Cooperative And Commerce Bank (Nig) Ltd Vs Emeka Ogwuru (1990)

LawGlobal-Hub Lead Judgment Report

WALI, JSC.

In the High court of Justice, Onitsha Judicial Division, the present appellant as plaintiff obtained judgment against the present respondent as defendant for the sum of N56,410.25 with Interest at 5% from the date of judgment.

The respondent appealed against the, judgment. Three years thereafter, the present appellant brought an application before the Enugu Division of the Court of Appeal praying for- “(a) Order for extension of time within which the plaintiff/applicant in the above appeal can file its Notice and Grounds of Cross-Appeal.

(b) regard the notice and grounds of cross-appeal, Exhibit B, filed on 21st January, 1987 and already served on the defendant/respondent as duly filed and served on the defendant/respondent the necessary fees having been paid; (c) to amend the name of the plaintiff/cross-appellant bank in the Notice of the cross-appeal and other processes filed in this appeal to read Co-Operative & Commerce Bank (Nig.) Ltd.”

In a two to one judgment, the Court of Appeal (Uwaifo and Oguntade, JJCA.), refused the application for extension of time to file the Notice of Cross-appeal and dismissed it.   The present appellant who will henceforth be referred to as the appellant, has now appealed to this court.

In compliance with Order 6 rule 2 of the Supreme Court Rules, 1985, the parties filed and exchanged briefs of argument. In the appellant’s brief the following three issues were formulated for consideration and determination by this court- “i. Whether it was proper for the justices of Court of Appeal at this premature stage in their majority decision to have delved into the merits and demerits of cross appeal in order to ascertain whether the appeal will succeed or fail before determining whether it was just to grant the appellant’s prayer far extension of time within which to file its notice and grounds of cross-appeal. ii. Whether it was right for the learned justices of the Court of Appeal in their majority decision to have gone to adopt the reasoning of the trial judge in his judgment with regards to the indemnity contract as it affects the claim for 9% interest without relating it to the proposed grounds of cross appeal and its particulars therein before declaring that the proposed notice and grounds of cross appeal were not arguable. iii.

Whether it was right for the justices of the Court of Appeal in their majority decision not to have considered all the reasons averred by the appellant in their affidavit and further affidavit for failing to file their notice and grounds of cross- appeal within time before declaring the reasons insubstantial and exercising their discretion based on the same: Kate Enterprises Limited v. Daewoo (Nig.) Ltd. (1985) 2 NWLR. 116 (part 5) Woluchem v. Gudi (1981) 5 SC. 291 applied. University of Lagos v. Aigoro (1985) 1 NWLR 143 (part 1).”

In the brief filed by the defendant/respondent who will from now on be referred to as the respondent, six issues were formulated for determination. These are – “3.01 Whether the appellant has complied with the provision of Order 3 Rule 4(2) of the, Court of Appeal Rules (1981) which specifically stipulates that: ‘Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting 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’. 3.02 Whether on the correct interpretation of Order 3 Rules 4(2) of the Court of Appeal Rules (1981) the reason given by the appellant at page 10 of the record in paragraphs 8 and 9 in support of the application for failing to appeal as of right within the 3 months statutory period allowed by order 3 rule 4(2) of the Court of Appeal Rules 1981 constitute good and substantial reasons for the failure to appeal within the prescribed period. 3.03 Whether the Court of Appeal adopted the correct approach when it refused to grant leave to cross-appeal. 

3.04 Whether the grounds of appeal in the notice of appeal dated 20th January, 1987 referred to as Exhibit ’B’ in pages 25 -26 of the record prima facie showed good cause why the appeal should be heard. 3.05 Whether the plaintiff/appellant has made out a case of some miscarriage of justice or a violation of some principles of law or procedure which would justify the Supreme Court to intervene or disturb concurrent findings of fact by the High Court and Court of Appeal on the issue of 9% interest rate. 3.06 Whether the Notice of Appeal dated 20th January, 1987 and filed on 21st January, 1987 well outside the prescribed period of 3 months can be regularized by an Order of Court.” The main issue arising in this appeal is whether, having regard to the materials placed before it, the Court of Appeal rightly interpreted the provision of Order 3 rule 4(2) of the Court of Appeal Rules, 1981 when it refused the appellant’s, application.  

The rule provides that – “Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed time, and by grounds of appeal which prima facie show good cause why the appeal should be heard.”  

It is quite clear from the provision of the rule above that two conditions must be conjunctively satisfied before the court can exercise its discretion in favour of the applicant to grant his prayer. These two conditions, as culled out from the rule (supra )  are – (a) an affidavit setting good and substantial reasons for failure to appeal within the prescribed time, and (b) grounds of appeal which prima facie show good cause why the appeal should be heard.   It is pertinent to state that Order 3 rule 4(2) of the Court of Appeal Rules, 1981 is in pan materia with Order 7 Rule 4(2) of the Supreme Court Rules, 1977. This provision was interpreted by this court in Ukpe lbodo & Ors. v. Enarofia & Ors. (1980) 5-7 S.C. 42.

As for (a) above, in the affidavit sworn to on 17th April, 1989 by Gregory Azih, the accountant in the applicant’s Bank, particularly paragraphs 4,6,7,8 and 9, he deposed that:   “4. That on the 10th day of April, 1986 the plaintiff obtained judgment against the defendant in the above suit No. 0/52/78 for the sum of N56,410.25 (fifty-six thousand four hundred and ten Naira, twenty-five kobo) out of the sum of N125,040.24 (one hundred and twenty-five thousand, forty Naira, twenty-four kobo) claimed made up of the principal sum (debt) and interest therein. The said judgment is hereby, exhibited and marked Exhibit “A”.

6. That the plaintiff being unsatisfied with that part of the judgment disallowing the payment of interest to the plaintiff, cross-appealed against that part of the judgment and filed their notice and grounds of cross appeal on 21st January, 1987. 7. That as at 21st January, 1987 when the plaintiff/applicant filed their notice and grounds of cross- appeal they were already out of time. 8. That before the plaintiff bank filed their notice and grounds of cross-appeal they vigorously searched and dug deep into the bank’s archives to get at certain documents and authorities specifying the mode of payment of interest on any kind of facility granted to a customer. 9. That the said search took the bank- quite some time.’ (italics supplied).  

The same deponent swore to a further affidavit on 21st June, 1989 in which he stated in paragraph 7 thereof as follows- “7. That at the time the judgment was delivered on April, 1986 apart from the search for certain documents which delayed the plaintiff in filing the cross-appeal, within time, the Managing Director of the bank who would have authorised the filing of the cross-appeal was on overseas official tour and by the time he came back and gave the approval the plaintiff bank was already out of time in filing their cross-appeal.” (Italics supplied for emphasis).