Cedar Stationery Products Ltd. V. International Bank for West Africa Ltd. (2000)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

The judgment or ruling being sought to be cross-appealed by the respondent was delivered on 21st of August, 1990. The record of appeal was received in this court as the number of appeal suggests as far back as 1991. The appellant’s brief of argument which was filed out of time on 19/12/95 was deemed as properly filed and served on 30th January, 1997.

The applicant has made two unsuccessful attempts to cross-appeal the last of which was dated 26th June, 1998 and filed on 29th June, 1998. It was struck out like the previous one. In the present application, the applicant is seeking for the following reliefs:-

“(i) Leave of the court to raise a fresh issue on this appeal.

(ii) Leave of enlargement of time within which the applicant may file and serve a respondent s notice of cross-appeal against the judgment of the Federal High Court Kano in suit No. FHC/K/M5/85 dated the 21st August, 1990.

(iii) An order deeming as duly filed and served the respondent’s notice of cross-appeal exhibited to this application.

(iv) An order enlarging the time within which the applicant may file and serve the respondent’s brief of argument in this appeal”.

The applicant abandoned prayer three thereof seeking the deeming of the notice of cross-appeal to be properly filed and served.

I wish to observe that prayers 2 and 3 are clumsy or inelegantly drawn up. In one breath, prayer 2 is seeking for leave and in another it is asking for an enlargement of time to appeal. It equally created doubt as to the intention of the applicant. It is not clear whether he is asking for leave to file a respondent’s notice or he is praying for enlargement of time to cross-appeal.

The application is supported by affidavit, a further affidavit and a further and better affidavit. There is no counter-affidavit nevertheless the application was strenuously opposed by Miss O. O. Bello of counsel.

In moving the application, the learned counsel for applicant, Mr. Offiong, postulated that in considering prayer (ii) there are two requirements to be met by a prospective appellant and the two conditions are embodied in Order 3 rule 4(2) of the Court of Appeal Rules, namely good and substantial reason why the appeal was not brought within the prescribed time as well as grounds of appeal showing good cause why the appeal must be heard. He referred to paragraphs 7-14 and 16-18 as showing the reason why they did not appeal within time.

Learned counsel contended that the competence of the trial court is challenged by the grounds of appeal. He argued further that where the jurisdiction of the trial court is being put in issue or contested on the authority of In Re-Famart Produce and Shipping Line v. E De Comm (1971) NSCC 246 and Victor Ugwu v. Chief Mark Bunge (1997) 8 NWLR (Pt. 518) 527, 541 the relief must be granted.

On prayer 1, he contended that grounds (i) and (ii) of the proposed notice of appeal are grounds of law in respect of which no fresh evidence would be required: P.D.C. Okenwa v. Military Governor of Imo State & Others (1996) 6 NWLR (Pt.455) 394, 407.

Learned counsel in respect of prayer (iv) that is application for extension of time for filing respondent’s brief of argument he informed the court that the reason is contained in paragraph 14 of the affidavit in support. He then urges the court to grant the application.

Learned counsel for respondent, after indicating her intention to oppose the application, referred to paragraphs 7, 8 and 9 of the affidavit and contended that they offend against the provisions of the Evidence Act. She further contended that the applicant is a limited liability company and there is nothing throughout the 21-paragraph affidavit showing nexus between Mr. Hadad, the deponent and the applicant. She referred to section 88 and 89 of the Evidence Act and urged upon the court to strike out those paragraphs.

On prayer 2, learned counsel for respondent contended that the fresh point contained in the proposed notice of appeal marked as Exhibit EZMI centres on whether there was a verifying affidavit sworn to in the trial court. She submits such relief should not be granted. Attorney-General of Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Pt. 92) 1, 23.

She went on to contend that, in application of this nature, the applicant is required to set out the fact that will persuade the court to act in his favour and also has to show that fresh evidence will equally not be required and the applicant failed to show this in his affidavit. Ejiofodomi v. Okonkwo (1982) 11 SC 74, 97. On the second prayer learned counsel for respondent argued that there is no reason in the affidavit why the appeal was not filed within the prescribed period even if the court is mindful of considering paragraphs 7 and 8, which is not conceded, and submitted that ignorance of law is no excuse. She then observed that applicant had more than 7 years to appeal if it had intended doing so. She urged the court to refuse all the prayers except prayer iv which is for enlargement of time to file respondent’s brief.

In reply, learned counsel for applicant conceded that he did not show the relationship between the applicant and Mr. Hadad because the respondents have once in an affidavit sworn to the fact that he was the Managing Director of the applicant.

The learned counsel for applicant did not state or give the nature or particulars of the fresh issue he proposed to raise on which fact he prevaricated. He first directed the court to the affidavit in support and when told that affidavit is evidence and the relief sought should not be garnered from evidence he graciously admitted that he did not show the nature of the relief sought in his first relief. Can the court gloss over such omission? I do not strictly think so otherwise the court may end up issuing an applicant with a blank cheque to raise all sorts of fresh issues. The discretion should, therefore, not be exercised strictly. Since the grounds of appeal on which applicant proposes to predicate its point are of law, I think it is in the overall interest of doing substantial justice to overlook such omission.

It is incumbent on a party seeking leave to raise fresh point for the first time in the Court of Appeal to show the fact that the point involves “a substantial point of law and no further evidence would have been adduced which would affect it are matters which would be taken into account”. Fadiora & Another v. Gbadebo & Another (1978) 3 SC 219, 249 and Abinabina v. Enyimadu (1953) AC 207, 215 and P.D.C. Okenwa v. Military Governor of Imo State & Others (1996) 6 NWLR (Pt.455) 394, 407.But I disagree with the learned counsel for respondent that applicant’s affidavit has to show that fresh evidence will not be required to be adduced. The applicant in the instant application can easily scale that hurdle, as he did, in the instant case, that the matter revolves around existence or otherwise of a verifying affidavit. It does not require adducing further evidence to show whether the petition was accompanied by a verifying affidavit or not. Once there is a verifying affidavit on the record it ipso focto follows that there was a verifying affidavit and if otherwise it necessarily follows that there was none in existence.

Before I close this line of reasoning I think it is incumbent on the court to examine the issue of existence of substantial substantive point of law. This will necessitate my reading the grounds of appeal contained in the applicant’s proposed notice of appeal. The grounds are 3 in number and read as follows:-

“(i) The lower court erred in law in not adverting to the fact that a precondition for maintaining a winding up petition viz: filing a verifying affidavit sworn to after petition has been presented had not been fulfilled and thus the court lacked the jurisdiction to entertain and adjudicate upon the petition.

(ii) The lower court erred in law when it entered upon the adjudication of a petition not backed by a verifying affidavit which thus had no prima facie evidence to support and thus cast the onus of proof on the respondent.

(iii) The lower court erred in law in not adverting to its lack of jurisdiction in that the petition for winding up in this case related to an action which was strictly not a winding up proceedings but involved issue which required enquiries or investigations as to the existence or non-existence of a debt and the owed quantum for which the lower court as a winding up a court unsuited for.

(Italics supplied)

These grounds smack more of respondent’s notice to affirm the judgment on grounds other than the ground relied upon in the judgment especially so when the learned trial Judge made no adverse finding against the applicant consequently making it an aggrieved party. All the learned trial Judge did was to decline jurisdiction. But that is not the application before the court. The one before us is for enlargement of time to appeal and leave to raise fresh point, which was not raised at the trial, on appeal.

Grounds (i) and (ii) are the grounds on which the leave to raise fresh point which was not raised at the trial to be raised at this stage of the proceedings. The two grounds on close scrutiny are variant of each other. They seek to challenge the competence of the court which has itself declared itself incompetent. It is on this basis that learned counsel apparently to show that it raised “substantial substantive” point of law but the bottom seems knocked out of their case by ground three whose particular conceded that “this related to an action which was strictly not a winding up proceedings”. If the case is strictly not a winding up proceedings how then did a verifying affidavit become a sine qua non? The grounds consequently, do not raise substantial substantive point of law which warrant the court exercising its discretion in favour of the applicant. Undoubtedly granting leave to raise a point which was not canvassed at the trial court before an appellate court is a discretionary power which does not require citing of an authority but if one is required, I refer to the cases of A.D.E Ejiofiodomi v. Okonkwo (supra) and Fadiora v. Gbadebo & Another (supra) 248.

Finally on this issue, learned counsel for applicant is seeking to raise a fresh point, which was not taken at the trial court before this court. The fresh point is contained in the proposed notice of appeal marked EZMI attached to the affidavit in support. The fresh point according to learned counsel for respondent centres on whether a verifying affidavit was filed in the court below or not. I am however, unable to associate myself with her submission that the applicant is seeking to raise a new line of defence, which should not be allowed, for the simple reason that their defence has always been want of jurisdiction in the trial court to entertain the petition. That being so they are only seeking to canvass a new line of argument and not raising a different defence from what it put up at the lower court. The case of Attorney-General of Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt.92) 1, 23 is not directly in point as it is within the right of a litigant to change his argument at any stage of proceedings.

Inspite of this, application for leave to raise a fresh point, which was not taken at the trial court, before this court is refused.

On the prayer (ii) seeking enlargement of time to appeal, it is common ground that rules of court namely order 3 rule 4(2) expressly provides that an application of this nature must be supported by an affidavit setting forth good reason why the appeal was not brought within the stipulated time. It is equally trite that there should be ground of appeal showing prima facie why the appeal must be heard and not why it should succeed.

On the reason why the applicant failed to bring the appeal within the time fixed by law, applicant relied on paragraphs 7-14 and 16-18. Paragraph 14 deals with extension of time to file respondent’s brief and not with failure to appeal within time. The relevant paragraphs read as follows:-

“7. That Mr. Hadad informs me and I believe him that since the judgment in this case 1990 he was not aware that this matter was pursued until his wife returned to Nigeria in January, 1997 and found that an order of substituted service had been made on the respondent and this was executed.

8. That Mr. Hadad informs me and I believe him that not being a lawyer, he thought that once the case had been finished in the lower court it was an end of the matter.
9. That Mr. Hadad informs me that it is when his present legal adviser received the record that they advised him on the need for the respondent to cross-appeal.
10. That Mr. Offiong informs me and I believe that he initially thought that the point to be agitated on behalf of the respondent could be done through a respondent’s notice and accordingly he filed a respondent’s notice.
11. That Mr. Offiong informs me and I believe that up till the 9th June, 1997 when he appeared at the Court of Appeal to argue this matter he erroneously still thought respondent’s notice will suffice though he need to ask for leave to raise fresh issue.
12. That Mr. Offiong informs me that it was after his return from Kaduna on the 9th June, 1997 he was able to undertake the research necessary to clarify the position when he found that he needed a substantial notice of appeal hence the present application. A copy of the proposed notice of appeal shown to me attached herewith and marked EZMI.
13. That Mr. Offiong informs me and I believe that he med an application in terms exactly the same as this since on 3rd November, 1997 which came up for hearing all the 19th January, 1998 and was struck out for non-appearance of counsel who regrettably arrived the court late due to transport problem just as the ruling striking out the motion was being read.
14. That Mr. Offiong informs me that on the 20th January, 1998 we filed another motion seeking to relist the motion of3rd November, 1997 struck out on the 19th January, 1998 and when the motion to relist came up for hearing on the 6th May, 1998 this Honourable court advised that we should lile a fresh application altogether in the same terms as are contained in the application of 3rd November, 1997 instead of asking to relist it.
15. That Mr. Offiong informs me and I believe him that all the 26th June, 1998 he filed another application on behalf of the applicant but this was again struck out today the 19th of October, 1999 as counsel regrettably arrived the court at 9.15 a.m. due to vehicle problems when the court had sat and called the case in his absence hence the present application.

(Italics supplied)

The applicant maintained studied silence on the fate of its respondent’s notice to affirm the judgment on ground other than the grounds relied upon by the learned trial Judge. There is no where in the affidavits where the applicant averred that the application was ever struck out by the court suo motu or at the instance of the applicant. In the absence of evidence showing that the previous remedy of respondent’s notice had been terminated the conduct of the applicant in bringing the present application tantamounts to abuse of court process. It is prima facie vexatious and oppressive to initiate two concurrent proceedings asking for virtually the same relief in the same court. The applicant filing application for extension of time to appeal while the application for respondent’s notice to affirm the judgment of the trial court on ground or grounds other than those relied upon by trial court was pending was improper and the new one must be struck out. Olubunmi Morgan & Others v. West African Automobile & Engineering Co. Ltd. (1971) 1 NMLR 219.

It concerns an abuse of court process. The Supreme Court held bearing in mind that it has been its practice not to exercise its discretion to take point suo motu unless it thinks in the circumstances of the case justice demands it Odiase & Another v. Agho & Others (1972) 1 All NLR (Pt.1) 170, (1972) 3 SC 71; Anibi v. Okoromadu & Another (1977) 3 SC 29, 30, 31. I am further strengthened in considering the question of abuse of court process, though suo motu, in view of the dictum of the Supreme Court in the case F.S. Uwaifo v. Attorney-General of Bendel State & Others (1982) 7 SC 124, 187 where it observed that “no Judge can be expected to treat something which is before his eyes as though it was not there”.

I am not expected to close my eyes to such glaring case of abuse of court process staring me in the face as if it were not there.

The other problem of this application is the vehement onslaught mounted against the validity of or competence of the averment contained in paragraphs 4, 8 and 9 of the affidavit in support when respondent’s counsel rightly, in my view, contended that they offend against the provisions of Evidence Act. It is in these paragraphs along with some others already set out in his ruling that the applicant sought to show reason why it failed to cross-appeal within the time prescribed. All the paragraphs referred to in the submission of the learned counsel for applicant without an exception viz paragraphs 7,8,9, 11, 12, 13, 16, 17 and 18 do not comply with the provisions of sections 88 and 89 of the Evidence Act, Cap. 62 of the Laws of Federation of Nigeria,1990. It is incumbent on a person who deposes to his belief in a matter of fact, and whose belief is based on any source or sources other than his own personal knowledge, unequivocally must disclose the facts and circumstances forming the basis of his belief. Furthermore, when the belief is founded upon information received from another person, the name of his informant must be stated in the affidavit and must state reasonable particulars of such an informant including the time, place and the circumstances of the information.

In the instant case, the deponent woefully defaulted in stating the particulars of the various informants from whom he derived his information nor place nor time nor the circumstance of the information: Banque De L’Afrique Oceidentale v. Alhaji Saba Shafadi & Others (1963) NNLR 21; Iris Winifred Horn v. Robert Rickard (1963) NNLR 67; (1963) 2 All NLR 40. The paragraphs deposed to by a staff of Mr.Offiong without due heed to the provisions of Sections 88 and 89 of the Evidence Act, Cap. 90 deserve to be struck out and are accordingly struck out by me.

In any case, the substance of Mr. Hadad’s affidavit is that he is not aware that there are channels of appeal from the decision of the court below hence the failure of the applicant to appeal within time. Mr. Hadad more than many is expected to be knowledgeable about our legal system than he professes to. Whatever be the extent of his experience about court proceedings the excuse he proffered is based on ignorance of law which is no excuse.

Learned counsel for respondent, in addition, submitted that particulars of Mr. Hadad from whom the deponent claimed to derive his information was not sworn to. She argued that the applicant, being a private limited liability company, Mr. Hadad’s relationship to it ought to be disclosed. This was not to be, learned counsel for applicant however countered this argument on the ground that the respondents are estopped from feigning ignorance of the relationship of Mr. Hadad and the respondents having previously deposed to affidavit identifying him as the respondent’s Managing Director. The affidavit was not exhibited to the present application neither is any of the previous applications allegedly made and struck out exhibited to the present application to demonstrate applicant’s good faith and diligence. I am of the firm view that a mere unsubstantiated averment is grossly inadequate. To return to the crux of the matter it is doubtful if averment of the respondent in a previous affidavit meet the justice of this case. The law, to wit, the provision of the Evidence Act requires the deponent to give the particulars of the source of his information his failure to do so, to my mind, is not cured by existence or otherwise of a previous affidavit. All the facts must be placed before the court which cannot rely on personal knowledge of either party.

There is no averment in the affidavit on the Mr. Hadad’s whereabout when the notice of appeal was served by substituted service. There is no evidence, before the court, explaining the cause of Mr. Hadad, who had not been alleged to have left the country, at the material time, failing to see the relevant document until arrival of his wife who was nowhere shown to have left the country. Apart from the inference that can be drawn from paragraph 7 of the affidavit that his wife left the country the fact of her departure as well as her return remain unsubstantiated. A mere assertion, and no more, cannot establish her absence from the country at the material time. In my considered opinion evidence of department and returning to the country can only be established by exhibiting to the affidavit in support of the motion certified copies of relevant page or pages of her passport showing her departure and arrival dates in the country. This was not done. The aforesaid in the same mauner applies to Mr. Hadad if it is his case also that he was outside the country at the time material to the service of the notice of appeal otherwise the facts of their respective absence from the country remain unproven.

The applicant has consequently not satisfactorily shown good and substantial reason why the appeal was not filed within the time prescribed for doing so.

Next to be considered is the grounds of appeal showing prima facie reason why the appeal must be heard. Where the ground or grounds of appeal challenge the competence of the suit and, therefore, the jurisdiction of the court, the court should be lenient in considering the reason for failure to appeal within time stipulated and not that the application should be granted as a matter of course contrary to the contention of the learned counsel for applicant. I have examined the three grounds of appeal contained in paragraph 3 of the proposed notice of appeal. Although the first two which are variant of each other tend to suggest that the trial court lacked competence to entertain the matter in the first instance, the third ground of appeal seems to take wind out of the applicant’s sail. The ground alleges that the petition was nor strictly one seeking the winding up of the applicant company. If on the showing of the applicant, that is their case, it would no longer be necessary to make existence of a verifying affidavit a condition precedent for hearing the petition as it is now being contended strongly on behalf of the applicant.

The competence of the court ceases to be in issue any longer. Furthermore, if the court had on its own declined jurisdiction the first two grounds of appeal questioning the jurisdiction are therefore otiose.

The grounds of appeal are not such that establish prima facie good reason why the appeal should be heard. There is therefore, no basis for considering the reason or reasons adduced for failure to appeal with leniency.

The application for extension of time to file respondent’s brief is with concurrence of counsel extended for 30 days from today. The application fails and it is refused. I award costs of this application assessed at N2,000.00 in favour of respondent.

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Other Citations:(2000)LCN/0790(CA)