3PLR – BANK OF BARODA AND ANOTHER V. MERCANTILE BANK (NIG) LTD

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BANK OF BARODA AND ANOTHER

V.

MERCANTILE BANK (NIG) LTD

SUPREME COURT OF NIGERIA

26TH JUNE, 1987

SUIT NO. SC 199/1985

3PLR/1988/23  (SC)

 

OTHER CITATIONS

(1987) NWLR (Pt. 60) 233

 

BEFORE THEIR LORDSHIPS

ESO, J.S.C.

ANIAGOLU, J.S.C.

UWAIS, J.S.C.

KAWU, J.S.C.

BELGORE, J.S.C.

 

REPRESENTATION

Chief F.R.A. Williams, S.A.N. (with him F.R.A. Williams (Jnr) – for the Appellants

B.A.M. Fashanu, ESQ. – for the Respondent

 

MAIN ISSUES

PRACTICE AND PROCEDURE – Appeal – Appeal on issue relating to facts – Power of appeal court to examine new relevant facts and circumstances – Trial court not independent of supervision

PRACTICE AND PROCEDURE – Application for enlargement of time to file notice – Burden on applicant to adduce acceptable reason for failure to file within time – Reason not to be based on contradictory evidence – Application for enlargement not granted as matter of course – Court can further extend time if earlier order of extension is not complied with – Consideration of interlocutory application – Court to confine itself to issues raised in application, not issues arising in substantive matter.

 

MAIN JUDGEMENT

ESO, J.S.C. (Delivering the Lead Judgment):

On 31st March, 1987, when this matter came before this Court, we took arguments from learned counsel and allowed the appeal. I reserved my reasons for the action we took. I now give my reasons for allowing the appeal

Let me state the facts, only as they affect this appeal. The claim was for:

“(1)   the sum of $1,254,977 dollars being the value of shipping documents relating to consignments of milk and white crystal sugar released to the Defendants by the Plaintiffs’ agents on the written undertaking of the said defendants to pay the sum aforesaid thirty days from the 2nd of August 1978.

(2)     Interest on the said sum of U.S. $1,254,977 at the rate of interest allowable by the Central Bank during the relevant period.”

What happened before judgment was delivered by the trial Court is irrelevant to this appeal. Judgment was however delivered in favour of the Plaintiffs on the two items of their claim. That was on 13th December 1982.

Nothing happened until 26th May, 1983, that is, five months later. Time within which to appeal had, by this time, lapsed on that day, the defendants filed an application to the Court of Appeal seeking enlargement of time within which to appeal from the judgment of the High Court. The Court of Appeal granted this application on 27th July, 1983. The following Order was made:

“Order as prayed. Time within which to appeal extended by 15 days from today. It is further ordered that a stay of execution of the judgment debt and costs be granted on the conditions agreed upon by both parties…..” (emphasis mine)

What were these agreed conditions? Chief Williams S.A.N., counsel for the Respondents stated them in his own submission In the Court of Appeal. He said:

“I have agreed with counsel for applicants (that is the defendants) that a stay be granted (on condition that the total amount of judgment debt and costs are paid into Court within one month from today. The defendants are to be at liberty to withdraw the amount on providing the guarantee of a licensed bank that it will refund the whole or any portion of the sum so deposited, If this Court so directs).” (again emphasis mine)

These were the conditions to which Mr. Okusogu, learned counsel for the Applicants, in the Court of Appeal that is, the defendants, agreed.

Now, what followed this is of the utmost importance to this appeal. The Appellants did nothing for one year and eight months after they had obtained this Order for extension of time and for stay on agreed terms. They waited till 2nd April 1985, before they brought another application for a further enlargement of time. I think I should state herein what transpired at this second application:

“H.A. Lardner, S.A.N. with Fashanu and Idigbe for applicants. F.R.A. Williams with Mustapha for Respondents. Lardner Moves: judgment debt and costs paid out to Respondents. Refers to para. 5 and 6 of affidavit.

F.R.A. Williams: There must be material to exercise Court discretion. There is non here cites Williams & others v. Hope Rising Voluntary Funds Society 1982 2S.C. page 145: Ratman & Curmarasary1965 1 W.L.R. page 8 or 3 A.E.R. page 933.

Lardner: The ground we relied upon has not been challenged.

Ruling: Time to comply with the order of this Court dated 27th July, 1985 is hereby extended for another 15 days as from today. The Court is satisfied with the reasons given in the affidavit of applicants for the delay in complying with the order of court made on 2717/83. Furthermore having regard to the proposed ground in the notice of appeal viz to the judgment appealed against, being a nullity, it is bordering on the point of aiding injustice to refuse to grant the extension of time asked for, to perfect the order of this Court.          The application is granted and the notice of appeal exhibited is hereby deemed as having been properly filed.

No order as to Costs.” (Italics mine)

Chief Williams, S.A.N. leading counsel for the Bank of Baroda, has appealed against this ruling to this Court. This is the appeal we allowed on 31st March 1987. His grounds of appeal are as follows:

(i)      The Court of Appeal erred in law in making order extending the time fixed by its Order dated 27th day of July 1983 when it has no jurisdiction to do so under Order 3 rule 4 (1) on which the Respondent relied.

(ii)     Even If (which is disputed) the Court had jurisdiction to extend time as aforementioned, its decision to exercise that jurisdiction was a wrong exercise of its discretionary powers in that:

(a)     in the light of the affidavit evidence before the court and in the absence of cross-examination of the deponents to such affidavits, it was impossible for the Court of Appeal to be satisfied that there had been a credible and reasonable explanation for the very long delay in complying with the order dated 27/7/83.

(b)     the “Further Affidavit” of Richard Ekeh was deliberately abandoned and not relied upon.

(iii)    The decision of the Court of Appeal to extend the time as aforesaid was unreasonable and ought not to have been made having regard to all the circumstances of the case as well as the affidavit evidence before the court.”

He described the substantive question for determination in his Brief of argument as:

“Whether there is any credible explanation for the delay or failure of the defendant to comply with the order for enlargement of time by the Court of Appeal on 27/7/83.”

and concluded that the defendants knew that there were only two simple steps which were necessary for them to have taken pursuant to the Order that was made by the Court. They were to pay the judgment debt and costs into the court within one month of the order, and they were to file their Notice of Appeal within fifteen days. Learned counsel contended that both Orders could be complied with even if, as the Respondent in this Court had claimed, the case file was lost and could not be traced.

Chief Williams contended further that the contents of the affidavit of Richard Ekeh, on whose affidavit evidence the Respondents relied, was not credible and “so contradictory that the Court below ought to have rejected it. He highlighted the affidavit. Paragraph 8 of that affidavit had given the impression that the case file was lost, and only found on or about 21st February 1984, whilst the following paragraph contained a statement that the said file was “discovered” (whatever that may mean), on 22nd March, 1985. But, and this is important, as learned counsel pointed out in his brief, there was correspondence between the parties, the two sides, through their counsel, as far back as 22nd August 1983, almost immediately after the order of the Court of Appeal for enlargement of time was made, and 11th April 1984, about the time the case file was allegedly found.

Learned counsel then referred to the main contention of the Respondents, apart from the explanation given by them. That is that the judgment of the High Court itself was a nullity, having regard to s.258 (1) of the Constitution of the Federal Republic.

Chief Williams’ contention, on that, was that what is now before this Court is the second application of the present Respondents before the Court of Appeal where the issue of nullity was not raised. That is the application dated 2nd April 1985. That application merely sought an order –

(i)      extending the time to enable the applicant comply with the order of this Honourable Court dated 27th day of July 1983 granting enlargement of time within which to appeal by fifteen days;

(ii)     deeming the Notice of Appeal already as having been properly filed;

(iii)    such further and or other orders as this Honourable Court may deem fit to make in the circumstances.”

The question of the nullity or otherwise of the judgment, of the High Court, as could be clearly seen, was certainly not an issue in the application. It was the granting of the application, supported by the affidavit, sworn to by Mr. Richard Ekeh, that provoked the appeal. Surely, it is not left to this Court or the Court of Appeal to create a new case for the Respondent. If the issue of nullity was not before the Court of Appeal in that second application which is now the basis for this appeal, the question we are left with to answer here is whether that ruling of the Court of Appeal dated 8th May 1985 which I have already set out and which contains in its foundation, the issues as to whether the judgment of the High Court was a nullity, a point not before the Court of Appeal, is right or not.

In the evidence of Richard Ekeh, is contained an averment, that the case file was last seen on 27th July 1983, before it was discovered “amongst old files which were being arranged for the perusal of Law School Students due on attachment” on 25th March 1985, thus suggesting a loss of the file for a period of almost two years. But then the same Richard Ekeh had earlier deposed in the same affidavit that the disappearance of the case file inhibited payment of the judgment debt up till 21st February 1984 thus suggesting a disappearance of the case file only up till 21st February 1984, that is, a period of only seven months. A definite contradiction has arisen in the evidence before the Court of Appeal.

As learned Senior Advocate, Chief Williams, rightly submitted, the burden was on the present Respondents to adduce acceptable reason for their failure to file the notice within time. That reason should certainly not be based on such contradictory evidence as has been stated above. The case of Ratman v. Curmarasary (1965) 1 W.L.R. 8 which Chief Williams referred us to, is very apt. There, the Privy Council, as per Lord guest said:

‘The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be material upon which the court can exercise its discretion p.8.” (Italics mine)

There is no material here except the contradictory evidence (which amounts to no evidence or rather to no material) upon which the Court of Appeal could rightly have exercised the discretion it purported to exercise.

And as for the power of this Court to review the decision of the Court of Appeal which is now on appeal, another authority which Chief Williams S.A.N. relied upon is also apt. In Evans v. Bartlam 1937 1 All E.R. 646, Lord Wright put it admirably.

“It is clear that the Court of Appeal should not interfere with the discretion of a judge acting within jurisdiction, unless the Court is clearly satisfied he was wrong.

But the Court is not entitled simply to say that, if the Judge had jurisdiction, and had all the facts before him, the Court of Appeal cannot review his order, unless he is shown to have applied a wrong principle. The Court must, if necessary, examine anew the relevant facts and circumstances, in order to exercise by way of review a discretion which may reverse or vary the order. Otherwise in interlocutory matters, the judge might be regarded as independent of supervision. Yet an interlocutory order of the judge may often be of decisive importance on the final issue of the case, and may be one which requires a careful examination by the Court of Appeal.”

In the Instant appeal, a determination of the interlocutory order made by the Court of Appeal should be of decisive importance to the case itself – a case where the original order of the Court was based on agreement of parties, which agreement is in fact being required to be set aside in the present application that is now on appeal. All one needs to do in the Evans v. Bartlam case is to read, for “judge’ – Court of Appeal; and for “Court of Appeal” – Supreme Court, and the authority would be absolutely apt in the current appeal.

It is for all these reasons that I allowed the appeal of the Appellants on 31st March 1987 and made all the orders which I made on that day.

ANIAGOLU,         J.S.C.: On 31st March, 1987 I allowed this appeal, set aside the Ruling of the Court of Appeal (per Ademola, Mohammed and Kutigi, JJ.C.A.), granting the Mercantile Bank of Nigeria Limited 15 days extension of time within which to comply with the order of the Court of Appeal dated 27th July 1985, which order was itself made, by the Court of Appeal, upon an earlier failure by the Mercantile Bank of Nigeria to comply with the order of the Court dated 27th July 1983.

The draft for the ‘Reasons for judgment’ just delivered by my learned brother, Kayode Eso, J.S.C. was made available to me before now and I agree with those reasons and adopt them as mine.

It was for those reasons that I allowed the appeal on 31st March 1087 as hereinbefore stated, with the costs as decreed on that day.

UWAIS, J.S.C.: When this appeal was heard on the 31st March, 1987, we allowed it with N300.00 costs to the appellant and reserved our reasons for doing so till today. I now give my reasons.

I have had a preview of the reasons for judgment read by my learned brother Eso, J.S.C. I entirely agree with those reasons and I adopt them as mine. As it was precisely for those reasons that I agreed on 31st March 1987 that the appeal should be allowed, I have nothing to add.

KAWU, J.S.C.: After hearing all arguments and submissions of learned counsel in this appeal on the 31st day of March, 1987, we allowed the appeal, set aside the ruling of the Court of Appeal and indicated that we would, today, give reasons for our decision. I now give my reasons.

In the substantive case in the High Court of Lagos State, the appellants instituted an action against the respondents claiming certain reliefs. On 13th December, 1982, the trial court gave judgment in favour of the appellants and against the respondents. The respondents did not appeal against the decision of the trial court within the prescribed period. However, on 28th May, 1983, they filed an application in the Court of Appeal praying the court for enlargement of time within which to appeal. That application was not opposed by the appellants and it was granted on 29th May, 1983. The Court of Appeal then ordered as follows:

“Order as prayed. Time within which to appeal extended by 15 days from today. It is further ordered that a stay of execution of the judgment debt and costs be granted on the condition agreed upon by both parties. The applicant to pay N800 costs to the respondents.”

The respondents did nothing about the matter for almost twenty months. However, on 2nd April, 1985, they brought an application in the Court of Appeal for an order:

(i)      extending the time to enable the applicant comply with the order of this Honourable Court dated 27th day of July, 1983 granting enlargement of time within which to appeal by fifteen days;

(ii)     deeming the Notice of Appeal already filed as having been properly filed;

(iii)    such further and or other orders as this Honourable Court may deem fit to make in the circumstances.,,

Naturally, this second application was vehemently opposed by the appellants but it was nevertheless granted. The Court ruled as follows:

“Ruling:- Time to comply with the order of this Court dated 27th July, 1985 is hereby extended for another 15 days as from today. The Court is satisfied with the reasons given in the affidavit of the applicant for the delay in complying with the order of Court made on 27/7/83. Furthermore having regard to the proposed ground in the notice of appeal viz to the judgment, appeal against being a nullity it is bordering on the point of aiding injustice to refuse to grant the extension of time asked for to perfect the order of this Court. The application is granted and the notice of appeal exhibited is hereby deemed as having been property filed.        No order as to costs.”

This appeal is from the above ruling of the Court of Appeal granting further extension of time to the respondents to enable them comply with the Court’s previous order of 27/7/83.

I have had the advantage of reading, in draft, the lead reasons for judgment just delivered by my learned brother Eso, J.S.C. 1 am in complete agreement with him and respectfully adopt those reasons as mine.

There is no doubt that the Court of Appeal had jurisdiction to grant the respondent’s application for further extension of time, as it did. The question, however, is whether, considering the material before it, the court was right in exercising its discretion in respondents’ favour. An application for extension of time within which to comply with a court’s order is not granted as a matter of course. To be entitled to the indulgence of the court in such a matter, the applicant must advance cogent, credible and convincing reasons for the delay – Williams v. Hope Rising Voluntary Funds Society (1982) 2 S.C. 145. In this case, can It be truly said that the affidavit of Richard Ekeh, on which the Court of Appeal relied, satisfactorily explained respondents’ failure to comply with the court’s order of 27th, 29th May, 1983? I think not. In my view that evidence was so lacking in credibility that the Court of Appeal ought on to have based its decision on it. I am also of the view that in considering the respondents’ second application of 26/5/1983, the Court of Appeal should not have given so much weight to a the respondents’ proposed ground of appeal as it was not relevant to the application before the court. It is for these reasons and for the fuller reasons given in the lead reasons for judgment that I allowed the appeal on 31st March, 1987.

BELGORE,   J.S.C.: I allowed this appeal on 31st day of March, 1987 and reserved reasons for the same to today. Now I give my reasons.

There was granted in the Court of Appeal an earlier application for stay of execution of the judgment of the High Court appealed against to that Court. The most important of the reasons for granting the prayers in the application, which was at any rate no opposed by the respondent, was the ground of appeal alleging nullity by virtue of S.258(1) of the Constitution. There were consequential order attached to the relief granted in the prayers. The orders were not fully obeyed and the present respondent then went asleep over the matters for twenty months, and inordinate delay in the circumstances of the case. By the time they surfaced for the application giving rise to this appeal in this Court, the explanation for delay was that the case diary or file got “missing” within the Chambers of the learned counsel. There is no more question of nullity. The application was simply on the inadvertence of no complying with the order of Court of Appeal because the case file was missing.

In the lead reason for judgment by my learned brother, Eso, J.S.C., he gave a full catalogue of the alleged or purported missing of the file. The Court of Appeal granted the application and in doing so said as follows:

‘Time to comply with the Order of this Court dated 27th July, 1883 is hereby extended for another 15 days as from today. The Court is satisfied with the reasons given in the affidavit of the application for the delay in complying with the Order of Court made on 27th July, 1983. Furthermore, having regard to the proposed ground in the notice of appeal viz, to the judgment appealed against being a nullity, it is bordering on the point of aiding injustice to refuse to grant the extension of time asked for to perfect the order of this Court.”

The ruling of the Court of Appeal (Ademola, J.C.A.) went beyond the issue on one leg and on the other leg was totally in the wrong to grant the application. The lead reasons for judgment has exhaustively dealt with the contradictions in the affidavit. Whoever asks a Court for discretion to allow him to do things which he ought to have done earlier but failed to do must not be tardy and must advance substantial reasons why he should be given another chance. An applicant whose behaviour to a clear directive of the Court is tardy should not expect that Court to use its discretion in his favour to perfect the obeisance to the directive; a fortiori if the application in his affidavit exhibits contradictions that throw doubt on his sincerity. The contradictions in the alleged missing or loss of the case file in the chambers of the respondents’ solicitors are enough to convince the Court that the application lacks substance and sincerity. Williams v. Hope/Rising Voluntary Funds Society (1982) 2 S.C. 145, 162.

As for the nullity aspect in the grounds of appeal, this certainly was not a matter before the Court of Appeal in this application. The substantiality of the grounds of appeal played a great part in the motion whose prayers were granted on 27th July, 1983 as to filing of the appeal. The affidavit in support is nothing but exhibition of tardiness on the part of the applicant. The applicant got a stay and did nothing for twenty months and it was only when the appellant started taking steps to enforce the judgment that the motion came in with the affidavits showing great contradictions. What was in issue in the application before Court of Appeal is not the substantiality of a grounds appeal; far from it. The matter before that Court was whether to grant extension to perfect the order of 27th July, 1983. Like every prayer to do things out of time of for extension of time to comply with some matters, the applicant must advance substantial reasons, otherwise the Court will not grant his prayers as a matter of course. (H.l. Orobator v. Mrs. M. Amata (1981) 5 S.C. 276; Nwaora v. Nwankobi (1985) 2 S.C. 86-267).

In the lead reasons for judgment, my learned brother, Eso, J.S.C. has clearly set out the facts of the case and advanced the legal points in a manner that I will not add more. I agreed that this appeal has substance and allowed it. I set aside the order of the Court of Appeal dated 8th day of May 1985 and instead entered a verdict of dismissal of the application for the reasons contained here and in the reasons advanced by Eso, J.S.C.

Appeal allowed.

 

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