Society General Bank (Nig) V. Integlobal Services Ltd & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

I. M. M. SAULAWA, J.C.A. (Delivering the Leading Ruling)

By the instant application, filed on 25/02/08, the Applicant has prayed this court for the following four reliefs:

‘1. An order of extension of time within which to seek leave to appeal against the Ruling of the High Court of Lagos State delivered by Alogba J. in this suit on 10/10/07.

2. An order granting leave to the Applicant to appeal against the Ruling of the High Court of Lagos State delivered by Alogba J. in this suit on 10/10/07.
3. An order extending the time within which the Applicant will appeal against the Ruling of the High Court of Lagos State delivered by Alogba J. in this suit on 10/10/07.
4. Stay of execution of the order of the lower court as per the ruling of the Honourable Justice Alogba of the High Court of Lagos State delivered on 10/10/2007 pending the hearing and determination of the appeal filed by the Appellant’.

The application is supported by a 14 paragraphed affidavit, deposed on 25/02/08. Attached thereto, are various documents marked as exhibit ‘A-G’, respectively. A further and better affidavit and further – further and better affidavit were also filed on 27/10/08 and 17/11/08 in support of the application. On the part thereof, the Respondents had filed a 26 paragraphed Counter affidavit on 07/7/08, thereby challenging the averments contained in the Applicant’s affidavit in question. Thus, issues having been joined by parties, the learned counsel deemed it appropriate to file and serve their respective written addresses. The Applicants written address was filed by one Mr. Emmanuel Uwadoka, of Mike Igbokwe & Co., on 09/02/09. On the part thereof, Kennedy Ogbujie, Esq; of Dip Okpeseyi & Co, filed the Respondents’ written address on 24/02/09. The Applicant’s counsel equally filed a reply to the Respondents written address on 01/4/09.

However, on 27/01/09 when the application last came up for hearing, the 4th prayer of the motion was struck out by the court at the instance of the Applicant on the same date, the learned counsel adopted the submissions contained in the respective written addresses thereof, thus, the application was reserved for ruling thereon.

The Applicant has formulated three issues in the written address thereof ,or determination, viz:

“1. Is the reason given by the applicant for failure to file its written time which boils down to counsel’s inadvertence not substantial to explain the delay?

2. Whether the grounds of appeal challenging the Wrongful exercise of discretion by the lower court does not prima facie qualify as a good cause why the appeal should be heard?
3. Whether bringing this application under a wrong order of the rules of court will defeat substantial justice?’

Contrariwise, the Respondents raised a single issue in the written address thereof, as follows:

‘WHETHER OR NOT THIS APPLICATION IS COMPETENT?”

On issue No. 1, the Applicant’s learned counsel submitted, inter alia, that order 7 Rule 10(2) of the Court of Appeal rules, 2007 has provided for two requirements regarding an application for an enlargement of time to appeal. The two requirements being: (a) Good and substantial reasons for failure to appeal within the prescribed period; and (b) Grounds of appeal which prima facie show good cause why the appeal should be heard. See ISIAKA VS. OGUNDIMU (2006) 13 NWLR (pt. 97) 411 paras F – H; IBODO VS. ENROFIA (1980) 5 – 7 SC 42; ALAGBE VS. ABIMBOLA (1978) 2 SC 89.

It was further submitted that from the Applicant’s affidavit, the Applicant has satisfactorily met the first requirement. See Exhibits ‘A, B & C’; paras 3(ii) & (iii) of the affidavit; and paragraph 3(c) of the further and better affidavit, respectively.

It was contended, that from the fact deposed to in the affidavit, that the Applicant never rested in seeing that the appeal was timeously prosecuted, but there was some laxity on the part of counsel thereof, which prevented the process from being filed within the prescribed time. The court has been urged to exercise its discretion in favour of the Applicant, since the failure to file the appeal within time was not deliberate, but due to the inadvertence caused by the negligence or error of counsel. That, the sin of counsel ought not to be visited on the litigant. See EFP CO. LTD VS. NDIC (2007) 9 NWLR (pt. 1039) 216 SC; ADEOSUN VS. AKINYEMI (2007) 4 NWLR (pt. 1023) 47; NWANI VS. BAKARI (2007) 1 NWLR (pt. 1015) 333; IBODO VS. ENAROFIA (supra).

The facts accounting for the delay deposed in the Applicant’s affidavit have allegedly not been contradicted in the Respondents’ counter affidavit. As such, the court has been urged to treat those facts as true and correct. See BUCKNOR VS. KEHINDE (2007) 1 NWLR (pt. 1016) at 593 paras. D. THE HONDA PLACE LTD VS. GLOBE MOTORS LTD (2005) 7 SC (pt. 111) 182; AGBAJE VS. IBRU SEA FOODS (1972) 58C 50; ISIAKA VS. OGUNDIMU (2006) 13 NWLR (pt. 997) at 412 paras A – C; AKANO VS. ADEDIRAN (1975) 1 NWLR 39.

The court has been urged upon to accordingly resolve issue No.1 in favour of the Applicant.