CORAM
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU JCA
UGOCHUKWU ANTHONY OGAKWU JCA
DANLAMI ZAMA SENCHI JCA
PARTIES
FIRST CITY MONUMENT BANK
APPELLANTS
HYDROWORKS LTD & ANOR
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, PRACTICE AND PROCEDURE, JUSTICE
SUMMARY OF FACTS
By an application filed on 4th November, 2022, the Respondent/Cross-Appellant/Applicant seeks for the following orders:
AN ORDER of the Hon. Court extending the time within which the Applicant may file its Respondent’s/Cross-Appellant’s Brief of Argument.
AN ORDER of this Hon. Court deeming as properly filed and served the Applicant’s Respondent’s/Cross-Appellant’s Brief of Argument same having been separately filed and served, the penalty for late filing having been paid.”
The grounds upon which the application is predicated are as follows:
The Applicant is mandated by the rules of this Hon. Court to file its Respondent’s/Cross-Appellant’s Brief of Argument within thirty days after the service of the Appellant’s Brief of Argument.
The time within which the Applicant may file its Respondent’s/Cross-Appellant’s Brief of Argument under the rules has elapsed.
The Applicant needs the leave of this Hon. Court for extension of time within which to file its Respondent’s/Cross-Appellant’s Brief of Argument.
The Applicant has now filed its Respondent’s/Cross-Appellant’s Brief of Argument with the penalties paid and the evidence of filing and the payment of penalties for late filing is annexed to the Affidavit in support of this Application.
The reasons for the late filing is well explained in the Affidavit in support.
HELD
Application granted
ISSUES
Whether the Respondent Cross-Appellant/Applicant has furnished sufficient materials in order for discretion to be exercised in its favour by a grant of the application ?
RATIONES DECIDENDI
COURT – WHETHER A COURT CAN REFER TO PROCESSES IN THE CASE FILE – CIRCUMSTANCE WHEN A COURT WILL NOT RELY ON FACTS IN A CASE FILE
“Undoubtedly, it is trite law that a Court can refer to processes in the case file in order to arrive at a just decision. MHAMBE vs. SHIDI (1994) 2 NWLR (PT 326) 321, FUMUDOH vs. ABORO (1991) 9 NWLR (PT 214) 220 and AGBAISI VS. EBIKOROFE (1997) 4 NWLR (PT 502) 630 at 648. However, there is a qualification and it is that a Court has no power to take and rely on facts disclosed in an affidavit in respect of an application which is abandoned. See NASCO MANAGEMENT SERVICE LTD vs. AMAKU TRANS LTD (2003) 2 NWLR (PT. 804) 290 at 334-335 and IGHODARO vs. IYAYI (2015) LPELR (24906) 1 at 18-19. Let me restate that the application filed on 24th May, 2016 was not argued. The same was abandoned as learned counsel applied to withdraw the same and it was struck out. Concomitantly, since the Appellants/Cross-Respondents/Respondents did not exhibit the said application to their counter-affidavit, this Court cannot refer to the same in the case file since it was abandoned and struck out. Accordingly, the contention that the same reasons proffered in this application were given in the application of 24th May, 2016 cannot be ascertained and authenticated” – Per OGAKWU, JCA.
DISCRETION OF A COURT– WHETHER EXERCISE OF DISCRETION BY A COURT MUST BE BASED ON CONCRETE MATERIALS
“The law is that where, like in the instant matter, there is an application for extension of time within which to do certain things or take certain procedural steps prescribed by the rules of Court, the Court should always bear in mind that Rules of Court must prima facie be obeyed and that to justify the exercise of discretion, there must be some concrete materials upon which to base such exercise of discretion. See WILLIAMS vs. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145 at 152 and OGBU vs. URUM (1981) 4 SC 1 at 10.” – Per OGAKWU, JCA
EXTENSION OF TIME – REQUIREMENT FOR AN APPLICANT TO SUCCEED IN AN APPLICATION FOR EXTENSION OF TIME
“With regard to the contention that there has been inordinate delay, the settled law is that once an applicant satisfies the Court that there are good and substantial reasons justifying the delay in complying with the stipulated time, the length of the delay is immaterial in the consideration of the application for extension of time. See YESUFU vs. CO-OPERATIVE BANK LTD (1989) LPELR (3522) 1 at 17, IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) LPELR (1476) 1 at 64 and KALU vs. IGWE (1991) 3 NWLR (PT. 178) 168. The necessary consideration is whether the length of delay has been adequately explained as the inordinate delay, per se, will not prevent the grant of the application. It is rudimentary law that a prayer for extension of time to comply with the timelines stipulated by law, substantive or adjectival, is an appeal to the discretionary jurisdiction of the Court.” – Per OGAKWU, JCA.
DISCRETION OF COURT – PRINCIPLE GUIDING THE EXERCISE OF DISCRETION BY A COURT
“It is hornbook law that a Court exercises its discretion, not arbitrarily or whimsically, but judicially and judiciously based on sound principles of law and by giving weight to relevant considerations. See FIRST FUELS LTD vs. NNPC (2007) 2 NWLR (Pt. 1013) 276, NIGERIAN LABORATORY CORPORATION vs. PACIFIC MERCHANT BANK LTD (2012) 15 NWLR (Pt. 1324) 505 and MOHAMMED vs. NINGI EMIRATE COUNCIL (2017) LPELR (43112) 1 at 7-10. The manner of exercise of discretion is not cast in stone. It is based entirely on the peculiar facts of the case and the materials placed before the Court in the supplication for a favourite exercise of discretion. See BELLO vs. YAKUBU (2008) 14 NWLR (PT. 1106) 104, CFAO (NIG) PLC vs. SANU (2008) 15 NWLR (PT. 1109) 1, ADESANYA vs. LAWAL (2007) 7 NWLR (PT. 1032) 54 and SCOA (NIG) PLC vs. OMATSHOLA (2009) 11 NWLR (PT. 1151) 106. In the exercise of discretion for the extension of time for the doing of anything on appeal, the main consideration and cardinal determining factor should be doing substantial justice to the parties: ODEY vs. OVAT EDIM OF AKAM (1940) 6 WACA 63 at 64. In aliis verbis, in exercise of discretion in an application for extension of time, the Court must be guided by the consideration of doing substantial justice between the parties. The justice of the case has to be balanced in such a way that the rights of the applicant is assured a hearing on the merits provided that no injustice will thereby be occasioned to the respondent on the other side. NALSA & TEAM ASSOCIATES vs. NNPC (1991) 8 NWLR (Pt. 212) 652, KWAHAM vs. ELIAS (1960) SCNLR 516 and OLATUNBOSUN vs. TEXACO (2012) LPELR (7803) 1 at 15-16. I iterate that in an application for extension of time, the applicant must establish good, substantial or exceptional reasons or circumstances to explain satisfactorily the delay in complying with the procedural timelines in order to justify the grant of the application: BENSON vs. NIGERIA AGIP OIL CO. LTD (1982) 5 SC 1, LONG-JOHN vs. BLAKK (supra) at 14-15 and OLATUNBOSUN vs. TEXACO (supra) at 13-14. It is trite law that all judicial discretions must be exercised according to the common sense and justice of the matter. The exercise of discretion has to be judicial in the sense that it must not be capricious and must be for a reason connected with the case and judicious in the sense that it must be based on sound judgment marked by discretion, wisdom and good sense: LONG-JOHN vs. BLAKK (supra) at 15 and ERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141.
From the materials before the Court, and balancing the competing rights of the parties to justice, I find the delay in filing the brief which was attributed to a computer crash plausible. The Respondent/Cross-Appellant/Applicant is not to suffer because of the crash of the computer of its learned counsel. This is a sufficient and good explanation of the delay in filing the brief within the prescribed time. Furthermore, the justice of the matter would be best served if the atmosphere is created for the hearing of the appeal on the merits. The cardinal principle remains that discretion is to be exercised towards doing substantial justice in the case.” – Per OGAKWU, JCA
JUSTICE – DUTY OF THE COURT TO UPHOLD JUSTICE
“The disposition of the Courts is to promote the hearing and determination of a matter on the merits where the same can be accomplished without prejudice or injustice being occasioned to the other party. No prejudice or injustice will be occasioned to the Appellants/Cross-Respondents/Respondents by a grant of this application as they would still be within their rights to file a Cross-Respondents’/Reply Brief in answer to the Respondent’s/Cross-Appellant’s Brief. They would equally not to be overreached. In the immortal words of Olatawura, JSC (of blessed memory) in USIKARO vs. ITSEKIRI COMMUNUAL LAND TRUSTEES (1991) 2 NWLR (PT. 172) 190 or (1991) 1 NSCC 281 at 299:
“Let no man walk out of our Courts, disappointed in the administration of justice. He will prefer to lose the case on its merits than to allow his opponent win by default. There is no provision for a walkover in our adversary system. It is not a game of football or a tennis competition. It must be shown and seen that any party has a fair trial.”
“Per OGAKWU, JCA
EXTENSION OF TIME – REQUIREMENT FOR AN APPLICANT TO SUCCEED IN AN APPLICATION FOR EXTENSION OF TIME
“In summing up, I restate that in order to succeed in an application for extension of time within which a party may take certain procedural steps, all that the party is required to do is to establish good, substantial or exceptional reasons or circumstances, satisfactorily explaining the delay in taking the steps in question in order to justify the grant of the extension of time applied for: LONG-JOHN vs. BLAKK (supra), OLATUBOSUN vs. TEXACO (supra) at 13-14 and BENSON vs. NIGERIA AGIP OIL CO. (supra). From the affidavits filed I am satisfied that the Respondent/Cross Appellant/Applicant has furnished sufficient materials explaining in a satisfactory manner the failure to file the Respondent’s/Cross Appellant’s brief within the stipulated time. The judicial and judicious exercise of discretion demands that the application be granted so that the matter can be heard on the merits.” – Per OGAKWU, JCA
JUSTICE – DUTY OF THE COURT TO UPHOLD JUSTICE
“… the disposition of this Court and indeed every Court of law is the giving of parties the opportunity to ventilate their grievances and for the Court to hear and determine the matter(s) on their merit in the interest of justice. LORD DENNING, MR (of blessed memory), a jurist of all times said:-
“Yes, he (judge) must keep his vision undoubted. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice but clear see which way lies the truth and the less dust there is about the better. Let the advocates one after the other put the weights into the scales-the nicely calculated less or more but the judge at the end decides which way the balance tilts, be it ever so slightly. YUILL V YUILL (1945) 1 ALLER 183. See also Due Process of Law Butter Worths, 1980 at 60.”
CASES CITED
Not Available
STATUTES REFERRED TO
Not Available