CORAM

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Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Chidi Nwaoma Uwa Justice of the Supreme Court of Nigeria

Haruna Simon Tsammani Justice of the Supreme Court of Nigeria

Obande Festus Ogbuinya Justice of the Supreme Court of Nigeria

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PARTIES

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GUARANTY TRUST BANK PLC

APPELLANTS 

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1. DORIG TECHNICAL SERVICES INTERNATIONAL

2. JOLOMI ENGINEERING SERVICES LIMITED

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, PRACTICE AND PROCEDURE, CONSTITUTIONAL LAW, JURISDICTION, EXTENSION OF TIME, LEAVE TO APPEAL, JUDICIAL DISCRETION, ARBITRATION

 

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SUMMARY OF FACTS

Guaranty Trust Bank PLC (Applicant) filed a motion on notice dated and filed on 27th September 2024 seeking various reliefs from the Supreme Court. The Applicant sought an order enlarging time within which to seek leave to appeal against the judgment of the Court of Appeal, Asaba Judicial Division, delivered on 7th December 2023 in Appeal No: CA/AS/173/2022, which affirmed the decision of the High Court of Delta State delivered on 30th October 2022. The Applicant also sought leave to appeal on grounds other than grounds of law, enlargement of time to appeal, and leave to raise fresh issues of law contained in the proposed notice of appeal.

The application was brought pursuant to Sections 6(6), 36(1) and 232(1) and (2) of the Constitution and under the inherent jurisdiction of the Court. It was predicated on 32 grounds and supported by a 35-paragraph affidavit deposed to by Patrick Abang with 12 exhibits. The First Respondent (Dorig Technical Services International) opposed the application through a counter-affidavit and written address. During hearing, the Applicant’s counsel withdrew prayer 5, and the First Respondent’s counsel withdrew arguments on abuse of court process. The Second Respondent was not represented despite due service.

 

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HELD

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The application was granted. The Supreme Court held that the Applicant’s proposed grounds of appeal disclosed substantial and arguable grounds which raised jurisdictional issues regarding the lower court’s entertainment of the appeal. The Court applied the principle that where proposed grounds of appeal interrogate jurisdiction, the reason for delay in filing an appeal becomes irrelevant, and such jurisdictional complaints dispense with the necessity for justifying delay. The Court found that the grounds of appeal prima facie revealed good cause why the appeal should be heard and were divorced from frivolity. Consequently, the Court granted enlargement of time to seek leave to appeal, leave to appeal, enlargement of time to appeal, and leave to raise fresh issues of law, ordering the Applicant to file notice of appeal within 60 days.

 

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ISSUES

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1. Whether this Honourable Court will accede to the reliefs sought in the application?

 

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RATIONES DECIDENDI

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ATURE OF JUDICIAL DISCRETION – LIMITS AND REQUIREMENTS

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By way of a necessary prologue, 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. Nota bene, the law does not grant a carte blanche discretionary power to a Court. It commands and compels a Judge, in exercise of discretion, to act judicially and judiciously. – Per OBANDE FESTUS OGBUINYA, JSC

 

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JUDICIAL AND JUDICIOUS EXERCISE OF DISCRETION – MEANING AND APPLICATION

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To act judicially denotes to be bound by the rules and principles of law and not to act arbitrarily or capriciously. It is not an indulgence to romance with judicial whims, 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 given circumstances. On the other hand, to act judiciously imports the consideration of the interest of the contending parties, on both sides of the divide, and weighing them in order to arrive at a just or fair decision.– Per OBANDE FESTUS OGBUINYA, JSC

 

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MATERIAL FACTS REQUIREMENT FOR EXERCISE OF DISCRETION

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In the colony of exercise of discretion, the law mandates an applicant, who solicits for a 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 mould out its discretion in vacuo as the presence of material facts is a conditio sine quo non for such a judicial exercise. – Per OBANDE FESTUS OGBUINYA, JSC

 

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CONDITIONS FOR EXTENSION OF TIME TO APPEAL

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It is settled law, beyond any peradventure of doubt, that for this Court to grant this genre of application, on the footing of this comprehension-friendly provision, an applicant, in his affidavit, must satisfy two conditions, 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 invented these conditions, decrees that the two are conjunctive and must co-exist before an application of this kind can succeed. – Per OBANDE FESTUS OGBUINYA, JSC

 

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TEST FOR ARGUABLE GROUNDS OF APPEAL

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A ground showing good cause why an appeal should be heard is a 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 totally lacking in substance. It is a ground, which evokes a serious debate as to the correctness of the decision of the Court below. 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, JSC

 

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COURT’S DUTY AT PRELIMINARY STAGE OF APPEAL

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I am very mindful of the inelastic posture of the law that the duty of the Court, at this incubation and embryo stage of the appeal, is not to decide the notice of appeal on its merit, but to see if it reveals arguable grounds. – Per OBANDE FESTUS OGBUINYA, JSC

 

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JURISDICTIONAL GROUNDS – EXCEPTION TO GENERAL RULE ON EXTENSION OF TIME

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It is the inflexible posture of the law that once the proposed grounds of appeal interrogate the jurisdiction of the Court, the reason for the delay in filing an appeal, or application for leave to appeal, is viewed with utmost leniency and, ipso facto and de jure, it will cease to be a relevant/paramount factor in the consideration of an application to appeal. In other words, where an issue of jurisdiction is embedded in the proposed grounds of appeal and cries for determination, it subrogates the necessity for the justification for a party’s delay in filing an appeal.– Per OBANDE FESTUS OGBUINYA, JSC

 

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SUPREMACY OF JURISDICTION IN ADJUDICATION

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But where the proposed ground of appeal complains of lack of jurisdiction and its prima facie appears so, as in this case, I am of the view that it may not be necessary to inquire into the reasons for the delay. The question of jurisdiction is a constitutional issue which may be raised at any stage of proceeding even for the first time in this Court. A Court is bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. – Per OBANDE FESTUS OGBUINYA, JSC

 

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FUNDAMENTAL NATURE AND CHARACTERISTICS OF JURISDICTION

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Jurisdiction, which is numero uno in adjudication, is the power/authority of a Court to determine any dispute submitted to it by feuding parties. Indubitably, jurisdiction has been characterised as the spinal cord, lifeline, touchstone, bedrock and linchpin of adjudication. It impregnates and nourishes the entire gamut of litigation. A Court without jurisdiction can be equated to a deoxygenated animal.– Per OBANDE FESTUS OGBUINYA, JSC

 

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RAISING JURISDICTIONAL ISSUES – PROCEDURAL FLEXIBILITY

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An issue of jurisdiction can be raised at any stage of the proceedings, even before this Court, without leave of Court. Any party can raise it in any manner, either viva voce or writing. It can be raised suo motu by a Court without any insult to the law. Hence, it occupies an Olympian position in the pyramid of adjudication. – Per OBANDE FESTUS OGBUINYA, JSC

 

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EFFECT OF PROCEEDINGS WITHOUT JURISDICTION

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It is a basic law, which dates to auld lang syne, that where a Court proceeding is conducted without jurisdiction, any decision germinating from it, no matter the quantum of transparency, industry, dexterity and sophistry injected into it, will be mired in the quicksand of nullity. – Per OBANDE FESTUS OGBUINYA, JSC

 

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LEAVE NOT REQUIRED TO RAISE JURISDICTIONAL ISSUES

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By the same token, the applicant’s prayer 4, which is staked on leave to raise fresh issues of jurisdiction, is superfluous. It is an elementary law, premised on the basic and prime hallmarks of jurisdiction anatomised supra, that a party does not need the leave of Court to raise any issue of jurisdiction. However, the prayer is not offensive to the law as it is sheltered firmly under the canopy of the beneficent maxim: Abundantia cautela non nocet – great caution does not harm.– Per OBANDE FESTUS OGBUINYA, JSC

 

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EFFECT OF JURISDICTIONAL GROUNDS ON EXTENSION OF TIME APPLICATIONS

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A cumulative effect of the proceeding cases referred to is that where jurisdiction is raised in the grounds of appeal, it forms an exception to the general rule that the two conditions must be satisfied. Hence, it would no longer be necessary to inquire into the reasons for the delay in bringing the application. Accordingly, I will not revert to the substantially of the reason for the delay as earlier indicated in this ruling. – Per OBANDE FESTUS OGBUINYA, JSC

 

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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. Supreme Court Rules 2024

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT

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COUNSEL

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1. BODE OLANIPEKUN, SAN, with him, OPEYEMI ADEKOYE, Esq., OPE MURITALA, Esq., RITA NMARKWE, Esq., and A. IMADEGBELO Esq.For Appellant(s)

2. EMMANUEL C. UKALA, SAN, AMA ETUWEWE, SAN, with them, MORGAN LEKWA, Esq., and O. J. IKEKO, Esq. – for 1st respondent

No legal representation – for 2nd respondent .For Respondent(s)