First City Monument Bank Plc. V. Nigeria Institute of Medical Research & Anor. (2008)

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REGINA OBIAGELI NWODO, J.C.A.

By Motion on Notice dated and filed on 22nd day of May 2007 the Applicant sought the following orders:

“1. An order enlarging the time within which the Applicant can file its NOTICE OF APPEAL against the Garnishee Order Absolute granted by the Honourable Justice B. B. Aliyu of the Federal High Court holden at Lagos and delivered on the 11th December, 2006.

2. And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances”.

The motion is supported by a 22 paragraphs affidavit deposed to by Caroline Ekemode, a legal practitioner of 27/29 Odunlami Street Lagos exhibited in the affidavit are the following: Exhibited A – the copy of affidavit of service, Exhibit B – the proposed Notice of Appeal and Exhibit C – the record of proceedings of the Federal High Court on 11 of December, 2006 wherein an order absolute was made by the Court, Below also in support is a first further affidavit filled on 4th February, 2008 deposed too by Russell Adewale a legal practitioner.

The 1st Respondent in opposing the application filed three counter affidavits. The first counter affidavit of 24 paragraphs was filed on 26th June 2007 deposed to by Michael Ezerendu a staff of the Nigerian Institute of Medical Research. Then the 1st Respondent’s further counter affidavit of 21 paragraphs deposed to by Bassey Effong Antai, a litigation clerk in the law firm of G. E. Abong and Co. Praise Chamber, another 1st Respondents further affidavit dated and filed on 3rd March, 2008. There is also the Applicant’s reply to 1st Respondent counter affidavit dated 26th June 2007 of 11 paragraphs deposed too by Caroline Ekemode. Arguing the application learned counsel to the Applicant Mr. S. Demuren relied on the affidavits in support of the application in particular paragraphs 4, 5, 6, 7, 8 and 9. It is his contention that there was no proper service of the Order Nisi made by the court below on the Applicant. He argued that Exhibit A reflects that service was not made at the registered office of the Bank and that service is supposed to be in the registered office of the Bank at 17A Tinubu Street, Lagos not at Ayorinde Street, Victoria Island, Lagos. It is his submission that the proposed notice of appeal shows a prima-facie case why appeal should be argued before the court of appeal. It is his strong contention that this is a case in which they were not parties until garnishee proceedings was commenced. Learned Counsel to the first Respondent Mr. O. Abang opposing the application relied on his three counter affidavits in particular on paragraphs 2, 4, 5 of the counter affidavit filled on 26th June, 2007. It is his contention that failure not to appeal was not as a result of the state of health of the counsel but a legal strategy adopted by the learned counsel to the applicant. He argued that the Applicant took steps that failed not because their counsel was not well. He argued that there is no explanation as to why the Notice of Appeal was not tiled between 11 of December, 2006 and 25th of February, 2007 rather within this period the Applicant took other steps to set aside the order absolute. It is his contention that the issue of learned counsel Mr. Adewale being sick is an after thought. That no medical record to show he was ill and the name of the place he was taken was displayed. Mr. Abang argued further that the garnishee cannot contest the main Judgment that lead to the garnishee proceedings and cannot rely on same since he was not a party and there is no appeal against the Ruling of the trial court that the court has Jurisdiction. He submits that the issue of non service was not raised in the trial court. He referred to S.241 of the 1999 Constitution contending the provision allows a party to appeal against a decision but that when there is no decision then no appeal. He referred to Exhibit B in the counter affidavit with particular reference to paragraph 3 where the Applicant admitted he was served with an order Nisi.

He urged this Court to ignore issue of non service. He also referred to Union Bank of Nigeria Plc. v. NDACE (1998) 2 NWLR (Pt. 541) page 331 at page 336 and Bucknor v. Kehinde (2007) 1 NWLR (Pt 1016) page 582. It is his contention that the Applicant is bound by the conduct of counsel. He cited Ikeanyi v. ACB Ltd. (1991) 7 NWLR (Pt 205) page 626 at page 634. He further argued that once an order Nisi has been made absolute it is not appealable, it is duty of the garnishee to pay the judgment sum to the Judgment creditor even if new argument or evidence is presented. He cited Union Bank of Nigeria Plc. v. Bonney Marcus Industry Ltd (2005) 13 NWLR (Pt 943) page 654 page 666. He urged the Court to dismiss the application.

In reply on point of law learned Counsel Mr. S. Demuren submits that cooperate body cannot waive his right to personal service. It is his submission that issue of Jurisdiction need not first be raised at the lower court and that the issue of Jurisdiction does not require leave of court to file appeal. It is his submission that the mistakes of counsel cannot be taken against his Client. The Applicant in the Court below was a garnishee in a garnishee proceeding commenced by the 1st Respondent after he obtained Judgment against the 2nd Respondent. The Applicant did not file affidavit to show cause at the time order absolute was made. Applicant by Motion on Notice dated 19th January, 2007 filed 19th January, 2007 sought an order setting aside the garnishee Order absolute made on 11th December, 2006 attaching the funds of the Judgment debtor maintained with the garnishee. A cheque of N36, 185, 60k issued to the Chief Registrar Federal High Court for the benefit of the 1st Respondent being in the judgment debtors account with the Applicant was returned because the 1st Respondent rejected same. Upon further briefing by the Applicant by their client they discovered the order Nisi was irregularly served and hence the application for extension of time to appeal. I have carefully considered the copious affidavits and counter affidavit evidence before the court and the submissions of the learned counsel, the present application turns on the interpretation and application of Order 7 Rule 10(2) of the Court of Appeal Rules 2007. This is the applicable provision for extension of time in this court within which to appeal out of time. Order 7 Rule 10 (2) stipulates as follow:

“2. Every application for an enlargement of time within which to appeal, shall be supported by an affidavit selling forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal”.

This Rule 10(2) provides for two conjunctive conditions that must be satisfied before this court will exercise its discretion in favour of grant of the application.

These conditions are:-

(1) Good and substantial reasons

(2) The ground of appeal prima-facie show good cause why the appeal should be heard.

These two conditions are conjunctive not disjunctive. See I.B.N. Ltd. V. Att. General Rivers State (2008) All FWLR (Pt. 417) SC 1. See also Mobil Oil (Nig.) Ltd. v. Chief Agadaigho (1988) 1 NSCC 777 at 784-785. Thus the Applicant must satisfy the Court to exercise discretion in his favour, it is for this reason that the

must be supported by an affidavit which must give sufficient reasons to explain the delay for failing to file within the statutory prescribed period. See C.B.N. v. Ahmed (2001) 11 NWLR (Pt. 724) SC 369. University of Lagos v. Olaniyan (1985) 1 NWLR (Pt 1) 156.