MR. Ibidolapo Balogun V. Wema Assets Management Limited & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Lead Ruling)

The Applicant herein had by a motion on notice dated and filed on 23-10-2013 prayed this Court for the following orders:-

1. “An Order of this Honourable Court for extension of time within which the 2nd Defendant/Applicant will seek leave to appeal against the Ruling of the Honourable Justice G.M. Onyeabo sitting at the High Court of Lagos State, Tafawa Balewa Square Lagos Delivered on 19 June 2013 in suit no. LD/1071/09.
2. An Order of this Honourable Court granting leave to the Applicant to appeal against the Ruling of the Honourable Justice G.M. Onyeabo sitting at the High Court of Lagos State, Tafawa Balewa Square Lagos delivered on 19 June 2013 in suit No. LD/1071/09.
3. An Order of this Honourable Court for extension of time within which the 2nd Defendant/Applicant will appeal against the Ruling of the Honourable Justice G.M. Onyeabo sitting at the High Court of Lagos State, Tafawa Balewa Square Lagos delivered on 19 June 2013 in suit No. LD/1071/09.
4. And for such further orders as this Honourable Court may deem fit to make in the circumstance of this case.”

The grounds for the application as set out by the Applicant in the motion prayer are as follows:-

1. The Garnishee Order nisi dated 19th June 2013 was made by the lower Court while the Appellant’s Appeal against the judgment was pending on appeal.
2. The Court of Appeal cannot hear a matter concurrently with the Lower Court.
3. The Applicant’s proposed notice of Appeal which borders on jurisdiction and fair hearing is substantial enough to warrant the exercise of this Honourable Court jurisdiction in favour of the Applicant in extending time within which to seek leave to appeal the Ruling of the lower Court delivered on 19th June 2013.

The said application is supported by a 15 paragraph affidavit deposed to by Elochukwu Nwankwo, a Legal Practitioner. Paragraphs 3 to 14 thereof are relevant and they are herein below set out as follows:-

3. “The 1st and 2nd Respondents commenced an action at the High Court of Lagos State against the Applicant and 3rd Respondent by a Writ of Summons 1 July 2009.
4. The lower Court delivered its ruling in the matter on 2nd July 2010 by the Honourable Justice Ishola in favour of the 1st and 2nd Claimants/Respondents for N165,156,396.65 and interest thereon.
5. The Applicant being dissatisfied with the said ruling mentioned in paragraph 4 filed a notice of appeal dated 30 July 2010 after which the record of appeal in the matter was duly transmitted to the Court of Appeal.
6. The lower Court being aware of the fact of the pending appeal went ahead to grant a garnishee order nisi on 19 June 2013 in the matter being subject of appeal.
7. The Applicant being dissatisfied with the garnishee order nisi made by the lower Court on 19 June 2013 appealed against the said order but mistakenly inserted the appeal number in the appeal against the order of the lower Court of 2 July 2013.
8. That it was only when the matter came up before the Honourable Court on 8 October 2013 that the counsel to the 1st and 2nd Respondents drew our attention and that of the Honourable Court to the said defect hence this application to enable the Applicant file.
9. That the Applicant now requires the leave of this Honourable Court to file a notice of appeal.
10. That the unfortunate mistake is entirely that of the Applicant’s counsel and should not be visited on the Applicant in the interest of justice.
11. That Applicant’s proposed notice of appeal discloses substantial grounds of appeal as it borders on jurisdiction of the Honourable Court below to hear the matter. Herewith attached and marked exhibit A is a copy of the proposed notice of appeal.
12. That it is in the interest of justice that this application be granted.
13. That the Applicant shall prosecute the appeal judiciously with all seriousness and shall take all reasonable steps to ensure that the record of appeal is transmitted and the appeal heard expeditiously.
14. That the Respondents will not be prejudiced if this application is granted.

The proposed Notice of appeal containing three grounds of appeal was also attached to the affidavit in support as Exhibit ‘A’.

The Respondents opposed the application by filing a counter affidavit of 5 paragraphs deposed to by one Miss. Francess Ogie. Paragraphs 2 to 4 thereof reads thus:-

2. That paragraphs 2-7 of the supporting affidavit is true and false in its entirety there was no valid appeal against the garnishee proceedings initiated at the High Court nor any valid appeal against the judgment of the lower court delivered on the 2nd day of July, 2010.
3. The Proposed Notice of Appeal attached (as Exhibit ‘A’ does not contain valid grounds of appeal upon which this Honourable Court will grant leave to the Appellant/Applicant to Appeal.
4. The founding process upon which the application is predicated has been struck out since the 16th day of January, 2014 by this Honourable Court.

The Applicants also filed a further affidavit of 8 paragraphs wherein in paragraphs 4 and 5 it was deposed to as follows:-

4 “That when the matter came up on 3 November 2014 for hearing of the Application, it was observed by counsel that a certified true copy of the Garnishee Order Nisi and not the Ruling against which the Appeal is being filed was attached to the affidavit in support of the motion.

5. That the Honourable Court made an Order directing counsel to file a further affidavit attaching the Ruling before the next hearing date of 21 January 2015. Herewith attached and marked Exhibit A is a certified true copy of the record of proceedings containing the Ruling delivered on 19 June 2013 by the Honourable Justice G.M. Onyeabo of the High Court of Lagos State.”

Pursuant to the Order of this Court, the parties filed written addresses. The Applicant’s written address is dated and filed on 19-9-2014 and the sole issue for determination therein is:-

“Whether or not the court can grant an order extending the time within which the 2nd Defendant/Applicant may seek leave to appeal and an order granting leave to the 2nd Defendant/Applicant to appeal against the Ruling of the Honourable Justice G.M. ONYEABO of the High Court of Lagos State delivered on 19th June, 2013 in Suit NO LD/1071/09.”

It was submitted therein by learned counsel for the Applicant that although an order extending time within which an Applicant may appeal is solely at the discretion of the Court, such discretion should be judiciously and judicially exercised. He added that it is trite law that a Court shall be moved to exercise its discretion to enlarge time to appeal in favour of an Applicant if the following conditions are fulfilled:-

(1) The Applicants must by way of an affidavit evidence show good and substantial reasons for failure to appeal within the statutory period.

(2) The Applicant must sub-join his proposed grounds of appeal which said grounds should show good cause why the Appeal should be heard. See OKWELUME VS ANOLIEFO (1996) 1 NWLR (PT 425) 468. And AMAECHI VS OMEHIA (2013) 16 NWLR (PT 1381) 417.

Learned counsel referred to paragraphs 10, 11, 12, 14, 15, 16 and 17 of the Affidavit in support to contend that cogent and enough reasons were adduced therein to move this Court to exercise its discretion in favor of the Applicant as the grounds of appeal show good and substantial cause why the appeal should be heard as it touches on jurisdiction of the lower Court as well as the right of the Applicant to fair hearing.