Propriety Of Making Similar Applications At The Supreme And Appeal Courts Simultaneously

In the Supreme Court of Nigeria Holden at Abuja On Friday, the
5th day of February, 2021

Before Their Lordships
Olabode Rhodes-Vivour
Amina Adamu Augie
Helen Moronkeji Ogunwumiju
Abdu Aboki
Emmanuel Akomaye Agim

Justices, Supreme Court SC.918/2018

Between

Virgin Atlantic Airways … … … Appellant/Applicant
And

Mrs. Francisca Pablo Amaran… … … Respondent
And

1) Zenith Bank Nigeria Plc
2) Guaranty Trust Bank Plc … … … Garnishee/Respondent

(Lead Ruling delivered by Honourable Emmanuel Akomaye Agim,
JSC)

Facts

The Federal High Court, Lagos delivered its judgement in Suit
No. FHC/L/CS/50/2012 – Mrs. Francis Pablo-Amaran v Virgin Atlantic
Airways & 2 Ors – on 30th November, 2016. The Judgement
Creditor/Respondent (the Respondent) commenced the enforcement of
the judgement by an application ex-parte for a Garnishee Order,
which Order Nisi was granted by the trial court on 13th January,
2017 and the proceedings adjourned for the Garnishees to show cause
why they should not pay to the Judgement Creditor, the amount
standing to the credit balance of the Judgement Debtor’s account
with them.

The Judgement Debtor/Appellant/Applicant (the Applicant) who was
listed as a party in the ex-parte application and named a party to
the proceedings, thereafter, filed a Notice of Appeal against the
judgement of the trial court delivered on 30th November, 2016 and
the appeal was entered on 7th February, 2017, following which the
Applicant applied to the trial High Court for a stay of execution
of its judgement, setting aside of the Garnishee Order Nisi and
stay of further garnishee proceedings pending the determination of
the appeal.

Based on the foregoing applications, the trial court declined
further jurisdiction in the matter, and declared every application
and orders made in the proceedings, as nullity.

Aggrieved by the decision of the trial court, the Respondent
appealed to the Court of Appeal, which appellate court allowed the
appeal, restored the Garnishee Order Nisi, and ordered the trial
court to await the determination of the substantive appeal at the
appellate court. The Applicant, who was dissatisfied with the
outcome of the appeal, filed a trinity application against the
judgement of the Court of Appeal delivered on the 29th June,
2018.

The application was initially filed at the Court of Appeal.
However, the said motion could not be heard before the expiration
of the three-month period provided for. Consequently, the Applicant
then filed a Motion on Notice at the Supreme Court dated 3rd
October, 2018 seeking the trinity prayers for an Order of the
Supreme Court extending the time within which the Appellant can
seek leave to appeal against the judgement of the Court of Appeal,
leave to appeal the decision, and extension of time to appeal to
the Supreme Court. In its affidavit in support of the application,
the Applicant stated the reasons for the delay. It stated that the
application was filed on the 3rd October, 2018 because the 29th and
30th of September, 2018 fell on a weekend while the 1st October,
2018 was declared a public holiday. The Appellant further stated
that, the processes had to be conveyed from Lagos to Abuja on 2nd
October, 2018 for filing on 3rd October, 2018. However, the
Appellant did not disclose why it had waited for two months before
filing the initial application at the Court of Appeal, which could
not be heard within the three-month period stipulated for appealing
the decision of the Court of Appeal.

The Respondent filed an objection contending that the
Applicant’s application was an abuse of court process, as a similar
application was filed at the Court of Appeal which was subsequently
struck out on 16th October, 2018 following the Applicant’s
withdrawal of same. The Respondent contended further that, as the
Applicant is not a party to the Garnishee Proceedings where the
order Nisi was made, it can only appeal against the said order as
an interested party after obtaining the leave of the Court of
Appeal, and when such leave had not been sought or obtained, then
the Supreme Court lacked the requisite jurisdiction to entertain
the application.

Issues for Determination

In its determination of the application and the objections of
the Respondent thereto, the Supreme Court considered the following
issues:
1. Whether the Applicant has a competent application before the
Honourable Court to vest the Supreme Court with jurisdiction,
having not complied with Order 28 Rules 3 and 4 of the Supreme
Court Rules, 2014.

2. Whether the Honourable Court ought not to grant the Appellant
leave to appeal against the judgement of the Court of Appeal, Lagos
Division delivered on the 28th day of June, 2018 by their
Lordships; Hon. Justice Ugochukwu Anthony Ogakwu and Hon. Justice
Jamilu Yammama Tukur in Appeal No. CA/L/471/2017- Mrs. Francisca
Pablo-Amaran v Virgin Atlantic Airways & 2 Ors.

Arguments

By way of objection to the competence of the application before
the court, the Respondent had submitted that the application before
the Supreme Court, filed on 3rd October, 2018 was an abuse of court
process, because a similar application was filed at the Court of
Appeal on 24th August, 2018, and the Court of Appeal did not strike
out the said application until 16th October, 2018 following the
withdrawal by the Applicant. The Respondent also challenged the
application on the basis that the Applicant was not a party to the
Garnishee Order Nisi, and can only appeal against same as an
interested party after seeking and obtaining leave of court. In
response, counsel for the Applicant submitted that in accordance
with Order 2 Rule 28(4) of the Supreme Court (Amended) Rules 2014,
the Appellant had filed a similar application for leave to appeal
before the Court of Appeal, but same was not heard owing to the
court’s annual vacation. The Court of Appeal resumed sitting on the
17th October, 2018, but the Applicant could not get a date for
hearing of the motion for leave because the time prescribed by the
Rules for seeking leave to appeal at the lower court had expired;
hence, the Applicant had to file the application at the Supreme
Court, while waiting to withdraw the first application at the Court
of Appeal.

Court’s Ruling and Rationale

Deciding the objection to the competence of the application, the
Supreme Court found that the Applicant provided a satisfactory
explanation to show that the filing of the second application at
the Supreme Court was not made in bad faith, and that withdrawing
the first application was the proper thing to do in the
circumstance as the three-month period allowed under Section 27(2)
of the Supreme Court Act to appeal had expired by 30th September,
2018. Order 2 Rule 28(4) permits a second application to the
Supreme Court, in circumstance(s) where it is impossible to apply
to the Court of Appeal; more so, where the period for appealing
against the judgement of the Court of Appeal has expired, only the
Supreme Court can extend the prescribed time by virtue of Section
27(4) of the Supreme Court Act – AFRIBANK NIG. PLC. v AKWARA (2006)
5 NWLR (Pt. 974) 619. The court held that where there is no want of
bona fide, a process issued in accordance with law in pursuit of
the due process of justice, cannot be an abuse of the process of
court.

Regarding the objection that Applicant was not a party to the
Garnishee Proceedings and that it could only appeal against the
Garnishee Order Nisi as an interested party after obtaining the
leave of the Court of Appeal, which it failed to obtain, thereby
robbing the Supreme Court of jurisdiction to entertain the appeal,
the Apex Court found that the Applicant was a nominal party in the
Garnishee Proceedings up to the making of the Order Nisi. The
Applicant became an active party after filing an application to
challenge the Garnishee Proceedings on the ground that its appeal
against the decision sought to be enforced had been entered at the
Court of Appeal, and the trial court upheld its objection. The
decision of the trial court on this objection, was what resulted in
the appeal leading to the Supreme Court. Thus, the Applicant was
not only a party to the Garnishee Proceedings, but a main
Respondent to the appeal against the Ruling of the court below. The
court held further that a named party in a trial proceedings or
party who actively participated in the proceeding has a right to
appeal against any decision in the said trial proceedings, and does
not require the leave of the court to appeal against a decision in
such trial proceedings as person interested – Section 243(a) of the
1999 Constitution. Thus, the argument that the Applicant has no
right to appeal against the ex-parte Garnishee Order Nisi by virtue
of Section 14(1) of the Court of Appeal Act 2004 is unnecessary, as
the instant appeal is a further appeal resulting from the
Applicant’s objection to the jurisdiction of the trial court, and
not against the ex-parte order of the trial court. Being a party to
the appeal, the Applicant can exercise its right of appeal to the
Supreme Court by virtue of Section 233(2) and (5) of the 1999
Constitution. By this, the Supreme Court dismissed the objection of
the Respondent to the application.

Now, considering the merit of the application seeking the
trinity prayer before the Supreme Court, their Lordships held that
by the provisions of Order 2 Rule 31 of the Supreme Court (Amended)
Rules 2014 which regulates the practice and procedure in respect of
an application of this nature, the conditions stipulated in Order 2
Rule 31(2) must be complied with. In essence, every application for
an enlargement of time in which to appeal or in which to apply for
leave, is to be supported by an affidavit setting forth good and
substantial reasons for the failure to appeal or to apply for leave
to appeal within the prescribed period, and there should also be
exhibited grounds of appeal which prima facie show good cause why
the appeal should be heard, amongst others. Failure to satisfy
these two conditions would result in such application being
dismissed by the court – SEBASTIAN ADIGWE v FEDERAL RUPUBLIC OF
NIGERIA (2015) S.C. 115. In this case, the reason given by the
Applicant for its failure to apply and obtain leave within the
prescribed time, was owing to the annual vacation of the court for
the year 2018. The Applicant however, failed to disclose why it
waited for about two months after the delivery of the judgement of
the Court of Appeal before applying to the Court of Appeal for
leave to appeal the decision. The Supreme Court concluded that, the
affidavit in support of the application did not disclose good and
substantial reason for the failure to appeal or apply for leave to
appeal within the prescribed period, so as to be entitled to the
discretionary power of court in its favour.

Application Dismissed.

Representation
Victoria Adedapo for the Appellant.
P. Amaran with J. Okogbo for the Respondent.

B.B. Lawal, Esq. for the Garnishee/Respondent

Reported by Optimum Publishers Limited, Publishers of the
Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin &
Co.)

In the Supreme Court of Nigeria Holden at Abuja On Friday, the
5th day of February, 2021

Before Their Lordships
Olabode Rhodes-Vivour
Amina Adamu Augie
Helen Moronkeji Ogunwumiju
Abdu Aboki
Emmanuel Akomaye Agim

Justices, Supreme Court SC.918/2018

Between

Virgin Atlantic Airways … … … Appellant/Applicant
And

Mrs. Francisca Pablo Amaran… … … Respondent
And

1) Zenith Bank Nigeria Plc
2) Guaranty Trust Bank Plc … … … Garnishee/Respondent

(Lead Ruling delivered by Honourable Emmanuel Akomaye Agim,
JSC)

Facts

The Federal High Court, Lagos delivered its judgement in Suit
No. FHC/L/CS/50/2012 – Mrs. Francis Pablo-Amaran v Virgin Atlantic
Airways & 2 Ors – on 30th November, 2016. The Judgement
Creditor/Respondent (the Respondent) commenced the enforcement of
the judgement by an application ex-parte for a Garnishee Order,
which Order Nisi was granted by the trial court on 13th January,
2017 and the proceedings adjourned for the Garnishees to show cause
why they should not pay to the Judgement Creditor, the amount
standing to the credit balance of the Judgement Debtor’s account
with them.

The Judgement Debtor/Appellant/Applicant (the Applicant) who was
listed as a party in the ex-parte application and named a party to
the proceedings, thereafter, filed a Notice of Appeal against the
judgement of the trial court delivered on 30th November, 2016 and
the appeal was entered on 7th February, 2017, following which the
Applicant applied to the trial High Court for a stay of execution
of its judgement, setting aside of the Garnishee Order Nisi and
stay of further garnishee proceedings pending the determination of
the appeal.

Based on the foregoing applications, the trial court declined
further jurisdiction in the matter, and declared every application
and orders made in the proceedings, as nullity.

Aggrieved by the decision of the trial court, the Respondent
appealed to the Court of Appeal, which appellate court allowed the
appeal, restored the Garnishee Order Nisi, and ordered the trial
court to await the determination of the substantive appeal at the
appellate court. The Applicant, who was dissatisfied with the
outcome of the appeal, filed a trinity application against the
judgement of the Court of Appeal delivered on the 29th June,
2018.

The application was initially filed at the Court of Appeal.
However, the said motion could not be heard before the expiration
of the three-month period provided for. Consequently, the Applicant
then filed a Motion on Notice at the Supreme Court dated 3rd
October, 2018 seeking the trinity prayers for an Order of the
Supreme Court extending the time within which the Appellant can
seek leave to appeal against the judgement of the Court of Appeal,
leave to appeal the decision, and extension of time to appeal to
the Supreme Court. In its affidavit in support of the application,
the Applicant stated the reasons for the delay. It stated that the
application was filed on the 3rd October, 2018 because the 29th and
30th of September, 2018 fell on a weekend while the 1st October,
2018 was declared a public holiday. The Appellant further stated
that, the processes had to be conveyed from Lagos to Abuja on 2nd
October, 2018 for filing on 3rd October, 2018. However, the
Appellant did not disclose why it had waited for two months before
filing the initial application at the Court of Appeal, which could
not be heard within the three-month period stipulated for appealing
the decision of the Court of Appeal.

The Respondent filed an objection contending that the
Applicant’s application was an abuse of court process, as a similar
application was filed at the Court of Appeal which was subsequently
struck out on 16th October, 2018 following the Applicant’s
withdrawal of same. The Respondent contended further that, as the
Applicant is not a party to the Garnishee Proceedings where the
order Nisi was made, it can only appeal against the said order as
an interested party after obtaining the leave of the Court of
Appeal, and when such leave had not been sought or obtained, then
the Supreme Court lacked the requisite jurisdiction to entertain
the application.

Issues for Determination

In its determination of the application and the objections of
the Respondent thereto, the Supreme Court considered the following
issues:
1. Whether the Applicant has a competent application before the
Honourable Court to vest the Supreme Court with jurisdiction,
having not complied with Order 28 Rules 3 and 4 of the Supreme
Court Rules, 2014.

2. Whether the Honourable Court ought not to grant the Appellant
leave to appeal against the judgement of the Court of Appeal, Lagos
Division delivered on the 28th day of June, 2018 by their
Lordships; Hon. Justice Ugochukwu Anthony Ogakwu and Hon. Justice
Jamilu Yammama Tukur in Appeal No. CA/L/471/2017- Mrs. Francisca
Pablo-Amaran v Virgin Atlantic Airways & 2 Ors.

Arguments

By way of objection to the competence of the application before
the court, the Respondent had submitted that the application before
the Supreme Court, filed on 3rd October, 2018 was an abuse of court
process, because a similar application was filed at the Court of
Appeal on 24th August, 2018, and the Court of Appeal did not strike
out the said application until 16th October, 2018 following the
withdrawal by the Applicant. The Respondent also challenged the
application on the basis that the Applicant was not a party to the
Garnishee Order Nisi, and can only appeal against same as an
interested party after seeking and obtaining leave of court. In
response, counsel for the Applicant submitted that in accordance
with Order 2 Rule 28(4) of the Supreme Court (Amended) Rules 2014,
the Appellant had filed a similar application for leave to appeal
before the Court of Appeal, but same was not heard owing to the
court’s annual vacation. The Court of Appeal resumed sitting on the
17th October, 2018, but the Applicant could not get a date for
hearing of the motion for leave because the time prescribed by the
Rules for seeking leave to appeal at the lower court had expired;
hence, the Applicant had to file the application at the Supreme
Court, while waiting to withdraw the first application at the Court
of Appeal.

Court’s Ruling and Rationale

Deciding the objection to the competence of the application, the
Supreme Court found that the Applicant provided a satisfactory
explanation to show that the filing of the second application at
the Supreme Court was not made in bad faith, and that withdrawing
the first application was the proper thing to do in the
circumstance as the three-month period allowed under Section 27(2)
of the Supreme Court Act to appeal had expired by 30th September,
2018. Order 2 Rule 28(4) permits a second application to the
Supreme Court, in circumstance(s) where it is impossible to apply
to the Court of Appeal; more so, where the period for appealing
against the judgement of the Court of Appeal has expired, only the
Supreme Court can extend the prescribed time by virtue of Section
27(4) of the Supreme Court Act – AFRIBANK NIG. PLC. v AKWARA (2006)
5 NWLR (Pt. 974) 619. The court held that where there is no want of
bona fide, a process issued in accordance with law in pursuit of
the due process of justice, cannot be an abuse of the process of
court.

Regarding the objection that Applicant was not a party to the
Garnishee Proceedings and that it could only appeal against the
Garnishee Order Nisi as an interested party after obtaining the
leave of the Court of Appeal, which it failed to obtain, thereby
robbing the Supreme Court of jurisdiction to entertain the appeal,
the Apex Court found that the Applicant was a nominal party in the
Garnishee Proceedings up to the making of the Order Nisi. The
Applicant became an active party after filing an application to
challenge the Garnishee Proceedings on the ground that its appeal
against the decision sought to be enforced had been entered at the
Court of Appeal, and the trial court upheld its objection. The
decision of the trial court on this objection, was what resulted in
the appeal leading to the Supreme Court. Thus, the Applicant was
not only a party to the Garnishee Proceedings, but a main
Respondent to the appeal against the Ruling of the court below. The
court held further that a named party in a trial proceedings or
party who actively participated in the proceeding has a right to
appeal against any decision in the said trial proceedings, and does
not require the leave of the court to appeal against a decision in
such trial proceedings as person interested – Section 243(a) of the
1999 Constitution. Thus, the argument that the Applicant has no
right to appeal against the ex-parte Garnishee Order Nisi by virtue
of Section 14(1) of the Court of Appeal Act 2004 is unnecessary, as
the instant appeal is a further appeal resulting from the
Applicant’s objection to the jurisdiction of the trial court, and
not against the ex-parte order of the trial court. Being a party to
the appeal, the Applicant can exercise its right of appeal to the
Supreme Court by virtue of Section 233(2) and (5) of the 1999
Constitution. By this, the Supreme Court dismissed the objection of
the Respondent to the application.

Now, considering the merit of the application seeking the
trinity prayer before the Supreme Court, their Lordships held that
by the provisions of Order 2 Rule 31 of the Supreme Court (Amended)
Rules 2014 which regulates the practice and procedure in respect of
an application of this nature, the conditions stipulated in Order 2
Rule 31(2) must be complied with. In essence, every application for
an enlargement of time in which to appeal or in which to apply for
leave, is to be supported by an affidavit setting forth good and
substantial reasons for the failure to appeal or to apply for leave
to appeal within the prescribed period, and there should also be
exhibited grounds of appeal which prima facie show good cause why
the appeal should be heard, amongst others. Failure to satisfy
these two conditions would result in such application being
dismissed by the court – SEBASTIAN ADIGWE v FEDERAL RUPUBLIC OF
NIGERIA (2015) S.C. 115. In this case, the reason given by the
Applicant for its failure to apply and obtain leave within the
prescribed time, was owing to the annual vacation of the court for
the year 2018. The Applicant however, failed to disclose why it
waited for about two months after the delivery of the judgement of
the Court of Appeal before applying to the Court of Appeal for
leave to appeal the decision. The Supreme Court concluded that, the
affidavit in support of the application did not disclose good and
substantial reason for the failure to appeal or apply for leave to
appeal within the prescribed period, so as to be entitled to the
discretionary power of court in its favour.

Application Dismissed.

Representation
Victoria Adedapo for the Appellant.
P. Amaran with J. Okogbo for the Respondent.

B.B. Lawal, Esq. for the Garnishee/Respondent

Reported by Optimum Publishers Limited, Publishers of the
Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin &
Co.)