United Bank for Africa Plc. V. Mode Nigeria Limited (2000)

LawGlobal-Hub Lead Judgment Report

OLAGUNJU, J.C.A.

T

he Applicant who filed a notice of appeal from the decision of the Court below which gave judgment for the Respondent against her in an action in which she and one other were defendants failed to satisfy the conditions of appeal as assessed by the Registrar of the Court below acting in accordance with rules 10 and 11 of Order 3 of the rules of this Court, that is to say, has failed to deposit money for producing the record of appeal and as security for costs or give security by entering into bond. In spite of the non fulfillment of the conditions of appeal, the Applicant who claimed that on 18/11/99 she obtained the order of this court for departure from the rules by allowing the appeal to be argued on the bundle of documents compiled by her. She filed her brief of argument on 18/1/2000.

“In a motion filed on 3/2/2000, the Applicant has now applied under sub-rule 4(1) of Order 3 of the rules of this Court for (a) an order enlarging the time given to the appellant/applicant to fulfill the conditions of appeal and (b) a further order deeming the record of proceedings compiled by the Applicant for the hearing of the appeal and the Appellant’s brief filed on the 18th day of January, 2000, as duly filed”.

The application is supported by a 13-paragraph affidavit deposed to by the Manager of the Enugu Branch of the applicant’s establishment, Mr. Okechukwu Umeh. The affidavit is defective as it contains no date of the swearing as enjoined by sub-section 90(g)(ii) of the Evidence Act but it is, nevertheless, accepted to be used by virtue of section 84 of the Act: see: Ali v. Dipcharima., (1975) NNLR. 163, 165 -166. In it, the deponent averred that he was served with two documents on 28/6/99 and 16/7/99 by the bailiff of the Enugu State High Court, Enugu, and deposed in paragraph 4 that:

“I did not read the documents as they were court documents, but I sent them to the legal department of the head office of the bank in accordance with instructions”.

He further deposed that when inquiry about the documents served on the Applicant through him was initiated by the leading counsel to the Applicant, it was discovered from the list of those documents sent to him by the bank’s legal department at the Head office that the list does not include copy of settlement of record of appeal which eventually had to be obtained by the Applicant’s Counsel from the registry of the High Court of Enugu State. In any case, copy of the settlement of record of appeal dated 12/7/99 and signed by the Assistant Chief Registrar of the Court below and copy of the affidavit of service of the document deposed to on 16/7/99 by the chief bailiff of that court are annexed to Mr. Umeh’s affidavit.

On those facts, learned Senior Advocate for the Applicant, Chief A. N. Anyamene, submitted that under sub-rule 4(1) of Order 3 of the Court of Appeal Rules, 1981, it is within the powers of this court to extend the time within which the Applicant can fulfill the conditions of appeal and urged the court to do so on the precedent of the decisions in Nalsa & Team Associates v. NNPC., (1991) 8 NWLR (Pt.212) 652; and Dr. Urhobo v. Major- General Oteri (1999) 2 NWLR (Pt. 589) 147. He contended that if the time within which to appeal is extended for the Applicant substantial justice would have been done without prejudice to the Respondent pleading that a litigant should not be punished for the error of his counsel. He urged the court to grant the application and as a corollary to deem the bundle of documents compiled by the Applicant as the record of this appeal and the Appellant’s brief of argument filed pursuant thereto as duly filed.

The application was opposed by learned Counsel for the Respondent, K. E. Mozia, Esq., who contended, firstly, that Order 3, sub-rule 4(1), of the rules of this Court restricts matters in respect of which this court can extend time for doing an act or taking stipulated steps in the proceeding which he argued do not include imposition of the conditions of appeal the breach of which as provided by sub rules 20(1) and (3) of Order 3 thereof is the dismissal of he appeal. Secondly, he contended that the grant or refusal of application for extension of time calls for exercise of court’s discretion which demands that the Applicant must give good and convincing reason in support of ills application. He submitted that the reason given by the Applicant in her 13-paragraph affidavit for not fulfilling the conditions of appeal is feeble and not good enough to justify the exercise of the court’s discretion to extend the time to satisfy those conditions. Therefore, he urged the court to dismiss the application.

The argument of learned Counsel for the Respondent about the scope of sub-rule 4(1), of Order 3 on the confines of the subject-matter over which the court can extend time appears to be overdrawn. The learned Counsel did not support his argument with any case-law. But in my view, outside the period of limitation for commencing an action prescribed by law, the discretion of the court as to the range of the matters for which the court may grant the indulgence of extending the time within which to do an act or take a step in pre-trial, trial or post-trial proceedings appears to be infinite. The only limitation is that, since the dispensation to extend time is discretionary it must be exercised judicially and judiciously by balancing the interest of the parties appreciating the epigram that ‘discretion is not a one way traffic’ for the full exposition of which see Ajani v. Giwa, (1986) 17 NSCC 9 Pt.110 874, 883 (1986) 3 NWLR (Pt.32) 796; Willoughby v. International Merchant Bank (Nigeria) Ltd. (1987) 1 SCNJ.46, 57 & 70-71 (1987) 1 NWLR (Pt.48) 105; and Ajomale v. Yaduat (No.2), (1991) 5 SCNJ 178, 189 (1991) (Pt. 191) 266. Moreover, as I will discuss presently the element of flexibility built into rule 20 of Order 3 by subrule 20(4) thereof on the ultimate result of non-compliance with the conditions of appeal will not seem to support a dichotomy in the application of the court’s power to extend time within which to act or take steps in the proceedings. To that extent, learned Counsel for the Respondent is on sticky wicket as far as restrictions on the scope of application of sub-rule 4(1) of Order 3 of the rules of this court are concerned.

On the reason given by the Respondent for her failure to satisfy the conditions of appeal within the time stipulated for doing so, I think learned Counsel for the Respondent is on a firm ground. I do not think that the Applicant’s Enugu Branch Manager on whom the document containing the conditions of appeal was served has been candid about the matter. In one breath, he admitted in paragraph 3 of his affidavit that he was served with ‘some documents emanating from the …High Court… Enugu’ which he forwarded to the Applicant’s Legal Department in Lagos; in another breath, he deposed in paragraph 6 of the affidavit that when he called for the particulars of the documents he sent to the legal department in Lagos of the settlement of record of appeal was not among the documents sent to him by the legal department. If from the affidavit of service of the bailiff who carried out the service attached to the Manager’s affidavit copy of settlement of record of appeal also attached to the affidavit was the document served there must be a slip between the Manager and the legal department and, therefore, more to the matter than meets the eye.

The account given by the Branch Manager of how he disposed of the court process served on him is wobbly and reflects very little credit on his status. Here is the representative of a reputable bank who was considered good enough to be trusted with the capital of that branch of the bank yet who feigned to be ignorant of the content of a one-page document which is not shown to be couched in legal jargons. Doltishness will not be a proper rating of a person of Mr. Umeh’s background but since he has chosen to play the role of a simpleton in the scenario, so be it.

But that does not account for the inaction of the Applicant’s legal department which must be presumed to be manned by personnel with a smattering knowledge of the law to be able to comprehend the importance of legal documents. If one believes Mr. Umeh and I have no cause to doubt him that he forwarded to the Applicant’s legal department in the Head Office in Lagos, ‘in accordance with instructions’, settlement of record of appeal shown by the affidavit of service to be the document served on him on 16/7/99 it is curious why the applicant’s legal department failed to forward the document to the applicant’s leading counsel the address of whom is shown, from the proposed appellant’s brief of argument, to be in Lagos, the same town in which the applicant’s Head Office and her legal department are located.

Failure of the applicant’s legal department to deliver to the learned leading counsel for the applicant the court processes sent to the legal department by Mr. Umeh seriously detracts from the applicant’s excuse for not complying with the conditions of appeal. Equally, unseemly is the Applicant’s attempt to short-circuit the fulfillment of the conditions of appeal by seeking a departure from the rules to hear the appeal on bundle of documents while in breach of the rules of the court on conditions of appeal. But notwithstanding those short-comings, it seems to me that the crux of the matter is whether those lapses with nothing more can operate as a bar to any further plea by the Applicant to have the period within which to satisfy the conditions of appeal further extended or as it is apparent from the applicant’s prayer to waive the conditions of appeal stipulated by the Registrar of the court below and grant the applicant leave to hear the appeal on the bundle of documents compiled by her and to use the Appellant’s brief of argument filed on the basis of those documents.

The issue raised calls for an examination of the effect of non-compliance with conditions of appeal stipulated by the Registrar of the trial Court acting under rules 10 and 11 of Order 3 of the rules of this court for which sanction is provided by rule 20 of the same order. The material parts of Rule 20 that calls for consideration read:

“20. (1) If the appellant has not complied with any of the requirements of rules 10 and 11 of this Order, the Registrar of the court below shall certify such met to the Court, which shall thereupon order that the appeal be dismissed either with or without costs, and shall cause the appellant and the respondent to be notified of the terms of its order.

(4) An appellant whose appeal has been dismissed under this rule may apply by notice of motion that his appeal be restored and any such application may be made to the Court which may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit”.

For non-compliance with conditions of appeal to be made the subject of a complaint under sub-rule 20(1), the Registrar of the Court below who stipulated the conditions that are not complied with must certify to this Court on civil form 16 that the Appellant has complied with none of the requirements of Order 3 rules 10 and 11. There is nothing on record that the Registrar of the Enugu State High Court filed any complaint about non-compliance by the applicant with the conditions he stipulated for the appeal. There being no complaint which this Court can be called upon to look into raising non-compliance with appeal conditions in opposition to the motion seeking to regularise the appeal is worthy of note as indicating that, the applicant is somehow at fault but it is insufficient to defeat the relief sought, if the court is satisfied that it is proper to grant it. Saying this is not meant to extol or connive at non – compliance with the rules of the court, rather, it is to emphasize the fact that the role of the court does not include policing unsolicited the rules of the court.

Sub-rule 20(4) is an index with which to gauge the level of gravity into which non-compliance with the conditions of appeal is classified within the scheme of the sanctions provided for breaches under the rules. The sub-rule empowers the court to restore an appeal which has been dismissed for non-compliance with the conditions of appeal on good and sufficient cause being shown by the appellant for failure to comply with the conditions. It is significant that by allowing a restoration of an appeal that has been dismissed the provision is unique in marking a departure from the traditional implication of the expression ‘dismissal of an action or appeal’ giving it a special meaning which is different from the conventional one of termination of the right of action which bars the party against which an order of dismissal is made from re-litigating the action as canvassed variously in Soetan v. Total Nigeria Ltd. (1972) 1 SC 86 (1972) 1 All NLR (pt.1); 89; Eronini v. Iheuko, (1989) 20 NSCC (Pt.1) 503 (1989) 2 NWLR (Pt.101) 46; Mohammed v. Olawunmi (No.3)(1993) 5 SCNJ 126, 135-136; and Adigun v. Government of Osun State (1995) 3 SCNJ.1.

The uniqueness of the provision of sub-rule 20(4) of Order 3 is obviously accounted for by the fact that the appeal that is caught by the operation of sub-rule 20(1) thereof must have been dismissed on a technical ground without going into ‘the merits of the appeal’ as defined in Cardoso v. Daniel, (1986) 2 NWLR. (Pt. 20) 1, 45, and later reaffirmed in Western Steel Works Limited v. Iron and Steel Workers Union, (1986) 3 NWLR (Pt.30) 617, 632. Given the meaning of adjudication on the merits as the determination of the substantive rights of the parties as presented in an action that is duly contested by them in contrast with a decision reached on the mere questions of practice and procedure which depends upon the discretion or favour of the court; it is seldom that an action is defeated on the default of a party without giving the erring party a second chance to have the matter reconsidered with a view to deciding after contesting the issue who between the parties is right.

Against the background of flexibility in the sanction provided by rule 20 of Order 3 for non-compliance with the conditions of appeal which does not operate as a bar to the right of the erring party to have his case reconsidered on the merits, I have come to the conclusion that an appellant in the position of the present applicant is not precluded from asking this Court to exercise its discretion to cure the defects in the appeal procedure with a view to streamlining an appeal that was duly filed within the prescribed time so as to enable it to be heard on the merits.  This stand is in consonance with the premium put on hearing a case as well as an appeal on the merits by the Supreme Court in University of Lagos v. Aigoro, (1985) 1 ALL NLR (pt.1) 58 (1985) 1 NWLR (pt.1) 143,where the court, per Oputa, J.S.C., at page 69, counselled that:

”Unless and until the court has pronounced a judgment upon the merits or by consent it ought to use the power which it certainly has to punish any mistake or blunder committed either by the parties or their counsel by an imposition of costs or terms and do everything possible to keep cases alive and hear them on their merits, rather than applying the guillotine of dismissal for want of prosecution: Collins v. Vestry of Paddington, (1880) 5 QBD. 368, 381”.

The rationale of that admonition is to emphasize that the touchstone of adjudication is the striving by the court to hear a case on the merits rather than succumbing to a short-cut of resolving a dispute through technicalities. A classic example of the practical demonstration of that exhortation is the Supreme Court’s decision in Nneji v. Chukwu (1988) 3 NWLR (pt.81) 184, an appeal from this judicial division of the Court of Appeal in which, incidentally, the learned Senior Advocate before us appeared for the defendants/appellants/respondents. The twin-plank of the issues canvassed was whether the Court of Appeal was right in dismissing the application of the plaintiffs/respondents/appellants praying the court to dismiss the appeal of the defendants/appellants/respondents?, because of their failure to file their brief of argument within the stipulated time and whether in doing so it was proper for the court to extend suo motu the time for the appellants to file their brief of argument without any application for extension of time?. The Supreme Court answered both questions in the affirmative as well as the related question of whether a dismissal of an appeal for want of prosecution can be regarded as a judgment obtained by technicality and unanimously dismissed the appeal of the plaintiff/respondents/appellants.

In the leading judgment, Wali, J.S.C., at pages 199-200, restated the Supreme Court’s leaning against technicality in favour of creating an opening for an appeal to be heard on the merits buttressing his view by a number of the decisions of that court in which a recourse to technicality calculated to defeat the end of justice was rejected by the court. In his concurring judgment, Oputa, J.S.C at page 206, lamented ”the sorry spectacle of law triumphant and justice prostrate” which, more often than not, is occasioned by adherence to technicality. He referred to the powers of the court under section 16 of the Court of Appeal Act which enable the court to make any order necessary for determining the real question in controversy in an appeal adding that “it is thus clear that the prior responsibility of the Court of Appeal (as well as all other courts) is to hear the parties out, not to shut out any party, to hear the merits of the case or appeal and decide according to those merits”. Concluding, the learned Jurist admonished that before invoking the provision of rule 10 of Order 6 of the Court of Appeal Rules, 1981, to dismiss an appeal for want of prosecution consequent upon failure of the appellant to file his brief of argument the court must consider with caution and anxiety the surrounding circumstances of the case to avoid arriving at a decision- which will merely enable one party to score, not a victory on the merits, but a technical knock-out at the expense of a hearing on the merits”.

On this last point, learned Counsel for the Respondent who urged the applicant’s motion to be dismissed with a view to moving the court ultimately to dismiss the appeal will have to recast his strategy in the light of the Supreme Court’s pronouncement in Abiegbe v. Ugbodume, (1973) 8 NSCC. 26 at page 32(1973) 1 All NLR (Pt.1) 52 at 63, that:

”To dismiss an action for want of prosecution does not give judgment in favour of the defendants nor does it prohibit the plaintiffs from filing a fresh action”.

By parity of reasoning, it seems to me that in the light of the decision of that court in Nneji v. Chukwu, supra, which is unequivocally strained against technicality, defined on page 209 of the Law Reports, and having regard to the caution in that judgment against impulsive dismissal of an appeal for want of prosecution it can safely be said that dismissal of the applicant’s appeal for want of prosecution cannot preclude her from filing a fresh appeal, an opinion which is supported by the Supreme Court’s decision in Mohammed v. Oluwunmi, supra, at page 135 -136. Therefore, refusing the reliefs sought will bring this appeal to a vicious circle as the applicant might be obliged to file a fresh appeal in as much as the dismissal of her appeal for failure to file a brief of argument would not preclude her from doing so. And there is the rub.

In conclusion, let me take the liberty to appropriate a phraseology from the judgment of my learned brother, Ikwechegh, J.C.A., in Nneji v. Chukwu, supra, reproduced at page 196 of the Law Reports, to frame a question for learned Counsel for the Respondent, viz, assuming that Ken Mozia, Esq., is right and he is on the war path; but would he utterly destroy the hopes of the Appellants in this matters? That is a poser which, at this juncture, is not capable of a straight answer where the stake is the legal right to the sum of N45, 166,498.03 awarded as judgment debt. However that may be, the objection of learned Counsel for the Respondent fails because there is no certification to this Court in the manner enjoined by sub-rule 20(1) of Order 3 of the rules of this court of non-compliance with the requirements of rules 10 and 11 thereof to furnish ground for any complaint that can attract the sanction prescribed for non-compliance with the rules of the court. Therefore, since it is the duty of this court to streamline, at the instance of the parties, appellate procedure with a view to ensuring that the appeal is heard on the merits the applicant is entitled to the indulgence of this court notwithstanding her lapses. Accordingly, the conditions of appeal stipulated in the settlement of record issued on 12/7/99 by the Assistant Chief Registrar of the Enugu State High Court to be fulfilled by the applicant are hereby waived. In their place, a departure from the rules of the court as permitted by rule 2 Order 7 there of is hereby granted to enable the bundle of documents compiled by the applicant and filed on 4/10/99 together with the appellant’s brief of argument filed pursuant thereto on 18/1/2000 to be used. The two documents are deemed to be duly filed. Application is granted. I award N2,000.00 costs to the respondent.

Other Citations: (2000)LCN/0836(CA)