Guffanti Nigeria Plc. V. Pedrella Anstalt Vaduz & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A. (Delivering the Lead Ruling)

The applicant herein by its application dated and filed 25th February 2009, prayed this court for the following reliefs:

“1. An Order extending the time within which to compile and file the Record of Appeal in this matter.

2. An Order of this Honourable Court directing that the Appeal be heard on Exhibit ABK3, the already compiled and filed Record of Appeal.
3. An Order setting aside the dismissal of the Appellant/Applicant appeal which order was made on the 25th of February, 2009.
4. An Order restoring the stay of execution made in favour of the Appellant/Applicant pending the hearing and the determination of the Appeal filed by the Appellant.
5. And for such further and other Orders as this Honourable Court may deem fit to make in the circumstance”.

The application was brought pursuant to Order 7 Rule 10, Order 8 Rules 4, 18, 19 and 20 and Order 19 Rule 2 of the Court of Appeal Rules 2007 and the inherent jurisdiction of this court.

Prof. A. B. Kasunmu SAN leading Mr. A. B. Kasunmu for the applicant stated that the application is supported by an affidavit of 18 paragraphs and a further affidavit of Dr. Festus Ajayi sworn to on 17th March, 2009 and another further affidavit sworn to on 13th January, 2010 exhibiting the ruling of this court dismissing the appeal. Learned senior counsel placed reliance on the three affidavits and concentrated mainly on the further affidavit of Dr. F. A. Ajayi. The learned Professor placed special emphasis on paragraphs 1 to 7 and 14 to 18 of the further affidavit of Dr. Ajayi. The learned Professor stated that in further support of the application is a reply affidavit dated and filed on 15th February, 2010 in response to the counter affidavits of the three respondents. Learned senior counsel submitted that there was an attempt to settle the matter and a letter to that effect has been attached to the further affidavit of Dr. Ajayi. Learned senior counsel further posited that the settlement efforts affected the tempo of the appeal and if these facts were made available to the court the appeal would not have been dismissed. In concluding, the learned Professor urged the court to grant the application and order the appellant to file his brief.

In opposing the application, Mr. E. D. Onyeke leading V. A. Adedipe Esq. and Mrs. G. Omole for the 1st Respondent stated that he filed a counter affidavit dated 13th May, 2009. Learned counsel relied on all the averments contained in the counter affidavit and exhibits attached. Learned counsel stated that all the prayers in the application are hinged on prayer three which sought for the setting aside of the order of this court made on the 25th February 2009, dismissing the appeal. Learned counsel submitted that the application is anchored on Order 8 Rule 20 of the Court of Appeal Rules 2007, hence the proper relief to be applied for by the applicant is for an order to restore the appeal and not to set aside the order dismissing the appeal. Learned counsel made a distinction between an order setting aside the order dismissing the appeal and the restoration of the appeal. Learned counsel argued that under Order 8 Rule 20 of the Rules of Court, good reasons must be given for the restoration of the dismissed appeal while for setting aside an order or judgment the conditions to be satisfied are about six, namely where judgment is obtained by fraud or without jurisdiction etc. In support of the submission, reference was made to the case of Dana Impex Ltd. v. Aderotoye (2006) All FWLR (Pt. 308) 1338 at 1349. Learned counsel contended that the conditions set out in the earlier cited case are not applicable to this application.

Learned counsel further contended that parties are bound by their prayers and having asked for setting aside of the order dismissing the appeal as against restoration of the appeal, the application is bound to fail. In support of this contention reference was made to the case of D.Y.S Trocca Valsesia & Co. v. Osaehae (2008) All FWLR (Pt.413) Pg. 1313 at 1337 – 1338. Learned counsel urged the court not to assist the applicant in rewriting the prayers. Learned counsel argued that a court cannot out of sympathy with a party, try assisting the party by going outside the Rules of Court. In support of this submission, reference was made to, Kraus Thompson Organisation v. NIPSS (2004) All FWLR (Pt. 218) 797 at 809, (2004) 17 NWLR (Pt. 901) 44.

Learned counsel submitted that the contention of the applicants to the effect that negotiation for settlement affected the tempo of the appeal be discountenanced. Learned counsel argued that even where there are negotiations for settlement parties should still pursue their appeal. In support of this argument reference was made to the case of Ikenta Best (Nig) Limited v. Att. Gen. Rivers State (2008) 6 NWLR (Pt. 1084) 612.

Learned counsel urged the court to hold that there are no good and substantial reasons advanced in the application to warrant revisiting the dismissal and the appeal should stand dismissed.

In further opposition to the application Mr. M. A. O. Okulaja SAN leading Mr. O. A. Alalade and Mr. Olatunji Oduntan for the 2nd and 3rd Respondents, stated that they filed a counter affidavit dated 13th May, 2009. Learned senior counsel relied on all the averments in the counter affidavit and the counter affidavit of the 1st Respondent and also adopted and associated himself with the submission of the learned counsel for the 1st Respondent. Learned senior counsel made reference to paragraph (b) of page 11 of the lead ruling dated 25th February, 2009 wherein the appeal was dismissed for want of diligent prosecution. Learned senior counsel posited that prayers 1, 2 and 4 are predicated on the existence of a valid appeal and the appeal having been dismissed the said prayers go to no issue as they are of no moment and should hence be discountenanced.

On the second leg, learned senior counsel argued that once an appeal is dismissed for lack of diligent prosecution, this court lacks the power to restore the appeal. In support of this contention reference was made to the following cases: Ogbu v. Urum (1981) 1 All NLR 324 at 329, Olowu v. Abolore (1993) 5 NWLR (Pt.293) 255 at 270 Yonwuren v. Modern Signs Nig. Ltd (1985) 1 NWLR (Pt.2) 244 at 256-258. Learned senior counsel submitted that the application can only be considered under the equitable jurisdiction of the court and in the circumstances of this application the court cannot exercise its equitable jurisdiction to assist the applicant. In support of this position, reference was made to the following cases: Oluyemo v. Titilayo (2009) All FWLR (Pt. 485) 1674 at 1694, Greenbelt V. FBN Plc (1996) 6 NWLR (pt. 455) 502 at 507. In concluding, learned senior counsel posited that the affidavits have not disclosed any good and sufficient reason for the restoration of the appeal and urged the court to dismiss the application.

In a short response, Prof. Kasunmu SAN re-stated that the appeal was dismissed pursuant to Order 8 Rule 18 of the Court of Appeal Rules 2007. The learned Professor stated that the wrong numbering of the reliefs is not fatal to the application. On the issue of setting aside, it was submitted that all arguments canvassed by the respondents are technical and all that was being prayed is that the appeal be restored and heard on the merits. It was further contended that all the cases cited are not relevant to the application as they were decided on the 2002 Rules in relation to non compliance with the condition of an appeal. It was further argued that even though ‘restoration’ was not used, it should not affect the success of the application. The learned Professor further posited that good reasons have been disclosed in the affidavit and that the grounds of appeal and the affidavit of Dr. Ajayi satisfies the requirement of equity. In concluding, learned senior counsel urged the court to grant the application.

The foregoing so far is a summation of the submissions made by the respective parties to the application. It is clearly not in dispute that the appeal herein was dismissed by this court on grounds of failure to transmit record of appeal pursuant to Order 8 Rule 18 of the Court of Appeal Rules 2007. See the ruling of this court dated 25th February 2009, marked exhibits ‘ABK5’ and attached to the further affidavit of Sola Odeyinka. The applicant is now back to court with the present application and the two sets of respondents vehemently opposed same.

The two set of respondents in their submissions contended that all the prayers in the application are anchored on prayer three. It was further argued by the respondents that prayer three sought for an order setting aside the order of this court made on 29th February 2009 dismissing the appeal in place of seeking the restoration of the appeal as provided in Order 8 Rule 20 of the Rules of Court. It was further argued that the said prayer for setting aside is not applicable to the present application and ought not to be granted. The case of D.Y.S Trocca-Valsesia & Co. V. Osaghae (supra) was cited in aid of the aforementioned submission.