Francis Shanu & Anor V. Afribank Nigeria Plc (2000)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C. 

This ruling concerns an application by Afribank Plc (“the applicant”) which has cross-appealed from part of the decision of the Court of Appeal given in an appeal to that court from a decision of the High Court of Edo State adjudging the applicant liable to pay damages to Francis Shanu and Niger wolf Organisation Ltd (“the respondents”). By its application, the applicant seeks (i) leave to amend ground 2 of its grounds of appeal contained in notice of appeal dated 29th September, 1997; (ii) enlargement of time to apply for leave to appeal from decisions of the court below delivered on 21st March, 1996 and 11th July, 1997; (iii) enlargement of the time within which it may appeal against the decisions; (iv) leave to appeal against the decision pursuant to section 213(3) of the 1979 Constitution of the Federal Republic of Nigeria in terms of the ground of appeal contained in schedule 2 to the motion, and, (v) leave to amend the brief dated and filed on 24th August, 1998.

The background facts as are relevant to the application can be briefly stated. In the High Court, the respondents, as plaintiffs, claimed against the applicant and another, the sum of N50 million. The action was commenced by writ issued on 11th August, 1983 in the Benin Judicial Division of the High Court of what was then Bendel State. It came for trial before Obi, J., who was then a Judge of the High Court of Bendel State. Obi, J., commenced hearing of the action and, indeed, took evidence of the parties and their witnesses, whereon the parties closed their respective cases. Before Obi, J., could hear addresses of counsel and deliver judgment in the case, creation of States intervened, whereby Bendel State was split into Edo and Delta States. Consequently, Obi, J., was appointed a Judge of Delta State and ceased to function as a Judge of Edo State which had jurisdiction over the matter. The hearing of the action had to commence afresh before a Judge of the newly created Edo State. It thus came before Edokpayi, J.

Before Edokpayi, J., counsel for the respondent brought an application praying that the High Court should admit in the suit “a certified true copy of the evidence of the plaintiffs, and their witnesses and the evidence of the defendants and their witnesses before Honourable Justice J. A. Obi in this suit.” Counsel for the applicant not opposing, Edokpayi, J., granted the application in terms admitting the evidence of the parties and their witnesses as prayed. Thereafter, without any further evidence before Edokpayi, J., counsel for the parties addressed the High Court whereon Edokpayi, J., gave judgment for the respondents. The applicant appealed to the Court of Appeal. It sought in that court to raise fresh points of law not raised in the court below; to amend its notice and ground of appeal; and orders directing that “the original notes of Obi, J., of the evidence of Henry Ama Ugoji who testified as DW9 before him be produced” and that “page 112:30-32 of the record of appeal” be amended by substituting, in material terms, “we have no records” for “we have records” in relation to book of account for the receipt of a sum of 25 million U.S. dollars. In a ruling delivered by Akintan, JCA on 21st March, 1996 (with which Nsofor and Ige JJ.C.A. concurred) the court below refused leave to raise and argue fresh points and to permit original notes of evidence given before Obi, J., to be produced and to amend the record.

By a majority judgment (Akintan and Nsofor, JJ.C.A.; Akpabio JCA, dissenting), the Court of Appeal on 11th July, 1997 allowed the present applicant’s appeal on the main ground that the evidence relied on in the case, that is evidence given in the proceedings before Obi, J., was wrongly admitted under section 34(1) of the Evidence Act. Akintan, JCA, was of the opinion, therefore, that “the learned trial Judge took into consideration in coming to the conclusion he reached in the judgment in this case, evidence that was not before him.” Nsofor, JCA, agreed with him. In the event, the court below allowed the appeal and ordered that the suit be reheard before another judge of Edo State High Court. The present respondent on 9th September, 1997 appealed from the decision and by their appeal, sought a restoration of Edokpayi, J’s judgment. The applicant also cross-appealed on 6th October, 1997 by their notice dated 29th September, 1997, from part of the decision. On the notice of cross-appeal, the portions complained of were stated to be the portion relating to:

“The failure to evaluate the evidence before the court and dismiss the action on the merits. The refusal to grant the defendant leave to raise the issue of the admissibility of evidence received at the previous trial which was aborted. The failure to permit an amendment to the record of proceedings. The failure to dismiss the action rather than ordering a retrial.”

As earlier stated, the applicant’s application is now to enable it to appeal from the interlocutory decision of 21st March, 1996 and, with leave, from the final judgment given on 11th July, 1997. In terms of order 2 rules 31(2) of the Supreme Court Rules, the applicant must disclose by its affidavit, “good and substantial reasons for the failure to appeal or to apply for leave to appeal within the prescribed period” and “grounds of appeal which prima facie show good cause why the appeal should be heard.”

The applicant gave counsel’s error of judgment as the reason for the failure to appeal within the prescribed period. It was explained that failure to appeal or seek leave to appeal within the prescribed time was solely because counsel for the applicant had interpreted the provisions of O.8 r. 12(4) of the Supreme Court rules (SCR) as empowering this court to reverse an interlocutory ruling, notwithstanding a failure to appeal from such ruling. In regard to the final decision of 11th July, 1997 the delay, it was explained, emanated from counsel’s hesitation as to the true nature of the ground of appeal, that is to say, whether it raised a question of law alone or of mixed law and fact.

In regard to the second of the two requirements, it was submitted that there was good cause why the appeals should be heard. Counsel for the applicant proffered in some details, the arguments he would advance if the application is granted in an effort to show that the grounds of appeal are arguable.

For his part, respondent’s counsel, in opposition to the application, argued that there was no mistake but a decision of counsel. It was submitted that a party is not bound by the mistake of his counsel but is bound by his counsel’s decision; by deciding not to appeal against the decision of 21st March, 1996 before proceeding with the appeal in the court below, the appellant was taken to have accepted the decision. Further, it was argued: ground 5 of the cross-appeal as contained in schedule 2 to the application which the applicant seeks to regularise is a void ground; the ground of appeal contained in schedule 1 to the application being of mixed law and fact is incompetent; the relief sought on the motion was for leave to appeal on a ground of mixed law and fact and not for leave to appeal from an interlocutory decision; and granting the application would “over-reach” the preliminary objection raised and argued by the respondent in the reply brief filed in the appeal.

It is convenient to consider the prayer for leave to amend ground 2 of the grounds of appeal first. The ground sought to be amended complained that “the Court of Appeal erred in law in failing to consider several complaints of the defendant and come to a decision on them.” In the particulars, the complaints which it was alleged were not considered were in regard to the trial Judge’s appreciation of and conclusion of fact on the evidence before him.

The discretion to grant leave to a party to amend his ground of appeal is liberally exercised in so far as an amendment can be made without injustice to the other party and is not belated as to cause undue delay in the proceedings. However, the court should not hesitate to refuse an amendment where such proposed amended ground would have, itself, been objectionable for any of the reasons for which successful objection could be raised against such ground. In this case the respondent objects to the proposed amendment on the ground that the ground sought to be amended is one of mixed law and fact and that leave not having been obtained to argue such ground, the amendment could not be granted. In terms of section 213(2) and 3 of the 1979 Constitution, leave of the court is required to argue a ground of fact or of mixed law and fact.

The question is whether the ground of appeal as originally raised by the notice of appeal and the proposed amendment involve a question of law alone. This court in Ogbechie & Ors v. Onochie & Ors (1986) Vol. 7 NSCC 443 (No.1), (1986) 2 NWLR (Pt. 23) 484 at 491, set out the approach to the determination whether a ground of appeal involves a question of law or of fact or of mixed law and fact. Eso, J.S.C., at Pp 445-6 said.

” …. what is required is to examine thoroughly, the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case, it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law, in which case, it would amount to question of mixed law and fact.”