Minaj Systems Limited V. Global Plus Communication & Ors (2010)
LawGlobal-Hub Lead Judgment Report
HUSSEIN MUKHTAR, J.C.A.
The applicant has applied by a motion on notice for the following reliefs:
1)An order for extension of time in which to apply for leave to appeal against the ruling delivered by the Hon Justice Onigbanjo in the High Court of Lagos State on 10th March, 2009.
2) An order for leave to appeal against the ruling of the High Court of Lagos State delivered by the Hon Justice Onigbanjo on 10th March, 2009.
3) An order for extension of time in which to appeal against the ruling of the High Court of Lagos State delivered by the Hon Justice Onigbanjo in the High Court of Lagos State on 10th March, 2009.
4) An order deeming as properly filed and served the Notice of appeal filed herein.
5) An order of injunction restraining the respondents from continuing or howsoever proceeding with the arbitration proceedings further to the decision of the lower court referring the matter to arbitration, pending the hearing and determination of this appeal.
OR IN ALTERNATIVE
G) An order staying execution of the order of Honourable Justice S. A. Onigbanjo dated 10th March, 2009 pending the determination of the appeal.
7) And such further order(s) as this Honourable Court may deem fit to make in the circumstances of this suit.
GROUNDS FOR THE RELIEFS SOUGHT
a) The applicants application for leave to appeal filed at the court below could not be heard within the prescribed time of 14 days.
b) The decision sought to be appealed against is interlocutory and involves issues of mixed law and facts.
c) The appeal challenges the competence of the orders made by the lower court referring the matter to arbitration and directing parties to appoint an arbitrator within 7 days.
The motion is supported by a twenty one-paragraph affidavit dated and filed 7th April, 2009. The relevant averments stating the reasons for the delay in seeking extension of time to seek leave to appeal are contained in paragraphs 8 to 16, which are reproduced as follows:
8) “On 10th day of March, 2009, the honourable Justice S. A. Onigbanjo of the Lagos State High Court delivered a ruling granting the order of stay of proceedings pending arbitration. The court further directed parties to agree to an arbitrator within 7 days of the order, notwithstanding the notice of arbitration that prescribed 30 days. A certified true copy of the ruling sought to be appealed against is herewith attached and marked as Exhibit M6.
9) The court also directed parties to return on 23rd of April, 2009 to report on the conduct of the arbitration, thereby keeping proceedings alive at the lower court.
10) Bearing in mind that only 14 days is limited for an appeal of this nature; the applicant promptly filed an application dated 12th of March, 2009 seeking leave of the lower court to appeal against the said ruling on grounds of mixed law and facts. The applicant also applied for stay of proceedings pending appeal. Copies of the processes filed are herewith attached and marked as Exhibit M7.
11) The appellant’s application for leave came up for hearing on 18th of March, 2009 however, this could not be taken because the 1st- 3rd defendants stated that they were not aware of the date fixed for hearing. The court adjourned the matter to 24th of March, 2009, given the defendants 7 days to file responses to the application as per the rules of the Lagos State High Court.
12) On 23rd of March, 2009, the 1st respondent served on the applicant a notice of preliminary object opposing the hearing of the application for leave. On 24th of March, 2009, the 4th – 6th respondents also served an amended written address on the applicant to a preliminary objection in opposition to the application for leave to appeal.
13) In order to meet the 14 days time line, the applicant expressed interest to proceed with argument on the application for leave, without need for further filings. However, the respondents argued that the preliminary objections be taken first, and that they intend to file replies to any response to be filed by the applicant. The applicant yet again informed the court of the peculiar nature of the application and the proposed appeal which is to be filed within 14 days, ending on the 25th of March, 2009.
14) The matter was then adjourned to 30th of March, 2009 for hearing of the preliminary objections filed by the respondents which is about 18 days after the ruling sought to be appealed against.
15) As a result of facts stated in paragraphs 11 and 12 above, the 14 days within which the applicant is to seek leave and file its appeal has now lapsed, thereby making the application for extension of time within which to seek leave in this court necessary.
16) On 30th of March, 2009, the applicant withdrew the application for leave dated l2th of March, 2009 having been overtaken by events.”
The applicant had asked the court below to grant it leave to appeal against its interlocutory decision made on 10th March, 2009 staying proceedings in the suit for a period of thirty (30) days and further directing the parties to agree on a single arbitrator within seven (7) days. The learned trial Judge stated, in his ruling, thus:
“In all, this application partially succeeds, proceedings in this suit are hereby stayed in the interim for a period of thirty (30) days only pending arbitration between the parties to exhibit GPC 1 herein. The said parties are directed to agree on a single arbitrator within seven (7) days hereof.”
The applicant sought for leave of the lower court to appeal against the above pronouncement by filing a motion on notice promptly on the 12th March, 2009 that was within 48 hours after the ruling (para. 10 of the supporting affidavit). The application was fixed for hearing on the 18th March, 2009. It was however adjourned to 24th March, 2009 at the instance of the 1st to 3rd defendants who were not aware of the hearing date. A day earlier, on the 23rd March, 2009, the 1st respondent filed and served a notice of preliminary objection to the application for leave to appeal. That development notwithstanding, the applicant still conceded to taking both the preliminary objection and the motion for leave on the 24th March, 2009 to beat the time frame of two weeks, ending on 25th March, 2009, within which the notice of interlocutory appeal must be filed.
The court below, however, further adjourned for hearing of the preliminary objection to the 30th March, 2009, when the time for filing the notice of appeal had already expired, which necessitated the instant application for extension of time to seek leave to appeal and extension of time to file notice of appeal.
By paragraph 21 of its counter affidavit of 43 paragraphs, the 1st respondent averred that the applicant’s motion for leave and extension of time dated 12th march, 2009 was withdrawn by the applicant based on the notice of preliminary objection but failed to state when it was withdrawn.
The 2nd and 3rd respondents made no depositions in respect of the motion for extension of time, but rather made much ado on the merits of the case and the prayer for stay of execution.
The 4th to 6th respondents deposed in paragraph 3 (q) of their counter affidavit that, the applicant failed to diligently persue its application but did not state any particular date on which the applicant had an opportunity to move it but failed to so do. Those depositions have not therefore properly traversed the averments in paragraphs 10 to 15 of the applicant’s supporting affidavit, which are well detailed and articulated with specific dates of filing, fixtures and adjournments. These facts have not been specifically and unequivocally denied or in any way traversed. They are therefore deemed to be admitted by the respondents and accordingly established.
The applicant has, by the averments in the said paragraphs 10 to 15 of the supporting affidavit shown good and substantial reasons for extension of time to seek leave to appeal and to file its notice of appeal. The first of the twin conditions is therefore satisfied.
The twin conditions under order 7 rule 10 (2) must both be satisfied to qualify an applicant for entitlement to the discretionary powers of the court to grant an extension of time that will pave way to the applicant to file its notice of appeal.
The twin conditions under order 7 rule 10 (2) of the Court of Appeal Rules 2007 must both be satisfied in every application seeking for enlargement of time within which to appeal. These two mandatory conditions are:
a) Affidavit evidence setting forth good and substantial reasons for failing to appeal within the prescribed time; and
b) Grounds of appeal showing prima facie good cause why the appeal should be heard.
At the risk of repetition it is deemed pertinent to reproduce the two grounds of appeal less their particulars as follows:
- “The learned judge erred in law when he granted the 1st respondent’s application for stay of proceedings pending arbitration when there is clear evidence that the matter is not arbitral in the light of the elements of fraud committed by the respondents, and thereby came to a wrong conclusion.
- The learned trial judge misdirected himself when he directed the parties to agree to an arbitrator within 7 days, thereby initiating the arbitral process contrary to the provisions of the Arbitration and Conciliation Act, and thereby came to a wrong conclusion.”
These two grounds are self-rioting. While the first ground alleges that ‘the matter is not arbitral’, the second one challenges the period of 7 days instead of 30 within which the parties had to appoint an arbitrator. Although the applicant ably explained the delay in seeking for leave to appeal and to file the notice of appeal, the two grounds of appeal, which are materially inconsistent, have not shown good cause why the appeal must be heard. Consequently the applicant has failed to establish the second mandatory condition thereby rendering the first one inconsequential since both conditions must be satisfied to entitle the applicant to extension of time.
It is pertinent that an application for extension of time to appeal is not granted as a matter of course but upon due fulfillment of the two mandatory preconditions under Order 7 Rule 10 (2), which require affidavit evidence showing good and substantial reasons for the delay, and also grounds of appeal showing good cause why the appeal should be heard. Having failed to satisfy one of these two mandatory preconditions, the first leg of the application consisting of prayers 1 to 4 is reduced to an unmeritorious status and therefore fails.
The second leg of the application consisting of prayers 5 and 6 seeking for injunction or alternatively stay of execution is dependant on the first one that has failed. The said prayers 5 and 6 are therefore reduced to a complete insignificance since there can be no stay of execution or injunction without a valid pending appeals. Without much ado that leg of the application is also unmeritorious and deserves nothing less than an outright dismissal. On the whole the application is bereft of merit and therefore fails. It is accordingly hereby dismissed.
There shall be cost in favour of each set of the respondents assessed at Ten Thousand Naira (N10,000. 00) against the applicant.
Other Citations: (2010)LCN/3541(CA)
