Mercantile Bank (Nig.) Plc V. Imesco Enterprises Ltd (2022)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C. 

The applicant herein, by an application, brought pursuant to Section 233(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 27(4) of the Supreme Court Act, Cap. S15 Laws of the Federation, 2004 and Order 2, Rule 31 and 32; Order 6 Rule 2 and Order 7 Rule 1 of the Supreme Court Rules, as amended in 2014, prayed this Court as follows:

1. AN ORDER of this Court extending the time within which the appellant/applicant could seek leave of this Court to appeal the judgment of the Court of Appeal, Calabar Division, delivered on 23rd June, 2016 in CA/C/128/1999: Mercantile Bank Nigeria Plc vs. Imesco Entreprises Limited.
2. Leave of this Court to appeal against the said judgment of the Court of Appeal in Appeal No: CA/C/128/1999.
3. AN ORDER for extension of time within which the appellant/applicant could file an appeal against the said judgment of the Court of Appeal, Calabar Division which was delivered on 23rd June, 2016.
4. And for such further orders as this Court may deem fit to make in the circumstance. The grounds upon which the application is predicated are as follows:

I. Section 27 (2) (a) of the Supreme Court Act, Cap. 515 Laws of the Federation, 2004 provided for the appeal in this case being a civil appeal to have been filed within three months from the date of the judgment of the lower Court, which judgment was delivered on the 23rd day of June, 2016. (Copy of the judgment of the lower Court is attached herewith and marked Exhibit NWP1).

II. That the notice of appeal could not be filed within the prescribed period as above mentioned as the provisional liquidator of the appellant (Nigeria Deposit Insurance Corporation), a federal government parastatal, could not pass the board resolution for the applicant to prosecute on appeal within the time stipulated by the Rules of this Honourable Court.

III. That failure to file the appeal within the prescribed period was not deliberate but due to circumstances beyond the control of the appellant as a result the hurdles of civil service bureaucracy.

IV. That an order of this Honourable Court extending the time within which to file the notice of appeal is required.

V. That the notice of appeal has now been prepared (copy of the proposed notice of appeal is attached herewith and marked as exhibit NWP2).

In support of the application, a 9-paragraph affidavit was sworn to by one John Adams, Litigation Secretary in the law firm of Samuel O. Zibiri, SAN and Co. (EL-Shaddai Chambers), solicitors to the applicant, to which two exhibits were attached marked “NWP1” and “NWP2”. A 24- paragraph further and better affidavit sworn to by one Sam, G. Waklek, Assistant Manager at the legal department of the Nigeria Deposit Insurance Corporation (NDIC), the statutory liquidator of the applicant was also filed later to which again were attached other four exhibits marked “MO1”, “M02”, “M03” and “M04, respectively.

I consider paragraphs 4 and 5 of the affidavit relevant. They read as follows:

4. That I know that sometimes in May 2017, our law firm was instructed by the appellant/applicant, (through her provisional liquidator, Nigeria Deposit Insurance Corporation) to take over their legal representation in this appeal.
5. That I was informed by Chinedum G. Ike-Okafor, a counsel to the 2nd respondent/applicant in our office at APO, Abuja on the 30th May, 2017 at about 11.25 am of the following facts which I verily believed him to be true and correct thus:

a. Section 27(a) of the Supreme Court Act CAP 515, Laws of the Federation 2004 provided for the appeal in this case being in a civil appeal to have been filed within three months from the date of the judgment of the lower Court, which judgment was delivered on the 23rd day of June, 2016. (Copy of the judgment of the lower Court is attached herewith and marked Exhibit NWP1).

b. That the Notice of Appeal could not be filed within the prescribed period as above mentioned as the provisional liquidator of the appellant (Nigeria Deposit Insurance Corporation), a Federal Government Parastatal, could not pass the board resolution for the applicant to prosecute on appeal within the time stipulated by the Rules of this Honourable Court.

c. That failure to file the appeal within the prescribed period was not deliberate but due to circumstances beyond the control of the appellant as a result, the hurdles of civil service bureaucracy.

d. That an order of this Honourable Court extending the time within which to file the Notice of Appeal is required.

e. That the Notice of Appeal has now been prepared (copy of the proposed Notice of Appeal is attached herewith and marked as Exhibit NWP2).