Chief Festus Yesufu Vs Co-operative Bank Limited (1988)

LawGlobal-Hub Lead Judgment Report

WALI, J.S.C.

On 20th March, 1989, having read the record of proceedings and the briefs filed and after learned Counsel’s oral submissions in elucidation of their respective briefs, I allowed the appeal and reserved stating my reasons for doing so to today which I now do.

In the High Court of Justice, Bendel State of Nigeria, Benin Judicial Division, the plaintiff, as per his amended Statement of Claim asked for the following reliefs against the defendant-

“(a) A declaration that the plaintiff is not indebted to the defendant in respect of his accounts with the defendant a banker at Ibadan Oyo State of Nigeria and Benin City, Bendel State of Nigeria.

(b) A declaration that the plaintiffs accounts with the defendant at Ibadan and Benin City are in a credit of N2,211,956.35k made up as follows:-

(i) Ibadan Branch N677,264.15k

(ii) Benin Branch N1,534,692.20k

Total N2,211,956.35k

(c) interest at the rate of 10% per annum from the date of issuance of the writ (22/10/85) until payment.

(d) an Order for payment by the defendant to the plaintiff of the sum of N2,211,956.35k or any sum due and payable from the defendant to the plaintiff on the plaintiffs account with the defendant at Ibadan and Benin City.”

The case was tried by Akenzua, J., at the end of which he granted the plaintiff the reliefs prayed for in (a) and (b) but refused him (c) and (d) (supra), stating his reason for doing so as follows:-

“Just as the statement of defence has failed to answer all the material facts in the Amended Statement of Claim so the evidence led by the defence had failed to answer the case made out by the plaintiff. As claimed this is a declaration and so by reason of the evidence and under the principles already mentioned above I am satisfied that the plaintiff has established and proved the declaration he seeks in the second relief in paragraph 31 of the Amended Statement of Claim. As to the third and fourth reliefs this Court cannot grant them since there is no evidence that a demand was made on the defendant for the sum of money and the defendant refused to pay. I therefore give judgment for the plaintiff and I declare as follows:-

That the plaintiff is not indebted to the defendant in respect of his accounts with the defendant, a Banker at Ibadan Oyo State of Nigeria and in Benin City Bendel State of Nigeria.

2. That the plaintiffs account with the defendant at Ibadan Branch and in Benin City Branch are as follows:-
3. Ibadan Branch …………..N677,264.15
4. Benin Branch …………..N1,758,288.00”

By a Notice of Appeal dated 15th July, 1987, barely six days after the delivery of judgment, the defendant appealed against it to the Court of Appeal. The plaintiff was also not satisfied with that part of the judgment refusing him the reliefs he asked for in sub-paragraphs (c) and (d) of paragraph 31 of the Amended Statement of Claim; he therefore instructed his counsel at the Court of trial Dr. Onaghise to cross-appeal. As a result of dispute that developed between the plaintiff and his counsel, the plaintiff changed counsel and instructed the Chambers of T.J. Onomigbo Okpoko & Co. to prosecute his case. It was when T.J. Onomigbo Okpoko came to write the plaintiff’s brief in respect of the appeal filed by the defendant that it was discovered that the plaintiff’s instruction to cross-appeal was not carried out by his former counsel. Then on 9th February 1988, the plaintiffs new Counsel filed an application dated 25th January 1988 in the Court of Appeal with the following prayers:-

“(1) Extension of time within which to appeal against that part of the judgment of Akenzua, J., dated 9th July, 1987 as set out in the proposed Notice of Appeal.

(2) Deeming as properly filed and served the proposed Notice of Appeal annexed to the affidavit in support of this motion and marked as ‘YCA’.

(3) Permitting the records of appeal and the respondent’s brief of argument filed in this case to be used for the purpose of the cross-appeal.”

As required by law the application was supported by the proposed Notice and Grounds of Appeal and the affidavit giving reasons for failure to appeal within time. The defendant filed counter-affidavit in opposition to the plaintiffs application.

The application was taken by the Court of Appeal on 22nd February 1988. After recording appearances of learned Counsel for the parties, the learned presiding Justice Ogundare, J .C.A., as shown by the printed record proceeded:-

(1) “Mr. Uwhubetine moves the court for extension of time to appeal against that part of the judgment of Akenzua, J., dated 9th July, 1987as set out in the proposed Notice of Appeal. He relies on the affidavit in support particularly paragraphs 3, 6-10. Urges the prayer sought.”

Immediately after that, came the Ruling of the Court. It reads:-

(2) “Court: We do not intend to call on him (Eghobamien) to reply.

It is so patent on the affidavit in support of the application that good and substantial reasons have not been shown to warrant this court in granting the prayer sought in his motion. The counter-affidavit shows that the applicant has not been forthright enough with the court as to the instruction he allegedly gave to Dr. Onaghise to appeal. There is no affidavit from Dr. Onaghise why this instruction was not earned out, if at all given. Consequently this application lacks merit and it is dismissed with N40.00 costs to the respondent.

SGD.

MICHAEL EKUNDAYO OGUNDARE

JUSTICE, COURT OF APPEAL

22/2/88.”

Both Mustapher and Ndoma-Egba, JJ .C.A. agreed with Ogundare, J .C.A. On 3rd March, 1988, the plaintiff filed an application dated 1st March 1988 in the Court of Appeal for leave to appeal against its Ruling of 22nd February, 1988. Due to effluxion of time, the plaintiff applied to the Court of Appeal to withdraw his application and this was granted and same was struck out, as the Court of Appeal would no longer have jurisdiction to entertain it, in any case.

The plaintiff brought another application in the Supreme Court praying

(i) for an extension of time within which to apply for leave to appeal to the Supreme Court;

(ii) granting applicant leave to appeal to the Supreme Court of Nigeria against the ruling of the Court of Appeal delivered in this case on the 22nd day of February, 1988refusing applicant an extension of time within which to cross-appeal against part of the judgment of Akenzua, J., in suit No. B/219/86.”

The application was heard in Chambers on Wednesday, 1st June 1988 and the prayers were granted. Hence this appeal.

For the purpose of this appeal, the plaintiff will henceforth be referred to as the appellant while the defendant will be referred to as the respondent.

Two Grounds of Appeal were filed in this appeal and they read:-

“1. The learned Justices of the Court of Appeal erred in law when they held:

“‘It is so patent on the affidavit in support of the application that good and substantial reasons have not been shown to warrant this Court in granting the prayers sought in this Motion.”

PARTICULARS

(a) Failure on the part of applicant’s Counsel to file an appeal which he had instructions to file is a good and substantial reason why applicant should not be refused leave to appeal in this case where defendant has already appealed.

(b) Refusal of leave to appeal in this case is highly bound to lead to a miscarriage of justice in this case where the unsuccessful defendant has appealed against the entire judgment.

2. The learned justices of the Court of Appeal erred in law when they held:

‘”The Counter Affidavit shows that the applicant has not been forthright enough with the Court as to the instruction he allegedly gave to Dr. Onaghise to appeal. There is no affidavit from Dr. Onaghise why the instruction was not carried out.”‘

PARTICULARS

(a) Applicant’s instruction to his Counsel is not a matter upon which a counter affidavit could have any relevance in the circumstances of this case.

(b) For reasons set out in the affidavit in support of the motion for leave, Dr. Onaghise could not reasonably be expected to swear to an affidavit in support of applicant’s motion.”

Briefs of arguments were filed and exchanged, and in elaboration thereof oral submissions were made by learned Counsel for the respective parties.

In the brief filed by T.J. Onomigbo Okpoko, S.A.N., for the appellant the following issues were formulated for determination:-

“WERE THE LEARNED JUSTICES OF THE COURT OF APPEAL RIGHT IN REFUSING THE APPELLANT EXTENSION OF TIME WITHIN WHICH TO CROSS-APPEAL AGAINST PART OF THE JUDGMENT OF THE TRIAL JUDGE IN THIS CASE WHERE THE UNSUCCESSFUL DEFENDANT HAS ALREADY APPEALED AGAINST THE WHOLE JUDGMENT or put in another way,

WAS THE REFUSAL BY THE LEARNED JUSTICES OF THE COURT OF APPEAL TO GRANT APPELLANT EXTENSION OF TIME TO CROSS APPEAL IN THIS CASE A JUDICIOUS EXERCISE OF THE DISCRETION OF THE COURT”

Mr. A.O. Eghobamien for the respondent formulated the following four (4) issues in his brief:-

“1. Was Dr. Onaghise the counsel to the appellant in this appeal

2. Has the Supreme Court jurisdiction to entertain this interlocutory appeal
3. Has the appellant come to court with clean hands in view of the fact that he deleted the counter affidavit sworn on 11/3/88
4. Since A. O. Aburime, Esq., was counsel to the appellant from 20/7/87and there is no evidence that A.O. Aburime was given instruction to cross-appeal, is the appellant not estopped from cross-appealing after the statutory period of appealing had expired”

It is pertinent at this stage to deal with the issues formulated by learned Counsel for the respondent. With due respect to learned Counsel none of the issues formulated in his brief is related to any of the two Grounds of Appeal filed by the appellant. He neither cross-appealed nor filed a Notice under Order 8 Rule 3 of the Supreme Court Rules 1985. Sub-rules 2 and 3 of Rule 3 of Order 8 provide that –

“2. A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court must give notice to that effect specifying the grounds of that contention.

3. Except with the leave of the court, a respondent shall not be entitled on the hearing of the appeal to contend that the decision of the court below should be varied upon grounds not specified in a notice given under this rule, to apply for any relief not so specified or to support the decision of the court below upon any grounds not relied upon by that court or specified in such a notice.”

A party can only introduce new arguments on appeal if he has strictly complied with and satisfied the conditions prescribed in Order 8 Rule 3 (supra). See Daniel Dilibe & Ors. v. Chukwuemeka Nwakozor (1986) 5 N.W.L.R. (Pt.41) 315 and Osinupebi v. Saibu & Ors (1982) 7 S.C. 104.

In his submissions, both written and oral, learned Senior Advocate for the appellant submitted that the reasons deposed to in the affidavit have substantially explained his client’s failure to appeal within the time statutorily provided, and that the proposed ground of appeal upon which he intends to prosecute his appeal prima facie shows good cause why he should be heard, and therefore the learned Justices of the Court of Appeal misdirected themselves when they refused to consider and grant his application for extension of time to appeal without really evaluating the affidavit evidence. He also submitted that paragraphs 1, 2, 3, 4, 5 and 9 of the affidavit in support of the application were admitted in paragraphs 2, 3 and 4 of the counter affidavit. Learned Senior Advocate contended that the averment in paragraph 9 of the affidavit is a matter exclusively between the appellant and his former solicitor Dr. Onaghise and therefore not a matter that could be traversed by counter affidavit as the respondent was purported to have done in paragraph 16 of the counter affidavit. He said the delay in filing the cross appeal was caused by the appellant’s former Counsel who was debriefed long after he was instructed to cross appeal; it was therefore unrealistic to expect a Counsel who was disengaged as a result of a disagreement with his client, (in this case, the appellant) to swear to an affidavit supporting the client’s application for extension of time to appeal. In support of the preceding submissions, the following decided cases were cited – Odusote v. Odusote (1971) 1 All N.L.R. 219, Ahmadu v. Salawu (1974) 1 All N.L.R. (Pt.2) 318; Ojora v. Bakare (1976) 1 All N.L.R. 22; Solanke v. Ajibola (1968) 1 All N.L.R. 46; Ibodo v. Enarofia (1980) 5-7 S.C. 42 and Awani v. Erejuwa (1976) 11 S.C. 307.

The application was brought pursuant to the provisions of Order 3 Rule 4 of the Court of Appeal Rules 1981, particularly sub-rules 1 and 2 thereof which provide that-

“4. – (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply.

(2) Every application for an enlargement of time in 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 of appeal.”

The proposed ground of appeal upon which the appellant intends to prosecute his cross-appeal reads as follows:-

“1. The learned trial Judge having found that plaintiff is not indebted to the defendant and that the plaintiff had money in his account with the defendant, misdirected himself in law when he held:

‘”As to the third and fourth reliefs this court cannot grant them since there is no evidence that a demand was made on the defendant for the sum of money and the defendant refused to pay’”

PARTICULARS

“‘The filing of a writ of summons by a Bank’s customer in respect of his current account is a sufficient demand in law for the payment of the money in the account.’”

The principle governing the application for enlargement of time in which to appeal has been settled, stated and re-stated in several decisions emanating from this Court. See Bowaje v. Adediwura (1976) 6 S.C. 143, Ibodo v. Enarofia (1980) 5-7 S.C. 42; Lamai v.Orbih (1980) 5-7 S.C. 28; Osinupebi v. Saibu (1982) 7 S.C. 104 and Shittu & Anor. v. Osibanjo & Anor. (1988) 1 S.C.N.J. (Pt.1) 37; (1988) 3 N.W.L.R. (Pt. 83) 483.

Order 3 Rule 4(2) of the Court of Appeal Rules, 1981 has stipulated the conditions to be satisfied before the court can exercise its discretion in favour of an applicant and these are –

1. Good and substantial reasons for failure to appeal within the prescribed period; and
2. grounds of appeal which prima facie show good cause why the appeal should be heard.

To satisfy condition (1) supra, the appellant in support of the motion, swore to an affidavit paragraphs 3 to 10 of which I consider to be pertinent in deciding this appeal and which are reproduced hereunder:-

“3. In the judgment of the learned trial Judge, I succeeded in the two claims for declaration, but in respect of my claims number three and four, the learned trial Judge said:

”’As for the 3rd and 4th reliefs, this court cannot grant them since there is no evidence that a demand was made on the defendant for the sum of money and the defendant refused to pay.’”

4. I was dissatisfied with this aspect of the judgment of the learned trial Judge and as a result, I instructed my counsel at that time, Dr. Onaghise, to cross-appeal against this aspect of the judgment.
5. The defendant in this case has appealed against the whole judgment of the learned trial Judge and I desire to cross-appeal against the aspect of the judgment refusing my relief number four.
6. Upon the service of the appellant’s brief on me, I handed the same over to Messrs. T.J. Onomigbo Okpoko & Co. whom I have retained for the conduct of the appeal.
7. Upon perusal of the Records of Appeal and the appellant’s brief, my leading counsel, T.J. Onomigbo Okpoko, Esq. (S.A.N.) advised me that it is necessary to cross-appeal against the part of the judgment refusing to grant my fourth relief.
8. When I started this action at the High Court, my counsel were J.E. Agbetor, Esq. and E.E. Ayomanor, Esq. Later, Dr. Onaghise joined them as my counsel.
9. After the judgment in the case, I instructed Dr. Onaghise to cross-appeal against the part of the judgment I have complained of but, owing to a misunderstanding between my counsel and I, the cross-appeal was not filed.
10. I did not know of the fact that the cross-appeal was not filed until this was brought up by T.J. Onomigbo Okpoko, Esq. (S.A.N.) in the course of preparing my respondent’s Brief in this appeal. By this time, the time to appeal had expired.”

The circumstances that led to this appeal have been amply stated in both the affidavit and the brief of arguments of the appellant. His case is that having obtained a declaration in terms of his claims contained in paragraph 31(a) and (b) of his amended Statement of Claim the trial court was wrong to refuse him prayers (c) and (d) of the same paragraph. In (c) and (d) the appellant asked for an order that the amount declared in his favour plus interest at the rate of 10% be paid to him. The learned trial Judge refused to grant prayers (c) and (d) because as he put it there was no evidence that a demand was made on the respondent for the said sum to be paid and which the latter refused to honour.

As deposed to the affidavit, the appellant instructed his then counsel, Dr. Onaghise to cross-appeal (see paragraph 9 of the affidavit) but due to disagreement that later developed between the appellant and Dr. Onaghise, the former disengaged the latter and the cross-appeal was not filed. This fact was only discovered when his new counsel Okpoko, Esq. (S.A.N.), was preparing the appellant/respondent’s brief in the main appeal filed by the respondent. See paragraphs 7, 8, 9 and 10 of the appellant’s affidavit. Paragraphs 5 and 6 of the respondent’s counter affidavit explained what happened in court. They are –

“5. That when the motion for stay of execution came before the High Court on the 23rd July 1987, Dr. Onaghise announced himself as counsel for the applicant and A.O. Aburime, Esq. also announced himself as counsel to the applicant.

6. That the learned trial Judge asked the applicant who was his counsel as between Dr. Onaghise and A. O. Aburime, Esq.”

A perusal of paragraphs 5 and 6 of the counter affidavit shows that they do not specifically refute the appellant’s deposition that he had instructed Dr. Onaghise to cross appeal, which the latter failed to do. In my view, the counter affidavit is not an answer to the appellant’s affidavit, particularly paragraphs 9 and 10 thereof.

A careful consideration of the affidavit filed in support of the application reveals that good and substantial reasons for failure to appeal within time have been shown. The failure to lodge the cross appeal is the fault of the appellant’s former counsel Dr. Onaghise and for which the appellant should not be blamed. See Doherty v. Doherty (1971) 1 All N.L.R. 162; Lamai v. Orbih (1980) 5-7 S.C. 28. Had the Court of Appeal fully considered the affidavit, counter affidavit and the other materials before it, it would not have come to the conclusion that –

“It is so patent on the affidavit in support of the application that good and substantial reasons have not been shown to warrant this court in granting the prayer sought in the motion.”

The length of delay in bringing the application is immaterial so long as good and substantial reason justifying it is proffered. See Alagbe v. Abimbola & Ors. (1978) 2 S.C. 39. And as rightly pointed out by the learned Senior Advocate in his brief, it is unrealistic for the learned Justices of the Court of Appeal in the given circumstance, to expect Dr. Onaghise to swear to an affidavit in support of the appellant’s application for enlargement of time to cross appeal.

The second condition to be fulfilled is that the ground or grounds of appeal must prima facie show good cause why the appeal should be heard.

The substratum of the appellant’s case, as I have shown earlier, was a claim for a declaratory judgment that he was not indebted to the respondent in his accounts at the latter’s branches in Ibadan and Benin City. He was granted the declaration to that effect and also to the effect that he had substantial sums in the said accounts in his favour. His request for an order that the said amount be paid to him was refused on the pre that he did not demand payment of the same which was turned down by the respondent. From the Ruling of the Court of Appeal in which it dismissed the appellant’s application, there is nothing to show that the ground of appeal was ever adverted to. If that was done the learned Justices of the Court of Appeal would have realised that there is a serious issue of law to be decided, to wit – whether by filing the Writ of claim, the appellant was deemed to have made a demand for the payment of the specific amount for which he obtained declaratory judgment. At that stage, it was immaterial to consider whether or not the appellant as the applicant would succeed in his appeal as the condition stipulated is only that the ground must raise substantial issue of law, mixed law and fact or fact for the consideration of the Court. In Holman Brother (Nig.) Ltd. v. Kigo (Nig.) and Anor. (1980) 8-11 S.C. 43, Sir Udo Udoma, J.S.C., while considering the governing principle in application for enlargement of time and leave to appeal said at pages 62 and 63-

“In principle when dealing with an application for leave to appeal, an applicant is not required to show that the appeal would succeed if leave is granted. It is sufficient to show that there is an arguable appeal. Or to put it in another way, it is enough to show prima facie case that the court from whose decision leave to appeal is sought committed an error of law or has failed to exercise its discretion judicially, or has based the exercise of such on wrong principles.”

It is trite that to grant or refuse an application for enlargement of time within which to appeal is an exercise of judicial discretion by the Court and that an appellate court is always slow to interfere with the exercise of such discretion when it is so exercised. See University of Lagos v. Olaniyan (1985) 1 N.W.L.R. (Pt.1) 156. But where the discretion is found to have been wrongly exercised an appellate court has a duty to interfere and correct the mistake. See Niger Construction Ltd. v. Okugbemi (1987) 4 N.W.L.R. (Pt.67) 787, particularly where Bello, J.S.C. (as he was then) said-

“…an appeal court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under misconception of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere…..”

With the reasons given explaining the delay in not appealing within time coupled with the proposed ground of appeal raising a substantial and arguable point of law, the learned Justices of the Court of Appeal misdirected themselves in law in dismissing the appellant’s application with a wave of hand and without giving it the due consideration it deserved.

It was for these reasons that I allowed the appeal on the 20th day of March, 1989.

NNAMANI, J.S.C.: On 20th March, 1989, this appeal came before this Court. Having read the record of proceedings, and after hearing learned counsel for both parties, I allowed it. I indicated that I would give my reasons for that judgment today. I now do so.

This appeal more directly arose from an application dated 25th January, 1988and filed at the Court of Appeal, Benin City on 9th February, 1988 by the appellant herein. In the application, there were prayers for the following reliefs:

“1. Extension of time within which to appeal against that part of the judgment of Akenzua, J., dated 9th July, 1987 as set out in the proposed Notice of Appeal.

2. Deeming as properly filed and served the proposed Notice of Appeal annexed to the affidavit in support of this motion.
3. Permitting the records of appeal and the respondent’s brief of argument filed in this case to be used for the cross-appeal”

The necessary affidavit in support of the application was sworn.

On 22nd February, 1988the Court of Appeal (coram: Ogundare, Musdapher and Ndoma Egba, JJ .C.A.) dismissed the application. In his lead ruling, Ogundare, J.C.A., said,

“We do not intend to call his (sic) Eghobamien, to reply. It is so patent on the affidavit in support of the application that good and substantial reasons have not been shown to warrant this Court in granting the prayer sought in his (sic) motion. The counter-affidavit shows that the applicant has not been for their right (sic) enough with the court as to the instruction he allegedly gave to Dr. Onaghise to appeal. There is no affidavit from Dr. Onaghise why this instruction was not carried out, if at all given. Consequently this application lacks merit and it is dismissed with N40.00 costs to the respondent.”

The appeal was indeed decided on a very narrow compass. The application was made under Order 3 Rule 4(1) and (2) of the Court of Appeal Rules 1981 which is in pari materia with Order 7, Rule 4 of the Supreme Court, Rules 1977. There have been several decisions on them. See Ibodo v Enarofia (1980) 5-7 S.C.42; Lamai v Orbih (1980) 5-7 S.C. 28; Olaniyan v University of Lagos (1985) 2 N.W.L.R. (Pt.9) 599.

It is well settled that the Rules require an applicant to satisfy two conditions; substantial reasons for the delay in bringing the application and arguable grounds of appeal. From all the papers attached to this application, it is difficult to see the justification for the decision of the Court of Appeal that substantial reasons have not been given. If it is on the issue of delay, the applicant’s case was that he had instructed his former counsel, Dr. Onaghise, to appeal and he only knew that no appeal was filed when his new counsel, T.J. Okpoko, S.A.N., so informed him. In oral argument before us, Mr. Eghobamien, learned counsel was suggesting that the applicant’s case was handled in the High Court by three lawyers of which Dr. Onaghise was one. He pointed out that Mr. Aburime of counsel appeared for the applicant in subsequent applications in this matter. I suppose the point being made was that the applicant could not have asked counsel to file the appeal as he claimed. Indeed, in its ruling, the Court of Appeal said that there was no affidavit from Dr. Onaghise why this instruction was not carried out. It is indeed strange, to say the least, that Dr. Onaghise could be expected to swear to an affidavit in support of an application by a client with whom he had disagreed. In effect there was nothing to controvert the averments of the applicant that he gave instructions to his former counsel which were not carried out.

The more serious error manifest in the Court of Appeal’s ruling is that it did not appear that that Court adverted at all to the proposed ‘grounds of appeal so as to decide whether they raised arguable issues. This is indeed an error, for a Court considering an application under Order 3, Rule 4(2) of the Court of Appeal Rules 1981 must take account of the two arms to which I earlier make reference. See the decision of this Court in Yinusa Shittu and Anor. v Mrs. Bisi Osibanjo and Anor (1988) 7 S.C.N.J 37; (1988) 3 N.W.L.R. (Pt.83) 483

It was for these reasons, and the more detailed reasons in the lead reasons for judgment by my learned brother, Wali, J.S.C. a draft of which I saw before now, that I allowed this appeal.

---

Other Citation: (1988) LCN/2398(SC)