Lafferi Nigeria Limited & Anor V. Nal Merchant Bank Plc & Anor (2015)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the ruling of the Court of Appeal, Abuja Division delivered on 6th July, 2005 granting the respondents herein an enlargement of time within which to appeal against the judgment of the Federal High Court, Abuja delivered on 4th March, 2004.

The facts that led to this appeal are briefly stated as follows:

The appellants herein were plaintiffs at the Federal High Court, Abuja in suit no. FHC/ABJ/CS/114/99 while the respondents and one Dr. Hamza Zayyad (now deceased) were the defendants. The appellants are shareholders and contributories in Mennoil Petroleum and Petrochemicals Ltd. (the nominal party) which was a customer of the 1st respondent bank. They sought declaratory and injunctive reliefs against the respondents and prayed inter alia for the nullification of the appointment, out of court, of Dr. Zayyad as the Receiver/Manager of the nominal party by the 1st respondent, for failure to comply with a condition precedent under the Companies and Allied Matters Act (CAMA) Cap. 59 LFN 1990 requiring notice of such appointment to be given to the Corporate Affairs Commission. They also sought the nullification of all acts, deeds and transactions already concluded by the Receiver/Manager under the receivership. Unfortunately, Dr. Zayyad died during the pendency of the suit and his name was struck out as a party.

By consent of the parties, the trial was conducted on the basis of affidavit and documentary evidence alone. No oral evidence was led. The suit was heard and concluded by Hon. Justice Okechukwu J. Okeke, who then adjourned for judgment. The judgment could not be delivered on the scheduled date, as the learned trial Judge had been transferred from the Abuja division of the court to the Yenagoa division of the court in Bayelsa State. The judgment written by Okeke, J. and dated 14/4/2003 was eventually delivered by Hon. Justice Binta Nyako on 4/3/2004 almost a year later. The court granted five out of the six reliefs sought by the appellants resulting in the nullification of the appointment of the Receiver/Manager and all acts undertaken by him.

An appeal was promptly filed against the judgment by the respondents’ solicitors, Emmanuel Toro & Co. They also filed an application for stay of execution pending the determination of the appeal. They wrote to inform the 1st respondent of the outcome of the suit and the steps taken in order to obtain formal approval. The 1st respondent however instructed them to discontinue the appeal along with the application for stay of execution as they had been overtaken by events. In compliance with their instructions, a motion on notice was filed before the trial court on 27/5/2004 for an order striking out the notice of appeal and the application for stay of execution. The court did not strike out the appeal but deemed it withdrawn. It nevertheless struck out the application for stay of execution. Subsequently however, the appellants took steps to execute the judgment against the respondents. The 1st respondent had a rethink and instructed its solicitors to pursue the appeal. The 2nd respondent, who had not been notified by learned counsel of the outcome of the suit, upon becoming aware, gave separate instructions to pursue the appeal. This gave rise to an application filed on 16/7/2004 for extension of time within which to appeal against the judgment of 4/3/2004. Despite stiff opposition from the appellants, the lower Court granted the application on 6/7/2005. The appellants are dissatisfied with the decision and have filed a notice of appeal before this court containing 3 grounds of appeal.

The parties have duly filed and exchanged briefs of argument in compliance with the rules of this court. At the hearing of the appeal on 2/3/2015, P.B. DAUDU Esq., leading H.M. IBEGA ESQ. and MISS JOY DEMIDE adopted and relied on the appellants’ brief settled by J.B. DAUDU, SAN filed on 12/10/2005 and urged the court to allow the appeal. S. ATUNG ESQ. adopted and relied on the respondent’s brief settled by EMMANUEL J.J. TORO, SAN, which was deemed filed on 8/11/2006 and urged the court to dismiss the appeal.

Learned counsel for the appellants formulated the following two issues for the determination of the appeal:

1. Whether as affirmed by the Court of Appeal, the respondents herein (appellants in the court below) could treat the withdrawal of their appeal done in the Federal High Court as ineffectual and be allowed to re-file the appeal upon extension of time being granted
2. Whether the Court of Appeal has jurisdiction to grant extension of time within which to file notice of appeal in the face of an existing decision of the lower Court not appealed against or set aside affirming the voluntary withdrawal of a bona fide filed appeal against the same judgment

On his part, learned counsel for the respondent distilled a single issue for determination thus:

Whether having regard to the fact that the respondents in this appeal who had earlier applied before the trial Federal High Court for their previous notice of appeal to be merely struck out, as opposed to a withdrawal of the appeal effected pursuant to the provisions of Order 3 Rule 18(1), (2) & (5) of the Court of Appeal Rules, 2002, thereby precluded the Court of Appeal from granting the respondents’ subsequent application for enlargement of time to enable them to exercise their Constitutional right to appeal to the Court of Appeal against the judgment of the trial Federal High Court delivered against them in this case.

I am of the humble opinion that the sole issue for determination in this appeal is:

Whether, having regard to the circumstances of this case, the lower Court was right in granting the respondents’ application for extension of time within which to appeal against the judgment of the lower Court delivered on 4/3/2004.

The submissions of both learned counsel shall be considered under this sole issue.

The main contention of the appellants in support of this appeal is that the lower Court was wrong to have granted the prayers of the respondents for extension of time to appeal because they had willingly withdrawn their notice of appeal at the trial court. Learned senior counsel for the appellants argued that the lower Court ought to have treated the withdrawal of the appeal by the respondents as final and as determining the appeal. He submitted that the attempt by the respondents to argue that the withdrawal was of no effect because the appeal had not been entered at the Court of Appeal and drawing a distinction between when an appeal is ‘brought’ and when it is ‘entered’ is not relevant in the circumstances of this case. He submitted that the decided cases on the issue are to the effect that the withdrawal of an appeal at any stage is conclusive and that the consequences of a withdrawal are the same whether the withdrawal is done at the trial court or at the Court of Appeal. He referred to: Ezomo v. A.G. Bendel State (1986) 4 NWLR (Pt.36) 448 @ 460. He submitted that the operative phrase in Order 3 Rule 18(1) of the Court of Appeal Rules 2002 concerning when an appeal may be withdrawn is: ‘at any time before the appeal is called on for hearing’, which has been judicially interpreted in the case of Edozien Vs Ezozien (1991) 1 NWLR (Pt.272) 678 @ 700 per Karibi-Whyte, JSC. He submitted that what is important where an appellant seeks to withdraw his appeal is not the venue of the withdrawal but whether at the point of withdrawal, his actions show a clear and manifest intention to discontinue the appeal. He argued that there was a clear intention to withdraw the appeal in this case. He submitted further that the trial court having ruled that the notice of appeal stands withdrawn, that was the end of the matter. He contended that the submission of learned Senior Counsel for the appellants at the trial court to the effect that only the Court of Appeal could strike out the appeal ought not to have been construed by the court below as amounting to a concession that an appeal could not be withdrawn at the trial court. He submitted that the effect of an oral application for withdrawal of an appeal or the filing of a notice of withdrawal is a dismissal of the appeal. He referred to: Y.S.G. Motors Ltd. Vs Okonkwo (2002) 16 NWLR (Pt.794) 536 @ 575/581; Akuneziri Vs Okenwa (1998) 15 NWLR (Pt.691) 592; Nkanu Vs The State (1980) 3-4 SC 1.