In Re: Nigeria Customs Service Board& 1 Or V. Innoson Nigeria Limited & 7 Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C. 

This is a motion on notice filed on the 10th day of November, 2020, brought pursuant to Section 36 (1), 233 (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, Order 2 Rules 12, 28 (1) and (2), 31 (1) and Order 6 Rules 1 and 21 Order 10 Rule 1 of Supreme Court Rules, 1999 (as amended), Section 22 of the Supreme Court Act, and the inherent jurisdiction of this Court, the appellant /applicant seeks for the following orders;

1. Leave to the applicant to appeal against the judgment of the Court of Appeal, Ibadan Division delivered on 6th February, 2014. Coram; Monica Bolna’an Dongban- Mensem, Chidi Nwaoma Uwa and Obietonbara Daniel Kalio JJ.CA in appeal No. CA/I/258/2011: Guarantee Trust Bank plc V. Innoson Nigeria Limited, as a person having an interest in the matter.
2. Extension of time within which to seek leave to appeal against the judgment of the Court of Appeal, Ibadan Division delivered on 6th February, 2014, coram: Monica Bolna’an Dongban-Mensem, Chidi Nwaoma Uwa and Obietonbara Daniel Kalio JJ.CA in appeal No. CA/I/258/2014: Guarantee Trust Bank Plc. V. Innoson Nigeria limited on grounds of facts and/or mixed law and facts as contained in the proposed notice of appeal marked exhibit NCSB-9 particularly grounds 1, 2, 4, 5, 6, 7 and 8 thereof.
3. Leave to appeal against the judgment of the Court of Appeal, Ibadan Division delivered on 6th February, 2014, coram Monica Bolna’an Dongban Mensem, Chidi Nwaoma Uwa and Obietonbara Daniel-Kalio JJ.CA in appeal No. CA/I/258/2011: Guarantee Trust Bank Plc. V. Innoson Nigeria Limited on grounds of facts and/or mixed law and facts as contained in the proposed notice of appeal marked exhibit NCSB-9 particularly grounds 1, 2, 4, 5, 6, 7, and 8 thereof.
4. Extension of time within which to appeal against the judgment of the Court of Appeal, Ibadan Division delivered on 6th February, 2014, coram; Monica Bolna’an Dongban Mensem, Chidi Nwaoma Uwa and Obietonbara Daniel Kalio JJ.CA in suit No. CA/I/258/2011: Guarantee Trust Bank Plc. V. Innoson Nigeria Limited as contained in the proposed notice of appeal marked exhibit NCSB-9.
5. Leave to raise new points in this appeal as contained in Grounds 5, 6 and 7 of the notice of appeal which points were not raised in the Court below.
6. Leave to adduce new evidence on appeal to wit: affidavit of Mrs. Shafaatu Ismail Bello sworn on the 9th day of November, 2020 together with the documents marked Custom 1 and 2 therein which are (a) later dated 13th April, 2011 written by Attorney General of the Federation to the President of the Federal Republic of Nigeria and (b) Federal Ministry of Finance Nigeria Customs Service payment instruction dated 28th November, 2011 for the remittance of the sum of N700,220,000.00 to the account of Innoson Nigeria Ltd kept with Mainstreet Bank.

The application is supported by 35-paragraph affidavit deposed to by one Shafaatu Ismail Bello, Assistant Director in the legal Unit of the applicant (Nigerian Customs Service).

​The grounds upon which the application is premised are as follows:

1. Judgment of Court of Appeal was fraudulently obtained by 2nd Respondent Innoson Nigeria ltd. By the non- disclosure of payment, by the applicant, of the sum of N700,220,000.00 on 28th November 2011.
2. The judgment of the Court of Appeal prejudicially affected the interest of the applicant.
3. The Court of Appeal lacked jurisdiction to affirm the judgment of the trial Court as done by it.
4. The proposed grounds of appeal raise substantial questions of law of high constitutional importance.
5. There are exceptional reasons for the delay in appealing
6. Interest of justice.

On the 18th day of October, 2021 when the motion was heard, learned Senior counsel for the Applicant Tayo Oyetibo, SAN moved the motion on notice, stating that the application which was filed on the 10th day of November, 2020 contained six prayers. Learned senior counsel also submitted that the application is supported by 35 paragraph affidavit, the application also contained exhibits. Counsel urged this Court to grant the application as prayed.

Professor J.N.M Mbadugha SAN, in opposing the motion on behalf of the Respondent submitted that he filed a counter-affidavit and further counter-affidavit on the 9th day of March, 2021 and 27th November, 2021 respectively. Learned Senior Counsel urged this Court to dismiss the application.

​The learned senior counsel for the respondent in his written address, raised preliminaries issues, contending whether this Court has jurisdiction to entertain the applicant’s application.

The learned senior counsel argued the preliminary issues under the following sub-headings,

a) Order striking out being a final decision and a bar to re-litigation.

b) Whether the Honourable Supreme Court will entertain or dismiss the application if it is an abuse of process.

c) If the issue to be decided in the appeal for which leave is sought has become academic, will the application be granted?

d) Whether the applicant is estopped from appealing against the Court of appeal’s decision and/or has waived its right of appeal.

PRELIMINARY ISSUES

In arguing the preliminary issues under the sub headings, the learned Senior counsel submitted that it is the position of the law that a decision striking out or dismissing a case upon its withdrawal when the point of litis contestatio has been reached is a final decision and a decision on the merit as well. Counsel cited the cases of ERONINI V. IHEUKO (1989) 2 NWLR (Pt. 101) SC 46 at 681 AND NWOKEDI V. R.T.A LTD (2002) 6 NWLR (Pt. 762) 181 at 197 to drive home the point canvassed by the applicant. Learned senior counsel submitted that although the applicant’s motion filed on 15th August, 2010 was struck out, it actually means dismissal; and when the motion is dismissed, the applicant has no right to refile it.