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Home » Nigerian Cases » Supreme Court » Lafferi Nigeria Limited & Anor V. Nal Merchant Bank Plc & Anor (2015) LLJR-SC

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

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.

See also  Magdalene Onogwu V. The State (1995) LLJR-SC

Learned senior counsel argued that the respondents could not validly seek an extension of time within which to appeal without first setting aside the ruling in which the earlier withdrawal of the appeal was acknowledged. He submitted that the declaration by the court that the notice of appeal stands withdrawn is a decision within the meaning of Section 318 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and cannot be glossed over and ignored. He referred to: Re: Shyllon (1994) 6 NWLR (Pt.353) 735 @ 751. He submitted that the decision of the trial court determining that the appeal had been withdrawn constitutes res judicata as between the parties, as it finally resolved the issue of the pendency or otherwise of the appeal. He submitted that res judicata is a jurisdictional issue whose object is to oust the jurisdiction of the court from reopening an issue that has been dealt with between the same parties to finality. He relied on: Oshodi & Ors. Vs Eyifunmi & Ors. (2000) 13 NWLR (684) 298 @ 325 E-F; Ike & Ors. Vs Ugboaja & Ors. (1993) 6 NWLR (Pt.301) 539 @ 560 G. He submitted that in the circumstances the lower Court lacked jurisdiction to extend time for the respondents to appeal.

In reply to the above submissions, learned senior counsel for the respondents submitted that the trial court was bound by the reliefs sought in the application filed on 26/5/2004 to wit: to strike out the notice of appeal and the application for stay of execution. Relying on the cases of: Ayanboye Vs Balogun (1990) 5 NWLR (Pt.151) 392; Government of Gongola State Vs Tukur (1989) 4 NWLR (Pt.117) 592 @ 603; and Christ the King Seventh Day Mission Vs Njuku (2005) ALL FWLR (Pt.287) 938 @ 948 D-E, he submitted that the court has no jurisdiction to grant a relief not sought by a party. He submitted that it was learned counsel for the appellant who suggested to the court that the prayer for an order striking out the notice of appeal should be treated as a prayer for the withdrawal of the said notice because in his view “an order striking out the appeal … determines the appeal,” which power is vested in the Court of Appeal. He argued that the trial court ought to have declined to grant the first prayer if it was of the opinion that it lacked jurisdiction to grant it. He contended further that it was not open to the appellants to vary a prayer not sought by them. He referred to: Construzioni Genarali Fasura Cogefar -S.P.A. Vs Nigerian Ports Authority & Anor. (1972) ALL NLR (Reprint) 947 @ 951 paras. 2 & 3.

Learned senior counsel submitted that the earlier notice of appeal had merely been brought in the Federal High Court pursuant to the provisions of Order 3 Rule 5 of the Court of Appeal Rules 2002. He argued that when the Federal High Court ruled that the notice of appeal had been withdrawn, such withdrawal could not be the same as the withdrawal of an appeal effected through a notice of withdrawal filed with the registrar of the Court of Appeal after an appeal has been entered, “at any time before the appeal is called for hearing” in the Court of Appeal under Order 3 Rule 18 for it to be visited with the terminal consequences of a dismissal under Order 3 Rule 18(5) of the Rules. He contended that by virtue of Order 1 Rule 2, the Registrar with whom a notice of withdrawal is to be filed is the Registrar of the Court of Appeal and not of any court below (i.e. trial court). Relying on Mohammed Vs Hussaini (1998) 14 NWLR 10 (Pt.584) 108 @ 139 E-G & 141-142 H-A; Adekanye Vs Comptroller of Prisons (2000) 12 NWLR (Pt.682) 563 @ 571-572 A-A; and Adeniji Vs Onagoruwa (1994) 6 NWLR (Pt.349) 225 @ 235-237 G-G, he submitted that the law is well settled as to when an appeal has been brought and when an appeal has been entered for the purpose of determining the respective or concurrent jurisdiction of the trial courts and the Court of Appeal. He submitted that the provisions of Order 3 Rule 18 of the Court of Appeal Rules 2002 are clear and unambiguous and contended that it could not be within the contemplation of its provisions that the application filed before the trial court had been brought in the Court of Appeal so as to warrant a dismissal of the appeal under Order 3 Rule 18(5) of the Rules. He submitted that since the earlier appeal had not been entered in the Court of Appeal, its discontinuance could not have been affected by the provisions of Order 3 Rule 18 so as to be visited with the adverse consequences of the provisions of sub rule 18(5).

Learned senior counsel submitted that there was never an application for the withdrawal of the appeal under Order 3 Rule 18 of the Court of Appeal Rules 2002 and that the authorities of Ezomo Vs A.G. Bendel State (supra) and Edozien Vs Edozien (supra) relied upon by learned senior counsel for the appellants are inapplicable in the circumstances of this case. He submitted further that the decisions relied upon were based upon a consideration of Order 8 Rule 6(1) of the Supreme Court Rules 1985 (as amended), which provisions are virtually on all fours with the provisions of Order 3 Rule 18(1) & (5) of the Court of Appeal Rules 1981 (as amended) and Order 3 Rule 18(1) & (5) of the Court of Appeal Rules 2002. He submitted that for an appeal to be validly withdrawn under Order 3 Rule 18(1) of the Court of Appeal Rules 2002, certain conditions precedent must be fulfilled as stated in the case of: Okereke Vs N.D.I.C. (2003) 2 NWLR (Pt.804) 218 @ 236 C-H & 239-240 A-C.

He also referred to: Ikeakwu Vs Nwamkpa (1967) NMLR 224 @ 227, wherein it was held that where an appeal has been struck out it is still possible to appeal against the judgment by means of an application to relist or the filing of a fresh notice of appeal, with an enlargement of time, if necessary. He submitted that the Court of Appeal in Geosource Nig. Ltd. Vs Biragbara & Ors. (2000) 13 NWLR (Pt.684) 355 @ 358-359 H-E, granted an application for enlargement of time to file notice of appeal after striking out the original notice of appeal on the strength of the decision in Ikeakwu Vs Nwamkpa (supra). He submitted further that by virtue of Sections 241, 242 and 243 of the 1999 Constitution (as amended), the respondents have a constitutional right of appeal. He submitted that unless an appeal has been duly and properly withdrawn and thereby deemed dismissed pursuant to Order 3 Rule 18(5) of the Court of Appeal Rules 2002, the constitutionally enshrined right of appeal should not be regarded as foreclosed. On a citizen’s constitutionally guaranteed right of appeal, he referred to: Deen Mark Co. Ltd. Vs Abiola (2002) 3 NWLR (Pt.754) 418 @ 440 E-F & 450 F-H; Okereke Vs N.D.I.C (supra) @ 233-238 C-G & 239-240 A-F; Y.S.G. Motors Ltd. Vs Okonkwo (supra) @ 561-562 F-E; 568-569 C-E & 577-578 G-A. He urged the court to dismiss the appeal.

Order 3 Rule 4(1) and (2) of the Court of Appeal Rules 2002 provides:

4(1) The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply.

(2) Every application for an enlargement of time within 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. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the notice of appeal.

(Emphasis mine)

From the above provisions, it is evident that an application for enlargement of time within which to appeal is not granted as a matter of course. It is within the discretionary powers of the court which, as with all discretionary powers, must be exercised judicially and judiciously. Thus the pre-conditions for the exercise of the court’s discretion in an applicant’s favour, which must be disclosed in a supporting affidavit, are:

i. Good and substantial reasons for failing to appeal within the prescribed period; and

See also  Isaac Iloabuchi V. Cosmas Ebigbo & Anor (2000) LLJR-SC

ii. Grounds of appeal which prima facie show good cause why the appeal should be heard.

It is settled law that the two conditions must co-exist. It is not sufficient to satisfy one without the other. See: Ibodo Vs Enarofia (1980) 5-6 SC 42; Shittu Vs Osinbanjo (1988) 7 SC (Pt.III) 1; Holman Bros. (Nig.) Ltd. Vs Kigo (1980) 8-11 SC 43; Iroegbu Vs Okwordu (1990) 6 NWLR (Pt.159) 643; Kotoye Vs Saraki (1995) 5 NWLR (Pt.395) 256; Minister of Petroleum & Mineral Resources & Anr. Vs Expo-Shipping Line (Nig.) Ltd. (2010) 12 NWLR (Pt.1208) 261. One of the exceptions to the general rule that both pre-conditions must co-exist is that where the grounds of appeal raise the issue of jurisdiction, the reasons for the delay in appealing against the decision would cease to be a relevant factor to be taken into consideration. The reason, no doubt, is that the issue of jurisdiction being so fundamental, may be raised at any stage of the proceedings and even for the first time before the Supreme Court. See: Ukwu Vs Bunge (1997) 8 NWLR (Pt.518) 527; Kpema Vs The State (1986) 1 NWLR (Pt.17) 396; F.C.E. Okene Vs Ogbonna (2006) 7 NWLR (Pt.979) 282 @ 299 A-C.

The reasons for the failure of the respondents to appeal against the judgment within the prescribed time were comprehensively stated in paragraph 3(h) to (p) of the affidavit in support of the application. Sub paragraphs (k), (l), (m), (n), (o) and (p) are of particular relevance and are reproduced hereunder:

“3(k) That by their letter dated 14th April, 2004 in response to the letters Exhibits ‘PA.5’ and ‘PA.6’ hereof the 1st Defendant/Applicant informed their Solicitors that because they had since disposed of the assets of Mennoil Petroleum and Petrochemicals Ltd, the Nominal Party in this suit to recover its indebtedness to the 1st Defendant/Applicant Bank and having effected transfer of ownership of the said assets to the purchasers thereof, the appeal and Motion for Stay of execution pending appeal had been overtaken by events and therefore that Counsel should discontinue the appeal and motion for stay of execution. A copy of the said letter dated 14th April, 2004 is hereto annexed and marked Exhibit ‘PA.7’.

(l) That in response to the said instructions to discontinue the appeal process he [Mr. Emmanuel Toro, SAN] prepared a motion on notice dated 26th May, 2004 and filed on 27th May, 2004 praying the Federal High Court, Abuja, to strike out both the notice of appeal and the motion for stay of execution both of which were accordingly struck out by the Federal High Court, Abuja on the 23rd of June, 2004. A copy of the said motion on notice which the court granted is annexed hereto and marked Exhibit ‘PA.8’.

(m) That soon after the occurrence of the facts stated in subparagraphs (k) and (l) above, the Plaintiffs/Respondents took steps to execute the judgment by seizing or forcefully invading and taking possession of the premises of the Nominal Party in this suit already purchased by Zest Oil Ltd from a Receiver/Manager appointed by 1st Defendant/Applicant and those of the 1st Defendant/Applicant which were also purchased from late Dr. Hamza Zayyad another Receiver/Manager of the Nominal Party appointed by the 1st Defendant/Applicant

(n) That because of the execution or attempt to execute the judgment on the various assets of the Nominal Party already purchased by various people from the Receiver/Managers appointed by the 1st Defendant/Applicant Bank, the purchasers thereof in turn besieged the 1st Defendant/Applicant which was constrained to quickly rescind its earlier decision not to appeal against the judgment of the Federal High Court, Abuja. Consequently, by its letter dated 13th July, 2004 the 1st Defendant/Applicant Bank instructed their Solicitors to resuscitate or revive the appeal processes to enable the Bank to still appeal against the said judgment of the Federal High Court to the Court of Appeal. A copy of the said letter is annexed hereto and marked Exhibit ‘AP.9′.

(o) That the earlier decision of the 1st Defendant/Applicant was based on the erroneous premise that having sold off the assets of the debtor MINAL PARTY under powers contained in the relevant Deed of Mortgage Debenture, the judgment of the trial Court in this suit could no longer adversely affect the interest of the 1st Defendant/Applicant Bank but it had to reverse such stand when attention was drawn to the various Deeds of Indemnity the 1st Defendant/Applicant Bank had given to each purchaser of the assets of the Nominal Party.

(p) That by the time the 1st Defendant/Applicant instructed Counsel to discontinue the earlier appeal processes, the 3 months within which to appeal to the Court of Appeal against the judgment of the trial Federal High Court had lapsed and the jurisdiction of the Federal High Court over the matter had thereby also ceased hence it became necessary to bring this application direct to the Court of Appeal to seek for extension of time within which to so appeal.”

The appellants countered the averments in their counter affidavit filed on 29/11/04, particularly in paragraph 3(c), (d) and (e) wherein they averred thus:

“3(c) That the applicants on their own, willingly instructed Mr. Toro SAN by their letter of 14th April 2004 to discontinue on the 24th of March 2004.

(d) That paragraph 3(i) of the affidavit in support is only correct to the extent that although Mr. Toro SAN filed a motion to strike out the notice of appeal and application for stay of execution. Hon. Nyako J. who heard the application did not strike out the notice of appeal but only treated it as having been withdrawn and in consequence struck out the motion on notice for stay of execution. A certified copy of the ruling of Nyako J. and proceedings of 23rd June 2004 are annexed herewith and marked as Exhibit R1 and R2.

(e) That it is a matter of fact and common knowledge that once an appeal has been withdrawn it cannot be heard again under any guise.”

After careful consideration of the averments for and against the application, the lower Court at page 180 of the record held:

“In this affidavit in support of his application the applicant has shown that after the withdrawal of the appeal on the 23/6/04, execution of the judgment was being levied, the 2nd applicant who had not been informed of the judgment by a letter dated 8/7/04 instructed his solicitors to appeal against the said judgment.

This application was filed on the 16/7/05 on the instruction of the 2nd applicant who was unaware of the judgment. In such circumstances, the 2nd applicant in particular cannot be shut out and deprived of his constitutional right to appeal. The delay in bringing the application to my mind has been satisfactorily satisfied.”

In an appeal against the exercise of discretion by a lower Court, an appellate court will not interfere with the decision simply because, if faced with a similar application it would have exercised the discretion differently. It is the duty of an appellant who appeals against the exercise of discretion by a lower Court to satisfy the appellate court that the lower Court did not exercise its discretion judicially and judiciously. It is not for the appellant to repeat the same argument before the appellate court in the hope that it would exercise its discretion differently. See: Minister of Petroleum & Mineral Resources & Anr. Vs Expo-Shipping Line (Nig.) Ltd. (supra) at 291-292 H-C; R. Lauwers Import-Export Vs Jozebson Industries Co. Ltd. (1988) 7 SC (Pt.III) 26 @ 44-45.

Learned senior counsel for the appellants argued quite forcefully that the original appeal having been withdrawn, it cannot be revived by an application for extension of time. It is important at this stage to determine the effect of the proceedings of the trial court of 23rd June 2004. It is significant to note that the application before the trial court was for an order striking out the notice of appeal. It was however pointed out to the court by learned counsel for the respondents therein that it had no jurisdiction to strike out the appeal, as only the Court of Appeal was competent to do so. Apparently recognizing its want of jurisdiction, the court refrained from making any order in respect of prayer 1 for the striking out of the appeal. Rather it recorded that the notice of appeal “stands withdrawn”. The court either has jurisdiction to make certain orders or it does not. Where it lacks jurisdiction, as in this case, the pronouncement that the notice of appeal “stands withdrawn” is of no legal effect. The provisions of Order 3 Rule 18(5) could not be applied to such a pronouncement.

See: Madukolu Vs Nkemdilim (1962) 1 SCNLR 341; (1962) 1 ALL NLR 587.

See also  Corporal Desmond Ononuju V. The State (2013) LLJR-SC

I venture to say that the cases of Ezomo Vs A.G. Bendel State (supra) and Edozien Vs Edozien (supra) relied upon by learned counsel for the appellants are distinguishable from the facts of this case because in those cases, the appellants had filed notices of withdrawal of appeal. The issue in contention in Ezomo’s case was whether the filing of a notice of withdrawal of appeal at the trial court renders such notice a nullity and the effect of the filing of a notice of withdrawal. This court held that the filing of a notice of withdrawal of appeal in the lower Court whose judgment is being appealed against does not render the notice a nullity. The reasoning behind it being that under Order 1 Rule 22 of the Court of Appeal Rules 1981, an application may be filed in the court below for transmission to the Court of Appeal and therefore a notice of withdrawal of appeal could be validly filed in the lower Court. The court held further that the effect of a notice of withdrawal is that Order 3 Rule 18 of the Court of Appeal Rules automatically takes effect and that under Order 3 Rule 18(5) an appeal validly withdrawn under the Rule, with or without an order of court shall be deemed to have been dismissed. In Edozien Vs Edozien (supra) a notice of withdrawal of appeal was filed not by lead counsel but by a junior counsel in the team of solicitors representing the appellants. By a subsequent motion, the appellants sought to withdraw the notice of withdrawal filed. It was averred inter alia that learned counsel who signed the notice of withdrawal signed it alone and that neither his client nor leading counsel was involved in signing and filing the notice. This court held that while the number of counsel that appear in a case may depend on the complexity of the case, all those briefed have the right to conduct, settle or compromise in so far as their actions are within the ethics of the profession. The court also held that where a notice of withdrawal is signed by either a legal practitioner acting for the appellant or by the appellant himself there has been due compliance with Order 8 Rule 6(1) of the Rules of the Supreme Court.

Order 3 Rule 18(1) and (5) of the Court of Appeal Rules, 2002 provides:

18(1) An appellant may at any time before the appeal is called on for hearing serve on the parties to the appeal and file with the Registrar a notice to the effect that he does not intend to further prosecute the appeal.

(5) An appeal which has been withdrawn under this rule, whether with or without an order of the court shall be deemed to have been dismissed.

(Emphasis mine)

The relevant form for a notice of withdrawal of appeal is Civil Form 14, which states:

“NOTICE OF WITHDRAWAL OF APPEAL

Order 3 Rule 18(1)

………………………………….

…………………………………..

TAKE NOTICE that the Appellant(s) herein intend(s) and doth hereby wholly withdraw(s) his/her appeal against (all) the Respondent(s) in the above mentioned appeal.

Dated at ……….this……….day of ………. 20

…………………

Appellant(s)”

In the instant case, as observed earlier, the application before the court was for an order striking out the appeal. It was brought pursuant to Order 54 Rule 8 and Order 30 Rule 2(1) of the Federal High Court (Civil Procedure) Rules 2000 and under the inherent jurisdiction of the court. It was not a notice of withdrawal of appeal as in Civil Form 14 above. In moving the application, learned counsel prayed the court to strike out the notice of appeal. The trial court by its conduct conceded that it had no jurisdiction to grant the prayer. By applying for the appeal to be struck out rather than filing a notice of withdrawal, it would appear that learned senior counsel was mindful of the effect of a withdrawal under Order 3 Rule 18(1) and (5) of the Court of Appeal Rules and wanted to keep the respondents’ options open.

In Ikeakwu & Ors vs. Nwamkpa (1966) Vol.4 N.S.C.C. 83 @ 86 this court held as follows:

“…Although an order striking out an appeal has for some purposes much the same effect as an order dismissing it. It does not thereby become a decision on the merits and does not necessarily preclude a subsequent decision on the merits if the matter can be reopened by an appropriate procedure. When an appeal is struck out the position is as it would have been if no appeal had been brought, that is to say the effective judgment is that appealed against, not a judgment of the appeal court, and there seems to be nothing contrary to general principles in holding that it is still possible to appeal against the effective judgment if a proper procedure is followed and if the limits of time for taking any particular step are not exceeded. Either an application to relist or a fresh notice of appeal, with an enlargement of time if necessary would be a form of procedure known to the law…”

There was nothing in the circumstances of this case to activate the provisions of Order 3 Rule 18(1) and (5) of the Court of Appeal Rules 2002. It follows therefore that what the lower Court had to consider was whether from the averments before it, the respondents had shown good and substantial reasons for their failure to appeal within the prescribed period. I agree with the lower Court that the respondents had fulfilled this requirement by explaining fully the circumstances that led to the delay.

On the second requirement, the lower Court had this to say at page 180 of the record:

“The proposed Notice and Grounds of Appeal annexed contained 7 grounds of appeal. Grounds 1, 2, 3, 4 and 6 relate to the decision of the trial court in its interpretation of the provisions of the Companies and Allied Matters Act (CAMA). Ground 5 relates to the reliefs granted by the trial court inspite of the death of the 2nd respondent (Receiver/Manager) whose name had earlier been struck out in the matter. Ground 7 touches on the competence of the judgment which was delivered outside the 90 days as provided by Section 294(1) of the 1999 Constitution.

These grounds raise weighty and substantial issues of law and prima facie shows good cause why the appeal should be heard. The applicant has satisfied the requirements for extension of time within which to appeal.”

I have examined the grounds of appeal, particularly Ground 7, which raises the issue of the competence of the judgment of the trial court delivered more than 90 days after the final addresses of counsel and agree entirely with the court below that the grounds of appeal prima facie show good cause why the appeal should be heard.

I agree with the lower Court that the respondents having satisfied the two preconditions for the grant of an order for extension of time within which to appeal against the judgment of the trial court ought not to be deprived of their constitutionally guaranteed right of appeal as provided in Sections 241, 242 and 243 of the 1999 Constitution (as amended). The sole issue for determination in this appeal is accordingly resolved against the appellants. The appeal fails and is hereby dismissed. The decision of the lower Court delivered on 6th July 2005 is hereby affirmed. The respondents are hereby granted a further extension of 14 days from today within which to file their notice and grounds of appeal against the judgment of the Federal High Court Abuja in suit no. FHC/ABJ/CS/114/99 delivered on 4th March 2004.

I make no order for costs.


SC.152/2005

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