Societe Generale Bank (Nigeria) Limited & Anor V. Integrated Farm Industry Limited (1999)
LawGlobal-Hub Lead Judgment Report
ONALAJA, J.C.A.
The Plaintiff now Respondent in this ruling issued a writ of summons in Ile-Ife Judicial Division now Osun State High Court sometimes in June, 1988 against the Defendants now Applicants in this ruling with the writ endorsed for declaratory reliefs, damages for trespass to land, goods and conversion.
After service on defendants/Applicants pleadings were filed, delivered and exchanged but the case suffered vicissitude of being lost and found due to the imbroglio between Ife and Modakeke which also resulted in the vandalisation of Ile-Ife High Court. After much efforts Respondent retrieved the file and resuscitated same in High Court Registry with relisting of the case which was struck out by the Court. In granting the application to relist on 2nd December, 1996 by the Respondent the application was granted without objection of the Applicants.
After relisting the case Respondent brought an application to amend the statement of claim with a date fixed for hearing of the motion. Before the hearing date Applicants brought an application under Order 25 Rule 20 Oyo State High Court Civil Procedure Rules applicable in Osun State for an order dismissing the action for want of diligent prosecution or alternatively striking out the statement of claim. The grounds were that since the commencement of the action there had been incessant delays by the Respondent. That further trial would amount to denial of justice and fair hearing to Applicants.
Upon the motion for amendment of the statement of claim coming up for argument, applicants pressed the court to take the motion for dismissal of the action before the motion for amendment of the statement of claim. The lower court acceded to the request of applicants and heard arguments preferred by Applicants and reply by Respondent, this argument was made on 22nd July, 1997.
After arguments the learned Judge there and then delivered his ruling which for better understanding is hereby set down below as at page 55 of the record of appeal thus:-
“RULING
I have considered the entire application. It is not in doubt that when the case was relisted on 2/12/96 by my learned brother, the Respondents had an application to amend the statement of claim which was pending. Between the period of relisting and the hearing of the Respondents’ motion to amend their claim, the Applicants brought a motion to dismiss or strike out the case for want or diligent prosecution. There is no doubt that strenuous efforts were made to ensure that the case goes to trial by the Respondents when it was discovered that the case file was missing.
I have considered the submissions and authorities cited by Counsel for the parties. I have a discretion whether or not to grant the application, the overriding consideration being the justice of the case.
By and large, I am of the firm view that Applicants’ application lacks merit and is accordingly dismissed.
Sgd. F. O. OGUNSOLA
Judge 22/7/97”
Against the above ruling Applicants filed notice of appeal and brought application under Section 221 of 1979 Constitution and Order 46 Rule 1 of the High Court (Civil Procedure) Rules for leave to appeal against the interlocutory decision of 22/7/97 in so far as the appeal involves facts or mixed law and facts and for stay of further proceedings.
In a considered ruling at pages 64 and 65 of the Record of Appeal on 29th July, 1997 the lower court refused leave that the proposed grounds of appeal did not disclose substantial issues of law. Against the said ruling applicants filed notice of appeal at pages 66 to 69 of the record of appeal.
Eventually on 15th June, 1999, Applicants filed application in this court wherein applicants sought the following orders under inherent jurisdiction of the Court, Order 3 Rules 3, 4(1) and 16 of the Court of Appeal Rules. The prayers are –
“(a) extension of the time within which to apply for leave to appeal against the ruling of the lower court delivered on 22/7/97 in so far as the proposed grounds of appeal relate to facts or mixed law and facts.
(b) leave to appeal in so far as the proposed grounds of appeal in Exhibit A hereto are on facts or mixed law and facts.
(c) leave to amend the notice of appeal filed on 29/7/97 in the manner contained in Exhibit B thereto.
(d) deeming as properly filed the amended notice of appeal already filed.
(e) deeming as properly filed the appellants’ brief already filed which incorporates arguments on issues covered by such grounds of appeal which will only be regularised upon the grant of reliefs sought in a – d above.
(f) extension of time within which to seek an order slaying proceedings at the lower court pending the determination of this appeal.
(g) stay of further proceedings in the lower court pending the determination of this appeal.”
In support of the application applicants filed supportive affidavit of 25 paragraphs and marked documents attached as Exhibit A containing 7 grounds of appeal with the particulars furnished.
It is against the ruling of 22/7/97 that applicants proposed seven grounds of appeal which are repetitive. I have commented on the proposed grounds of appeal because they are factors to be considered in exercising the judicial discretion to grant the leave or not to grant the leave.
In exhibit B the proposed amendment is to delete grounds 1 – 6 in paragraph 3 of the notice of appeal by substituting them with new grounds 1 to 6 in Schedule A supra and by deleting ground 8 is just like saying six is half a dozen. With respect the proposed grounds apart from repetitive are conflicting and confusing.
Upon the matter coming up for argument the learned counsel for the Applicants relied on the motion of 15/6/99 already highlighted above and Order 3 rule 3, 4(1) and rule 16 of Order 3 of Court of Appeal Rules. The reliefs sought are a-g and the grounds of appeal already commented upon supra.
The learned counsel for Respondent opposed the application vehemently especially that reliefs a-d did not comply with the trinity prayers in seeking leave for extension of time to appeal against an interlocutory appeal or order, therefore there is no proper and valid notice of appeal in respect of grounds of mixed law and fact as decided by the Supreme Court in Incar (Nig.) Plc v. Bolex Enterprises (Nig.) Ltd. (1997) 10 NWLR (Pt.526) at 530; Adeyemi v. Y.R.S. Ike-Oluwa Ltd. (1993) 8 NWLR (Pt.309) 27 at 49 B – D. Having not asked for extension to file notice of appeal, court should dismiss prayers a-d.
The supportive affidavit especially its paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 17 and 18 contravened the provisions of Sections 87-89 Evidence Act Cap 112 Laws of the Federation of Nigeria 1990 in such a situation as decided in Nig. LNG Ltd. v. A. D. I. G. Ltd. (1995) 8 NWLR (Pt.416) 677 at 700 the court should strike out the said paragraphs of the supportive affidavit stated supra.
In conclusion the motion or application lacks substance and misconceived and ought to be dismissed and should be dismissed.
The learned counsel for the Applicants in replicando contended that the trinity rule applies to an appeal out of time and not when an appeal has already been properly filed, as decided in Akeredolu v. Akinremi (1986) 2 NWLR (Pt.25) 710 at 723, 726, 733 and 734 E & Erisi v. Idika (1987) 4 NWLR (Pt.66) 503 at 517 SC. As there is already a valid appeal filed, court to reject the objection and grant all the reliefs sought by the Applicants.
The above is a summary of the contentions of the applicants and Respondent in the application that gave rise to this ruling.
Let me first of all sound a note of caution and warning that it is trite law that in deciding a ruling in an interlocutory application of this nature the court must not and shall not decide unwittingly the real issue to be decided in the substantive appeal Igwebuike Chibuzo Obi & 2 Ors. (For themselves and on behalf of the beneficiaries of the Estate of Late Senator (Chief Zacheus Okwukaelo Obi (deceased) v. Senator Onyeabo Obi & Anor (1998) 4 NWLR (Pt.544) 51 ICON Limited (Merchant Bankers v. FBN Merchant Bankers (1995) 6 NWLR (Pt.401) 370 at 377; Chief Reginald F. Abbey Hart & 4 Ors. (for themselves and as representing the entire Captain Hart’s Major House of Bonny v. T.S.K.J. Nigeria Ltd. & 3 Ors. (1997) 8 NWLR (Pt.517) 424 at 430 and 432 CA; Shell Petroleum Development Co. Nig. Ltd. v. Chief Tigbara Edamkue & 5 Ors. and Chief Nwoke Nwikunee & 4 Ors. (1998) 13 NWLR (Pt.580) 123 CA.
Order 3 rule 3(1) Court of Appeal provides and states as follows:-
“3(3)(1) Every application to the Court shall be by notice of motion supported by affidavit and shall state the rule under which it is brought and the ground for the relief sought.”
In compliance with mandatory order above, Applicants invoked Order 3 rule 3, 4(1) and 16 Court of Appeal Rules as follows:.
Order 3 rules
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
4(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply.
(16) A notice of appeal or respondent’s notice may be amended by or with the leave of the Court, at any time.”
It is common ground that the application is against the interlocutory ruling of 22/7/97 as sought in relief(a) of the application supra. Once a given time to appeal has expired as in the instant case to seek extension it is the provision of the constitution which is the guide as it touches or goes to the issue of jurisdiction, and is governed by Section 242(1) Constitution of the Federal Republic of Nigeria 1999 that
“242(1) Subject to the provisions of section 241 of this Constitution an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
and Section 25 Court of Appeal Cap. 75 Laws of the Federation of Nigeria provides:-
“25(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 days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
In the instant application Applicants sought leave to appeal the essential prayers to seek by applicant seeking leave to appeal out of time was restated by the Supreme Court in the case of Incar Nig. Plc v. Bolex Enterprises Nig. Ltd. (1997) 10 NWLR (Pt.526) 530 at 538 wherein Ogwuegbu JSC observed and held as follows:-
“Where leave to appeal is required and the appellant is out of time, an appellant seeking to appeal out of time requires three substantive prayers, namely –
(a) enlargement of time within which to seek leave to appeal.
(b) leave to appeal and
(c) extension of time within which to appeal.
The above requirements go to the issue of the jurisdiction of the court. Thus, since in the present application one of the prayers is missing, the application is fundamentally defective Atanda v. Olanrewaju (1988) 4 NWLR (Pt.89) 394; Lamai v. Orbih (1980) 5/7 SC 28.
“It is necessary for the applicants to seek for an enlarhtgement of time for filing the notice of appeal. A notice of appeal filed out of time will require a prayer for enlargemt6ent of time within which to file such notice of appeal. It is only after that prayer is granted that the court may deem the notice of appeal already filed as duly and properly filed see Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350 and Akeredolu & Ors. v. Akinremi (1986) 1 NSCC (1992) (Pt. 1) 581 at 592 No.2, (1986) 2 NWLR (Pt.25) 710.
This is the position even if the appellants’ notices of appeal already filed were filed within time and contained some grounds of law. They need the prayer for extension of time since they are now seeking leave to appeal on grounds other than those of law alone. As a result of the above conclusion it is not necessary to consider the merits of the prayer for leave to appeal on grounds other than those of law alone” (The italics are mine).
The italics above have debunked and put to a quietus the submission of learned counsel to the applicants that the proposed ground 7 that
“The decision of the court below cannot be supported having regard to the facts and circumstances of the case before it.”
Relying on the case of Ndukwe Erisi & Ors. (For themselves and representing the people of Ubolo community, Ekoli Eda, Afikpo Local Government Area) v. Uzor Idika & 11 Ors (For themselves and as representing the Matrilineal families Ibe Uma, Ibe Ekworo, Ibe Eiheawo, Ibe Eneogu and Ibe Nwaechulu of Egwuma Eda (1987) 4 NWLR (Pt.66) 503 SC with all respect to learned counsel for applicants did not constitute the proposed ground 7 a ground of law. Even if it is sustained a ground of law applying Incar Nig. Plc. V. Bolex Enterprises Nig. Ltd. supra the Supreme Court stated that the third prayer for filing extension of time out of time was mandatory. The missing of this prayer renders the proposed ground of appeal incompetent see further N.A. Williams & Ors. v. Hope Rising Voluntary Society (1982) 1/2 SC 145, unreported ruling CA/I/M.59/95 between Mr. A. A. Adeyemo & 7 Ors. v. Lalere Beyioku & Two Ors. (For themselves and on behalf of BEYIOKU FAMILY) delivered on 24th day of June, 1999; (1999) 13 NWLR (Pt.635) 472; Ikeni v. Efamo (1997) 4 NWLR (Pt.499) 318 CA, United Agro Ventures Ltd. v. First City Merchant Bank Ltd. (1998) 4 NWLR (Pt.547) at 546 CA. The contention of Respondent applying the above authorities that the application without the third prayer for extension of time to file notice of appeal rendered the application incompetent and misconceived in law is sound and impeccable thereby reliefs a – d in applicants’ motion of 15th June, 1999 are refused and rejected as lacking in substance and unmeritorious.
As there are no sustainable, and competent grounds of appeal before this court, the prayers for stay of further proceedings is refused for non fulfillment of a condition precedent, that though every superior court of record has under section 6(6)(a) Constitution of the Federal Republic of Nigeria 1999 inherent jurisdiction to stay its ruling or judgment as decided in Kigo (Nig.) Ltd. v. Holman Brothers Ltd. (1980) 5/7 SC 60 at 67; L.S.D.P.C. v. Citymark (W.A.) Ltd. (1998) 8 NWLR (Pt.563) 681 SC before exercising the judicial discretion to grant or refuse stay of its ruling or judgment must be based on the existence of valid and competent notice of appeal and grounds of appeal, as there is no valid and competent grounds of appeal acting judicially and judiciously the prayers or reliefs for staying of further – proceedings in the Lower Court are refused as unmeritorious.
The frivolity and malafides of this application can best be described in the words of wisdom of Aniagolu JSC in Chief S.B. Bakare v. ACB Ltd. (1986) 3 NWLR (Pt.26) 47 at 58-59 as follows:-
“It is desirable that I take this opportunity to call attention to the habit of some litigants in Lagos especially of rushing to the Court of Appeal and thence to this court to test and challenge the ruling of the High Court on the smallest issues which arise in the trial of cases. Many a time this entails the suspension of the trial by the Judge and an adjournment of the case sine die. Sometimes, many years go by before the conclusion of the appeal proceedings, a fact contributing to the much discussed delay of cases in our coons.”
Adopted and followed by Ubaezonu, JCA in the unfortunate case of a mother and her three sons over devolution of the estate of her husband the father of her three sons as reported in the case of Geofrey Uchenna Mba & Two Mbas v. Mrs .. R. N. Mba (1999) 10 NWLR (Pt.623) 503 at 515 thus:-
”The above saying (Chief S. B. Bakare v. ACB Ltd. supra) is now true not only at LAGOS but throughout the Federation.”
As the Applicants portend to be harbinger of quick disposal of this case filed in Ile-Ife with chequered history of lost, found, struck out and relisted, the case is remitted to the High Court Ile-Ife Osun State for the motion for the amendment of the statement of claim be decided on the merits of the application as the present application seeking leave of this court to appeal against the ruling of 22nd July, 1997 lacks substance, devoid of merit being unmeritorious.
It is the order of this court that the motion for amendment of the statement of claim be heard with utmost dispatch so as to allay further delay of the case on the merit. In making this order the court endorses its present posture of doing substantial justice between the parties rather than the short circuit employed by applicants to dismiss the action technically and not on merits.
The application having failed and rejected the Respondent is entitled to the cost in this Ruling. Acting judicially and judiciously that costs follow the event and being compensatory and not punitive, the sum of N3,000.00 is fixed as costs of this application in favour of Respondent against the Applicants.
Other Citations: (1999)LCN/0519(CA)