Nigerian Laboratory Corporation & Anor. V. Pacific Merchant Bank Limited (2012)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM TANKO MUHAMMAD, J.S.C.
In an application before the Court of Appeal (court below) holden at Lagos and dated the 21st day of July, 2004, the appellants/applicants prayed for the following reliefs:
(1) Extension of time within which the appellants/applicants may apply for leave to appeal against the Ruling of Lagos High Court per Honourable Justice O. A. Ipaye delivered on 15/01/04 in suit No: LD/3696/99.
(2) Leave to appeal against the ruling of 15/01/04 delivered by Honourable Justice O. A. Ipaye in suit No: 3696/99.
(3) Extension of time for the appellants/applicants to appeal against the ruling of 15/01/04 delivered by Honourable Justice O. A. Ipaye in suit No: LD/3696/99
(4) And for further or other orders as this Honourable Court may deem fit to make in the circumstances of this application.
In its ruling delivered on the 21st day of March, 2004, the court below refused the application and same was dismissed. Dissatisfied, the appellants appealed to this court on three grounds of appeal.
Briefs were filed and exchanged by learned counsel for the respective parties.
Learned counsel for the appellants posited the following issues for determination:
(1) Whether the court below was right in dismissing the appellants’ application dated 21st July, 2004 without considering their reasons for bringing the appeal out of time (Grounds 1 and 2 of the Notice of Appeal).
(2) Whether the said application dated 21st July, 2004 is meritorious and ought to have been granted (Ground 3 of the Notice of Appeal).
Learned counsel for the respondent posited the following issue for determination:
“Whether the Court of Appeal in refusing to grant the application dated 21st July, 2004 exercised its discretion judicially and judiciously”
Before delving into the issues for determination, there appears to be a preliminary objection which prefaced the arguments proffered by learned counsel for the respondent. Learned counsel for the respondent hinged his objection on 3 grounds:
(1) That an order refusing an extension of time within which to appeal is not a final decision on the merits but an interlocutory decision. He cited the case of MERCHANTILE GROUP AG VS. AIYELA (1995) 8 NWLR (Page 414) 450.
(2) The reliefs in essence were urging the lower court to exercise its undoubted discretion in favour of the appellants which involves a question of mixed law and facts and requires leave of court which was not obtained, making the appeal incompetent. He cited the cases of IFEDIORA VS. UMEH (1998) 2 NWLR (Page 74) 5; COMEX LTD. VS. NIGERIA ARAB BANK LTD. (1997) 3 NWLR (Page 496) 643.
(3) That the three grounds of appeal attack the Court of Appeal’s failure to consider some of the facts adduced in the affidavit in support of the motion.
Learned counsel for the respondent urged us to dismiss the appeal as incompetent.
I think the learned counsel forgot or omitted to move this court on this preliminary objection. The trite law is that a preliminary objection which is not moved is deemed abandoned and should be struck out. This preliminary objection is hereby struck out. See: AJIBADE VS. PEDRO (1992) 5 NWLR (part 241) 237; NHRI VS. AYOADE (1997) 11 NWLR (part 530] 541; JADESIMI VS. OKOETE  1 NWLR (part 16) 255; ONYEKWALIJE VS. ANIMASHAUN (1996) 3 SCNJ 24.
Making his submissions on the issues formulated by him, the learned counsel for the appellant argued on issue one that the holding of the court below that the appellants “failed to explain why they are late,” is not in line with the processes before the said court. He referred to paragraphs 7 – 12 of the affidavit in support of the application before the lower court which he said were not controverted. The court below, he further argued, did not evaluate the uncontroverted evidence. The cases of R. LAUWERS IMPORT EXPORT VS. JOZEBSON INDUSTRIES CO. (1988) ANLR 310B (1998) 3 NWLR (Part 83) page 429 PAVEX VS. AFRIBANK (2000) 4 SC (Part 2) 196 at page 212 were cited in support. Learned counsel submitted that in its failure to evaluate the pieces of evidence which formed part of the record before it, the court below denied the appellants their right to fair hearing as guaranteed by the constitution, thus rendering its decision a nullity liable to be set aside.
On his issue No. 2, the learned counsel for the appellants submitted that it is stated in the Notice of Appeal to the court below that the appellants’ application was explicit in explaining the reasons for the delay and the grounds of appeal raise substantial points of law. That these conditions were fulfilled by the appellants. The reasons contained in paragraphs 7 to 12 of the affidavit in support thereof were cogent, reasonable and satisfactory. There were also good and substantial grounds of appeal and appellants’ application ought to have been granted by the court below. He cited and relied on the case of NIGERIAN DRUG LAW ENFORCEMENT AGENCY VS. OKORODUDU (1997) 3 NWLR (Part 492) 221. Learned counsel urged this court to resolve both issues in favour of the appellants as the respondent was not opposed to the grant of the said application.
Learned counsel for the respondent submitted that as the application before the court below was brought pursuant to section 25 of the Court of Appeal Act and Order 3 Rule 4(1) and (2) of the Court of Appeal Rules 2002, among others, the power conferred on the court below pursuant to the mentioned provisions is one which is exercisable at the discretion of the court judicially and judiciously. He backed his submission by citing the cases of FEDERAL HOUSING AUTHORITY (1998) 2 NWLR (Part 537) 117; The REGISTERED TRUSTEES OF APOSTOLIC CHURCH VS. UFFIEM  10 NWLR [part 569] 312; GBA AKINYEDE VS. THE APPRAISER (1971) All NLR 164. UNIVERSITY OF LAGOS VS. OLANIYAN  NWLR [Part 1] 156 at 175 A- F. It is settled, as a general rule that before an application for extension of time for leave to appeal can succeed, the applicant must satisfy the court that there are good and satisfactory reasons for not filing his application [appeal] timeously. CENTRAL BANK OF NIGERIA VS. AHMED  11 NWLR (Part 724) 369 at page 392 was cited. It is the further submission of learned counsel for the respondent that the Court of Appeal exercised its discretion judicially and judiciously by considering the affidavit evidence before it and the fact that the court did not make specific reference to all the averments in the affidavit cannot be conclusive of the fact that those averments were not considered and rejected. Learned counsel analyzed some of the averments in the affidavit in support and submitted that given the totality of the affidavit evidence, the appellants had failed to comply with the first threshold that is required in applications of this nature and the court below was right in refusing the application in its judicious exercise of discretion as there were no good reasons for failure to appeal in time. Learned counsel submitted finally it is trite that once a superior court is shown to have exercised its discretion judicially and judiciously in the exercise of its authentic jurisdiction, that exercise of jurisdiction must not be disturbed by a higher tribunal for the reason that it would have exercised that discretion differently. He cited the cases of ACME BUILDERS LTD. VS. KADUNA STATE WATER BOARD  2 NWLR [part 590] 288 at page 312 A- B; OHWOVORIOLE SAN VS. F.R.N.  1 SC (Part 1) 1; UNIVERSITY OF LAGOS VS. OLANIYAN [supra].
Learned counsel urged this court to dismiss the appeal.
The antecedents giving rise to the present appeal can be garnered from the ruling of the trial court which was delivered on the 15th day of January, 2004. An application was placed before the trial court by the defendants/applicants/appellants seeking for an order setting down hearing the issues of law raised in the defendants’ statement of defence that is, that the plaintiff’s action was statute barred. A brief summary of the plaintiffs’/respondents’ action as found by the learned trial Judge is that the 2nd defendant, Mr. David O. Salako, is the Managing Director of the 1st defendant’s company, Nigerian Laboratory Company Limited. That sometime on or about 9th of October, 1992, the defendants applied for a bank guarantee. The plaintiff bank on or about 9th of October, 1992 allegedly issued bank guarantees in the sum of 214,850,00 and 89,946.26 ECU on behalf of the defendant. That sometime again on the 5th of October, 1993 an overdraft facility of N5 Million Naira was granted to the 1st defendant company. It is the plaintiffs’ case that the defendants have failed to repay the sums guaranteed by the plaintiff together with the overdraft facility and interest which now totals 19,017,608.51 Naira as at 16th of June, 1999. The defendants are, inter alia, resisting this action for recovery on the alleged ground that the cause of action is statute barred having been commenced after the expiration of 6 years.
After having evaluated the affidavit evidence and the prevailing law, the learned trial Judge dismissed the application.
An appeal to the court below was unsuccessful. The application for enlargement of time to apply for leave to appeal, leave to appeal and extension of time to appeal against the trial court’s Ruling of 15th January, 2004 was refused and accordingly dismissed.
It is a repeat of that application which is now before this court. In particular [a] of ground No 1, and in his submissions on same, the learned counsel for the appellants stated that in failing to consider the said reasons for the delay, the court below denied the appellants their right to fair hearing as guaranteed in the constitution which renders the court below’s decision a nullity, liable to be set aside. But, what is the holding of the court below Below is what the court below, inter alia, held.
“To succeed in an application of this nature applicant[s] must show why they did not appeal within time and good grounds why the appeal must be heard. The applicant[s] in paragraph 7 of their affidavit in support tersely stated that they briefed counsel on the 23rd of June, 2004 to appeal when the 14 days within which to seek leave and appeal had expired. Since they failed to explain why they are late it is no longer necessary to look at the grounds of appeal since the two must co-exist.
Application is refused and is dismissed”
It is true that where one of the parties to litigation before a court of law is aggrieved with a decision given by that court, he has an option or sometimes, a right to fall back to appeal to a higher tribunal or court. Where the decision is handed down by a State High Court (as in this matter), or by the Federal High Court, the aggrieved person can exercise his right of appeal as conferred upon him by section 241(1) of the Constitution, 1999 (as amended). In any other subject matter which is not covered by section 241(1) of the Constitution [supra], the person aggrieved may have to ask for leave either from the Federal High Court, State High Court [as the case may be] and, or, from the Court of Appeal as circumstance may warrant. This category of cases is covered by section 242(1) of the Constitution. This apart, it is to be noted as well that the grant of right of appeal by the Constitution is quite different from the exercise of such a right. For instance, section 243 of the Constitution provides:
243 Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of a State to take over and continue or to discontinue such proceedings at the instance of such other authorities or persons as may be presented;
(b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
The prevalent law [Act] or Rules of Court in relation to the Court of Appeal are the Court of Appeal Act 1976 (Cap C. 36 LFN 2004) and the Court of Appeal Rules [as amended]. Each makes stipulations in relation to appeals. For instance, section 25 of the Act provides:
“25(1) Where a person desires to appeal to the Court of Appeal he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period Prescribed by the provision of subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:
[a] In an appeal in a Civil cause or matter fourteen day where the appeal is against an interlocutory decision and three months where the appeal is against final judgment. (underlining supplied);”
The proposed appeal by the appellants to the court below was from a ruling of the trial court of 15th of January, 2004. It was interlocutory. By the above provision of the Rules of the court below, the applicants had 14 days within which to appeal to the court below from the date of delivery of the ruling.
From the affidavit in support of the application before the court below, the appellants/applicants averred as follows:
“7. That the appellants being dissatisfied with the ruling of 15/01/04 just instructed their counsel to file a Notice of Appeal on 23/06/04.
- That the time to file the Notice of Appeal has expired.
- That the delay in filing the Notice and Grounds of Appeal is not deliberate or out of disrespect to this Honourable Court.”
From the averments as set out above the court below found that there was a delay or rather tardiness and the appellants did not in fact appeal within time. It is the requirement of the law as provided by Order 3 Rule 4(1) and (2) of the Court of Appeal Rules 2002 (as amended) as follows:
“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 in 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.”
Thus, the fundamental requirements as per the above provisions are two:
(a) Good and substantial reasons for failure to appeal within the period prescribed and
(b) Grounds of Appeal which PRIMA FACIE show good cause why the appeal should be heard.
These two requirements are interwoven such that they must co-exist. If one is satisfied and the other is not, then the whole application will collapse. See generally. DOHERTY VS. DOHERTY  1 All NLR 299; IBODO & ORS. VS. ENAROFIA & ORS. (1980) 5-7 SC 42; MOBIL OIL LTD. VS. AGADAIGHO (1988) 2 NWLR (Part 77) 385; OKERE VS. NLEM (1992) 4 NWLR (Part 234) 132; BALOGUN VS. AFOLALU (1994) 7 NWLR (Part 355) 206; OKWELUME VS. ANOLIEFO (1996) 1 NWLR (Part 425) 468; FEDERAL HOUSING VS. ABOSEDE (1998) 2 NWLR (Part 537) 177 at page 187.
The court below in its ruling stated, among other things, as follows:
“The applicant(s) in paragraph 7 of their affidavit in support tersely stated they briefed counsel on 23rd June, 2004 to appeal when the 14 days within which to seek leave and appeal had expired. The applicants have therefore not explored (explained) their tardiness. Since they failed to explain why they are late it is no longer necessary to look at the grounds of appeal since the two must co-exist.”
That of course is the correct position of the law as stated earlier.
In the light of the submissions put forward by learned counsel for the appellants that paragraphs 7 – 12 of the affidavit in support of the application before the court below contained copious explanations for the delay and that the respondent did not controvert same, yet the court below did not evaluate the said uncontroverted evidence before it, I urge my lords to bear with me to reproduce the said paragraphs:
“7 That the appellants being dissatisfied with the ruling of 15/01/04 just instructed their counsel to file a Notice of Appeal on 23/06/04.
8 The company Secretary of the 1st appellant had an accident and had been hospitalized at the local orthopedic home to set his legs for about 5 months.
- That the time to file the Notice of Appeal has expired.
- That the delay in filing the notice and Grounds of Appeal is not deliberate or out of disrespect to this Honourable Court.”
It is clear from the above averments as found by the court below that the instruction to counsel to appeal [paragraph 7] was given on the 23rd of June, 2004, well over 5 months after delivery of trial court’s decision. What the appellants should have done was to proffer “good and substantial” explanation of what prevented them from filing the appeal. From paragraphs 8 – 12 of the affidavit in support, it can be seen clearly that there is nothing substantial which can cogently and convincingly be relied upon to give a detailed and satisfactory explanation of the delay. If at all, the company secretary of the 1st appellant had an accident which lasted him about five months in hospital, supporting evidence such as the picture[s] of the scene of accident, picture of the position of the broken legs; bills of medication, medical report et cetera will have furnished a more convincing evidence.
As per the 2nd appellant who was said to have been out of Lagos on official assignment at Abuja, there should have been official documents authorizing the said official journey to Abuja. The name and kind of official assignment and the Ministry, Department, Institution et cetera to which the 2nd appellant was mandated to go and for how long he had been performing the official assignment, should have been made clear. Thus, the bare making of whimsical statements which do not supply convincing, satisfactory, concrete and cogent reasons in explaining away the delay or tardiness caused by an applicant himself can hardly be acceptable to a reasonable court or tribunal in complete disregard to the requirement to the law. I agree with the court below that it was no longer necessary to look at the grounds of appeal as the bottom of the application has been knocked-off by the unexplained tardiness caused by the applicants/appellants themselves. It has already been seen above that it is trite law that where one of the two inseparable twins [requirements] in such an application has failed to satisfy the requirements of the law, the other requirement per force must also give way as it cannot stand alone. The two, thus, must stand or fall together.
Further, it has to be noted that grant of an application of this nature is entirely discretionary. That discretion, however, as held in several authorities, has to be exercised judicially and judiciously. In the case of the QUEEN VS. THE GOVERNOR IN COUCIL, WESTERN NIGERIA EX-PARTE MUSTAPHER OYEBOLA  WNLR 360 at page 365, it was held that to “act judicially” means a body bound to hear evidence from one side and the other. The need not to be anything called strictly a lie, but the body would have to hear submissions and evidence by each side and come to a judicial decision approximately in the way that a court must do. Judiciously, on the other hand, means, a decision taken which has been directed by sound and sensible judgment. See: CHIEF HUTTON TOM GEORGE & ANOR. VS. DIMA OPUAMIEYENGO GEORGE & 7 ORS.  3 N.A.C.R 70 at page 85. Once such a discretionary decision has been exercised by a trial court or any other court or tribunal, then it should not and must not be disturbed by a higher court or tribunal sitting on appeal for the simple reason that it would have exercised that discretion differently. See: ACME BUILDERS LTD. VS. KADUNA STATE WATER BOARD (1999) 2 NWLR (Part 590) 288 at page 312; OHWOVORIOLE (SAN) VS. F.R.N. (supra); UNIVERISTY OF LAGOS VS. OLANIYAN (supra). I resolve issue one in favour of the respondent.
On issue two of the appellants’ issues, I have myself, carefully considered the depositions in the affidavit in support of the application before the court below. There is nothing in the averments contained especially in paragraphs 7 – 12 thereof, which would require the judicious exercise of my discretion to grant the application as supported by these porous and unsubstantiated averments. I go along with the court below that the tardiness in filing the appeal has not been explained away. He who comes to equity, must come with clean hands. And, delay, they say, defeats equity. There is nothing one can do to salvage a bad situation which seems to be compounded by the deliberate inaction of the appellants. The law helps the vigilant and not the one who sleeps on his right, Vigilantibus et non dormientibus iura subvennuint.
Finally, I find no merit in this appeal and it is hereby dismissed. The appellants shall pay to the respondent costs in this appeal which I assess at N50,000.00 (Fifty Thousand Naira) only.