Alhaji Sadisu Ibrahim & Ors V. Unity Bank Plc (2016)

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OBANDE FESTUS OGBUINYA, J.C.A. 

By a motion on notice dated 27th April, 2015 and filed on 26th June, 2015, the applicants prayed this Court:
1. AN ORDER enlarging time within which the appellant/applicant (sic) may file its (sic) notice of appeal against the judgment of the High Court of Justice of Nasarawa State, New Karu per Hon. Justice R. G. Soji in suit No: NSD/MG/162/14 delivered on 21st day of November, 2014.
4. And for any other/further order(s) that the honourable Court may deem fit to make in the interest of justice.

The application was predicated on the following grounds:
i. That the appellants/applicants instructed the law firm of Messrs I. J. Mbatsavdue & Co. Bima Chambers whose address is Messrs I. J. Mbatsavdue & Co. Bima Chambers, Suite 309, 3rd floor, NCWS Building, Area 11, Garki, Abuja on the 24th day April, 2015 to conduct an appeal against the judgment of Hon. Justice R. G. Soji delivered on the 21st day of November, 2014.
ii. That at the trial Court, the counsel to the plaintiff/respondent informed the appellants/applicants that there was no need

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for them to engage a counsel and when judgment was delivered, he kept assuring them that there will be no problem.
iii. That it was after an inquiry from the registrar of the trial Court as to the consequence of the judgment that the appellants/applicants were advised to appeal against it.
iv. That by the time the appellants/applicants became aware of the necessity to appeal against the judgment. The time limited for appeal had elapsed.
v. That by the rules of this Court, an appeal against the judgment ought to be filed within ninety (90) days from the date of delivery of the judgment.
iv. That from the date of delivery of judgment i.e. 21/11/2014 to the date our firm was briefed to prosecute the appeal i.e. 24/04/2015 is well over ninety days.
vii. That an application for enlargement of time within which to appeal is a sine qua non for the validity of the appeal.
viii. That clean copies of the Notice and Grounds of Appeal thereof have already been filed and served filing fees having been paid.
ix. That the judgment is monetary in nature and therefore executor.
x. That the judgment was granted on the undefended list

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procedure.
xi. That the claims/reliefs of the respondent were outside liquidated money demand.
xii. That the trial Court lacks the requisite jurisdiction to grant the judgment under the undefended list procedure as the claims/reliefs of the respondent were uncertain.

The application was supported by a 24-paragraph affidavit, sworn to by T. C. Adaga, Esq., with five documents, Exhibits A-E, annexed to it. In opposing reaction to it, the respondent filed a 8-paragraph counter-affidavit on 25th January, 2016, with one document, Exhibit UB1, attached to it. Before the hearing of the motion, the applicant, qua counsel applied to withdraw prayers 2 and 3 in the motion paper and same were struck out. In view of the stiff position to the application, the Court ordered parties to file written addresses. The facts of the case which gave birth to the application are submissive to brevity and easy appreciation. The respondent gave a loan facility to the applicants in the sum of N1.6M. The applicants defaulted in payment. As a result, the respondent beseeched the High Court of Nasarawa State sitting in New Karu (hereinafter called “the lower Court”),

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under the undefended list procedure and claimed the sum of N8,439,217.03M from the applicants. At the hearing, the applicants did not file any notice of intention to defend but rather admitted the claim. The lower Court on 21st November, 2014, granted the respondent’s claims. It is that judgment that the applicants want to appeal against to this Court.

The application was heard on 6th May, 2016. During its hearing, learned counsel for the applicants, Barnabas Tsafa, Esq., adopted the applicant’s written address filed on 19th November, 2015, as representing his arguments for the application. He urged the Court to grant it. Similarly, learned counsel for the respondents, Akpama Ekwe, Esq., adopted the respondent’s written address filed on 25th January, 2016, as forming his reactions against the application. He urged the Court to dismiss it.

Arguments of the parties
In arguing the application, learned counsel for the applicants submitted that the judgment of the lower Court was not a consent judgment to warrant leave of Court before appealing against it. He referred to Order 37 Rules (6) and (7) of the Nasarawa State High Court (Civil

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Procedure) Rules, 2010 (the Rules, for short); A. F. Afolayan and P. C. Okorie, Modern Civil Procedure (Lagos: Dee Sage Nigeria Ltd., 2007) 268; Kamba v. Bawa (2005) 4 NWLR (Pt. 914) Ras Pal Gazi Const. Co. Ltd. v. FCDA (2001) FWLR (Pt. 58) 1018; Woluchem v. Wokoma (1974) 3 C 153 in support of the submission. He posited that admission made by a defendant could not be taken to be a consent judgment to grant judgment by a Court. He relied on Steel Bell Nig. Ltd v. N.D.I.C. (2015) 1 NWLR (Pt. 1414) 531; Nwankwo v. Nwankwo (1995) 5 SCN 555; Kamba v. Bawa (supra) for the point.