Yamo Nigeria Limited & Anor V. Intercontinental Bank PLC & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABUBAKAR, J.C.A. (Delivering the Lead Ruling)

The Applicants brought this motion pursuant to Order 7 Rules 3 and 4 of the Court of Appeal Rules, Section 24 of the Court of Appeal Act and under the inherent jurisdiction of this court; praying for:

1. AN ORDER extending the time within which to seek leave to appeal against the Ruling of High Court of Lagos in Suit No. LD/2247/2002, per Hon. Justice Olateru Olagbegi delivered on the 19th February 2013.
2. Extension of time within which to appeal against the Ruling of the High Court of Lagos in Suit No. LD/2247/2002 per Hon, Justice Olateru Olagbegi delivered on the 19th February 2013.
3. LEAVE, to appeal against the Ruling of the High Court of Lagos in Suit No. LD/2247/2007, per Hon. Justice Olateru Olagbegi delivered on the 19th February 2013.

AND, FOR SUCH, further or other orders as this Honourable Court may deem fit to make in the circumstance.

Applicant’s grounds for the application are:

1. The grounds of appeal are of mixed law and fact.
2. The Appellants had filed a similar application at the lower court on the 26th day of February 2013 accompanied with an affidavit of urgency.
3. The 14 days within which to seek leave at the lower court had already expired, on the 5th day of March 2013, prior to the hearing of the Application on the 6th day of March 2013 by the High Court of Lagos State.

Applicants application was filed on the 8th day of March 2013 by learned counsel Gabriel Osikoya Esq. supported by 22 paragraph affidavit sworn to by Ojuolape Cole (Miss) Counsel in C. O. I. Josephs Chambers, counsel for the Appellants/Applicants.

The Appellants/Applicants also filed three further affidavits dated 21st May 2013, 20th May 2013 and 10th June 2013, they also filed written address in support of the motion dated 8th March 2013 and reply on points of law filed on 10th June 2013.

On the part of the Respondents, they filed counter affidavit and written address in opposition to the motion dated 8th March 2013.

Both parties filed written addresses in line with the order of this court made on 18th April 2013 directing parties to file written addresses, parties therefore adopted their addresses at the hearing of the application on 29th November 2013.

Appellants/Applicants address was filed on 2nd May 2013. The Applicants submitted to this court the following sole issue for determination.

“Whether, this court can grant the prayers being sought by the Appellants/Applicants vide their motion on notice on the 8th day of March 2013.”

Learned Senior counsel Molajo SAN argued the application on behalf of the Applicants, even though the said address was filed by Gabriel Osikoya learned counsel.

Learned senior counsel referred this court to order 7 rule 4 of the Court of Appeal Rules 2011; and said this court has inherent powers to grant an application made to it in the first instance, if it can be shown that, such an application can no longer be made or granted by the lower court.

He referred to paragraphs 13-22 of the Affidavit in support of the Application and said the Applicants applied timeously to the lower court on 20th day of February 2013 with an affidavit of urgency, and on 4th May 2013, the lower court fixed the application for hearing, the lower court did not eventually hear the application as it felt the application was a surplusage having granted similar application in favour of the Applicants.

That the application was to be heard on 6th March 2013, but the fourteen days limited by the rules of court had already elapsed on 5th March 2013, counsel said since the fourteen days had already elapsed, it was practically impossible for the Applicants to obtain leave of the lower court to file their Notice of Appeal as the period prescribed by law had expired by affluxion of time. Learned senior counsel referred this court to OHUKA V. STATE (1998) 1 NWLR (PART 72) 539 at 551, and said the mere fact that a thing cannot be done excuses the doing of it.