Nigeria Deposit Insurance Corporation V. Globus Enterprises Ltd & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA J.C.A (Delivering the Leading Judgment)

The Applicant’s motion filed on the 24/11/08 prays for the following reliefs:

“1. An order enlarging the time within which the Applicant may seek leave to appeal against the decisions of the Kano State High Court contained in the Ruling and judgment of the Honourable Justice Patricia Mahmoud delivered on the 9th day of May, 2006 and 26th day of June, 2007 in suit No. K/593/99.

2. An order granting leave to the Applicant to appeal against the decisions of the Kano State High Court contained in the Ruling and judgment of the Honourable Justice Patricia Mahmoud delivered on the 8th day of May, 2006 and 26th day of June, 2007 in suit No. K/593/99.
3. An Order extending the time within which the Applicant may appeal against the decision of the Kano State High Court contained in the Ruling and judgment of the Honourable Justice Patricia Mahmoud delivered on the 8th day of May, 2006 and 26th day of June, 2007 in suit No. K/593/99 out of time, the time limited for the appeals having elapsed.
4. And for such order or further orders as this Honourable Court may deem fit and just to make in the circumstance.”

It is supported by a 23 paragraphs affidavit sworn to by Lateef Ibrahim of Suite 25 Mangal Plaza, ‘Near Shagalinku Restaurant, Area Eleven, Garki, Abuja and to which were annexed documents marked as follows:

(a) a file copy of the letter of instruction by the Applicant to Messrs Mahmoud Gazali & Co, to represent it in suit No. K/593/99 and to oppose the motion joinder of the Applicant as Exhibit ‘1’.

(b) a copy of learned counsel for the 1st – 3rd Respondents’ letter to the Applicant on the judgment delivered in suit No. K/593/99, as Exhibit ‘2’.

(c) a certified copy of the judgment in suit No. K/593/99, as Exhibit ‘3’

(d) the notice of appeal against the decision of the lower Court, as Exhibit ‘4’.

On their part, the Respondents to the motion filed a 4 paragraphs Counter affidavit to which was attached a copy of the Respondents counsel’s letter to the Managing Director of the Applicant dated the 5/6/2008, A Exhibit ‘RYA’ and opposed the prayers sought by the Applicant.

Pursuant to an order by the Court, learned counsel filed written addresses in support of their respective positions in the motion. The Applicant’s written address was filed on the 22/2/10 while the Respondents’ written address was filed on the 5/3/10 and the two addresses were adopted by the learned counsel on the 24/5/10 at the oral hearing.

The submissions by the learned counsel for the Applicant are that the procedure for applying for leave to appeal in the circumstances of the motion are now trite, citing the case of F.B.N. Plc V. Obiechina (1994) 4 NWLR (240) 583 @ 591. He said for the application to succeed, the Applicant has to show in his affidavit, good and substantial reasons for the failure to apply within the prescribed time and that the Notice of Appeal must contain grounds of appeal which prima facie show good reasons why the appeal should be heard. Reference was made to Order 7, Rule 10(2) of the Court of Appeal Rules, 2007 and Gwando V. Maidova (1990) 4 NWLR (147) 805 @ 814:

According to the learned counsel, the Applicant has satisfied these twin conditions for by paragraph 13 of the supporting affidavit the Applicant has shown that it was never aware of the two decisions until the receipt of Exhibit ‘2’ on the 27 of October, 2008 which was about 13 months after the period within which to appeal had lapsed. He said on receipt of Exhibit ‘2’ the Applicant acted swiftly by briefing counsel and causing this application to be filed and coupled with the fact that the lower court was not sitting, this prevented the Applicant from filing the appeal within the time prescribed by law. It was further submission of learned counsel that the Applicant by the depositions in paragraph 13 of its affidavit has amply given reasons for its inability to file the two appeals within time and relied on the cases of Akinpelu V. Adegbore (2008) 10 NWLR (1096) 531 and Okereke V. NDIC (2003) 2 NWLR (804) 218. He urged us to so hold for he said the depositions were not specifically denied or controverted.

Furthermore, it was submitted that Exhibit ‘4’ contain grounds which prima facie, show good and substantial reasons why the appeal should be heard. That grounds 2 and 3 are on the issues of fair hearing and jurisdiction while ground 5 raises the issue that the Applicant being an agent of a disclosed principal, cannot be sued together with its principal in view of section 425 of the Companies and Allied Matters Act (CAMA). Learned counsel said ground 6 also raises the issue of jurisdiction under section 417 of CAMA and so all the grounds contained on Exhibit 4 go to show good and substantial reasons why the appeal should be heard. He said the Applicant is not obliged to show that the appeal will succeed if the leave was granted and that all they needs show is that the grounds are arguable on the authority Kigo V. Hoolman Bros. (1980) NSCC 204 @ 211. It was further submitted that though the two conditions above must be present, where however the grounds of appeal complain of lack of jurisdiction and it prima facie appears so it may not be necessary to inquire into the reasons for the delay.

Reliance was placed on Bintumi V. Fantami (1998) 13 NWLR (581) 264) @ 272 and Ukwu V. Bunge (1997) 8 NWLR (518) 527 and it was argued that the Applicant has shown that there are serious issues of jurisdiction to be determined at the appeal and so there may be no need to even look into the reason for the delay.