CORAM

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OBANDE FESTUS OGBUINYA

OBIENTONBARA O. DANIEL-KALIO

FATIMA OMORO AKINBAMI

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PARTIES

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ACCESS BANK NIGERIA PLC

APPELLANTS 

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ASOL NIGERIA LIMITED

RESPONDENTS 

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AREA(S) OF LAW

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URISDICTION, APPEAL, PROCEDURAL LAW, LIMITATION LAW, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The facts of this case are that the Applicant filed an application challenging the jurisdiction of the High Court of Lagos State (Per Hon. Justice Adedayo) on the ground that the cause of action in the instant suit arose in May 2002, but the Respondent commenced the suit in 2021 outside the prescribed time for the commencement of the suit pursuant to Section 8 of the Limitation Law of Lagos State, 2003. The High Court delivered its Ruling on the 4/8/2022 and subsequently dismissed the Applicant’s application and held that the filing of the present suit does not amount to a re-opening of the struck-out suit for the purposes of freezing the limitation period. The 14 days period from the Ruling prescribed for a Notice of Appeal has since elapsed, the Applicant peeved with the decision of the lower Court has lodged an application to this Court to regularize the Applicant’s position.

 

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HELD

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Appeal Allowed; Applicant is granted leave and extension of time to appeal the decision of the High Court of Lagos.

 

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ISSUES

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Whether from the circumstances of this case the Honourable Court ought to exercise its discretion to grant this application as sought.

 

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RATIONES DECIDENDI

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JUDICIAL DISCRETION – WHAT THE APPLICANT MUST DO BEFORE THE COURT WILL EXERCISE JUDICIAL DISCRETION

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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. 1578) 30.

Unarguably, the Applicant paid due obeisance to that judicial responsibility, presentation of material facts for use by this Court as the barometer to gauge the success of their application when it filed copious affidavits in support of it. Per Obande Festus Ogbuinya, JCA

 

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GROUNDS FOR APPEAL – THE TEST FOR WHETHER A GROUND OF APPEAL IS ARGUABLE

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The litmus test for gauging whether a ground is arguable or not was graphically captured in Obikoya & Sons 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 held. The rule does not require 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 good ground, which raises substantial issues of fact or law for the consideration of the court. It is a ground, which cannot be dismissed with a wave of the hand or total lacking in substance. It is a ground, which taxes the intellect and reasoning faculties of the appeal Judges. It is a ground, which is not frivolous.  Per Obande Festus Ogbuinya, JCA

 

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JUDICIAL DISCRETION – MEANING OF

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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 SULIEMAN 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 GEORGE IND. LTD (2019) 16 NWLR (PT 1699) 560. Per Obande Festus Ogbuinya, JCA

 

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JUDICIAL DISCRETION – ATTITUDE OF THE JUDGE TOWARDS JUDICIAL DISCRETION

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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 by the equitable decision of what is just and proper under the circumstances”. See BABATUNDE V P. A.S. & T. A. LTD (SUPRA) at 164, PER Ogbuagu, JSC.  Per Obande Festus Ogbuinya, JCA

 

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JURISDICTION – EFFECT OF A COURT PROCEEDING WITHOUT JURISDICTION

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It is 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 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. Okuruket ‘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 Obande Festus Ogbuinya, JCA.

 

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JURISDICTION – CHARACTERISTICS OF JURISDICTION

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Indubitably, jurisdiction has been characterized 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 drained of blood. Hence, it occupies an Olympian position in the pyramid of adjudication.  Per Obande Festus Ogbuinya, JCA.

 

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RIGHT TO APPEAL – WHEN IS AN APPLICANT ENTITLED TO REAP HIS RIGHT OF APPEAL

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In the spirit of ex ebundant 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. Yakubu (2014) NWLR (Pt. 1417) 11.  Per Obande Festus Ogbuinya, JCA

 

 

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CIVIL CONTEMPT – MEANING, EFFECT AND EXCEPTIONS

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By way of prefatory remarks, a civil contempt connotes a failure or neglect of a party to obey a court order that was issued for another party’s benefit. See Abeke V. Odunsi (2013) 13 NWLR (Pt. 1370) 1; Kulak T. & Ind. Plc V. The Tug Boat M/V Japaul B. (2019) 3 NWLR (Pt. 1658) 145. It is a frontal affront to the authority, dignity and sanctity of a court. It is of two species, videlicet: ex facie curiae and in facie curiae See Brittania – U (Nig.) Ltd V. Seplat Pet. Dev. Co. Ltd (2016) 4 NWLR (Pt.1503) 541; INEC V. Oguebego (2018) 8 NWLR (Pt. 1620) 88. It is settled elementary law that a subsisting order of court, of any cadre or stratium, must be obeyed by the parties.

Hence, a party who flouts/disobeys a positive order of court is not entitled to another order or remedy from the same court, or appellate court, while relishing in his contempt or until he purges himself of the contempt. See Gov. of Lagos State V. Ojukwu (1986) 1 NWLR (Pt. 18) 621; Odogwu V. Odogwu (1992) 2 NWLR (Pt. 225) 539; First African Trust Bank Ltd. V. Ezegbu (1992) 9 NWLR (Pt. 264) 132/(1993) 6 SCNJ 122; Ngere V. Okusuket ‘XIV’ (2014) 11 NWLR (Pt. 147) 147; Jev V. Iyostyom (2014) 14 NWLR (Pt. 1428) 575; APC V. Karfi (2018) 6 NWLR (Pt. 1616) 479; Abeke V. Adunsi (supra); Brittania-U (Nig) Ltd V. Seplat Pet Dev. Co. Ltd (Supra); Umaru V. APC (2018) 18 NWLR (Pt. 1650)  139; Umeakuana V. Umeakuana (2019) 14 NWLR (Pt 1691) 61; Ekpemupolo V. FRN (2019) 11 NWLR (Pt. 1684) 462; INEC V. Oguebego (supra) 

However, this hallowed principle of law is elastic. The legally accepted exceptions are: (a) where the party seeks leave to appeal against the order which he is in contempt; (b) where he challenges the order on the ground of lack of jurisdiction; (c) where the contemnor seeks to be heard in defence of the order; and (d) where it can shown that there were certain procedural irregularities in making of the order which make it unsustainable, see First African Trust Bank Ltd V Ezegbu (Supra); Ngere V. Okurakel ‘XIV’ (Supra); INEC V Oguebego (Supra). Per Obande Festus Ogbuinya, JCA

 

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DELAY IN FILING NOTICE OF APPEAL – EFFECT ON THE APPLICANT

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The applicant’s reason for delay in filing the notice of appeal is warehoused in paragraph 3 (9) and (h) of the affidavit in support of the application, videlicet, the resignation of the former counsel, handling the case in the lower court, from the firm of the applicant’s counsel without proper handing over the status of the matter to it. To my of counsel. In other words, the applicant’s failure to file its notice of appeal, within the time frame ordained by, was occasioned by error and negligence of counsel to engaged by it to prosecute the appeal. This counts in favor of the applicant in that 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, 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. Per Obande Festus Ogbuinya, JCA.

 

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COURT – ATTITUDE OF THE COURT TOWARDS THE LITIGANTS FOR THE MISTAKE OF COUNSEL

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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. To this end, it will be an affront to the law to penalize the applicant, non-legal practitioner, for the professional mistake of its counsel. Per Obande Festus Ogbuinya, JCA.

 

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

2. Court of Appeal Rules, 2021

3. High Court of Lagos State (Civil Procedure) Rules, 2019

 

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