In the Supreme Court of Nigeria
Holden at Abuja
On Friday the 26th Day of January,
2018
Before Their
Lordships
Olukayode Ariwoola
Kumai Bayang Aka’ahs
Amina Adamu Augie
Paul Adamu Galinje
Sidi Dauda Bage
Justices, Supreme Court
SC.744/2015
Between
Guaranty Trust Bank Plc ………Appellant
/Applicant
And
Est Master Construction Limited
……Respondent
(Lead Judgement delivered by
Hon. Amina Adamu Augie, JSC)
“….an Applicant has to convince the Court, that the delay in
bringing the application is neither wilful nor inordinate, and that
there are good and substantial reasons, for the failure to appeal
within the prescribed period”
Facts
The Respondent obtained judgement against Admiralty Fleet Ltd
(Judgement Debtor) in the sum of N99,600,457.05k, at the High Court
of Rivers State. In a bid to enforce the judgement, it commenced
Garnishee Proceedings against the Appellant/ Applicant (Applicant)
and some other banks. The trial court granted the Motion Ex-parte,
and made a Garnishee Order Nisi against the Applicant and some
other banks. Upon being served with the Order of Court, the banks
filed their Affidavits to show cause, as to why the Order should
not be made Absolute. In the Affidavit filed by the Applicant,
deposed to by its External Counsel, based on the information
provided by one of its Legal Officers by the name – Eddy Henshaw –
it was averred that the Judgement Debtor maintained an account with
the Applicant, and that the sum of N99,600,457.05k in the account
had been blocked. The Applicant subsequently, filed a Further and
Better Affidavit, wherein it averred that the Affidavit filed
earlier was incorrect because the Legal Officer of the Applicant
inadvertently lifted the judgement sum stated on the Order Nisi,
and mistakenly reproduced it as available in the Judgement Debtor’s
account.
On the scheduled date, the Court discharged the other Banks, but
in respect of the Applicant, it ordered that the Legal Officer
appear in Court at the next proceedings to clarify his explanation
on oath, for the contradictory information supplied to the Deponent
and be cross-examined by the Garnishor thereon. On the return date,
the Legal Officer was not in Court as ordered. Counsel for the
Applicant informed the Court, that he was no longer in the
employment of the Applicant. He addressed the Court, and in its
Ruling, the Court held that the Applicant failed to utilise the
opportunity granted it to clarify the contradictions. The Court
adjudged the explanations in the Further and Better Affidavit an
afterthought and discountenanced it; the Order Nisi was thereby,
made Absolute.
The Appeal by the Applicant to the Court of Appeal, was
unsuccessful. The Applicant, who was desirous of appealing the
decision of the lower Court, did not appeal to the Supreme Court
within time; hence, it filed this application, seeking the trinity
prayers; leave to introduce and argue a fresh ground of appeal,
among other reliefs sought.
Issue for Determination: The Applicant submitted four issues for
determination of the appeal, which issues were adopted by the
Respondent. The Supreme Court however, determined the appeal on the
first issue submitted by the Applicant thus: Whether in the
present circumstances, the Appellant is entitled to the exercise of
the discretion of this Court granting it (i) extension of time to
file its appeal; (ii) leave to appeal; and (iii) extension of time
to file its appeal against the judgement of the lower
Court.
Arguments
The Applicant contended under issue one, that it is entitled to
the exercise of the Court’s discretion in granting the three
reliefs sought therein. Regarding the position of the law in an
application of this nature, Counsel referred to the provisions of
Section 233(2) and (3) of the Constitution of the Federal Republic
of Nigeria, 1999 and the authority of AKEREDOLU v AKINREMI
(1986) 2 NWLR (Pt. 25) 710, on the requirement of leave to
appeal grounds other than of law alone; onus on party seeking leave
to appeal out of time – Order 2 Rule 31(2) of the Supreme Court
Rules, RE-ADEWUNMI (1988) 3 NWLR (Pt. 83) 483; and the need to
refrain from deciding upon the merits of the grounds of appeal,
when considering an application for leave to appeal –
HOLMAN BROS. (NIG.) LTD. v KIGO (NIG.) LTD. &
ANOR. (1980) 8-11 SC 43 at 62.
The Applicant argued further that, the Supreme Court has the
power to extend the statutory period prescribed for giving notice
of appeal or notice of application for leave to appeal, vide the
provision of Section 27(2) and (4) of the Supreme Court Act, and
that the discretion must be exercised judicially and judiciously
upon the consideration of the affidavit evidence in support of the
application. To this end, Counsel quoted extensively the affidavit
filed in support of the application, in urging the Court to hold
that the Applicant had provided good and substantial reasons for
the grant of the application, since the failure to file the
application for leave to appeal within time, was due to
inadvertence of the Applicant’s Counsel and not the fault of the
Applicant. He relied on LAMAI v ORBIH (1980) 12 NSCC 188. Counsel
also submitted that, the Grounds of Appeal prima facie show good
cause why the appeal should be heard, and that the Grounds are not
frivolous, but raise substantial issues of fact or law for
consideration.
On his part, Counsel for the Respondent, contended that the
Grounds of Appeal filed by the Applicant do not raise any issue of
general importance or novel points of law, or show a prima facie
arguable appeal. In relation to Grounds 3 and 4 of the appeal,
Counsel relied on the decision in ILOABACHIE v
ILOABAEWE (2000) 5 NWLR (Pt. 656) 178 and Order 2.
Rule 32 of the Supreme Court Rules, to submit that where the
Court of Appeal affirmed a finding of fact of the trial Court, the
Supreme Court can only grant leave to appeal against same in
exceptional circumstances, which were non-existent in this
case.
Replying on Points of Law, Counsel for the Applicant countered
that the submissions of the Respondent were entirely misconceived,
as they suggested that a Ground of Appeal must disclose a
likelihood of success, as opposed to an arguable point before a
relief sought can be granted, which is not the position of the law.
He stated that the Respondent was inviting the Court to consider
the merits of the appeal at the preliminary stage, contrary to
known principle, as all that is required at this stage, is to show
that there are arguable grounds of appeal, and not necessarily
grounds that may eventually succeed. CBN v AHMED
(2001) 11 NWLR (Pt. 724) 368.
Court’s Judgement and Rationale
In its consideration of the application, the Supreme Court held
that before an application of this nature is granted, two
conditions spelt out by law must be satisfied, to wit: (i) it must
be in the interest of justice; and (ii) the application shall be
supported by an affidavit setting forth good and substantial
reasons for the failure to appeal, and to apply for leave to appeal
within the prescribed period. In view of the above, an Applicant
has to convince the Court, that the delay in bringing the
application is neither wilful nor inordinate, and that there are
good and substantial reasons for the failure to appeal within the
prescribed period. The two conditions are conjunctive and not
disjunctive; hence, they must co-exist. NWORA v NWABUEZE (2011) 15
NWLR (Pt. 1271) 467.
In this case, delay in filing the application was attributed to
inadvertence of Counsel; this is a familiar refrain in applications
of this nature. While it is correct that inadvertence of Counsel or
Counsel’s error in judgement, if reasonable, is an acceptable
explanation for delay in applying for leave, however, the
Honourable Nnaemeka-Agu, JSC warned in IROEGBU v OKWORDU
(1990) 6 NWLR (Pt. 159) 643 that notwithstanding the
earlier decision of the Apex Court on the point, “The Courts will
not regard this as a universal talisman, the waiver of which will
act as panacea in all cases. The Courts must be satisfied that, the
allegation of the fault of Counsel is true and genuine, but also
that it is availing, having regard to the circumstances of the
particular case.”
Owing to the abuse in attributing all non-compliance with the
Law and Rules of Court to inadvertence of Counsel, the current
trend in judicial practice is to distinguish inadvertence of
Counsel from ineptitude of Counsel – MALARI & ORS v
LEIGH (unreported) APPEAL NO. SC.113/2013 delivered on 12/01/18.
Thus, the rule that a litigant should not be punished for the
mistake or inadvertence of Counsel, does not extend to a situation
where his Counsel has exhibited tardiness or
incompetence.
In this case, the Court had to decide whether the inadvertence
of Counsel, was within the permissible limits or crossed the line
of sheer ineptitude on the part of Counsel for the Applicant. Going
by the fact that the Applicant had filed an initial application
within time before the error in not including the first prayer to
extend the time was discovered, though Counsel ought to have been
more diligent, the error does not suggest ineptitude on the part of
Counsel.
Regarding the second condition requiring the Applicant to show
that there are grounds which prima facie show good cause why the
appeal should be heard, as submitted by Counsel for the Respondent,
leave to appeal in this case where the Court of Appeal
affirmed the findings of the trial Court, can only be granted in
exceptional circumstances – Order 2 Rule 32 of the Supreme Court
Rules. The word ‘exceptional’ is defined as ‘much
greater than usual’. Hence, in this case, the Applicant has to jump
through an extra hoop, to convince this Court to grant this
application. There is nothing exceptional about the circumstances
of this case, to sway the Court to grant the application. The
Applicant’s four Grounds of Appeal must show on the face of it,
good cause why the appeal should be heard, for the application to
be granted. The application is not granted as a matter of course.
In this case, there is no redeeming feature, to warrant the Supreme
Court to indulge the Applicant by granting its application.
Application Dismissed. Representation: Afolabi Kuti Esq. with
Pius Owhoawodua Esq. for the
Appellant Mrs. Nonye Nzewi-Agbasi Esq. for the Respondent.
Reported by Optimum Law Publishers Limited (Publishers
of the Nigerian Monthly Law Reports (NMLR))
In the Supreme Court of Nigeria
Holden at Abuja
On Friday the 26th Day of January,
2018
Before Their
Lordships
Olukayode Ariwoola
Kumai Bayang Aka’ahs
Amina Adamu Augie
Paul Adamu Galinje
Sidi Dauda Bage
Justices, Supreme Court
SC.744/2015
Between
Guaranty Trust Bank Plc ………Appellant
/Applicant
And
Est Master Construction Limited
……Respondent
(Lead Judgement delivered by
Hon. Amina Adamu Augie, JSC)
“….an Applicant has to convince the Court, that the delay in
bringing the application is neither wilful nor inordinate, and that
there are good and substantial reasons, for the failure to appeal
within the prescribed period”
Facts
The Respondent obtained judgement against Admiralty Fleet Ltd
(Judgement Debtor) in the sum of N99,600,457.05k, at the High Court
of Rivers State. In a bid to enforce the judgement, it commenced
Garnishee Proceedings against the Appellant/ Applicant (Applicant)
and some other banks. The trial court granted the Motion Ex-parte,
and made a Garnishee Order Nisi against the Applicant and some
other banks. Upon being served with the Order of Court, the banks
filed their Affidavits to show cause, as to why the Order should
not be made Absolute. In the Affidavit filed by the Applicant,
deposed to by its External Counsel, based on the information
provided by one of its Legal Officers by the name – Eddy Henshaw –
it was averred that the Judgement Debtor maintained an account with
the Applicant, and that the sum of N99,600,457.05k in the account
had been blocked. The Applicant subsequently, filed a Further and
Better Affidavit, wherein it averred that the Affidavit filed
earlier was incorrect because the Legal Officer of the Applicant
inadvertently lifted the judgement sum stated on the Order Nisi,
and mistakenly reproduced it as available in the Judgement Debtor’s
account.
On the scheduled date, the Court discharged the other Banks, but
in respect of the Applicant, it ordered that the Legal Officer
appear in Court at the next proceedings to clarify his explanation
on oath, for the contradictory information supplied to the Deponent
and be cross-examined by the Garnishor thereon. On the return date,
the Legal Officer was not in Court as ordered. Counsel for the
Applicant informed the Court, that he was no longer in the
employment of the Applicant. He addressed the Court, and in its
Ruling, the Court held that the Applicant failed to utilise the
opportunity granted it to clarify the contradictions. The Court
adjudged the explanations in the Further and Better Affidavit an
afterthought and discountenanced it; the Order Nisi was thereby,
made Absolute.
The Appeal by the Applicant to the Court of Appeal, was
unsuccessful. The Applicant, who was desirous of appealing the
decision of the lower Court, did not appeal to the Supreme Court
within time; hence, it filed this application, seeking the trinity
prayers; leave to introduce and argue a fresh ground of appeal,
among other reliefs sought.
Issue for Determination: The Applicant submitted four issues for
determination of the appeal, which issues were adopted by the
Respondent. The Supreme Court however, determined the appeal on the
first issue submitted by the Applicant thus: Whether in the
present circumstances, the Appellant is entitled to the exercise of
the discretion of this Court granting it (i) extension of time to
file its appeal; (ii) leave to appeal; and (iii) extension of time
to file its appeal against the judgement of the lower
Court.
Arguments
The Applicant contended under issue one, that it is entitled to
the exercise of the Court’s discretion in granting the three
reliefs sought therein. Regarding the position of the law in an
application of this nature, Counsel referred to the provisions of
Section 233(2) and (3) of the Constitution of the Federal Republic
of Nigeria, 1999 and the authority of AKEREDOLU v AKINREMI
(1986) 2 NWLR (Pt. 25) 710, on the requirement of leave to
appeal grounds other than of law alone; onus on party seeking leave
to appeal out of time – Order 2 Rule 31(2) of the Supreme Court
Rules, RE-ADEWUNMI (1988) 3 NWLR (Pt. 83) 483; and the need to
refrain from deciding upon the merits of the grounds of appeal,
when considering an application for leave to appeal –
HOLMAN BROS. (NIG.) LTD. v KIGO (NIG.) LTD. &
ANOR. (1980) 8-11 SC 43 at 62.
The Applicant argued further that, the Supreme Court has the
power to extend the statutory period prescribed for giving notice
of appeal or notice of application for leave to appeal, vide the
provision of Section 27(2) and (4) of the Supreme Court Act, and
that the discretion must be exercised judicially and judiciously
upon the consideration of the affidavit evidence in support of the
application. To this end, Counsel quoted extensively the affidavit
filed in support of the application, in urging the Court to hold
that the Applicant had provided good and substantial reasons for
the grant of the application, since the failure to file the
application for leave to appeal within time, was due to
inadvertence of the Applicant’s Counsel and not the fault of the
Applicant. He relied on LAMAI v ORBIH (1980) 12 NSCC 188. Counsel
also submitted that, the Grounds of Appeal prima facie show good
cause why the appeal should be heard, and that the Grounds are not
frivolous, but raise substantial issues of fact or law for
consideration.
On his part, Counsel for the Respondent, contended that the
Grounds of Appeal filed by the Applicant do not raise any issue of
general importance or novel points of law, or show a prima facie
arguable appeal. In relation to Grounds 3 and 4 of the appeal,
Counsel relied on the decision in ILOABACHIE v
ILOABAEWE (2000) 5 NWLR (Pt. 656) 178 and Order 2.
Rule 32 of the Supreme Court Rules, to submit that where the
Court of Appeal affirmed a finding of fact of the trial Court, the
Supreme Court can only grant leave to appeal against same in
exceptional circumstances, which were non-existent in this
case.
Replying on Points of Law, Counsel for the Applicant countered
that the submissions of the Respondent were entirely misconceived,
as they suggested that a Ground of Appeal must disclose a
likelihood of success, as opposed to an arguable point before a
relief sought can be granted, which is not the position of the law.
He stated that the Respondent was inviting the Court to consider
the merits of the appeal at the preliminary stage, contrary to
known principle, as all that is required at this stage, is to show
that there are arguable grounds of appeal, and not necessarily
grounds that may eventually succeed. CBN v AHMED
(2001) 11 NWLR (Pt. 724) 368.
Court’s Judgement and Rationale
In its consideration of the application, the Supreme Court held
that before an application of this nature is granted, two
conditions spelt out by law must be satisfied, to wit: (i) it must
be in the interest of justice; and (ii) the application shall be
supported by an affidavit setting forth good and substantial
reasons for the failure to appeal, and to apply for leave to appeal
within the prescribed period. In view of the above, an Applicant
has to convince the Court, that the delay in bringing the
application is neither wilful nor inordinate, and that there are
good and substantial reasons for the failure to appeal within the
prescribed period. The two conditions are conjunctive and not
disjunctive; hence, they must co-exist. NWORA v NWABUEZE (2011) 15
NWLR (Pt. 1271) 467.
In this case, delay in filing the application was attributed to
inadvertence of Counsel; this is a familiar refrain in applications
of this nature. While it is correct that inadvertence of Counsel or
Counsel’s error in judgement, if reasonable, is an acceptable
explanation for delay in applying for leave, however, the
Honourable Nnaemeka-Agu, JSC warned in IROEGBU v OKWORDU
(1990) 6 NWLR (Pt. 159) 643 that notwithstanding the
earlier decision of the Apex Court on the point, “The Courts will
not regard this as a universal talisman, the waiver of which will
act as panacea in all cases. The Courts must be satisfied that, the
allegation of the fault of Counsel is true and genuine, but also
that it is availing, having regard to the circumstances of the
particular case.”
Owing to the abuse in attributing all non-compliance with the
Law and Rules of Court to inadvertence of Counsel, the current
trend in judicial practice is to distinguish inadvertence of
Counsel from ineptitude of Counsel – MALARI & ORS v
LEIGH (unreported) APPEAL NO. SC.113/2013 delivered on 12/01/18.
Thus, the rule that a litigant should not be punished for the
mistake or inadvertence of Counsel, does not extend to a situation
where his Counsel has exhibited tardiness or
incompetence.
In this case, the Court had to decide whether the inadvertence
of Counsel, was within the permissible limits or crossed the line
of sheer ineptitude on the part of Counsel for the Applicant. Going
by the fact that the Applicant had filed an initial application
within time before the error in not including the first prayer to
extend the time was discovered, though Counsel ought to have been
more diligent, the error does not suggest ineptitude on the part of
Counsel.
Regarding the second condition requiring the Applicant to show
that there are grounds which prima facie show good cause why the
appeal should be heard, as submitted by Counsel for the Respondent,
leave to appeal in this case where the Court of Appeal
affirmed the findings of the trial Court, can only be granted in
exceptional circumstances – Order 2 Rule 32 of the Supreme Court
Rules. The word ‘exceptional’ is defined as ‘much
greater than usual’. Hence, in this case, the Applicant has to jump
through an extra hoop, to convince this Court to grant this
application. There is nothing exceptional about the circumstances
of this case, to sway the Court to grant the application. The
Applicant’s four Grounds of Appeal must show on the face of it,
good cause why the appeal should be heard, for the application to
be granted. The application is not granted as a matter of course.
In this case, there is no redeeming feature, to warrant the Supreme
Court to indulge the Applicant by granting its application.
Application Dismissed. Representation: Afolabi Kuti Esq. with
Pius Owhoawodua Esq. for the
Appellant Mrs. Nonye Nzewi-Agbasi Esq. for the Respondent.
Reported by Optimum Law Publishers Limited (Publishers
of the Nigerian Monthly Law Reports (NMLR))
Read more https://nairalaw.com/leave-of-supreme-court-to-appeal-out-of-time-what-applicant-must-show/