. Ltd.

iii) The respondent G.M.O. Nworah having instituted an action against UBA Plc for their failure to honour a valid disposal instruction from the Assistant Chief Registrar Enugu State High Court in Suit No. E/655/2000 – Exhibit 26 in the applicant’s motion filed on 15/1/2001.

5. Relief 3. The court lacked the competence and jurisdiction to entertain it, such that leave of the court is mandatorily required and non had been sought and obtained before now. Relief 3 should be struck out accordingly.
6. Relief No.4 is an abuse of process of court, and incompetent and the honourable court lacked the jurisdiction to entertain it, as there is no appeal pending before the honourable court. And the court cannot make an order against a party not properly before it. And relief 4 should be struck out.
7. Relief 5 and 6 are abuse of process of court, incompetent and the honourable court lacked the competence and jurisdiction to entertain them on these grounds:

i) It is inappropriate to seek an injunction in the same application seeking the restoration of an appeal dismissed under the Court of Appeal Rules 1981 as amended.

ii) The appeal having not been restored the Court of Appeal has no jurisdiction to entertain the injunctive reliefs.

iii) The appeal having been validly dismissed by the Court of Appeal on 10/10/2000 and the order of dismissal duly enrolled and served on the court below the order of conditional stay of execution is extinct and non existent.

iv) No leave had been sought and granted for the order to be restored together with the prayer for the restoration of the appeal. And such reliefs 5 and 6 should be struck out.

8. The appellant/applicant’s Exhibit ‘F’ (The Notice and Grounds of Appeal) (Pages 1-5) is a defected notice of appeal:- for failure to include the appellant’s name at its paragraph 5 (page 5) as “persons directly affected by the appeal” and should be discountenanced.

AND FURTHER TAKE NOTICE that the respondent shall place reliances on all the Exhibits attached to the appellant/applicant’s motion filed on 15/1/2001.

Dated 16th January, 2001.

At the oral hearing of this objection on 26/4/2001 learned counsel for respondent was given opportunity to highlight or emphasise important points in his preliminary objection, and he did so as follows:-

“Preliminary Objection of Akputa for Respondent:

Akputa moves relying on S.6(6)(a) of the 1999 constitution.

Says the order for dismissal, the subject matter of the other sides application having been drawn up and acted upon by the respondent as well as the Assistant Chief Registrar, High Court of Enugu (see exhibit A.C.R.), whether the court can assume jurisdiction to set aside the said order. Says the court is not competent to restore the appeal. Submits that this court lacks the competence. Cites order 5 and 3 of Court of Appeal Rules. Now refers to section 239 and section 240 of 1999 Constitution and says jurisdiction of this court is purely appellate. Thus, it has no jurisdiction over, the decision or act of AC.R. of a State High Court. Cites Olowu v. Abolore (1993) 5 NWLR (Pt. 293) page 255 at page 270. Also Balewa v. Muazu (1999) 7 NWLR (Pt.609) page 124 at page 133.

Now refers to Exhibit ACR of the A.C.R. of High Court. In order to restore an appeal that was dismissed there ought to be a prayer for extension of time, but applicants have not asked for that. Cites Olowokere v. African Newspaper (1993) 5 NWLR (Pt.295) page 583 at page 595.

Says the applicants are guilty of delay, and are not entitled to the discretion of restoring the appeal. Refers to their Exhibit F and submits that it does not comply with Order 3(1) of Court of Appeal Rules. Cites Oyebade v. Ajayi (1993) 1 NWLR (Pt. 269) page 313 at 315 ratio 5. Refers to the application and says he has not supplied the grounds of law relied on. Failed to comply with order 3 and 3(1) of the Court of Appeal Rules. Now refers to the affidavit in support (3 in number) says no substantial compliance with Oaths Act.

On ground 5, contend that this court has no jurisdiction because they did not ask for leave of court.

On ground No.6, says relief No.4 is abuse of court process in that there is no appeal before the court now. Cites Koiki v. First Bank (1994) 8 NWLR (Pt. 365) pages 655, 677-678.

On ground 7 of objection, contends that reliefs 5 and 6 of the application are incompetent for it is inappropriate to seek injunction in same application seeking restoration of an appeal. Cites Folorunsho v. Shaloub (1994) 3 NWLR (Pt. 333) page 413 at 417. The application having not been restored, the Court of Appeal has no powers to entertain the injunctive relief. This court cannot make an order against UBA Plc and A.C.R., Enugu, as they are not parties to this appeal. Says because the order has been drawn up and acted upon, the jurisdiction of the court to restore has been removed. Cites Bockelman v. Nwaehi (1965) 1 ALL NLR page 112 at 114; cites Minister of Lagos Affairs v. Akin-Olugbade (1974) 1 ALL NLR (Pt. 2) page 226, (1974) 11 SC 11; Gani v. UBA Plc (2000) 15 NWLR (Pt. 689) 116 at 132. Urges court to discountenance the application that seeks to restore the application.

Reply by Izundu: Submits as follows:-

As for the submission that once application is dismissed and order drawn up, it cannot be restored is not correct. Cites Abolore’s case (supra) as exception. Says this court has jurisdiction to restore the application. Cites page 277H of Abolore’s case. Further relies on clear provision of Order 3 rule 20(4) of Court of Appeal Rules. Says Abolore’s case was concerned with failure to file brief in Supreme Court and not with a situation like this.

Refers to case of Surakatu v. Nigeria Housing Dev. Society (1981) 4 S.C. 26. Also cites Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt. 583) page 632. They all deal with the issues in this case.

Urges court to discountenance the preliminary objection.

Rejoinder by Akputa:

“Concedes that there is no provision in Court of Appeal Rules on the effect of Drawn up order. But it is trite that where there is a lacuna in our jurisprudence, we can go to England and shop for provision of law that will fill up the vacuum and that was what Supreme Court did in the Bockelmann’s case.”

I have carefully considered all the arguments canvassed above by learned counsel on both sides and find that the main prayer in this application is simply to restore the applicant’s appeal which was dismissed on 10/10/2000 for non-compliance under Order 3 rule 20 of the Court of Appeal Rules. Order 3 rule 20(4) of our said rules under which it was sought to restore the appeal provides as follows:-

“(4) An appellant whose appeal has been dismissed under this rule may apply by notice of motion that his appeal be restored and any such application may be made to the court which may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit,” (Italics mine).

Perhaps the most important thing to note from the wordings italicized above is that the decision to restore or not to restore an appeal is purely discretional depending on whether the reasons proffered by the appellant were “good and sufficient,” or not. Apart from the above requirement, there is no other condition or time limit within which the application must be brought.

Learned counsel for respondent has argued that once an enrolled order has been drawn up, it would be too late for the appellant to apply for restoration of his appeal. With due respect to learned counsel for respondent, there is no such requirement in our rules. I shall now proceed to consider whether the reasons given by the appellant in his affidavit in support show “good and sufficient cause” or not.

After a careful reading of all the affidavits and exhibits filed in support of appellant’s application, I find that the main explanation of the applicant was that since filing his notice and grounds of appeal, and paying the judgment debt into bank as ordered by the court below, neither he nor his counsel was ever invited to the High Court Registry to come and settle records, or fulfil any other conditions of appeal, such as payment of deposit for records or executing bond for prosecution of the appeal. Even when the ACR illegally sent a certificate of non-compliance to the Court of Appeal, he, the applicant was never put on notice. Also, even when the Court of Appeal ultimately dismissed their appeal on 10/10/2000, they, the applicants, were never informed. Finally, it was argued that the applicants as the appellants in the case, could not after paying the huge sum of N14,960,094.03 to the UBA as a deposit, to be taken away by whoever won the appeal go back and relax without taking steps to prosecute the appeal timeously and vigorously. They submitted that the ACR had deliberately kept them in the dark so that the appeal could be unjustifiably dismissed behind their back, as was in fact done. They therefore prayed the court to restore their appeal so that it could be heard on the merits.

In response to the three affidavits filed by the applicant, his lawyer and his lawyer’s secretary, I must say that Mr. A.O. Iloputa, the A.C.R. of the Enugu State High Court actually met his opponents pound for pound and blow for blow by filing two counter-affidavits in which he denied all the allegations of trying to foreclose the appellant made against him. In further response, he tendered Civil Form 6 Summons to Parties by Registrar to settle Record (Order 4 rule 8.) in respect of Suit No. E/324/92, in which the parties herein including the applicant and his counsel were, invited to come to court on 12th April, 2000 for settlement of records, but they failed to come. Also, another document Exhibit ACR ‘E’ dated 17th April, 2000, was tendered showing the outcome of the settlement of records of appeal, as well as the conditions of appeal that were imposed upon the appellant, but which he failed to fulfil. Finally, there were affidavits of service by Bailiffs of the High Court and what purported to be extracts from despatch books showing that certain documents addressed to Zanda Izundu on 31/3/2000 and 8/4/2000 were duly signed for by one Chioma Chiegwu under the column “By whom Received.” It appears that the question whether applicant was ever invited for settlement of records, and informed about the “Conditions of Appeal” becomes a matter of Oath against Oath. If it was a criminal trial, such a situation is always resolved in favour of an accused person. In this case therefore, since applicant had already paid the huge sum of N14.9 million into the UBA as a deposit, pending determination of the appeal, I refuse to believe that he was unable to pay a mere N1,360.00 and other minor fees to perfect conditions of appeal. It may be that all the papers exhibited by the ACR were actually issued, but failed to reach the applicant personally for appropriate action. In effect therefore, I resolve the position in favour of the applicant, and hold that he has shown good and sufficient cause why his appeal should be restored.

As for the numerous decided cases cited by the learned counsel for respondent, I have gone through almost all of them, and cannot say that any of them was found useful. In fact hardly any of them was on all fours with the instant case, e.g. the latest case cited, i.e. Gani v. UBA Plc (2000) 15 NWLR (Pt. 689) 116 at 132, decided by the Abuja Division of the Court of Appeal was a case of court putting a case already transferred to the general cause list back on the undefended list. It had nothing to do with restoring an appeal that had been dismissed under Order 3 rule 20(4) of Court of Appeal Rules. As for the case of Olowu v. Abolore (1993) 5 NWLR (Pt. 293) page 255 at 270, learned counsel for respondent had already conceded that there was no provision in the Court of Appeal Rules on the effect of Drawn up order. The case infact referred to what happened in the Supreme Court. With that observation, I hold that it is unnecessary for me to go through all the cases cited one by one and distinguish them from the instant case.

I therefore come to the inevitable conclusion that the applicant herein has shown good and sufficient cause why his appeal earlier dismissed for non-compliance should be restored for hearing on the merits. The objection of the learned counsel is hereby overruled and the learned counsel for the applicant called upon to move his motion. Costs of this objection is assessed at N4,000.00 (Four thousand Naira) in favour of appellant/applicant.

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Other Citations: (2001)LCN/01000(CA)