New Nigeria Bank Plc V. Denclag Limited & Anor (2000)

LawGlobal-Hub Lead Judgment Report

T. MUHAMMAD, J.C.A. 

In a motion on notice filed by the appellant/applicant on the 14th day of February, 2000, the applicant prays for the following reliefs:

“(a) Setting aside the “Certificate of Non-compliance with conditions imposed upon a would be appellant” dated 8th February, 2000 (Civil Form 16) issued in this case by the Registrar, High Court of Justice, Jos and

(b) listing the appeal for hearing.

And for such further or other orders as this Honourable Court may deem fit to make in the circumstances”.

The background facts giving rise to this application were that, by a certificate of non-compliance with conditions imposed upon the Applicant filed by the registrar to the court below on the 9th day of February, 2000, the Registrar informed this Court that:

“Pursuant to Order 3 rule 20 of the Federal Court of Appeal Rules, I hereby certify that the Appellant(s) in the above named cause has complied with none of the requirements of Order 3 rules 10 and 11”.

While moving the application, learned Counsel for the Applicant, Mr. Igbanoi informed the Court at the motion was supported by a 40-paragraph affidavit and 27 exhibits. He relied all the paragraphs of the affidavit and the exhibits. Learned Counsel submitted that the applicant had fully complied with the requirements of Order 3 rules (10) and (11) of the Court of Appeal Rules and that the applicant had done so within time. He referred to paragraphs 8 to 11 of the affidavit in support. He also referred to Exhibits ‘A’, ‘C’, ‘D’ and ‘E’. It was learned Counsel’s submission that there were sustained efforts by to Applicant in following up to see that the record was produced by the registry of the lower court. He referred the Court to paragraphs 12-15 of the affidavit in support and Exhibits ‘L’, ‘G’ and ‘H’. He further referred the Court to Exhibit 1, which was requested from the registrar of the lower court for the sum of N20,000.00 (Twenty Thousand Naira) for the purposes of photocopying exhibits, though this was not pan, the conditions laid. In a reaction to that, the Applicant collected the exhibit and photocopied them as required. Paragraph 17 of the affidavit and Exhibit ‘J’ were referred to. It was argued further for the Applicant that, the record was completed by the lower court and forwarded to the Court of Appeal on 9/2/2000 and the respondents were duly served. (Paragraphs 33 and Exhibit M). The record, learned Counsel argued further contained the Certificate of Compliance (paragraph 43 and Exhibit ‘N’ referred to). Learned Counsel submitted that, it was to his surprise that the record, filed and served, was later withdrawn by the lower court’s registry (paragraph 7 and Exhibit ‘BB’). On the counter-affidavit filed by the respondent, learned Counsel argued that the facts deposed to did not effectively counter the depositions made in the affidavit in support and furthermore by paragraph 4 of the counter-affidavit, the respondent mentioned what he denied and that whatever was not denied amounted to an admission. Learned Counsel urged the court to grant his application.

Mr. Akubo, learned Counsel for the Respondent, tersely opposed the application. He filed a counter-affidavit on the 15th day of February, 2000. He based his argument on five main grounds:

(1) That the Certificate of non-compliance was not exhibited in me affidavit in support. This omission, he argued, was fatal to the application.

(2) That the counter-affidavit filed has effectively rebutted all the depositions in the affidavit in support. Paragraph 8 and other paragraphs of the counter-affidavit answered the affidavit paragraph by paragraph and revealed the organised arrangement involving the lower court’s registry staff. He relied on paragraph 8I-8X and Exhibit ‘M’.

(3) That exhibit ‘C’ which imposes conditions of settlement of record of appeal did not require the applicant to make half-hearted attempts in compliance thereof. He alleged that Exhibit ‘D’ was made at the respondent’s back and was never copied to the respondents.

(4) The second prayer cannot be granted as it is now, as briefs have not yet been filed and as no record was available.

(5) That there was no application for extension of time within which to comply with the conditions imposed.