Taraku Mills Ltd & Anor V. Sant Engineering Ltd & Anor (2008)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
The Applicants herein are Plaintiffs in Suit No. LD/1719/2004 pending before the High Court of Lagos State. In that suit they claimed against the Respondents the following reliefs: –
“1. The sum or ?844, 191.00 (Eight Hundred and forty’9197four thousand, one hundred and ninety one rounds sterling) from the Defendants Jointly and severally.
- Interest on this sum of ?844, 191.00 at the rate of 21% per annum from November, 2002 until final liquidation of the same.”
However, by a motion on notice dated and filed on the 18th October 2004 at the lower Court, the Defendants before that Court sought for an order setting aside the writ of summons dated 5th October 2004, which was issued against them by the Applicants herein, The grounds upon which that application was filed are set out at page 169 of the record of the appeal as follows: –
“(a) That the defendants reside and carry on business in Taraku Benue State which is out of the jurisdiction of Lagos State High Court.
(b) That the action or the plaintiffs based on contract executed in Makurdi State where the 1st defendant also carries on business. The contract was allegedly performed at Taraku, Benue State. The Lagos State High Court lacks jurisdiction to entertain or to hear and determine the matter.
(c) That the writ of summons is a nullity as it does not have the endorsement required by Section 97 Sheriffs and Civil Process Act.”
This application was heard by Rhodes-vivour J. as he then was and in a reserved and considered ruling which was delivered on the 18th February 2005, same was dismissed. Curiously however, the notice of appeal against this ruling which is dated and filed on the 3rd of March 2005 was filed by the Plaintiffs at the lower Court and not by the Defendants whose application, for an order setting aside the writ of summons, was dismissed. The notice of appeal is at page 193 of the record of appeal.
Because the notice of appeal says, Sant Engineering Limited and Kaj Nigeria Limited are the Appellants, the parties set out in this application before us do not actually reflect the state of the appeal before this Court and that makes the application dated and filed on the 23rd of January 2008 incompetent.
Be that as it may, however, I wish to consider the application aforesaid on the merit, in case I am wrong in my declaring the application incompetent.
The Applicant’s prayer as set out on the face or the motion on notice of 23rd January 2008, read as follows:-
“(i) Extension of time to seek leave to argue the issue that the Defendants/Appellants waived their right to object to any irregularity In the writ;
(ii) An order for extension of time within which to file and serve a Respondent’s Notice to support the judgment of the trial Court on other grounds;
(iii) Deeming the said Respondent’s Notice (already filed and served) as properly filed and served;
(iv) An extension of time within which to file and serve Brief of Argument;
(v) Deeming the Brief (filed separately) as properly filed and served. ”
This motion is supported by a 14 paragraphs affidavit deposed to by Rafiu Babatunde Azeez, a Chief Litigation Officer in Chief Rotimi Williams Chambers. Exhibited to the application are copies of Plaintiff/Respondents/Applicant’s Brief of and notice of Intention to support the judgment of the trial Court on grounds other than those relied on by the Court below. These documents are marked exhibits RBA/1 and RBA/2 respectively.
In reply to the Applicants’ application a counter affidavit of 11 paragraphs was filed on the 18th March 2008.
In arguing the application, Me T. E. Williams, learned senior counsel for the Applicant read out the prayers and submitted that he relied on all the paragraphs or the affidavit. Learned senior counsel then urged the Court to grant the prayers.
Mr. Gabriel Oduafi, learned counsel for the Respondent identified the Respondents’ counter affidavit and relied on all the paragraphs of the affidavit. In a further argument, learned counsel submitted that there are two reasons that have disqualified the Applicants from the exercise of the Court’s discretion in their favour. For the first reason, learned counsel submitted that the Applicants have not shown good and substantial reason why they did not file their notice within (he prescribed period in their supporting affidavit. Learned counsel referred the Court to Order 9 rule 4 which provides for the period within which to file the Respondent’s notice and contends that the notice of appeal herein was served on the Respondents in March 2007.
For the 2nd reason, learned counsel submitted that the Respondent’s notice, which was filed outside the prescribed period, is grossly incompetent and should be struck out. In aid learned counsel cited Trade Bank Plc v. Yisi Nig. Ltd (2006) 1 NWLR (Pt. 960) 101 at 131-132 paragraphs E-B and at H-B.
Finally learned counsel referred to the Issue raised by the learned senior counsel in respect of waiver and submitted that the issue of waiver was never raised by the Court below, as such it is a new issue which cannot be raised in the instant motion, In support learned counsel cited the authority in Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (Pt. 1006) 608 at 703 paragraphs F-H.
In conclusion, learned counsel urged this Court, on the authority of Ibe v. Onuorah (1999) 14 NWLR (Pt. 639) 340 at 347-348 paragraphs H-D to refuse this application.
In his reply on point of law, Mr. Williams attempted to distinguish the authority in Trade Bank Plc v. Yisi (Nig) Ltd (Supra) from the present case. Learned senior counsel then submitted that a fresh issue, which was not raised at the lower Court, can be raised on appeal, In aid learned senior counsel cited the authority in Ajumu Adeoti v. Adewusi (1990) 2 NWLR 271 at 284. Finally learned senior counsel urged this Court to grant the application.
Order 9 Rule 4 of the Court of Appeal Rules 2007 provides that any notice given by a Respondent under this order must be served on the Appellant and on all the parties to the proceedings in the Court below who are directly affected by the contentions of the Respondent and must be served in the case of an appeal against an interlocutory order within fifteen days and in any other case within 30 days, after the service of the notice of appeal on the Respondent.
There is no doubt that the decision of 18th February 2005 against which the appeal herein is filed, is an interlocutory decision. It means therefore any Appellant’s notice had to be filed within 15 days. The Notice of appeal herein was filled on the 3rd of March 2005. The Applicants are aware or the fact that they are out of time and that is why prayers I, II, and IV on the motion paper are seeking for extension of time. The law is settled that an application for extension of time for the doing of anything is not granted as a matter of course. Such a request for extension of time must be accompanied with good and substantial reason why such an act was not done within the prescribed period. The Applicant must convince the Court that the delay was caused through certain circumstances beyond his control. In Isiaka v. Ogundimu (2006) 13 NWLR (Pt. 997) 401, the apex Court said: –
“Rules of Court for doing an act must be obeyed. Therefore, where an applicant fails to do an act within a stipulated period, he must explain away the delay to the satisfaction of the Court. Where he fails to do so, no indulgence would he granted to him,”
The reasons for delay occasioned by the Applicants in bringing their notice are what the Applicants attempted to set up in the following paragraphs of the supporting affidavit as follows:-
“3. Tokunbo Eniola Williams, Esq. SAN informed me and I verify believe that the Appellants’ brief in this matter was served on the Chambers at about the time Joseph Ifeanyi Nweze Esq. of counsel was elevated to the bench.
- The case was mistakenly omitted from the handover notes left by Joseph ifeanyi Nweze Esq. who was directly in charge of the matter herein.
- Shortly after this, Chief F. R. A. Williams fell sick and was flown abroad for medical treatment; Tokunbo Eniola Williams, Esq. who took over the said matter from Joseph Ifeanyi Nweze, Esq. accompanied Chief Williams on the journey abroad.
- It was only recently when our Chambers was served with hearing notice for the Appellants’ motion to set down the matter for hearing on their brief alone that the lapse of the Chambers was discovered.
The deponent to the supporting affidavit, deposed at paragraph 3 that the information contained in the said paragraph was given to him by Tokunbo Eniola Williams, Interestingly, neither the date and time the information was given, nor the place where such information was given stated in the affidavit. Paragraphs 3 and 4 of the said affidavit have accused one Joseph Ifeanyi Nweze, who was in charge of the matter with dereliction of duty by his failure to handover the case when he left the Chambers. The proper thing to do would have been to serve the affidavit on Joseph Ifeanyi Nweze and this was not done.
Section 89 of the Evidence Act states that when a deponents belief derived from information received from another person, the name of such informant shall he stated and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information. See Federal Military Government v. Sani (No. 2) 1989) 4 NWLR (pt. 117) 624; Montubi v. S. C. C. Ltd (1986) 2 NWLR (Pt. 21) 158; Union Bank of Nig. Ltd. V. Ajagu (1990) 1 NWLR (Pt. 126) 328.
In an application for extension of time, it becomes very necessary to state the dates and times when events that caused the delay took place. This is to help the Court determine whether the occurrence of those events took place within or outside the prescribed period. Paragraphs 5 and 6 of the affidavit did not state the date Tokunbo Eniola Williams accompanied Chief Williams out of the country and when the Chambers discovered that the notice had not been filed. Clearly the supporting affidavit has not sufficiently explained why this notice was not filed within the prescribed 15 days period.
Finally, the Applicant has conceded that the Issue of waiver was never raised and considered at the lower court and therefore a new issue. The general rule is that an Appellant will not be allowed to raise on appeal a question, which was not raised, tried or considered before the trial Court unless there exist special or exceptional circumstances. In the instant application no special or exceptional circumstances have been shown by the applicant to warrant the exercise of this Court’s discretion in his favour.
Accordingly the application dated and filed on the 23rd January 2008 shall be and it is hereby dismissed.
The Applicants shall pay to the Respondents Ten Thousand Naira (N10, 000.00) as cost.
Other Citations: (2008)LCN/2828(CA)
