Bank Of Baroda & Anor. V. Mercantile Bank (Nig.) Ltd. (1987) LLJR-SC

Bank Of Baroda & Anor. V. Mercantile Bank (Nig.) Ltd. (1987)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

On 31st March, 1987, when this matter came before this Court, we took arguments from learned counsel and allowed the appeal. I reserved my reasons for the action we took. I now give my reasons for allowing the appeal.

Let me state the facts. only as they affect this appeal. The claim was for –

“(1) the sum of $1,254,977 being the value of shipping documents relating to consignments of milk and white crystal sugar released to the Defendants by the Plaintiffs’ agents on the written undertaking of the said Defendants to pay the sum aforesaid thirty days from the 2nd of August, 1978.

(2) Interest on the said sum of U.S. $1.254.977 at the rate of interest allowable by the Central Bank during the relevant period.”

What happened before judgment was delivered by the trial Court is irrelevant to this appeal. Judgment was however delivered in favour of the Plaintiffs on the two items of their claim. That was on 13th December 1982.

Nothing happened until 26th May 1983, that is, five months later. Time within which to appeal had, by this time, lapsed. On that day, the defendants filed an application to the Court of Appeal seeking enlargement of time within which to appeal from the judgment of the High Court. The Court of Appeal granted this application on 27th July, 1983.The following Order was made –

“Order as prayed. Time within which to appeal extended by 15 days from today. It is further ordered that a stay of execution of the judgment debt and Costs be granted on the conditions agreed upon by both parties……..”

(Italics mine)

What were these agreed conditions Chief Williams S.A.N., Counsel for the Respondents stated them in his own submission in the Court of Appeal. He said –

“I have agreed with Counsel for applicants (that is the defendants) that a stay be granted (on condition that the total amount of judgment debt & costs are paid into Court within one month from today. The defendants are to be at liberty to withdraw the amount on providing the guarantee of a licensed bank that it will refund the whole or any portion of the sum deposited, if this Court so directs.)”

(again italics mine)

These were the conditions to which Mr. Okwusogu, learned Counsel for the Applicants. in the Court of Appeal that is, the defendants. agreed.

Now, what followed this is of the utmost importance to this appeal. The Appellants did nothing for 1 year and 8 months after they had obtained this Order for extension of time and for stay on agreed terms. They waited till 2nd April 1985, before they brought another application for a further enlargement of time. I think I should state herein what transpired at this second application –

“H.A. Lardner S.A.N. with Fashanu and ldigbe for applicants, F.R.A. Williams with Mustapha for Respondents. Lardner Moves: Judgment debt & Cost paid out to Respondents. Refers to para. 5 & 6 of affidavit.

F.R.A. Williams: There must be material to exercise court’s discretion. There is none here cites Williams & others. v. Hope Rising Voluntary Funds Society (1982).2 SC. page 145: Rotman & Curmarasary (1965) 1 W.L.R. page 8 or 3 A.E.R. page 933. Lardner: The Ground we relied upon has not been challenged. Ruling:- Time to comply with the order of this Court dated 27th July, 1985 is hereby extended for another 15 days as from today.

The Court is satisfied with the reasons given in the affidavit of applicants for the delay in compliance with the order of Court made on 27/7/83. Furthermore having regard to the proposed ground in the notice of appeal viz to the judgment, appealed against, being a nullity, it is bordering on the point of aiding injustice to refuse to grant the extension of time asked for, to perfect the order of this Court. The application is granted and notice of appeal exhibited is hereby deemed as having been properly filed.

No order as to Costs.” (Italics mine)

Chief Williams, S.A.N. leading counsel for the Bank of Baroda, has appealed against this ruling to this Court. This is the appeal we allowed on 31st March 1987. His grounds of appeal are as follows:-

(i) The Court of Appeal erred in law in making order extending the time fixed by its Order dated 27th day of July 1983 when it has no jurisdiction to do so under Order 3 rule 4 (1) on which the Respondent relied

(ii) Even if (which is disputed) the Court had jurisdiction to extend time as aforementioned, its decision to exercise that jurisdiction was a wrong exercise of its discretionary powers in that:

(a) in the light of the affidavit evidence before the court and in the absence of cross-examination of the deponents to such affidavits, it was impossible for the Court of Appeal to be satisfied that there had been a credible and reasonable explanation for the very long delay in complying with the order dated 27/7/83.

(b) the “Further Affidavit” of Richard Ekeh was deliberately abandoned and not relied upon.

(iii)The decision of the Court of Appeal to extend the time as aforesaid was unreasonable and ought not to have been made having regard to all the circumstances of the case as well as the affidavit evidence before the court.”

He described the substantive question for determination in his Brief of argument as:-

“Whether there is any credible explanation for the delay or failure of the defendant to comply with the order for enlargement of time by the Court of Appeal on 27/7/83.”

and concluded that the defendants knew that there were only two simple steps which were necessary for them to have taken pursuant to the Order that was made by the Court. They were to pay the judgment debt and costs into the court within one month of the order, and they were to file their Notice of Appeal within fifteen days. Learned counsel contended that both Orders could be complied with even if, as the Respondent in this Court had claimed, the case file was lost and could not be traced.

Chief Williams contended further that the contents of the affidavit of Richard Ekeh, on whose affidavit evidence the Respondents relied, was not credible and “so contradictory that the Court below ought to have rejected it. He highlighted the affidavit. Paragraph 8 of that affidavit had given the impression that the case file was lost, and only found on or about 21st February 1984, whilst the following paragraph contained a statement that the said file was “discovered” (whatever that may mean), on 22nd March, 1985. But, and this is important, as learned counsel pointed out in his brief, there was correspondence between the parties, the two sides, through their counsel, as far back as 22nd August 1983, almost immediately after the order of the Court of Appeal (or enlargement of time was made, and 11th April 1984, about the time the case file was allegedly found.

Learned counsel then referred to the main contention of the Respondents, apart from the explanation given by them. That is that the judgment of the High Court itself was a nullity, having regard to s.258 (1) of the Constitution of the Federal Re-public.

Chief Williams’ contention, on that, was that what is now before this Court is the second application of the present Respondents before the Court of Appeal where the issue of nullity was not raised. That is the application dated 27th July, 1985. That application merely sought an order-

(i) extending the time to enable the applicant comply with the order of this Honourable Court dated 27th day of July 1983 granting enlargement of time within which to appeal by fifteen days,

(ii) deeming the Notice or Appeal already as having been properly filed.

(iii) such further and or other orders as this Honourable Court may deem fit to make in the circumstances.”

The question of the nullity or otherwise of the judgment, of the High Court, as could be dearly seen, was certainly not an issue in the application. It was the granting of the application, supported by the affidavit, sworn to by Mr. Richard Ekeh, that provoked the appeal. Surely, it is not left to this Court or the Court of Appeal to create a new case for the Respondent. If the Issue of nullity was not be fore the Court of Appeal In that second application which is now the basis for this appeal, the question we are left with to answer here Is whether that ruling of the Court of Appeal dated 6th May 1985 which I have already set out and which contains in its foundation, the issues as to whether the judgment of the High Court was a nullity, a point not before the Court of Appeal, is right or not.

In the evidence of Richard Ekeh, is contained an averment, that the case file was last seen on 27th July 1983, before It was discovered “amongst old files which were being arranged for the perusal of Law School Students due on attachment” on 25th March 1985, thus suggesting a loss of the file for a period of almost two years. But then the same Richard Ekeh had earlier deposed in the same affidavit that the disappearance of the case file inhibited payment of the judgment debt up till 21st February 1984 thus suggesting a disappearance of the case file only up till 21st February 1984, that is, a period of only seven months. A definite contradiction has arisen in the evidence before the Court of Appeal.

As learned Senior Advocate, Chief Williams, rightly submitted, the burden was on the present Respondents to adduce acceptable reason for their failure to file the notice within time That reason should certainly not be based on such contradictory evidence as has been stated above. The case of Ratman v. Curmarasary (1965) 1 W.L.R. 8 which Chief Williams referred us to. Is very apt. There, the Privy Council, as per Lord guest said.

“The rules of court must prima facie be obeyed, and In order to justify a court in extending the time during which some step in procedure requires to be taken there must be material upon which the court can exercise its discretion p.8.”

(Italics mine)

There is no material here except the contradictory evidence (which amounts to no evidence or rather to no material) upon which the Court of Appeal could rightly have exercised the discretion it purported to exercise.

And as for the power of this Court to review the decision of the Court of Appeal which is now on appeal, another authority which Chief Williams S.A.N. relied upon is also apt. In Evans v. Bartlam (1937) 2 ALL E.R. 646, Lord Wright put it admirably.

“It is clear that the Court of Appeal should not interfere with the discretion of a Judge acting within jurisdiction, unless the Court is clearly satisfied he was wrong. But the Court is not entitled simply to say that, if the Judge had jurisdiction, and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must, if necessary, examine anew the relevant facts and circumstances, in order to exercise by way of review a discretion which may reverse or vary the order. Otherwise, in interlocutory matters, the Judge might be regarded as independent of supervision. Yet an interlocutory order of the Judge may often be of decisive importance on the final issue of the case, and may be one which requires a careful examination by the Court of Appeal.”

In the instant appeal, a determination of the interlocutory order made by the Court of Appeal should be of decisive importance to the case itself. A case where the original order of the Court was based on agreement of parties, which agreement is in fact being required to be set aside in the present application that is now on appeal. All one needs to do in the Evans v. Bartlam case is to read, for “Judge” – Court of Appeal; and for “Court of Appeal”- Supreme Court, and the authority would be absolutely apt in the current appeal.

It is for all these reasons that I allowed the appeal of the Appellants on 31st March 1987 and made all the orders which I made on that day.


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