Ade Coker V. United Bank For Africa Plc (1997)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

The plaintiff (who is appellant in this court) applied by motion for the following orders:

“(1) An enlargement of time within which the plaintiff shall prepare the records for the purpose of the appeal.

(2) That the records already compiled, filed and served along herewith be deemed to have been filed and served accordingly within the enlarged time.

(3) Leave to amend the grounds contained in Notice of Appeal dated 11th March, 1996, by substituting therefor the grounds contained in the Notice of appeal attached herewith to the affidavit in support and marked Exhibit “RS4″.

(4) Directions for the filing of briefs in connection with the appeal.

(5) Granting accelerated hearing of the said appeal.”

The application is supported by an affidavit to which is exhibited a Notice of Appeal containing the proposed substituted grounds of appeal, Exhibit RS4. There is a counter-affidavit sworn to on behalf of the defendant/respondent.

At the hearing of the application learned counsel for the parties advanced arguments for and against the granting of the prayer.

After considering the arguments advanced by learned Counsel and going through the affidavit and counter-affidavit, I am inclined to grant prayers (1) and (2). No doubt, the applicant has been guilty of some delay in filing the record of appeal, which under Order 7 rule (1) should have been filed on or before 25th March, 1996. But then it was filed on 3/6/96 and the reason for the delay is attributed to change of counsel. The firm of legal practitioners, Ayanlaja, Adesanya & Co. were only briefed in May 1996 when they took over from the firm of Babalakin & Co. I am satisfied with the reason for the delay and I have no hesitation in granting prayers (1) and (2).

As regard prayer (3), I have perused the proposed new grounds. It would appear some of the 8 new grounds are, at best, grounds of mixed law and fact requiring leave of court pursuant to section 213(3) of the Constitution, to appeal in them. No such leave was sought nor obtained before the filing of the appeal herein on 11th March, 1996. The proposed grounds read:

“(i) The Court of Appeal erred in law in using the fact that the plaintiff has a house in U.S. as a justification in disturbing the exercise of the discretionary power of the High Court in granting the injunction sought when the reason of oppressiveness of the plaintiff by the institution of the foreign action by the defendant is potent enough with the other reasons rendered by the learned trial Judge to justify the discretionary order of injunction made.

The Court of Appeal erred in law in setting aside the exercise of the discretion of the learned trial Judge in granting an injunction against the defendant from the further prosecution of the New York action on the ground that the issues before the home court and the foreign court are not the same when from the facts in the affidavit evidence before the home court and in the pleadings filed it is apparent that the issues are the same in both actions namely, the facts pleaded in defence of the claim in the home action are the facts relied upon in instituting the foreign action.

The learned Justices of the Court of Appeal erred in law in using irrelevant considerations in disturbing the judgment of the learned trial Judge when in the lead judgment of Pats-Acholonu, J.C.A, concurred in by the two other learned Justices, the court held that:-