WAHILI ESTATES LIMITED & ORS V. UNION BANK OF NIGERIA PLC.
March 15, 2025ALH. LAWAL ABBA V. ALH. MAHMUD ADAMU MAHMUD
March 15, 2025Legalpedia Citation: (2023-06) Legalpedia 08913 (CA)
In the Court of Appeal
Holden at Lagos
Tue Jun 27, 2023
Suit Number: CA/LAG/PRE/ROA/CV/438M1/2020
CORAM
OBANDE FESTUS OGBUINYA JUSTICE, COURT OF APPEAL
FREDRICK OZIAKPONO OHO JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
PARTIES
MR. EMMANUEL AGBOIFO APPLICANT
APPELLANTS
UNITED BANK FOR AFRICA PLC RESPONDENT
RESPONDENTS
AREA(S) OF LAW
APPEAL, EVIDENCE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The applicant prayed the trinity prayer to appeal the judgment of the High court of Lagos state delivered on the 12th day of February, 2018 and for an order to stay the judgment of the lower court. Appellant disclosed the death of counsel and subsequent delays in retrieving case file and everything else associated with the case as the reason why he failed to appeal as at when due.
HELD
Appeal allowed in part.
ISSUES
Whether in the circumstances of this case, the Applicant is entitled to the reliefs sought?
RATIONES DECIDENDI
DISCRETION – MEANING AND EXERCISE OF DISCRETION BY COURTS/JUDGES
Discretion signifies: the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina Goerge Ind. Ltd (2019) 16 NWLR (Pt.1699) 560. A Judge, in exercise of discretion, must act judicially and judiciously. To act judicially denotes “…discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances”. See Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand, “Acting judiciously … is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision”, see Babatunde v. P.A.S. & T.A. Ltd (supra), at 164, Per Ogbuagu, JSC.
Being an exercise of discretion, the law mandates an applicant, if he must attract the favourable discretion of a court, to furnish it with sufficient material facts that it will use, as the springboard, to exercise its discretion judicially and judiciously. This is because a court does not dish or dash out its discretion in vacuo as material facts are the desiderata for such judicial exercise, see Dongtoe v. Civil Service Commission, Plateau State (2001) 9 NWLR (Pt. 717) 132; Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203; In Re: Mawa v. NACBCFC Ltd. (2007) 7 NWLR (Pt. 1032) 54; Ebe v. C.O.P. (2008) 4 NWLR (Pt. 1076) 189; Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt. 1111) 58; Ani v. Otu (2017) 12 NWLR (Pt. 1578) 30. – Per O. F. Ogbuinya, JCA
ENLARGEMENT OF TIME – CONDITIONS THE APPLICANT SHOULD MEET WHEN SEEKING ENARGEMENT OF TIME
…Order 6 rule 9 of the Court of Appeal Rules, 2021 Being the cynosure of the issue, it is imperative to pluck it out whence it is domiciled in the Court of Appeal Rules, ipsissima verba, as follows:
9.- (1) The Court may enlarge he time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reason, for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.
It is decipherable from the phraseology and tenor of the provision, which is rebellious to wooliness, that an applicant, in this genre of application, must satisfy two conditions to earn the favour of the court, videlicet: (a) good and substantial reasons for failure to appeal within the prescribed time and (b) grounds of appeal which prima facie disclose good cause why the appeal should be heard. The case – law, which has sanctioned these conditions, decrees that the two are conjunctive and must co – exist before an application of this kind can succeed, see Enyibros Foods Processing Co. Ltd. v. NDIC (2007) 9 NWLR (Pt. 1039) 216, Adelekan v. Elu – Line NV (2006) 12 NWLR (Pt. 993) 33; Oyegan v. Nzeribe (2010) 16 NWLR (Pt. 1220) 568; FHA v. Kalejaiye (2010) 19 NWLR (Pt. 1226) 147; Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271) 467; Nigerian Army v. Yakubu (2013) 222 LRCN (Pt.1) 120; Ngere v. Okuruket (supra); Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168; Itsueli v. SEC (2016) 6 NWLR (Pt. 1507) 160; GTB Plc. v. Est Master Constr. Ltd. (2018) 8 NWLR (Pt. 1622) 483; Malari v. Leigh (2019) 3 NWLR (Pt. 1659) 332; Bestman v. Whyte (2020) 6 NWLR (Pt. 1719) 136. – Per O. F. Ogbuinya, JCA
EXTENSION OF TIME – WHEN TRUE AND GENUINE MISTAKE OF COUNSEL IS A COGENT REASON TO GRANT EXTENSION OF TIME TO FILE AN APPEAL
“…true and genuine mistake or error of judgment of counsel is, in deserving circumstances, a cogent reason to grant extension of time to file an appeal, see Nwora v. Nwabueze (supra). In Optimum Construction & Property Development Ltd v. Ake Shareholding Ltd, (2021) 18 NWLR (Pt. 1807) 148 at 181, Agim, JSC, incisively, declared: There is nothing to show that the applicant was aware that its Legal Practitioner had not filed a competent appeal or had not taken the right steps to file one. It is obvious that the applicant was not in a position to know without being so informed, since it has no knowledge of what should be the competent legal process I think that in this situation, the tardiness and lack of diligence of its Legal Practitioner should be accepted as a good and substantial reason for the applicant’s failure to apply for leave to appeal or appeal within time.
Indubitably, in the eyes of the law, sins of counsel are never visited on an innocent litigant, see Wasa v. Kara (2015) 4 NWLR (Pt. 1449) 37; Aba v. Monday (2015) 14 NWLR (Pt. 1450) 569; SPCN Ltd v. Agbara (2016) 2 NWLR (Pt. 1496) 353. – Per O. F. Ogbuinya, JCA”
GROUNDS OF APPEAL – WHAT CONSTITUTES A GROUND OF APPEAL SHOWING GOOD CAUSE
“The litmus test for gauging whether a ground is arguable or not was, graphically, captured in Obikoya & Sons Ltd. v. Wema Bank Ltd. (1989) 1 NWLR (Pt. 96) 157 wherein Obaseki, JSC, incisively and insightfully, declared: The grounds of appeal required to be exhibited are only to show good cause why the appeal should be heard. The rule does not require the grounds to show good cause why the appeal should be allowed. Although in both cases, the grounds of appeal should be substantial, the certainty required in the latter case does not necessarily need to be present in the former case. A ground showing good cause why an appeal should be heard is a ground that raises substantial issues of fact or law for the consideration of the court. It is a ground that cannot be dismissed with a wave of the hand or totally lacking in substance. It is a ground that evokes a serious debate as to the correctness of the decision of the court below. It is a ground that taxes the intellect and reasoning faculties of the appeal Judges. It is a ground that is not frivolous.
See also, Optimum C & P. Dev. Ltd. v. Ake Shareholdings Ltd. (2021) 18 NWLR (Pt. 1807) 148. – Per O. F. Ogbuinya, JCA”
COURTS – DUTY OF THE COURT WHEN APPLICATIONS ARE MADE
“I am mindful of the inelastic position of the law that the duty of the court, at this stage, is not to decide the notice of appeal on its merit, but to see if it reveals arguable grounds. See Enyitros Foods Processing Co. Ltd. v. NDIC (2007) 9 NWLR (Pt. 1039) 216; Adelekan v. Elu-Line NV (2006) 12 NWLR (Pt. 993) 33; Oyegun v. Nzeribe (2010) 16 NWLR (Pt. 1220) 568. – Per O. F. Ogbuinya, JCA”
JURISDICTION – IMPORTANCE OF JURISDICTION TO ADJUDICATION
“Indubitably, jurisdiction has been characterised as the spinal cord, lifeline, touchstone, bedrock, and linchpin of adjudication. It oxygenates the power and duty of courts in adjudication. A court without jurisdiction has been likened to an animal that is drained of blood. Hence, it occupies an Olympian position in the pyramid of adjudication.
It is a rudimentary law that a court proceeding, conducted without jurisdiction, no matter the quantum of transparency, industry, dexterity, and sophistry injected into it, will be marooned in the murky ocean of nullity. To underscore the kingly position of the issue of jurisdiction in adjudication, a genuine complaint of jurisdiction in a notice of appeal dispenses with the reasons for an applicant’s delay in filing an appeal. See FHA v. Kalejaiye (2010) 19 NWLR (Pt. 1226) 147; Nwabueze (2011) 15 NWLR (Pt. 1271) 467;Ngere v. Okuruke t ‘XIV’ (2014) NWLR (Pt. 1417) 11; FBN Plc. v. Agbara (2020) 15 NWLR (Pt. 1748) 537 Anachebe v. Ijeoma (2014) 6 NWLR (Pt. 1426) 168. – Per O. F. Ogbuinya, JCA”
RIGHT OF APPEAL – MEANING OF RIGHT OF APPEAL
In the spirit of ex abundanti cautela, a right of appeal is one that is enshrined in the Constitution, as amended, the fons et origo of our corpus juris. An applicant is entitled to reap his right of appeal once he meets the necessary conditions, see Nigerian Army v. Yakubu (2013) 222 LRCN (Pt. 1) 120; Ngere v. Okuruket XIV (2014) NWLR (Pt. 1417) 11. – Per O. F. Ogbuinya, JCA
PRAYER – WHEN A PRAYER LACKS SUPPORTING ARGUMENTS
In the eyes of the law, a prayer, which is disrobed of any supporting arguments, is marooned in the murky ocean of abandonment. – Per O. F. Ogbuinya, JCA
CASES CITED
STATUTES REFERRED TO
Court of Appeal Rules, 2021
