Austine Frank Company Limited V. Ocean Pac International Limited & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A.
By an application on notice dated 1st day of November 2005 and filed on the same date, the applicant prayed for the following reliefs:
“(i) An order of the Honourable Court for an extension of time within which to apply for leave to appeal as an interested party against the ex-parte order of injunction granted by Honourable Justice J. I. Nweze of the High Court of Anambra State, Onitsha Judicial Division in suit No. 0/162/2005 dated 23rd day of March 2005.
(ii) An order of the Honourable Court granting leave to appeal as an interested party to this Honourable Court from the ex-parte order of injunction of the lower court granted by Honourable Justice J. I. Nweze of the High Court of Anambra State, Onitsha Judicial Division in suit No. 0/162/2005 dated 23rd day of March 2005.
(iii) An order of extension of time within which to file notice and grounds of appeal as an interested party, against the ex-parte order of injunction granted by Honourable Justice J. I. Nweze of the High Court of Anambra State, Onitsha Judicial Division in suit No. 0/162/2005 dated 23rd of March 2005.
(iv) An order deeming as properly filed and served the notice of appeal from the ex-parte order of injunction of the lower court granted by Honourable Justice J. I. Nweze of the High Court of Anambra State, Onitsha Judicial Division in suit No. 0/162/2005 dated 23rd day of March 2005.
(v) An order granting a departure from the rules of this Honourable Court by dispensing the need for the Registrar of the lower court to compile the record of appeal.
(vi) An order that the appeal herein be heard on the bundle of documents filed along with this application and titled “Record of Appeal” and exhibit “A”.
(vii) An order suspending or staying the execution of the ex-parte order of the lower court granted by Honourable Justice J. I. Nweze of the High Court of Anambra State, Onitsha Judicial Division in suit No. 0/162/2005 dated 23rd day of March 2005.
(viii) An order granting the release of the appellant’s 40 feet container of Stain less Steel’ plates subject matter of the order granted by Honourable Justice I. J. Nweze of the High Court of Anambra State, Onitsha Judicial Division in suit No. 0/162/2005 dated 23rd day of March 2005 upon the provision by the appellant/applicant a bank guarantee of Equitorial Trust Bank Plc or First Atlantic Bank Plc to cover the sum claimed by the 1st respondent in suit No. 0/162/2005 pending the hearing and determination of this appeal.
(ix) And for such further order or other order(s) as the Honourable Court may deem fit to make in the circumstances of this case.”
The application is supported by an affidavit of 38 paragraphs and a further affidavit of 6 paragraphs.
The counsel for the parties were ordered to file their written addresses.
At the hearing, learned counsel for the parties adopted and relied on their written addresses.
The learned counsel for the applicant applied to withdraw prayers 7 and 8 from the reliefs being sought.
He brought this application pursuant to (i) Order 3 rule 3(4) of the Court of Appeal Rules, (ii) Section 16 of the Court of Appeal Act (iii) Section 6 (6)(A) and (B) of the Constitution of the Federal Republic of Nigeria 1999 (iv) Section 234(A) of the Constitution of the Federal Republic of Nigeria 1999.
The summary of the applicant’s case is that the 1st and 2nd respondents were plaintiff and defendant at the lower court. The applicant was not a party to the case at the said lower court.
The applicant who is an importer, imported some stainless utensils valued at about N4.5 million from India and he engaged the services of the 2nd respondent as clearing agent for the purpose of clearing the goods.
The bills of lading, and the shipping documents for title to the goods are vested in the applicant.
The 2nd respondent cleared and delivered all the goods except the 12th container which he cleared and kept in custody of the 1st respondent, without the knowledge of the applicant. The applicant eventually arrested the 2nd respondent for his failure to deliver the goods. When he was released on bail, he gave an undertaking to produce the goods.
In the meantime, the 1st respondent sued the 2nd respondent claiming that the 2nd respondent is indebted to it to the tune of N2,984,000.00 arising from the balance of clearing expenses on the said container and that the goods although belong to a 3rd party (the applicant) but that the 1st respondent has a lien on it.
As a result of the action, the 1st respondent obtained the following order ex-parte from the lower court. (See Exhibit “A” attached to the further affidavit.)
“That the plaintiff shall deposit the goods the subject matter of the suit into the custody of the Assistant Chief Registrar not later than Thursday the 24th day of March 2005. The Assistant Chief Registrar shall take an inventory of the goods. The plaintiff must ensure that the defendant is served expeditiously.”
The applicant stated that he came to know of the above mentioned order in June 2005 when he received a copy of the order from the police.
Being the owner of the goods which the order of the lower court was directed, the applicant as a person having an interest has applied for leave to appeal with the Trinity Prayer.
He relied on the following cases:
– C.C.B. Nig. Ltd. v. Emeka Ogwuru (1993) 3 NWLR (Pt. 284) page 630
– In Re: Madaki (1996) 7 NWLR (Pt. 459) page 153
On the prayer for departure from the rules to compile record of proceedings, the applicant stated that the record is ready and same is attached as exhibit “A” to this application.
He referred to the case of – Wema Bank Plc v. Balogun (1999) 7 NWLR (Pt. 610) at page 242.
Learned counsel finally urged that this application be granted.
In opposing the application, learned counsel to the 1st respondent filed a 47 paragraph counter affidavit with seven exhibits and he relied on the said affidavit including the exhibits.
He urged that this application should be dismissed because it is an abuse of court process.
On the other hand, learned counsel to the 2nd respondent in opposing the application filed a sixty-three paragraph affidavit with (7) seven exhibits.
He submitted that an interested person must be a person with genuine and legally recognizable interest in respect of a decision which prejudicially affects the person. He referred to the case of Hon. Justice Ademola v. Sodipo (1992) 7 SCNJ page 428, (1992) 7 NWLR (Pt. 253) 251.
He finally urged that the application should be dismissed.
In the instant application, the applicant is seeking leave to appeal as an interested person; and his interest is in respect of the 12th container (No. PONU 760950-3) 1 x 40ft which he said that the 2nd respondent failed to deliver to him at his warehouse in Lagos. In paragraph 30 of the affidavit in support of this application it was stated –
“That neither the 1st respondent nor the 2nd respondent has title in the goods and none of them is claiming ownership over same. ”
In view of the averment above, it is clear that both the 1st & 2nd respondents never claimed ownership of the said goods but 1st respondent only claimed to maintain a lien over the said goods because of the debt of N2,984,000.00 arising from the balance of clearing expenses on the said 12th container.
It is on record that the substantive suit filed by the 1st respondent against the 2nd respondent and the motion on notice filed on behalf of the 1st respondent are still pending at the lower court.
The applicant also filed a motion in the court below, similar in substance to the present application which is also still pending.
Order 3 rule 3(4) of the Court of Appeal Rules states that:
“Wherever under these rules an application may be made either to the court below or to the court it shall not be made in the first instance to the court except where there are special circumstances which make it impossible or impracticable to apply to the court below.”
Implicit in the words of Order 3 rule 3(4) of the Court of Appeal Rules is that an applicant has no right to choose or elect whether to apply first in the High Court or the Court of Appeal. By that rule, the applicant ought to have applied to the High Court and the High Court should have taken a decision one way or the other before applying to this court. And if it has been impossible to apply to the lower court first, the applicant must show special circumstances which made it impossible or impracticable to apply to the lower court first before coming to the Court of Appeal.
The meaning of special circumstance as used in Order 3 rule 3(4) Court of Appeal Rules is an “exceptional circumstance that is particular, peculiar and distinctive circumstance and additional to the ordinary stream of things or affairs.”
Special circumstances which may justify an applicant filing an application at the Court of Appeal in the first instance are usually matters ulterior to the merit of the application as for example where time to appeal had lapsed before the applicant became aware of the decision to be appealed against and the High Court must have lost the power to grant such leave.
An impossible act “is an act which cannot be done, as it is beyond the implementation of an average human being applying average human strength and dexterity, whereas an impracticable act is an unmanageable act.” See -Kalu v. Odili (1992) 5 NWLR (Pt. 240) page 130, U.B.N. v. Fajebe Foods (1994) 5 NWLR (Pt. 344) page 325, Soyanwo v. Akinyemi (2001) 8 NWLR (Pt. 714) page 95.
In the instant application, it is noteworthy to bring out the fact that the applicant had by an application dated 15/6/2005 and filed at the High Court Registry, Onitsha on 17/6/2005 asked for the following reliefs:
“1. An Order of the Honourable Court joining the applicant herein as 2nd defendant in this suit.
- An Order of the Honourable Court setting aside, vacating and or discharging the ex-parte order of the Honourable Court dated 23rd day of March 2005.
- An Order releasing forthwith to the applicant the 40ft container of stainless plates presently in custody of the plaintiff pending the hearing and determination of this suit or further order.”
The applicant abandoned the above-mentioned application and he rushed to this court to file another application to enable him achieve what he was unable to achieve in the application abandoned at the lower court.
At the hearing of this application, the learned counsel for the applicant failed to state the reasons why the application before the lower court was abandoned.
In the circumstance it is my view that this application is premature and an abuse of court process in view of the pending application abandoned at the lower court. Therefore the applicant should first of all pursue the said application at the lower court to finality.
In view of the foregoing, prayers 1 to 6 of the applicant are hereby struck out. Also prayers 7 and 8 having been withdrawn earlier at the hearing of this application by learned counsel for the applicant are also struck out.
The respondents are entitled to the costs of this application which is assessed as N2,500 (Two thousand five hundred Naira) in favour of each of the respondents against the applicant.
Other Citations: (2006)LCN/2016(CA)
