Lopin (Nigeria) Limited & Anor V. Wema Bank PLC. (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The applicants herein by an application dated 9th March, 2010 and filed on the 16th March 2010, prayed this court for the following reliefs:-

“1. AN ORDER extending the time within which the Respondent/Applicant may file a Respondent’s Notice in this appeal as contained in the Proposed Notice of Intention to Contend That Judgment Should be Affirmed on Grounds Other Than Those Relied on by the Court Below referred to as Exhibit AA1 in the Affidavit in Support and herewith attached.

2. AN ORDER granting Leave to the Respondent/Applicant to raise as fresh issue on appeal the ground contained in the Proposed Notice of Intention to Contend That Judgment Should be Affirmed on Grounds Other Than Those Relied On By The Court Below, that is Exhibit AA1.
3. AN ORDER granting Leave to the Respondent/Applicant to file its Respondent’s Notice in the Registry of this Honourable Court, the Record of Appeal having been transmitted and/or entered or filed in the Registry of this honourable court.
4. AND for such further order and other orders as the Honourable Court may deem fit to make in the circumstances.”

The grounds upon which the application is anchored as reflected on the face of the motion paper are as follows:-

“a. The Respondent/Applicant has not filed its Respondent’s Notice due to circumstances beyond its control and as such has been out of time to file same, as explained in the Affidavit in Support.

b. The Respondent/Applicant intends to raise the lone ground contained in its notice, Exhibit AA1, as a fresh issue on appeal.

c. The lone ground is on the point of jurisdiction and fundamentally goes to the root.”

In support of the application is a 10 paragraphs affidavit with an exhibit, the proposed notice of intention to contend annexed and marked exhibit AA1.

In moving the application, Dr. A. I. Layonu SAN leading Mr. Kunle Ayorinde for the respondent/applicant relied on paragraphs 3, 4, 5 and 6 of the affidavit and the proposed notice of intention to contend marked as exhibit AA1. Learned senior counsel stated that the notice of intention to contend relates to the jurisdiction of the lower court, in that the originating process was not filed by a legal practitioner in terms of Okafor v. Nweke (2007) 3 SC (Pt.11) 55. Learned senior counsel submitted that the issue was not canvassed at the lower court, which explains why he is seeking to raise it as a point of jurisdiction. Learned senior counsel further submitted that the respondents notice is the appropriate procedure to adopt in contending that the ruling of the lower court be affirmed based on the decision in Okafor v. Nweke (supra). In concluding, learned senior counsel urged the court to grant the application.

In opposing the application, Mr. E. O. Ereruka for the respondents/appellants stated that the applicant has not satisfied the requirement as to good and substantial reason for the delay in filing the respondent’s notice. Learned counsel submitted that a respondent’s notice must be based on the pleadings settled before the lower court, not a complain as to the signing of the originating process. In support of this contention reference was made to the case of U.B.N. Plc v. Jeric (Nig) Ltd (1998) 2 NWLR (Pt 536) 63 at 62. In concluding, learned counsel urged that the application be dismissed. In a short reply, learned counsel for the applicant stated that the length of delay is immaterial provided there are good reasons and reference was made to Ukwu v. Bunge (1997) 8 NWLR (Pt.518) 527. Learned counsel therefore urged the court to grant the application.

The brief facts giving rise to this application are as follows.

The appellants as plaintiffs in the court below instituted an action and the respondent as defendant challenged same as being statute barred. The plaintiff on his part filed a preliminary objection dated 7/7/05 praying for the dismissal of the defendants motion as it constitutes an abuse of court process. The two applications were heard and in a ruling delivered on 20/3/06, the plaintiffs suit was struck out for being statute barred. Distressed by the said ruling, the plaintiffs appealed against same by their notice of appeal dated and filed 24/7/09 pursuant to an order of court made on 13/7/09. The respondent filed this application on 16th March, 2010 seeking extension of time to file a respondents notice, leave to raise fresh issue and leave to file the respondent’s notice. The ground raised in the respondent’s notice is to the effect that the originating process was signed by one “Lateef Adegbite & Co” who is not a legal practitioner. The relief sought is that the decision of the court be affirmed on the ground contained in the respondent’s notice.

The grant of the reliefs sought in an application of this nature is discretionary and the discretion must be exercised judicially and judiciously. For an applicant to succeed, the two conditions stated in Order 7 Rule 10(2) of the Court of Appeal Rules 2007 must be satisfied. The conditions are:-

(a) Good and substantial reasons for failure to appeal within the prescribed period; and