United Bank for Africa Plc. V. Mode Nigeria Limited (2000)

LawGlobal-Hub Lead Judgment Report

OLAGUNJU, J.C.A.

T

he Applicant who filed a notice of appeal from the decision of the Court below which gave judgment for the Respondent against her in an action in which she and one other were defendants failed to satisfy the conditions of appeal as assessed by the Registrar of the Court below acting in accordance with rules 10 and 11 of Order 3 of the rules of this Court, that is to say, has failed to deposit money for producing the record of appeal and as security for costs or give security by entering into bond. In spite of the non fulfillment of the conditions of appeal, the Applicant who claimed that on 18/11/99 she obtained the order of this court for departure from the rules by allowing the appeal to be argued on the bundle of documents compiled by her. She filed her brief of argument on 18/1/2000.

“In a motion filed on 3/2/2000, the Applicant has now applied under sub-rule 4(1) of Order 3 of the rules of this Court for (a) an order enlarging the time given to the appellant/applicant to fulfill the conditions of appeal and (b) a further order deeming the record of proceedings compiled by the Applicant for the hearing of the appeal and the Appellant’s brief filed on the 18th day of January, 2000, as duly filed”.

The application is supported by a 13-paragraph affidavit deposed to by the Manager of the Enugu Branch of the applicant’s establishment, Mr. Okechukwu Umeh. The affidavit is defective as it contains no date of the swearing as enjoined by sub-section 90(g)(ii) of the Evidence Act but it is, nevertheless, accepted to be used by virtue of section 84 of the Act: see: Ali v. Dipcharima., (1975) NNLR. 163, 165 -166. In it, the deponent averred that he was served with two documents on 28/6/99 and 16/7/99 by the bailiff of the Enugu State High Court, Enugu, and deposed in paragraph 4 that:

“I did not read the documents as they were court documents, but I sent them to the legal department of the head office of the bank in accordance with instructions”.

He further deposed that when inquiry about the documents served on the Applicant through him was initiated by the leading counsel to the Applicant, it was discovered from the list of those documents sent to him by the bank’s legal department at the Head office that the list does not include copy of settlement of record of appeal which eventually had to be obtained by the Applicant’s Counsel from the registry of the High Court of Enugu State. In any case, copy of the settlement of record of appeal dated 12/7/99 and signed by the Assistant Chief Registrar of the Court below and copy of the affidavit of service of the document deposed to on 16/7/99 by the chief bailiff of that court are annexed to Mr. Umeh’s affidavit.

On those facts, learned Senior Advocate for the Applicant, Chief A. N. Anyamene, submitted that under sub-rule 4(1) of Order 3 of the Court of Appeal Rules, 1981, it is within the powers of this court to extend the time within which the Applicant can fulfill the conditions of appeal and urged the court to do so on the precedent of the decisions in Nalsa & Team Associates v. NNPC., (1991) 8 NWLR (Pt.212) 652; and Dr. Urhobo v. Major- General Oteri (1999) 2 NWLR (Pt. 589) 147. He contended that if the time within which to appeal is extended for the Applicant substantial justice would have been done without prejudice to the Respondent pleading that a litigant should not be punished for the error of his counsel. He urged the court to grant the application and as a corollary to deem the bundle of documents compiled by the Applicant as the record of this appeal and the Appellant’s brief of argument filed pursuant thereto as duly filed.

The application was opposed by learned Counsel for the Respondent, K. E. Mozia, Esq., who contended, firstly, that Order 3, sub-rule 4(1), of the rules of this Court restricts matters in respect of which this court can extend time for doing an act or taking stipulated steps in the proceeding which he argued do not include imposition of the conditions of appeal the breach of which as provided by sub rules 20(1) and (3) of Order 3 thereof is the dismissal of he appeal. Secondly, he contended that the grant or refusal of application for extension of time calls for exercise of court’s discretion which demands that the Applicant must give good and convincing reason in support of ills application. He submitted that the reason given by the Applicant in her 13-paragraph affidavit for not fulfilling the conditions of appeal is feeble and not good enough to justify the exercise of the court’s discretion to extend the time to satisfy those conditions. Therefore, he urged the court to dismiss the application.

The argument of learned Counsel for the Respondent about the scope of sub-rule 4(1), of Order 3 on the confines of the subject-matter over which the court can extend time appears to be overdrawn. The learned Counsel did not support his argument with any case-law. But in my view, outside the period of limitation for commencing an action prescribed by law, the discretion of the court as to the range of the matters for which the court may grant the indulgence of extending the time within which to do an act or take a step in pre-trial, trial or post-trial proceedings appears to be infinite. The only limitation is that, since the dispensation to extend time is discretionary it must be exercised judicially and judiciously by balancing the interest of the parties appreciating the epigram that ‘discretion is not a one way traffic’ for the full exposition of which see Ajani v. Giwa, (1986) 17 NSCC 9 Pt.110 874, 883 (1986) 3 NWLR (Pt.32) 796; Willoughby v. International Merchant Bank (Nigeria) Ltd. (1987) 1 SCNJ.46, 57 & 70-71 (1987) 1 NWLR (Pt.48) 105; and Ajomale v. Yaduat (No.2), (1991) 5 SCNJ 178, 189 (1991) (Pt. 191) 266. Moreover, as I will discuss presently the element of flexibility built into rule 20 of Order 3 by subrule 20(4) thereof on the ultimate result of non-compliance with the conditions of appeal will not seem to support a dichotomy in the application of the court’s power to extend time within which to act or take steps in the proceedings. To that extent, learned Counsel for the Respondent is on sticky wicket as far as restrictions on the scope of application of sub-rule 4(1) of Order 3 of the rules of this court are concerned.

On the reason given by the Respondent for her failure to satisfy the conditions of appeal within the time stipulated for doing so, I think learned Counsel for the Respondent is on a firm ground. I do not think that the Applicant’s Enugu Branch Manager on whom the document containing the conditions of appeal was served has been candid about the matter. In one breath, he admitted in paragraph 3 of his affidavit that he was served with ‘some documents emanating from the …High Court… Enugu’ which he forwarded to the Applicant’s Legal Department in Lagos; in another breath, he deposed in paragraph 6 of the affidavit that when he called for the particulars of the documents he sent to the legal department in Lagos of the settlement of record of appeal was not among the documents sent to him by the legal department. If from the affidavit of service of the bailiff who carried out the service attached to the Manager’s affidavit copy of settlement of record of appeal also attached to the affidavit was the document served there must be a slip between the Manager and the legal department and, therefore, more to the matter than meets the eye.

The account given by the Branch Manager of how he disposed of the court process served on him is wobbly and reflects very little credit on his status. Here is the representative of a reputable bank who was considered good enough to be trusted with the capital of that branch of the bank yet who feigned to be ignorant of the content of a one-page document which is not shown to be couched in legal jargons. Doltishness will not be a proper rating of a person of Mr. Umeh’s background but since he has chosen to play the role of a simpleton in the scenario, so be it.

But that does not account for the inaction of the Applicant’s legal department which must be presumed to be manned by personnel with a smattering knowledge of the law to be able to comprehend the importance of legal documents. If one believes Mr. Umeh and I have no cause to doubt him that he forwarded to the Applicant’s legal department in the Head Office in Lagos, ‘in accordance with instructions’, settlement of record of appeal shown by the affidavit of service to be the document served on him on 16/7/99 it is curious why the applicant’s legal department failed to forward the document to the applicant’s leading counsel the address of whom is shown, from the proposed appellant’s brief of argument, to be in Lagos, the same town in which the applicant’s Head Office and her legal department are located.

Failure of the applicant’s legal department to deliver to the learned leading counsel for the applicant the court processes sent to the legal department by Mr. Umeh seriously detracts from the applicant’s excuse for not complying with the conditions of appeal. Equally, unseemly is the Applicant’s attempt to short-circuit the fulfillment of the conditions of appeal by seeking a departure from the rules to hear the appeal on bundle of documents while in breach of the rules of the court on conditions of appeal. But notwithstanding those short-comings, it seems to me that the crux of the matter is whether those lapses with nothing more can operate as a bar to any further plea by the Applicant to have the period within which to satisfy the conditions of appeal further extended or as it is apparent from the applicant’s prayer to waive the conditions of appeal stipulated by the Registrar of the court below and grant the applicant leave to hear the appeal on the bundle of documents compiled by her and to use the Appellant’s brief of argument filed on the basis of those documents.