First City Monument Bank Plc. V. Nigeria Institute of Medical Research & Anor. (2008)
LawGlobal-Hub Lead Judgment Report
REGINA OBIAGELI NWODO, J.C.A.
By Motion on Notice dated and filed on 22nd day of May 2007 the Applicant sought the following orders:
“1. An order enlarging the time within which the Applicant can file its NOTICE OF APPEAL against the Garnishee Order Absolute granted by the Honourable Justice B. B. Aliyu of the Federal High Court holden at Lagos and delivered on the 11th December, 2006.
- And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances”.
The motion is supported by a 22 paragraphs affidavit deposed to by Caroline Ekemode, a legal practitioner of 27/29 Odunlami Street Lagos exhibited in the affidavit are the following: Exhibited A – the copy of affidavit of service, Exhibit B – the proposed Notice of Appeal and Exhibit C – the record of proceedings of the Federal High Court on 11 of December, 2006 wherein an order absolute was made by the Court, Below also in support is a first further affidavit filled on 4th February, 2008 deposed too by Russell Adewale a legal practitioner.
The 1st Respondent in opposing the application filed three counter affidavits. The first counter affidavit of 24 paragraphs was filed on 26th June 2007 deposed to by Michael Ezerendu a staff of the Nigerian Institute of Medical Research. Then the 1st Respondent’s further counter affidavit of 21 paragraphs deposed to by Bassey Effong Antai, a litigation clerk in the law firm of G. E. Abong and Co. Praise Chamber, another 1st Respondents further affidavit dated and filed on 3rd March, 2008. There is also the Applicant’s reply to 1st Respondent counter affidavit dated 26th June 2007 of 11 paragraphs deposed too by Caroline Ekemode. Arguing the application learned counsel to the Applicant Mr. S. Demuren relied on the affidavits in support of the application in particular paragraphs 4, 5, 6, 7, 8 and 9. It is his contention that there was no proper service of the Order Nisi made by the court below on the Applicant. He argued that Exhibit A reflects that service was not made at the registered office of the Bank and that service is supposed to be in the registered office of the Bank at 17A Tinubu Street, Lagos not at Ayorinde Street, Victoria Island, Lagos. It is his submission that the proposed notice of appeal shows a prima-facie case why appeal should be argued before the court of appeal. It is his strong contention that this is a case in which they were not parties until garnishee proceedings was commenced. Learned Counsel to the first Respondent Mr. O. Abang opposing the application relied on his three counter affidavits in particular on paragraphs 2, 4, 5 of the counter affidavit filled on 26th June, 2007. It is his contention that failure not to appeal was not as a result of the state of health of the counsel but a legal strategy adopted by the learned counsel to the applicant. He argued that the Applicant took steps that failed not because their counsel was not well. He argued that there is no explanation as to why the Notice of Appeal was not tiled between 11 of December, 2006 and 25th of February, 2007 rather within this period the Applicant took other steps to set aside the order absolute. It is his contention that the issue of learned counsel Mr. Adewale being sick is an after thought. That no medical record to show he was ill and the name of the place he was taken was displayed. Mr. Abang argued further that the garnishee cannot contest the main Judgment that lead to the garnishee proceedings and cannot rely on same since he was not a party and there is no appeal against the Ruling of the trial court that the court has Jurisdiction. He submits that the issue of non service was not raised in the trial court. He referred to S.241 of the 1999 Constitution contending the provision allows a party to appeal against a decision but that when there is no decision then no appeal. He referred to Exhibit B in the counter affidavit with particular reference to paragraph 3 where the Applicant admitted he was served with an order Nisi.
He urged this Court to ignore issue of non service. He also referred to Union Bank of Nigeria Plc. v. NDACE (1998) 2 NWLR (Pt. 541) page 331 at page 336 and Bucknor v. Kehinde (2007) 1 NWLR (Pt 1016) page 582. It is his contention that the Applicant is bound by the conduct of counsel. He cited Ikeanyi v. ACB Ltd. (1991) 7 NWLR (Pt 205) page 626 at page 634. He further argued that once an order Nisi has been made absolute it is not appealable, it is duty of the garnishee to pay the judgment sum to the Judgment creditor even if new argument or evidence is presented. He cited Union Bank of Nigeria Plc. v. Bonney Marcus Industry Ltd (2005) 13 NWLR (Pt 943) page 654 page 666. He urged the Court to dismiss the application.
In reply on point of law learned Counsel Mr. S. Demuren submits that cooperate body cannot waive his right to personal service. It is his submission that issue of Jurisdiction need not first be raised at the lower court and that the issue of Jurisdiction does not require leave of court to file appeal. It is his submission that the mistakes of counsel cannot be taken against his Client. The Applicant in the Court below was a garnishee in a garnishee proceeding commenced by the 1st Respondent after he obtained Judgment against the 2nd Respondent. The Applicant did not file affidavit to show cause at the time order absolute was made. Applicant by Motion on Notice dated 19th January, 2007 filed 19th January, 2007 sought an order setting aside the garnishee Order absolute made on 11th December, 2006 attaching the funds of the Judgment debtor maintained with the garnishee. A cheque of N36, 185, 60k issued to the Chief Registrar Federal High Court for the benefit of the 1st Respondent being in the judgment debtors account with the Applicant was returned because the 1st Respondent rejected same. Upon further briefing by the Applicant by their client they discovered the order Nisi was irregularly served and hence the application for extension of time to appeal. I have carefully considered the copious affidavits and counter affidavit evidence before the court and the submissions of the learned counsel, the present application turns on the interpretation and application of Order 7 Rule 10(2) of the Court of Appeal Rules 2007. This is the applicable provision for extension of time in this court within which to appeal out of time. Order 7 Rule 10 (2) stipulates as follow:
“2. Every application for an enlargement of time within which to appeal, shall be supported by an affidavit selling 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”.
This Rule 10(2) provides for two conjunctive conditions that must be satisfied before this court will exercise its discretion in favour of grant of the application.
These conditions are:-
(1) Good and substantial reasons
(2) The ground of appeal prima-facie show good cause why the appeal should be heard.
These two conditions are conjunctive not disjunctive. See I.B.N. Ltd. V. Att. General Rivers State (2008) All FWLR (Pt. 417) SC 1. See also Mobil Oil (Nig.) Ltd. v. Chief Agadaigho (1988) 1 NSCC 777 at 784-785. Thus the Applicant must satisfy the Court to exercise discretion in his favour, it is for this reason that the
must be supported by an affidavit which must give sufficient reasons to explain the delay for failing to file within the statutory prescribed period. See C.B.N. v. Ahmed (2001) 11 NWLR (Pt. 724) SC 369. University of Lagos v. Olaniyan (1985) 1 NWLR (Pt 1) 156.
In considering an application for extension of time within which to appeal the length of delay in bringing the application is usually immaterial so long as a substantial reason justifying the delay is proffered and a satisfaction of the second condition by showing that the grounds of appeal discloses an arguable issue. Therefore, it is not necessary at this stage to prove that at the hearing of the appeal the issue will succeed, See Yesufu v. Co-operative Bank Ltd, (1989) 3 NWLR (Pt. 110) 483 at 496.
Grounds of appeal provide the mirror through which the Court takes a peep at the appeal, not to determine the strength of the appeal but to provide useful information on the trend of the appeal. This is why good reason must be disclosed for the hearing of the appeal not that the appeal will succeed. All the court should he concerned with is the strength of the grounds of appeal and not the success.
The Supreme Court restating some of the guiding principles in the determination of applications of this nature in I.B.N. Ltd. v. Att. Gen., Rivers State Supra, Per Tabai J.S.C. in pages 17 – 19 held:
“a. For the court’s exercise of its discretion to grant the extension of time within which to appeal the two conditions circumscribed by Order 3, rule 4(2) by the Court of Appeal Rules must be satisfied conjunctively and not disjunctively.
b. The length of time that has elapsed between the dates of the judgment sought to be appealed against and the filling of the application is always a material factor in the decisions of whether or not to grant the extension. It is however settled that (he length of time notwithstanding the extension can still be granted if the delay is satisfactorily explained.
c. In view of the settled principle of law that a litigant should not be punished for the mistake or inadvertence of his counsel, an application for extension of lime to appeal ought to be granted if it is satisfactorily established that the failure to appeal within the period prescribed by law was due to the true and genuine mistake or error of judgment of counsel.
The court must be satisfied that the excuse is availing, having regard to the facts and circumstances of the case. Iroegbu v. Okwordu (1990) 6 NWLR (Pt. 159) 634 is very instructive on the point. Where it appears to the court that the delay was occasioned by the genuine mistake of counsel, it will be up to the respondent to show in what respect he would be prejudiced if the indulgence sought is granted.
d. An Applicant for extension of time within which to appeal must show that he has arguable grounds of appeal and not a frivolous appeal. Although he is not expected to show that the appeal will succeed, he will nevertheless exhibit good grounds showing reasonable prospects of success in the appeal.
c. In determining application for extension of time within which to appeal, each case has to be decided on its own peculiar facts and circumstances. The corollary of this is that the facts to be taken into consideration are in-exhaustive.”
What then was the reason given by the Applicant for the inability or failure to appeal within time? Learned counsel to the Applicant relied in particular on paragraphs 10 to 14 of the affidavit in support and the first further affidavit.
I will reproduce the averments in paragraphs 10 to 14 for ease of understanding:
“10. That Mr. Russell Adewale, a Solicitor in the chambers was assigned to file the Notice of Appeal and ensure service on the Respondents.
- That the said Mr. Adewale gave everybody in the Chambers the impression that all was well with his assignment even after I asked him about the position of this matter.
- That the said Mr. Adewale had not shown up in the office since the end of February, 2007 because of strange illness that befell him and he has since been taken to his home town for treatment.
- That it was only on the 13th March, 2007 when I was directed to take over his schedule that r discovered that the prepared Notice of Appeal had not been filed and that the statutory period limited for the Applicant to file its Notice of Appeal has since elapsed on 10th March, 2007.
- That the delay by the Applicant to file its Notice of Appeal was due to the mistake of counsel particularly his ill-health which I reasonably believe is an act of God.”
The sole reason proffered from the averments in the above paragraphs is that Mr. Russell Adewale, a solicitor in the chambers of the learned counsel to the Applicant gave other members in the same chambers the impression he had done his assignment but he did not as he became ill and was taken to his home town for treatment. That the delay was due to mistake of counsel. The learned counsel Russell Adewale in his first further affidavit admitted he was assigned to file the Notice of Appeal at the Registry of the Honourable Court of Appeal on 23 February, 2007 but by the time he got to the Registry it was too late to file and on a Friday, he decided to file the following Monday being 26 February, 2007 but he took ill over the weekend. He was very bad on Sunday of 25 February, 2007 that he was not conscious of what happened to him, he was eventually moved to the traditional clinic at Ijebu Ode where he remained for almost three weeks.
The 1st Respondent in their three counter affidavits set out the intervening applications made by the Applicant after the order absolute was made on 11 December, 2006 and averred Applicant ought to have appealed against the order absolute between 11 December, 2006 and 11 March, 2007 the prescribed period but he did not but waited until the cheque of N36,000.00 issued by the Applicant purporting to be in compliance with the order absolute was rejected at that point, Applicant then decided to appeal and that the alleged issue of ill health of Russell Adewale is raised as a face saving device since he would not have filed the appeal if steps taken by it to frustrate compliance with the order absolute was successful from the uncontradicted averments in the counter affidavit of 1st Respondent filed 26 June, 2007. In particular paragraphs 15, 16, 17, the Applicants reasons why the Notice of Appeal was not filled within the prescribed period is not convincing. In paragraph 12 of the affidavit in support, it is obvious Mr. Adewale is not the only counsel in the chambers if he took very ill as alleged on the 25 of February, 2007 and did not know himself, when exactly did he know himself, this fact is not disclosed. It is not imperative that at any lime a counsel fails to take a step in a proceeding the Court will request for medical certificate. I disagree with submission of Applicant counsel. However, the onus is on the learned counsel representing the Applicant to show from his conduct prior to his claim of ill health that there is no evidence of bad faith or lack of due diligence on his part that will prompt a disbelieve of his ill health and hold it is farce.
Generally, it is not right to visit a party with punishment arising out of the mistake or inadvertence of his counsel. See CRN v. Ahmed (2001) 11 NWLR (Pt. 724) SC 369. Nevertheless the actions of the learned counsel once conducted on behalf of his client in a civil case where there is implied absolute discretion on such counsel any conduct will bind the client. See Ikeanyi v. ACB Ltd. (1991) 7 NWLR (Pt. 205) CA 626.
In the instance case the Applicants counsel in the Court below filled an application to discharge the order absolute. This application was determined as deduced from the uncontradicted depositions in the counter affidavit of 1st Respondent in particular paragraph 4 of the said counter affidavit. When application to set aside was not granted he should have appealed at that stage if dissatisfied with the order he did not exercise that right he waited until the cheque issued to the chief registrar was returned he then proceeded again to file an application by motion on notice for stay of execution of the garnishee order absolute on 9th March, 2007. When the application was dismissed on 27th March, 2007 the Applicant again did nothing, he waited till 22nd May, 2007 to approach the court for extension of time to appeal against the order absolute. What was he doing between 27th March, 2007 to 22nd May, 2007 when he approached the court? The length of time though outside prescribed period was not explained to sure good faith and seriousness to appeal. All the facts in respect of the applications made by the Applicant in the lower court within the period he should have appealed against the order absolute was not disclosed by the Applicant in his affidavit rather the facts were averred to in opposition to the application. These facts are material as regards to what transpired in the lower court within the prescribed period within which to appeal against the order absolute which by its nature is a final decision. This non disclosure on the affidavit of the applicant is a fundamental defect. This is founded on the specific provision under order 7 rules 10(2) of the rules of this court (supra) which enjoins the Applicant to support his application with an affidavit setting forth good and substantial reasons for failure to appeal within the time. It is indisputable the period learned counsel averred he was sick was still within the prescribed period but then the deponent in the first Respondent further counter affidavit in paragraph 6 averred that the applicant filed a motion for stay of execution on 9th March, 2007. As at 9th March, 2007 the learned counsel that deposed to the affidavit had not taken over the case as she averred it was only on 13th March, 2007 that she discovered the prepared notice of appeal was and took over. Furthermore Russell Adewale averred that from 25th February, 2007 he was away for three weeks on ground of ill health. What then happened? Who then filled the motion for stay of execution on 9th March, 2007? The Deponent in the 1st Respondent further counter affidavit gave detailed facts which remained uncontradicted by the Applicant. In the absence of any averment challenging neither same nor documentary evidence to contradict same I am inclined to deem the facts therein as correct and admitted. The applicant has failed to satisfactorily explain that the failure to appeal within the period prescribed by law was due to genuine reason of ill health. The facts and circumstance in this case is very instructive. The applicant sole reason in his affidavit in support is that the counsel handling the matter was ill from the 25th February, 2007. He failed to disclose steps taken before then. I am inclined to believe the reasons of ill health is an after thought even when learned counsel Mr. Adewale was said to be ill the affidavit evidence is that a motion on notice to stay execution was filed on behalf of applicant but ironically not to file the appeal. The reason is unsatisfactory the circumstances that lead to this application qualify the reason of ill health as an after thought. Therefore there is no good reason.
In respect of the second condition which Applicant must satisfy that is to show he has arguable grounds of appeal and not a frivolous appeal. The Deponent in the affidavit in support of the application deposed in paragraph 17 that the Notice of Appeal prima-facie shows a good cause why appeal should be heard particularly on the jurisdiction of the Court to grant the order absolute. In paragraphs 4 to 9 of the affidavit in support, Deponent averred that the Applicant was not properly served the order Nisi and therefore that it affects the Jurisdiction of the court. The duty of the Court in the consideration of the ground of appeal proposed by an Applicant to support on application for leave to appeal is limited to whether the ground of appeal are substantial and reveal arguable ground. The argument of the learned counsel for the Applicant is premised on lack of proper service. The issue of service touches on competency of the Court. Exhibit C to the affidavit in support is the proceedings of 11th December, 2006 of the Court below whence in the Learned Trial Judge held: “On record, the First City Monument Bank was served with the order Nisi on 23rd November, 2003.”
This is the basis of the proposed Notice of Appeal. I have gone through the Motion on Notice for discharge of order absolute exhibited as Exhibit B in the counter affidavit of any Respondent with particular reference 10 paragraphs 9 and 10 wherein Applicant the learned counsel for the Applicant Adewale Russell deposed as follows:
“(9) that the default of appearance in Court on 11th December, 2006 was not deliberate or due to any disrespect to this Honourable Court”. In paragraph 10 said “After the granting of the garnishee order absolute on 11th November, 2006 the case had come up twice on 9th January, 2007 and 15th January, 2007 and the Applicant was represented in Court on each occasion by Mr. Imowo Robert.”
In the foregoing deposition from the reason given for seeking a set aside the order is not on grounds of non service or proper service. The only main reason rather proffered is that Applicant was not represented on the 11th December, 2006. In fact on paragraph 3 of the same affidavit deponent admitted that the garnishee order Nisi on 23 November, 2006 was served on them. This facts averred too by the present Applicant which was not denied by same Applicant shows clearly that the Applicant’s reason now on issue of service lacks credibility and very unreasonable. The fact that issue of proper service is fundamental in competency must always be raised at the earliest opportunity. The Applicant proceeded to participate in the Court below filling various processes after the order absolute was made. He did not deem it necessary to raise the issue until his cheque was rejected. Suddenly he decided to employ delay in complying with the order absolute. This act must never be allowed by the Courts.
Therefore, where preceding facts reflect the constitutional right of appeal sought to be enforced is a guise to delay Justice, same will not be allowed. The complaint is that the Learned Trial Judge in her decision failed to ensure service of the order Nisi was done in accordance with the practice and procedure prescribed by law. This Ground is not reflected in any of the proceedings at the court below. It is the submission of the learned counsel to the Respondent Mr. Abang that there was no decision by the Learned Trial Judge on the issue of service of the order Nisi. The record of proceedings reflects that the Learned Trial Judge pronounced on the issue of service on 11th December, 2006. I refer to Exhibit A to the affidavit. The Applicant did not aver they were not served but that it was not proper service. He should at that stage have insisted on proper service, Notwithstanding Applicant participated and filed processes after the order absolute and admitting in affidavit he was put on notice. It is trite the issue of Jurisdiction is fundamental and can be raised at any stage of the proceeding including on appeal. See Ishola v. Ajiboye (2004) 6 NWLR (Pt. 352) 589 and MGF Nig. Ltd. v. GWUS International Ltd. (2001) 9 NWLR (Pt. 718) CA 413.
In the instance case, a ground of appeal on basis of lack of service cannot be frivolous. It is fundamental since it bothers on competency and Jurisdiction of court but when it is on issue of proper service not that there was no service, same should be raised timously or presumed waived. In respect of proper service there is notice of the matter served but issue in the contest is whether it was proper. Clearly lack of service is different from protest on proper service. I must not fail to observe that the state of affairs in the court below preceding the present application reflects the calculated device by way of various applications by the Applicant to delay the compliance with the order absolute. The Applicant should have challenged the issue of service on appeal when application to set aside the order was refused he did not. This lack of promptness reflects delay tactics. The three grounds bother on issue of proper service and Jurisdiction. Learned counsel for the Applicant rightly submitted that the issue of service cannot be waived. However, the Applicant may have a reasonable ground of appeal anchored on Jurisdiction but if he has since failed to show in his affidavit reasons which are satisfactory, favourable and acceptable. Why application was not filed within prescribed time he will not succeed. The two preconditions must co-exist for this court to exercise discretion in favour of grant. I have not been given substantial reasons to support the first condition.
On the whole I am of the firm view that the Applicant has failed to make out a case which will invoke the courts exercise of its discretion in his favour.
Consequently I hold this application lacks merit and is accordingly dismissed.
The Applicant shall pay to the Respondent Twenty Thousand Naira (N20,000.00) as cost.
Other Citations: (2008)LCN/2905(CA)
