Savannah Bank Of Nig. PLC V. Central Bank Of Nigeria & Anor. (2007)
LawGlobal-Hub Lead Judgment Report
BODE RHODES-VIVOUR, J.C.A.
By a motion on notice filed on the 11th of May 2006, and brought under Order 3 rule 4(1) and (2) of the Court of Appeal Rules, 2002 and under the inherent jurisdiction of this court, the applicant, namely, Savannah Bank of Nigeria Plc is praying for the following orders:
“1. An Order of extension of time within which the applicant may apply for leave to appeal against the ruling of the Federal High Court, Abuja in suit No. FHC/ABJ/CS/31/2002 delivered on the 10th of February, 2005 by S. J. Adah, J.
- An Order granting leave to the applicant to appeal against the ruling of the Federal High Court, Abuja, in suit No. FHC/ABJ/CS/31/2002 delivered on the 10th of February, 2005 by S. J. Adah, J.
- An Order extending time within which the applicant can file notice and grounds of appeal against the ruling of the Federal High Court, Abuja, in suit No. FHC/ABJ/CS/31/2002 delivered on the 10th of February, 2005 by S. J. Adah, J.
Such further order/s that the Honourable Court may deem fit to grant in the circumstances.
In support of the application is a 4 paragraph affidavit deposed to by Mohammed Abubakar, the litigation officer in the Law Firm of J. K. Gadzama, SAN and partners, learned counsel to the applicant.
Annexed to the affidavit are the following documents referred to as follows:
(i) Exhibit A – Copy of courts ruling of 10/2/2005
(ii) Exhibit B – Notice and grounds of appeal.
(iii) Exhibit C – Proposed notice of appeal.
Abimbola S. Omotosho, Esq., a legal practitioner in the Law Firm of Messers. Abdullahi Ibrahim & Co. deposed to a 6 paragraph counter affidavit on behalf of the 151 respondent. No counter affidavit was filed on behalf of the 2nd respondent.
It is important I state at this stage why applicant filed this application. The applicant’s licence to operate as a Bank was withdrawn by the 1st respondent, the regulatory body for Banks in Nigeria. Aggrieved the applicant sued the respondents. The suit came before Hon. Justice S. J. Adah of the Federal High Court, Abuja Division.
On 10/2/05 the applicant/plaintiff was unable to proceed with the case because his witnesses/documents were not in court and not available. Learned counsel for the applicant/plaintiff’s application for an adjournment was refused by the learned trial Judge who closed the case and called on the respondents/defendants to open their defence.
Dissatisfied with the Order of S. J. Adah, J. closing its case the applicant appealed to this court against His Lordship’s orders made on 10/2/05. Realising that he ought to have obtained leave before he could appeal, he withdrew the appeal, and it was struck out by this court on 27/2/06. The applicant then filed an application for extension of time to seek leave to appeal without including a prayer for extension of time to appeal. The application was also abandoned. Going from one blunder to another learned counsel for the applicant filed this application one year and three months after the ruling complained against was delivered.
This application was filed because the applicant realized that he ought to have obtained leave before he could file an appeal since the grounds of appeal were all of fact or mixed law and fact.
At the hearing of the application on 17/10/06 learned counsel for the applicant, Chief J. K. Gadzama, SAN submitted that to succeed, all he needs to do is to depose to an affidavit showing:
(i) good and substantial reasons for failing to appeal within time; and
(ii) that the purported notice and grounds of appeal are arguable.
Relying on Harlow v. Modibbo (2004) 16 NWLR (Pt. 900) p. 487; Re: Opekun (2004) 6 NWLR (Pt. 870) p.576.
He observed that the affidavit in support and annexures satisfies both of the above, and urged us to grant the application.
Opposing the application learned counsel for the 1st respondent Mrs. O. O. Soyebo argued that both conditions referred to by learned counsel for the applicant must co-exist. Relying on: Oforgu v. Allanah (2000) 2 NWLR (Pt. 644) p. 243; Ibrahim v. Gbaa (1996) 8 NWLR (Pt.467) p. 497.
She observed that the applicant is unable to show why they failed to appeal within time.
Learned counsel further observed that the grounds of appeal are not arguable since the applicant was responsible for most of the adjournments before the trial court. She urged us to dismiss the application with costs.
Also opposing the application learned counsel for the 2nd respondent, Mr. O. Jolaawo adopted the arguments of Mrs. O. O. Soyebo and observed that the application is incompetent.
He argued that since Appeal No. CA/A/15/M/06 was withdrawn and struck out on 27/2/06 it cannot be brought back again in view of the fact that an appeal withdrawn is deemed dismissed. Reliance was placed on Order 3 rule 18 of the Court of Appeal, Rules, 2002; Y.S.G. Motors v. Okonkwo (2002) 16 NWLR (Pt. 794) p. 536; Government of Anambra State v. ASCSN (2003) 1 NWLR (Pt. 800) p. 83. He urged us to dismiss the application.
Replying, learned counsel for the applicant argued that the length of time, delay is immaterial provided there are good reasons for it. Reference was made to Ogundimu v. Kasumu (2006) 8 MJSC p.19.
He observed that since there was no appeal, it was not a formal appeal that was withdrawn and that striking out an appeal gives the party liberty to come back. He once again urged us to grant the application.
The facts earlier alluded to are not in dispute. The learned trial Judge closed the plaintiff/applicant’s case on 10/2/05. The plaintiff/applicant ought to have obtained leave and filed an interlocutory appeal within 14 days after 10/2/05. He did not do so, rather he filed incompetent processes which he later abandoned. It was not until 11/5/06 that he filed an application worth considering, and that is this application.
Where time for appeal has elapsed as in the case here the High Court ceases to have jurisdiction to grant extension of time to apply for leave or leave to appeal against its ruling. It is the Court of Appeal that is competent to extend time to apply for leave to appeal.
It is an incurable irregularity to appeal out of time without taking steps to have the time within which to file the appeal extended. See The Reg. Trustees of C.A.C v. Uffiem (1998) 10 NWLR (Pt.569) p.312; Adeyemi v. Y.R.S. Ike Oluwa Ltd. & 5 Ors. (1993) 8 NWLR (Pt.309) p. 27.
This court can exercise its discretion to enlarge time to appeal only if the applicant files a competent application seeking the following prayers:
(a) extension of time within which to apply for leave to appeal;
(b) leave to appeal;
(c) extension of time to appeal.
The above is a competent application. It is usually referred to as the tripod prayers. The affidavit in support must contain detailed explanations reasonable enough to explain the delay.
All too often these days counsel omits (c) above in his application, as was the case in the earlier application that was abandoned. An application where (c) is omitted is fundamentally defective. This is so because time within which to appeal is fixed at 14 days by section 25(2) of the Court of Appeal Act, 1976. 14 days start to run from the date of the interlocutory decision. Section 25(4) supra gives the court the power to extend time in deserving cases, and this power can only be exercised where there is a substantive prayer for extension of time to appeal on the motion paper.
In this case learned counsel for the applicant filed a competent application. The tripod prayers earlier alluded to are on the face of his motion paper. This court must in the circumstances consider the application.
I earlier on said that under section 25(4) of the Court of Appeal Act, 1976 the Court of Appeal has power to extend time to appeal. There is also similar power under Order 3 rule 4(1) and (2) of the Court of Appeal Rules, 2002 to enlarge the time to appeal for doing anything to which the rules apply.
An application for extension of time to appeal is entirely at the discretion of the Judge who hears the application. See G.B.A. Akinyede v. The Appraiser (1971) All NLR p. 162.
In order to succeed under Order 3 rule 4(2) supra two conditions must co-exist. They are:
(a) Good and substantial reasons for the failure to appeal within the period prescribed by the appropriate rule of court; and
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard. See Bowaje v. Adediwura (1976) 6 SC p. 143; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) p. 143; Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 2 NWLR (Pt. 77) p. 383; UBN (Nig.) Plc v. Ndace (1998) 3 NWLR (Pt.541) p. 331; University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) p. 156.
The affidavit in support must show something which entitles him to the exercise of the court’s discretion in his favour, e.g. inadvertence of counsel, lack of means. Once the delay is explained the length of the delay is immaterial. See – Adegoke Alagbe v. H.M. Samuel Abimbola & Ors. (1978) 2 SC p. 39; Isiaka v. Ogundimu (2006) 13 NWLR (Pt. 997) 401.
As regards (b) all the applicant needs to show is that the grounds of appeal disclose arguable issues and not that the issue will succeed. See Kotoye v. Saraki (1995) 5 NWLR (Pt. 395) p. 256; Lapade Apataku v. Idowu Alabi (1985) 2 SC p. 329; Ibodo v. Enarofia (1980) 5-7 SC p. 42.
By saying that (a) and (b) must co-exist it means that they must be interpreted conjunctively and not disjunctively. See – Unipetrol (Nig.) Plc v. Bukar (1995) 5 NWLR (Pt. 344) p. 360; Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 NWLR (Pt. 387) p. 20; Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) p. 527.
That is to say the two conditions must be satisfied together at the same time. If one fails the entire application fails.
For the events that took place, and which eventually led to the filing of this application I must refer to the affidavit in support of the application, deposed to by Mohammed Abubakar, the Litigation officer in the Law Firm of learned counsel for the applicant. It reads as follows:
“3. That I am informed by R. O. Yusuf, Esq., of counsel on the 10th day of May, 2006 in our said office at about 10a.m. and I verily believe him to be true as follows:
(a) That on 10/2/05 the applicant as the plaintiff before the lower court applied for adjournment to enable it call its remaining witnesses.
(b) That the lower court in its ruling of that date refused the application for adjournment and closed the applicant’s case. Attached herewith and marked exh. A is a copy of the lower court’s ruling of 10/2/05.
(c) That being dissatisfied with the ruling of the lower court, the applicant appealed to this Honourable Court against the ruling of the Federal High Court on 23/2/05. Attached is a copy of the notice and grounds of appeal filed on the said date and marked exh. B.
(d) That it was later discovered that the said appeal was incompetent as neither the leave of this Honourable Court nor that of the lower court was sought and obtained before the appeal was filed.
(e) That the applicant filed a notice of withdrawal of the appeal and consequently same was struck out by this Honourable Court on 27/2/06.
(f) That the applicant then filed an application for extension of time within which to seek leave to appeal against the ruling of the lower court before this Honourable Court on 24/1/06.
(g) That on the 8th day of May, 2006 when the said application came up before this Honourable Court for hearing, counsel to the respondents objected to same on the ground that prayer number 3 of the said motion was not properly couched as it did not include a prayer for leave to extend time within which to file notice of appeal against the ruling of the lower court.
(h) That the error in the manner the application was couched was that of Mr. R. O. Yusuf the counsel that prepared the motion.
(i) That the reason for the failure of the applicant to file its application for leave to appeal against the ruling of the lower court within time was due to mistake of counsel who did not advert his mind to the need to seek the leave of this Honourable Court or the lower court before filing the appeal.
(j) That the applicant is desirous of appealing against the ruling of the lower court and attached herewith and marked exh. C is the proposed notice of appeal for which leave is being sought.”
Paragraph 4(c) of the counter-affidavit is very relevant. It states:
“4(c) That the applicant has been aware of the fact that it needed leave of court to appeal against the ruling of the trial court delivered on 10/2/05 since 11/3/05 when its application for stay of proceedings of the substantive case before the trial court was heard and refused by the trial court.”
The applicant did not file a reply affidavit or further and better affidavit to controvert the contents of paragraph 4(c) of the counter affidavit above.
The position of the law is that where no reply affidavit is filed to debunk material facts in a counter affidavit the facts in the counter affidavit are deemed admitted and conceded by the applicant. See – Jumbo Nwanganga v. M.G. Imo State (1987) 3 NWLR (Pt. 59) p.193.
The fact that the applicant knew that he needed leave to appeal as far back as 11/3/05 is clearly established since that fact has not been denied or controverted.
I shall now examine his grounds of appeal to see whether prima facie the appeal is arguable, that is to say whether they show good cause why the appeal should be heard. There are four grounds of appeal. I have examined them and they all complain of the refusal by the learned trial Judge to grant adjournment.
It is well settled that an adjournment is granted at the discretion of the trial Judge and the Court of Appeal would only interfere if it was not exercised judicially and judiciously. For example:
(i) if the Court of Appeal is satisfied that it is in the interest of justice to do so;
(ii) if the discretion is known to have been wrongly exercised;
(iii) the exercise was tainted with some illegality or substantial irregularity.
See: Ceekay Traders Ltd. v. Gen. Motors Ltd. (1992) 2 NWLR (Pt.222) p. 132; Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) p. 124; Salu v. Egeibon (1994) 6 NWLR (Pt. 348) p. 27; Anyalz v. A.N.N. Ltd. (1992) 6 NWLR (Pt. 247) p. 319.
Much as the Court of Appeal is always loath to interfere with the discretion of a trial Judge the grounds of appeal are indeed prima facie arguable.
This being an application for extension of time to appeal the applicant is obliged to give compelling reasons for the delay. This is so because the application is all about convincing the court to exercise its discretionary power in its favour. The old adage when no credible excuse is given no indulgence can be granted is very much in focus here.
The applicant has been unable to show why he did not seek leave immediately after 11/3/05, the date he knew he had to seek Leave to appeal.
The grounds of appeal are prima facie arguable but that is not sufficient to enable the court grant the application in view of the fact that to succeed under Order 3 rule 4(2) of the Court of Appeal Rules two conditions (earlier alluded to) must co-exist at the same time.
The application fails because the applicant has failed to give persuasive reasons for the delay thereby failing to comply with the full provisions of Order 3 rule 4(2) of the Court of Appeal Rules.
On a final note, learned counsel for the 2nd respondent was of the view that the appeal withdrawn and struck out on 27/2/06 cannot be brought back again.
On 22/2/06 learned counsel for the applicant as appellant filed before us an application titled,
“Notice of Withdrawal of Appeal Order 3, rule 18(1)” and on 27/2/06 it was withdrawn and struck out by us. The Appeal No. is CA/A/15/M/06.
This application also has the same appeal number.
Order 3 rule 18(5) supra states that an appeal which has been withdrawn under this rule, whether with or without an order of the court shall be deemed to have been dismissed.
My lords a withdrawal under Order 3 rule 18(1) supra has the effect of a dismissal. That is to say, it cannot be revived. Once a case is withdrawn it no longer exists.
In the light of all that I have been saying this application fails and it is dismissed.
I award N5,000 costs each in favour of the respondents.
Other Citations: (2007)LCN/2172(CA)
