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Mercantile Bank (Nig.) Plc V. Imesco Enterprises Ltd (2022) LLJR-SC

Mercantile Bank (Nig.) Plc V. Imesco Enterprises Ltd (2022)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C. 

The applicant herein, by an application, brought pursuant to Section 233(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 27(4) of the Supreme Court Act, Cap. S15 Laws of the Federation, 2004 and Order 2, Rule 31 and 32; Order 6 Rule 2 and Order 7 Rule 1 of the Supreme Court Rules, as amended in 2014, prayed this Court as follows:

  1. AN ORDER of this Court extending the time within which the appellant/applicant could seek leave of this Court to appeal the judgment of the Court of Appeal, Calabar Division, delivered on 23rd June, 2016 in CA/C/128/1999: Mercantile Bank Nigeria Plc vs. Imesco Entreprises Limited.
  2. Leave of this Court to appeal against the said judgment of the Court of Appeal in Appeal No: CA/C/128/1999.
  3. AN ORDER for extension of time within which the appellant/applicant could file an appeal against the said judgment of the Court of Appeal, Calabar Division which was delivered on 23rd June, 2016.
  4. And for such further orders as this Court may deem fit to make in the circumstance. The grounds upon which the application is predicated are as follows:

I. Section 27 (2) (a) of the Supreme Court Act, Cap. 515 Laws of the Federation, 2004 provided for the appeal in this case being a civil appeal to have been filed within three months from the date of the judgment of the lower Court, which judgment was delivered on the 23rd day of June, 2016. (Copy of the judgment of the lower Court is attached herewith and marked Exhibit NWP1).

II. That the notice of appeal could not be filed within the prescribed period as above mentioned as the provisional liquidator of the appellant (Nigeria Deposit Insurance Corporation), a federal government parastatal, could not pass the board resolution for the applicant to prosecute on appeal within the time stipulated by the Rules of this Honourable Court.

III. That failure to file the appeal within the prescribed period was not deliberate but due to circumstances beyond the control of the appellant as a result the hurdles of civil service bureaucracy.

IV. That an order of this Honourable Court extending the time within which to file the notice of appeal is required.

V. That the notice of appeal has now been prepared (copy of the proposed notice of appeal is attached herewith and marked as exhibit NWP2).

In support of the application, a 9-paragraph affidavit was sworn to by one John Adams, Litigation Secretary in the law firm of Samuel O. Zibiri, SAN and Co. (EL-Shaddai Chambers), solicitors to the applicant, to which two exhibits were attached marked “NWP1” and “NWP2”. A 24- paragraph further and better affidavit sworn to by one Sam, G. Waklek, Assistant Manager at the legal department of the Nigeria Deposit Insurance Corporation (NDIC), the statutory liquidator of the applicant was also filed later to which again were attached other four exhibits marked “MO1”, “M02”, “M03” and “M04, respectively.

I consider paragraphs 4 and 5 of the affidavit relevant. They read as follows:

  1. That I know that sometimes in May 2017, our law firm was instructed by the appellant/applicant, (through her provisional liquidator, Nigeria Deposit Insurance Corporation) to take over their legal representation in this appeal.
  2. That I was informed by Chinedum G. Ike-Okafor, a counsel to the 2nd respondent/applicant in our office at APO, Abuja on the 30th May, 2017 at about 11.25 am of the following facts which I verily believed him to be true and correct thus:

a. Section 27(a) of the Supreme Court Act CAP 515, Laws of the Federation 2004 provided for the appeal in this case being in a civil appeal to have been filed within three months from the date of the judgment of the lower Court, which judgment was delivered on the 23rd day of June, 2016. (Copy of the judgment of the lower Court is attached herewith and marked Exhibit NWP1).

b. That the Notice of Appeal could not be filed within the prescribed period as above mentioned as the provisional liquidator of the appellant (Nigeria Deposit Insurance Corporation), a Federal Government Parastatal, could not pass the board resolution for the applicant to prosecute on appeal within the time stipulated by the Rules of this Honourable Court.

c. That failure to file the appeal within the prescribed period was not deliberate but due to circumstances beyond the control of the appellant as a result, the hurdles of civil service bureaucracy.

d. That an order of this Honourable Court extending the time within which to file the Notice of Appeal is required.

e. That the Notice of Appeal has now been prepared (copy of the proposed Notice of Appeal is attached herewith and marked as Exhibit NWP2).

f. That the applicant is desirous of filing and prosecuting an appeal against the judgment of the lower Court in Appeal No: CA/C/128/1999.

The following paragraphs of the applicant’s further affidavit are also, in my view, relevant. They read thus:

  1. That sometime in 1992, the appellant/applicant then as a going concern, instituted an action against the respondent at the High Court of Calabar with suit No. C/87/1992, for recovery of debt.
  2. That during the life of the litigation at the trial Court, the banking license of the applicant was revoked by the Central Bank of Nigeria and by virtue of this fact, the appellant/applicant could no longer operate as a financial institution, or carry out banking business in Nigeria.
  3. That upon the revocation of the banking license of the applicant, Nigeria Deposit Insurance Corporation (NDIC) was subsequently appointed as the provisional liquidator of the defunct appellant bank. A copy of the winding up order is herein attached and marked as Exhibit MOI.
  4. That one of the statutory powers of the Nigeria Deposit Insurance Corporation (NDIC), as a provisional liquidator, is to institute and/or defend or take over actions against any debtor, including that of the defunct appellant bank.
  5. That I know as a fact that the respondent is one of the debtors of the defunct appellant bank.
  6. That upon being appointed the liquidator of the defunct appellant bank, NDIC inherited this suit at the trial Court, by virtue of the fact that its subject matter bothers on the recovery of the debt owed to the defunct appellant bank by the respondent.
  7. That with the advent of the then Failed Banks Tribunal, which amongst other things, postulated that an action in Court involving a distressed bank may be brought before the tribunal for quick dispensation, NDIC instructed the appellant’s counsel to discontinue the suit at the trial Court and transfer same to the Failed Banks Tribunal for accelerated hearing and determination.
  8. That the counsel to the defunct appellant bank at the trial Court, Paul Erokoro, SAN, filed an application by way of motion on notice, seeking the leave of Court to withdraw the suit in order to enable him transfer same to the Failed Banks Tribunal for accelerated hearing and determination.
  9. That on the 21st day of November, 1995, the trial Court delivered its ruling and rather than striking out the suit as prayed, dismissed it in favour of the respondent. A copy of the ruling is herein attached and marked as Exhibit M03.
  10. That being dissatisfied with the decision of the trial Court, the defunct appellant bank, proceeded to the Court of Appeal vide Appeal No: CA/C/128/1999.
  11. That the Court of Appeal delivered its judgment in Appeal No: CA/C/128/1999, and upheld the decision of the trial Court in dismissing the suit.
  12. That the appellant’s counsel at the Court of Appeal did not inform NDIC of the judgment until about five months after the judgment was delivered.
  13. That the defunct appellant bank, through its provisional liquidator NDIC, could not file an appeal immediately as a result of the hurdles in civil service bureaucracy to wit: the debriefing of the appellant’s counsel at the Court of Appeal and the engagement of the services of her new lawyers: Messrs’ Samuel O. Zibiri, SAN and co.
  14. That I was informed by Chinedum G. Ike- Okafor, counsel at Samuel O. Zibiri, SAN and Co. at their law office at APO, Abuja on the 3rd October, 2017 at about 1.00 pm of the following facts, which I verily believed him to be true and correct thus:

a. That an appeal in a civil suit ought to be filed within three months from the date of the judgment of the lower Court.

b. That the stipulated time within which an appeal ought to be filed in this suit has elapsed.

c. That due to the delay owed to the inevitable reasons as earlier stated, an appeal in this case is no longer as of right, rather with the leave of this Honourable Court.

d. That an order of this Honourable Court extending the time within which the appellant could seek leave of this Honourable Court to appeal the said judgment is required.

e. That the leave of this Honourable Court to appeal against the said judgment must first be sought and obtained before the appellant can appeal against the said judgment.

f. That an order of this Honourable Court extending the time within which to file the Notice of Appeal is required.

g. That the Notice of Appeal has now prepared.

  1. That the defunct appellant bank, through her liquidator NDIC, is desirous of filing and prosecuting an appeal against the judgment of the lower Court in Appeal No: CA/C/128/1999.
  2. That NDIC, under its capacity as liquidator of the defunct appellant bank, has sought for and obtained the leave of the Federal High Court, to enable it institute and/or defend any action for and/or against the defunct bank in this suit. A copy of the leave of Court is attached herewith and marked as Exhibit M04.

The respondent, in opposing this application, filed a 25-paragraph counter-affidavit, dated 5th September, 2017 and filed on same day. It was sworn by one Favour Njoku, Legal Practitioner in the law firm of Chijioke Emeka and Colleagues (Auxano Law), counsel to the respondent to which six affidavits were attached. A further and better 13-paragraph counter-affidavit was also later filed to which again were attached one exhibit.

Favour Njoku deposed inter alia as follows:

  1. Contrary to paragraph 5, I know that this case has a protracted history spanning about 25 years now, from the High Court of Cross-River State. At both the High Court and Court below the case suffered several recurring incidences of delay at the instance of the present applicant.
  2. The dispute that gave rise to the appeal arose out of a loan of N5,000,000 extended to the respondent in 1985 by the defunct mercantile bank of Nigeria Plc on a loan account with the bank.
  3. Following a dispute that arose out of mismanagement of the account after an audit was carried out at the behest of the respondent by the then Price Water House and Co., a meeting was held on 6th June, 1990 attended by both parties. During the said meeting, the outstanding debt was revised to N8,674,060. 52 as full and final payment vide a letter from that management dated 11th July, 1990. A copy of the letter is herewith attached and marked “exhibit IMESCO 1”.
  4. The loan was fully liquidated on 28th June, 1991 vide two cheques, a United Bank of Africa Limited Cheque dated 30th valued at N2,808,760 and a Pinnacle Commercial Bank Ltd Cheque dated 27-6-1991 valued at N5,865,300.52. Copies of the cheques are herewith attached and marked “Exhibit IMESCO 2” and “EXHIBIT IMENSCO 3” respectively.
  5. The management of the appellant later alleged the first UBA cheque dated 30th July, 1990 came a day late, which the respondents denied insisting that it was an upcountry cheque under the banking practice of the period and duly arrived as agreed. Interestingly, the local branch manager S.E Ekpe by letter dated 22nd August, 1990 acknowledged receiving the cheque with thanks. A copy of the letter dated 22nd August, 1990 is herewith attached and marked “EXHIBIT IMESCO 4”
  6. The bank insisted that the cheque was late and insisted these proceedings as SUIT NO: C/87/1992 before ECOMA C.J., of blessed memory, in the High Court of Cross River State, Calabar, for recovery. After 3 years of trial, during which the case was once struck out for want of diligent prosecution, then relisted, 3 witnesses called and 42 exhibits tendered, the Bank applied to withdraw the suit claiming it wanted to refile same in the Failed Banks Tribunal.
  7. The only reason put forward for the withdrawal of the suit was that the Central Bank of Nigeria and the Nigerian Deposit Insurance Corporation directed that the matter be transferred to the Failed Banks Tribunal for speedy determination. Meanwhile, the suit had suffered delays at the instance of the applicant and trial had considerably advanced at the time. A copy of the applicant’s motion dated 10th October, 1995 with the affidavit in support is herewith attached and marked “EXHIBIT IMESCO 5”.
  8. The learned Chief Judge reviewed the facts and in his ruling, declined to strike out the suit but, in his discretion, rather dismissed the suit. A copy of the ruling dated 21st November, 1995 is herewith attached and marked “EXHIBIT IMESCO 6”.
  9. On 12th December, 1995, the applicants appealed the ruling. They thereafter went to sleep. On 3rd November, 1999, they wake up, and caused the record of appeal to be transmitted. That was 4 years after filing notice of appeal.
  10. They thereafter filed a spate of applications and on 8th May, 2000 when the matter came up before the Court below, there was no appellant’s brief, rather counsel for the applicant, Ebayi Akonjom withdrew each of the motions filed and all were struck out.
  11. After the motions were struck out on 8th May, 2000, the applicant went to sleep again, this time for a very long time. If effectively abandoned the appeal, and the issue of the alleged indebtedness was rested.
  12. On 8th July, 2015, 15 years after the case last came up and all applications struck out at its behest, the applicant filed its motion for extension of time to file appellant’s brief. That was 20 years after filing the notice of appeal.
  13. Since the appellant’s brief was already before the Court below, after initially signifying to oppose, the respondent conceded the application for extension of time to file the appellant’s brief 20 years after the notice of appeal was filed. Briefs were exchanged and the appeal was heard.
  14. The main issue at the Court below was whether the Learned Chief Judge exercised discretion properly to dismiss the suit at that stage rather than merely strike it out. It was shown that the applicant had always been indolent and never vigilant in these proceedings since it was initiated in 1992 as carefully articulated by Ecoma CJ at page 4 of His Lordship’s ruling. This formed part of His Lordship’s ratio for exercising discretion in favour of a dismissal when the applicant sought to withdraw the matter. It was observed that the matter could have been concluded before the application to withdraw was brought, but for the unnecessary delays by the applicant.
See also  Madam Alice Chiatogu Amadi V. Charles Orisakwe (2005) LLJR-SC

Some of the particulars are as follows

(a) By motion dated 27th January, 19990, the appellant sought extension of time to file a reply. This was granted without objection on 24th May, 1993. After calling two witnesses, there was an ensuing tardiness by the applicant and after putting up some shady prosecution, the Court exhausted its patience and struck out the case on 7th March, 1995.

(b) On 20th March, 1995, the appellant applied to relist the suit. The application was taken on 15th May, 1995, and the suit was relisted without opposition from the respondent. The appellant applied for “accelerated hearing”, same was also granted without opposition. Trial thereafter proceeded, on day to day basis until 20th September, 1995 when Counsel to the appellant said he could not see go on again “because her could not see his client”. Case was adjourned to 9th and 10th October, 1995 for continuation of trial.

(c) Rather than conclude the trial, the appellant realizing that it blundered throughout the trial, by motion dated 10th October, 11995, applied for leave to withdraw the suit to refile it before the Failed Banks Tribunal. The respondent filed a counter- affidavit dated 13th October, 1995 in opposition. The appellant filed a further-affidavit dated 24th October, 1995.

(d) Trial took three years during which the case was struck out once for want of diligent prosecution and then relisted. Thereafter trial recommenced and three witnesses were called and 42 exhibits tendered, and the appellant had blundered. Appellant then applied to withdraw the suit ostensibly to re-file it before the now defunct Failed Banks Tribunal.

  1. The Chief Judge reviewed the facts of the case and thereafter considering all the circumstances including the facts that trial had commenced, three witnesses called and 42 documents tendered in evidence. In his Ruling delivered on 21st November, 1995, declined to strike out the case as prayed, but rather dismissed it.
  2. The learned Justices of the Court below in their judgment delivered on 23rd June, 2016 upheld the decision of the learned Chief Judge having found no reason to question his exercise of discretion or upturn same.
  3. I verily believe that the applicant does not deserve the discretion sought in this application. The applicant has been consistently indolent in this matter both at the High Court and on appeal to the Court below. Following the same trend, the applicant has waited for 12 months after the delivery of judgment of the Court below to bring this application. I verily believe that the applicant has not shown any cogent reason for the delay, as no material has been placed before the Supreme Court to justify the long delay.
  4. Contrary to paragraphs 6, 7 and 8 of the affidavit, I know that no material has been provided to justify a favourable exercise of discretion. I also know that the respondent will be greatly prejudiced by the grant of this application.
  5. I know as a lawyer that there should be an end to litigation for a matter that was instituted in 1992, the prosecution of which has been without diligence.
  6. I know that while the applicant delayed after favourable judgments in the lower Courts, the res was dissipated, the alter ego of the respondent, Late Dr. Ime Umanah and other original characters in the 1992 dispute passed on. Several documents have also been damaged or lost.

As earlier stated, the respondent also filed a further affidavit on 13th April, 2018. Having perused the said affidavit, I find that the following paragraphs should be reproduced herein. They are as follows:

  1. I have read the Further and Better Affidavit dated 21st November, 2017 deposed to by Sam G. Walek, an Assistant Manager in the Legal Department of Nigeria Deposit Insurance Corporation (NDIC) and I deny the depositions at paragraphs 6, 7, 8, 9, 10, 16, 17, 19, 22 and 23 thereof.
  2. Contrary to paragraphs 6,7,8 and 10 of the Affidavit, I know that the NDIC statutorily became the applicant’s liquidator on 16th January, 1998 when the CBN revoked its banking license. I know that the trial Court had earlier dismissed the suit on 21st November, 1995, three years before the applicant’s said license was revoked and before the Federal High Court appointed NDIC liquidator on 23rd June, 1998 as per EXHIBIT MO1.
  3. I know as fact that the appointment of NDIC as liquidator in 1998 did not affect the jurisdiction of the trial Court in 1995 when it dismissed the suit. I know that there is no genuine issue of jurisdiction disclosed in this application as the liquidator was appointed on 23rd June, 1998 while the suit was earlier dismissed by the trial State High Court per ECOMA C.J, three years earlier on 21st November, 1995.
  4. Contrary to paragraph 9, I know that the respondent fully liquidated the subject-matter loan since 27th June, 1991 and I know that the applicant’s recovery suit was also dismissed on 23rd June, 1998. I also know that there have been concurrent findings by the two lower Courts dismissing the suit.
  5. Contrary to paragraphs 16 and 17 of the affidavit, I know the reason of debriefing another counsel alleged at the paragraphs fundamentally arises with the applicant’s earlier allegation that the board of NDIC failed to timeously pass a resolution authorizing the appeal. I know that the applicant is exhibiting the same tardiness that has kept the proceedings in Court for 25 years. I also know that the applicant has not shown any cogent reason for each day of delay in bringing this application, 12 months after the Court below delivered its judgment dismissing the appeal.
  6. In response to paragraph 20 of the affidavit, I verily believe that the ex parte order obtained in the Federal High Court in grounds that the respondent is indebted to the applicant was procured by fraud, misrepresentation and in abuse of process of Court. The order was sought and obtained in spite of the subsisting dismissal of the appeal by the Court of appeal and without awaiting the position of the Supreme Court on this application.
  7. Contrary to paragraphs 19 and 22 of the affidavit, I know that no compelling material has been furnished by the applicant to justify a favourable exercise of the discretion of the Honourable Court. I also know that the Respondent will be prejudiced by the grant of this application.
  8. Contrary to paragraphs 23 of the affidavit, I know that this proceeding for recovery commenced in 1992, and has never been diligently prosecuted. I know that while the applicant delayed, the respondent’s alter ego, late Dr. Ime Umanah and other original actors in the 1992 dispute became deceased. Several documents have also been damaged, misplaced or lost overtime.
  9. I know that the current situation is that while the applicant yet delayed and is seeking extension of time to appeal, it would be herculean to rally relevant witnesses and documents to start de novo a proceeding first initiated in 1991, at a time I verily believe that a fair trial will be impossible.

A written address was also filed on the same date 9th June, 2017. In the said written address, the applicant distilled two issues for determination of the instant application, to wit:

  1. Whether in the circumstance, the applicant can file this application for leave to appeal to the Supreme Court?
  2. Whether in the circumstance, the applicant’s application for leave to appeal against the judgment in question could be granted?

Applicant’s Arguments

Learned senior counsel for the applicant urged this Court’s indulgence in arguing both issues formulated for determination, together.

It is the submission of learned senior counsel that the affidavit in support of the application stated clearly the reasons for the delay to appeal as being that the applicant could not pass the board resolution for the applicant to prosecute on appeal within the time stipulated by the Rules of this Court.

He further posited that the proposed notice of appeal contains grounds of appeal which prima facie show good cause why the appeal should be heard. See Lafferi (Nig,) Ltd v. NAL Merchant Bank Plc (2015) All FWLR (pt. 802) 1578, 1581-1582.

He further submitted that the present application calls for the exercise of the judicial discretion of this Court based on the facts and circumstances contained in both the grounds for the reliefs sought and the affidavit evidence deposed to by the applicant.

He further argued that both the grounds for the reliefs sought and the affidavit evidence before this Court have succinctly and unequivocally shown cogent and verifiable reasons and evidence for the delay in the filing of the appellant’s notice of appeal within time. See Saidi Ogundimu and Ors v. Bello Kasumu and Ors. [2006] All FWLR (pt. 326) 207, 218, Clifford Osuji v. Nkemjika Ekeocha (2009) All FWLR (pt. 490) 614, 647, paras C-E.

He urged this Court to grant this application in the circumstances, and in the interest of justice.

On its part, the respondent filed a brief of argument on 5th September, 2017. In the said brief of argument, the respondent distilled a sole issue for determination, to wit: Whether in the circumstances, the Honourable Court ought to exercise its discretion in favour of the applicant?

Respondent’s submissions

On his part, learned counsel for the respondent submitted that the instant application, going by its antecedents, is not one that raises cogent and substantial reasons to warrant the exercise of the Court’s discretion in its favour.

He further submitted that in the affidavit accompanying the instant application, the deponent, John Adams, alleged that the provisional liquidator of the applicant could not pass the board resolution for the applicant to prosecute the appeal within time. This was the only reason given for the applicant’s inability to seek leave to appeal within the stipulated time, adding that the onus on the applicant to show cogent reasons had not thereby been discharged.

In his submission, the reason given by the applicant herein is not cogent and substantial enough to warrant the exercise of the discretion of the Honourable Court in favour of the applicant. See CCB (Nig,) Ltd v. Ogwuru (1993) NWLR (pt. 284) 630.

Citing Ibodo and Ors v. Enarofia and Ors (1980) 12 NSCC 195, 200, lines 30-35, he further contended that ground one of the proposed Notice of Appeal, which challenges the decision of the lower Court on the premise inter alia, that the said Court came to a wrong conclusion in affirming the judgment of the trial Court without due consideration to the whole circumstances of the case, lacks substance in itself to sustain legal argument, adding that an appeal predicated on such misconceived premise is unsubstantial.

He, further, posited that grounds 2 and 3 of the proposed Notice of Appeal are hinged on a purported appointment of a liquidator a fact which was never raised in the trial Court. Masqueraded as an issue of jurisdiction, the alleged appointment of a liquidator, which the applicant contends affected the jurisdiction of the trial Court, was never placed before the Court.

See also  Alhaji Audu Bida Vs Commissioner Of Revenue (1972) LLJR-SC

He pointed out that he application to withdraw the suit at the trial Court made no mention of liquidation of the plaintiff or appointment of a liquidator. He referred to Exhibit “IMESCO 5”. He added that the allegation was first made in passing as an afterthought and the lower Court, in its judgment, observed that the alleged appointment of a liquidator was not part of the issues that affected the discretion of the lower Court and that the said appointed liquidator was not a party to the suit at trial.

He contended that even if leave is granted and the appellant succeeds in showing that the lower Court lacked jurisdiction, the alleged liquidator will need to file a new suit in the Federal High Court, for a dispute which became statute-barred long ago. For such a stale cause the applicant has continued to take every step out of time up till now, never shown vigilance. He urged the Court to resolve the issue in favour of the respondent and hold that the instant application lacks merit.

A written address was also filed on the same date 21st November, 2017. In the said written address, the applicant distilled a sole issue for determination, to wit:

Whether in the circumstance, the Honourable Court ought to exercise its discretion in favour of the applicant in granting this application?

Applicant’s Submissions

Learned senior counsel submitted that by virtue of Order 2 Rule 31 (1) and (2) of the Supreme Court Rules, this Court has the inherent powers to extend the period within which a party is required or authorized to do any act, or take any proceedings, in the interest of justice.

He further posited that this omission, as deposed to in the supporting affidavit, is as a result of the inadvertence of applicant’s counsel at the lower Court who had failed to inform the applicant of the judgment at the lower Court in due time, which consequently hindered the applicant from passing a resolution (through her provisional liquidator, the NDIC) within time against same.

He entreated the Court to invoke the well-established principle of law that a litigant should not be made to suffer for the mistakes of counsel, Akinpelu v. Adegbore (2008) 10 NWLR (pt. 1096) 531, 555, paragraph F. He consequently, prayed the Court to grant this application as prayed.

A brief of argument in support of the further counter-affidavit was also fled on the same date by the respondent. The respondent therein raised a sole issue for determination; to wit:

Whether in the circumstances, the Honourable Court ought to exercise its discretion in favor of the applicant?

RESPONDENT’S ARGUMENTS

It is the contention of learned counsel for the respondent that the conditions as required under Order 2 Rule 31 of the Supreme Court Rules in respect of an application of this nature have not been met in this application.

Learned counsel pointed out that at paragraph 5 of its main affidavit, the applicant deposed that it did not appeal timeously because NDIC could not pass a board resolution fast enough. However, at paragraphs 16 and 17 of its further and better affidavit, the applicant deposed that its counsel failed to inform it of the judgment until about 5 months and its debriefing of former counsel and debriefing of new counsel took time.

He further submitted that this trend of tardiness has trailed and dogged these proceedings in the two lower Courts for the past twenty-five years. Assuming its latest reason on mistake of counsel is to be accepted as valid, the applicant still failed to explain each day of delay for the remaining seven months after counsel informed it of the lower Court’s judgment.

The onus on the applicant is to first explain why it failed to appeal within the statutory period of three months and thereafter till it brought this application. The alleged “bureaucracy of debriefing and engagement” of another counsel does not discharge this onus. See Imegwu v. Okolocha (2013) 9 NWLR (pt. 1359) 347, 370 D, Governor of Benue State v. Nigerian Construction Consortium Limited (1997) 3 NWLR (pt. 495) 610, 615 E-G, Minister of Petroleum and Mineral Resources v. Expo Shipping Line (Nig.) Limited (2010) 12 NWLR (pt. 1208) 261, 296 B-C.

He canvassed the view that Section 417 of the Companies and Allied Matters Act, Cap C20 LFN 1999 does not apply to the instant case, as the suit was neither commenced nor pending against the applicant. The proceedings were pending against the respondent at the instance of the applicant.

Learned counsel further submitted that it is also doubtful if the jurisdiction of the trial Court would have changed mid- trial from the State High Court to the Federal High Court, Adeogun v. Fashogbon (2008) 17 NWLR (pt. 1115) 149, 173, H-B. He further opined that a new trial at the Federal High Court will pose an obvious difficulty in assembling relevant witnesses and documents to ensure a fair trial.

On the foregoing further submissions, learned counsel urged this Court to resolve the issue arising in this application in favour of the respondent.

RESOLUTION

This application is primarily for the “trinity prayers.” That is, for an order for extension of time to seek leave to appeal, leave to appeal and extension of time to file the Notice of Appeal. It is predicated on Section 233 (1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 27 (4) of the Supreme Court Act and Order 2 Rule 31 and 32, Order 6 Rule 2 and Order 7 Rule 1 of the Supreme Court Rules.

For ease of reference, Order 2 Rules 31 and 32 of the Supreme Court Rules provides thus:

31 (1). The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice.

Provided that in any civil proceedings, such enlargement of time or departure from these rules may be granted only in exceptional circumstances.

(2) Every application for an enlargement of time in which to appeal or in which to apply for leave to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal or to apply for leave to appeal within the prescribed period. There shall be exhibited or annexed to such affidavit: –

(a) a copy of the judgment from which it is intended to appeal;

(b) a copy of other proceedings necessary to support the complaints against the judgment and;

(c) grounds of appeal which prima facie show good cause why the appeal should be heard.

  1. When time is enlarged, a copy of the order granting such enlargement of time shall be annexed to the notice of appeal.
  2. Where, in an appeal to the Court from the Court below, the Court below has affirmed the findings of fact of the Court of first instance, any application to the Court in pursuance of its jurisdiction under Section 213(3) of the Constitution for leave to appeal shall be granted only in exceptional circumstances.

Order 6 Rule 2 of the Supreme Court Rules also provides:

2(1) An application for leave to appeal or for enlargement of time in which to appeal or to seek leave to appeal shall be supported by a brief and shall include the following:

(a) the motion paper for the application;

(b) the relevant affidavit in support thereof and counter-affidavit, if any, in opposition;

(c) the relevant documents referred to in and exhibited with the said affidavits which must include true copies of the judgments with which the application is concerned that is, both of the Court below and the Court of first instance verified by affidavit;

(d) the proposed grounds of appeal from the said judgments;

(e) a statement of the questions which the applicant would like the Court to consider, expressed in the terms and circumstances of the case, but without unnecessary detail. The statement will be deemed to include every subsidiary question comprised therein. Only questions set forth in the application or comprised therein will be considered by the Court.

(f) the constitutional provisions, enactments or subsidiary legislation, if any, which are relevant to the application;

(g) a concise statement of the case containing the facts material to the consideration of the questions presented; and

(h) a direct and concise argument amplifying the reasons relied upon;

(2) All arguments in support of the application shall be set out in the application as provided for in Paragraph (h) of Sub-rule (1) of this Rule.

(3) Failure on the part of an applicant for leave to present with accuracy, brevity and precision whatever is essential to the clear and adequate understanding of the questions which require consideration shall be a sufficient reason for refusing the application;

(4) The Court, in the interest of justice, may adjourn the application so as to enable the party or parties affected to file their own brief in reply.

On its part, Section 27 (2) and (4) of the Supreme Court Act provide that:

(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are:

(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.

(b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.

(4) The Supreme Court may extend the periods prescribed in Subsection (2) of this Section.

Now, it is not in doubt that an aggrieved party has a constitutional right of appeal to challenge the decision of the Courts, Ugwuh v. Attorney-General East Central State [1975] 6 SC 13, Adigun and Ors v. The Attorney-General of Oyo State and 18 Ors 2 NWLR (pt. 56) 197; 3 SCNJ 118, WAEC v. Adeyanju (2008) 9 NWLR (pt. 1092) 270, National Bank of Nigeria Ltd v. Weide and Co, (Nig.) Ltd and Ors (1996) 10 SCNJ 147.

Section 233 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), confers exclusive jurisdiction on the Supreme Court to hear and determine appeals from the Court of Appeal. Sub-rule (2) of Order 2 Rule 31 of the Supreme Court (amended) Rules 2014 is of particular relevance here, as it stipulates the documents that must be annexed to this application to aid the Court in determination of an application of this nature now before us. There is an unending line of decisions of this Court that an application for extension of time to appeal or for leave to appeal must satisfy all requirements as prescribed in the sub-rule before such application can be granted. See Adigwe v. FRN (2015) 18 NWLR (pt. 1490) 105, Ibodo v. Enarofia (1980) 5-7 SC 43, Yonwuren v. Modern Signs Ltd (1985) 1 NWLR (pt. 1) 143, Nigerian Laboratory Co. v. Pacific Merchant Bank Ltd (2012) 6 SC (pt. 1).

In view of the nature of this application, it is in my respectful view, necessary to give some background facts that led to the filing of this application. The respondent herein obtained a loan from the defunct Mercantile Bank of Nigeria Plc, (now called Mercantile Bank of Nigeria Plc in liquidation) and failed to liquidate the loan. The appellant in a bid to recover the loan filed a suit – C/87/92 at the Calabar High Court, Cross River State. In the course of hearing the suit, the bank became distressed and Nigeria Deposit Insurance Corporation (NDIC) was appointed as liquidator.

With the advent of the Failed Banks Tribunal, the NDIC instructed their solicitor-the firm of Paul Erokoro and Co., to discontinue the suit at the High Court and transfer same to the failed banks Tribunal for the accelerated hearing and determination of the suit. However, when the appellant applied to the Court to discontinue the hearing and determination of the suit at the High Court, the High Court instead of striking out the suit, rather dismissed same on the 21st December, 1995. The NDIC as the liquidator to the appellant instructed their counsel to challenge the ruling on appeal to the Court of Appeal, Calabar Judicial division. By its judgment, delivered on 23rd June, 2016, the lower Court found no merit in the appeal, and consequently dismissed same. The applicant herein now filed the instant application for extension of time to file an appeal before this Court on 9th June, 2017, at about nine (9) months after the statutory period of three (3) months had elapsed.

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I have carefully read both affidavits in support of the application filed by the applicant herein. The reasons the applicant gave in paragraph 5 of the affidavit in support of its application were that the Notice of Appeal could not be filed within the prescribed period because the provisional liquidator of the applicant (Nigeria Deposit Insurance Corporation), a Federal Government Parastatal, could not pass the board resolution for the applicant to prosecute on appeal within the time stipulated by the Rules of this Court. Also, that failure to file the appeal within the prescribed period was not deliberate but due to circumstances beyond the control of the appellant as a result the hurdles of civil service bureaucracy.

In its further and better affidavit, the applicant added that the applicant’s counsel at the Court of Appeal did not inform NDIC of the judgment until about five months after the judgment was delivered, restating that the defunct applicant bank, through its provisional liquidator NDIC, could not file an appeal immediately as a result of the hurdles in civil service bureaucracy and the debriefing of the applicant’s counsel at the Court of Appeal and the engagement of the services of her new lawyers.

It must be remembered that before an application of this kind could succeed, the applicant must satisfy the Court that there are good and satisfactory reasons for not filing his application timeously. It must also be shown that the applicant has good, substantial and arguable grounds of appeal.

It is settled that for this Court to exercise its discretionary power, an application of this sort must be supported by an affidavit which must give sufficient reasons to explain the delay, the judgment or ruling of the Court below against which he is seeking to appeal, and the proposed grounds of appeal against the said judgment or ruling. See Ibodo and Ors v. Enarofia and Ors (1980) 5-7 SC 42; (1980) N.S.C.C. 195, University of Lagos v. Olaniyan (1985) 1 NWLR (pt. 1) 156, Obikoya v. Wema Bank Ltd, (1989) 1 NWLR (pt. 96) 157

It is indeed, a good and substantial reason to show that it was due to the fact that the applicant was, as it were, caught in the booby trap of difficult points of procedure. See Aminu Akindele Ojora and Ors v. Laisis Ajibola Odunsi (1964) NMLR 12, Iroegbu v. Okwordu (1990) 6 NWLR (pt. 159) 643, 669.

However, the applicant failed to furnish this Court with any material showing this delay on the part of the provisional liquidator as it alleged, such as a copy of the resolution passed. These are verifiable facts. The applicant who deliberately concealed these facts does not want them verified. The applicant’s affidavits also failed to disclose the reasons for further delay of the remaining seven months after counsel informed it of the lower Court’s judgment. Notwithstanding the length of time, this Court however cannot determine undue delay by reference only to the period of delay. See Ngere v. Okuruket XIV (2014) 11 NWLR (pt. 1417)147, Okereke v. Liquid Investment (Nig,) Ltd (1998) 5 NWLR (pt. 560) 26, Iyalabani Co, Ltd v. Bank of Baroda (1995) 4 NWLR (pt. 387) 20. The applicant cannot be made to benefit from its own iniquity of non-disclosure of material facts.

From the facts gathered from the affidavit evidence before this Court, and exhibits attached thereto, it is obvious that the applicant has been consistently indolent in this matter both at the High Court and on appeal to the lower Court. Following the same trend, the applicant has waited for twelve months after the delivery of judgment of the lower Court to bring this application. I verily believe that the applicant has not shown any cogent reason for the delay, as no material has been placed before this Court to justify its delay.

I have already said so much to show that the reasons adduced for the delay in appealing in this case cannot be placed solely at the feet of counsel for the applicant. In my view, it is not just enough for any litigant to entrust his case to counsel and thereafter go to sleep. He must remain vigilant from the beginning to the end of the case, vigilantibus etnon dormientibusjura subvenuint, that is, the law helps the vigilant not the one who sleeps on his right.

Indeed, I do not think that the principle of law enunciated in such cases as Doherty v. Doherty (1964) 1 All N.L.R. 299, that litigants be not made to suffer for the ‘sins’ of their counsel, is an impregnable fortress for the protection of an indolent litigant who has himself not been diligent, Bowaje v. Adediwura (1976) 6 SC 143, 147, Akinyede v. The Appraiser (1971) 1 All NLR 162, Ahmadu v. Salawu (1974) 1 All NLR (pt. 2) 318.

It is not enough to merely depose in an affidavit that counsel is to blame for the failure to do this or that and leave it at that. The applicant must demonstrably show that (a) he himself, was in no way responsible for the delay or did not contribute to the delay; and (b) That counsel was duly instructed in time and that the failure to appeal within the prescribed time was solely due to counsel’s negligence or inadvertence.

​Where, however, the alleged negligence, or omission is attributed to both of them, each of them must clearly state in their respective affidavits, his own part in the matter and give detailed explanation which would assist the Court in determining whether or not the reason given for the delay are good and substantial as to justify the exercise of the Court’s discretion in granting the order sought.

It follows then that, in such a case, the Court is not estopped in the exercise of its discretion, which requires the Court to exercise its powers judicially and judiciously, Ibodo and Ors v. Enarofia and Ors. (supra) at 201, Akinyede v. The Appraiser (1911) 1 All NLR 162, 166, Doherty v Doherty (supra), Bowaje v. Adediwura (supra)

Taking all the circumstances of the case together, it would have been enough for me to say that on the basis of the elaborate exposition I have made above, this application should fail since the applicant has failed to cross the first hurdle of giving good and substantial reason for its failure to appeal within the period prescribed by law and that would have been the end of the matter.

However, for reasons of expediency, I shall proceed to examine the grounds of appeal in the proposed Notice of Appeal, to see if prima facie, they show good cause why the appeal should be heard. I would now recast the grounds of appeal with their particulars in the proposed notice of appeal and they are as follows:

GROUND ONE:

The learned Justices of the Court of Appeal erred in law by upholding the decision of the trial Court dismissing the case instead of striking it out.

PARTICULARS OF ERROR

i) The decision of the learned Justices of the Court of Appeal was perverse.

ii) The decision of the Justices of the Court of Appeal has occasioned a miscarriage of Justice.

iii) ln upholding the decision of the trial Court, the Court below did not take cognizance of the fact that the trial Court acted without jurisdiction.

iv) The lower Court came into a wrong conclusion in affirming the judgment of the trial Court without due consideration to the whole circumstances of the case.

v) Having regards to the facts and circumstances of the case, the lower Court ought not to have affirmed the order of dismissal.

vi) The Court did not properly examine the reasons offered by the applicant for its discontinuance of the suit before the order for dismissal was made.

vii) The lower Court disregarded the fact that the trial Court did not give any reasons for making an order of dismissal as the proper order to make in the circumstance.

GROUND TWO:

The learned Justices of the Court of Appeal erred in law when they held that after the Mercantile Bank had a liquidator appointed to take over its affairs, the State High Court still had the jurisdiction to continue the suit even without leave of Court to continue the case.

PARTICULARS OF ERROR

i. The statutory/appointed liquidator is automatically a party to the suit by the operation of law.

ii. Section 417 of Companies and Allied Matters Act is clear on the need to first seek and obtain leave of Court in accordance with the circumstances of the case, before such matter can be continued despite the winding up order or appointment of a liquidator. Contrary to the statutory provision, this was not done in the instant case, yet the Court refused to strike out the said matter.

iii. As at the time of dismissal, the trial Court was no longer seised of jurisdiction.

GROUND THREE

The learned Justices of the Court of Appeal erred in law when they failed to consider whether or not it was lawful for the trial Court to continue with the matter without the requisite leave, when its jurisdiction had already been ousted by the operation of law.

PARTICULARS OF ERROR

i) Jurisdiction of the Court is anchored on statutory provisions.

ii) The learned trial Judge ceased to have the requisite jurisdiction to sit on/over the case when the affairs, assets and liabilities of the plaintiff/appellant fell under liquidation and a statutory liquidator (Nigeria Deposit Insurance Corporation NDIC) was appointed.

iii) The learned trial Judge lacked the inherent powers to dismiss the matter.

Having examined the Grounds of Appeal before me, I am of the firm view that the applicant, would be appellant, has not, by these grounds, shown as substantial, or clear case of misdirection or error in law or fact, or an erroneous conception of the case of the parties by the lower Court, erroneous evaluation of evidence and erroneous findings of fact occasioning a miscarriage of justice to warrant the hearing of the appeal on those grounds. See Obikoya v. Wema Bank Ltd (1989) 1 NWLR (pt. 96) 157, 178, Ukpe Ibodo v. Enarofia (1980) 5-7 SC 42, Holman Brother (Nigeria) Ltd. v. Kigo (Nigeria) and Anor (1980) 5-7 SC 60; E.F.P. Co Ltd v. N.D.I.C (2007) 9 NWLR (pt. 1039) 216, 239, paras. D-F.

It often happens in Courts in this country, as facts of this case demonstrate, that appellants file their Notice of Appeal and do absolutely nothing thereafter, as the applicant had done at the lower Court. In my view, it would defeat the whole concept of speedy dispensation of justice and expeditious resolution of disputes if this trend were allowed to continue.

Given the history of the instant case, the applicant’s persistent conduct thereof, its non-chalance and its incoherent explanations, I do not find the reasons cogent and substantial enough. On the contrary, they are insubstantial, unpersuasive and untenable. I also do not find any ground which raises substantial issues of fact or law for the consideration of the Court. The grounds, as set out by the applicant or would-be appellant in its proposed Notice of Appeal, are in my opinion, totally lacking in substance, if not frivolous. Maybe to the applicant, this matter has no significance, hence it dragged its feet.

​For the above reasons, I conclude that there is no basis for exercising the discretion in favour of the applicant having failed to establish grounds justifying an extension of time within which to file an appeal, leave to file a notice of appeal, and leave to appeal respectively. I consider the time lapse between the date the judgment of the Court of Appeal was delivered and the date this application was filed in this Court to be inordinate and unreasonable. This application is hereby dismissed.


SC.448/2017(R)

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