CORAM

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Yargata Byenchit Nimpar Justice of the Court of Appeal

Abdulazeez Muhammed Anka Justice of the Court of Appeal

Uwabunkeonye Onwosi Justice of the Court of Appeal

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PARTIES

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HAJIA AISHA ABDURAHAMAN

APPELLANTS 

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1. KEYSTONE BANK LIMITED (Formerly Known as Habib Bank Nigerian Bank and Platinum-Habib Bank PLC)

2. WORD OF LIFE BIBLE CHURCH

RESPONDENTS 

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AREA(S) OF LAW

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AREAS OF LAW: APPEAL, COMPETENCE OF ORIGINATING PROCESS, COURT OF APPEAL RULES, DELAY, DILIGENT PROSECUTION, DILATORY CONDUCT, DISCRETIONARY POWERS, EQUITY MAXIMS, INDOLENCE, JURISDICTION, RELISTING OF APPEALS, STRIKING OUT, SUBSTITUTION OF PARTIES, UNDUE DELAY

 

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SUMMARY OF FACTS

The Applicant filed a Notice of Appeal on 23rd May 2005 challenging a decision of Lagos State High Court made on 17th May 2005. Her counsel, Mr. Wilfred Usani Esq., subsequently secured a political appointment in Akwa Ibom State in 2011 and abandoned the prosecution of the appeal without notice to the Applicant. Consequently, the appeal was struck out for want of diligent prosecution on 4th November 2013.

The Applicant was promoted to management level in 2010 and transferred to Abuja. She claimed she was always assured by her erstwhile solicitor of the smooth progress of the appeal, but was unaware that he had abandoned the case after securing the political appointment.

In 2014, the Applicant instructed new counsel, Mr. Francis Osagie Obaseki, who discovered the appeal had been struck out and filed an application to relist on 24th October 2014. Another counsel, Dele Adeogun, filed another application on 9th July 2015. Subsequently, Olumide Aju SAN filed an application on 18th March 2022, and the current application was filed on 8th March 2024.

The current application sought: (1) extension of time to apply to relist the appeal, (2) relisting of the struck-out appeal, and (3) substitution of Habib Nigerian Bank Limited with Keystone Bank Limited as successor. However, without obtaining a court order, the Applicant had already joined Keystone Bank as 1st Respondent in all processes.

The 1st Respondent opposed the application, arguing it was incompetent due to premature joinder of Keystone Bank without court order, and that the Applicant had not provided sufficient evidence to justify the 12-year delay since the appeal was struck out.

 

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HELD

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1. The application was dismissed for want of merit and struck out for want of jurisdiction.

2. The Court held that the application was incompetent because the Applicant had unilaterally joined Keystone Bank as 1st Respondent without obtaining a court order for substitution, putting “the cart before the horse.”

3. The Court held that there had been inordinate delay of approximately 12 years since the appeal was struck out, with the first application to relist filed almost a year after striking out.

4. The Court found that the reasons given by the Applicant for the delay were insufficient and constituted abandonment of the appeal by both the Applicant and her counsel.

5. The Court held that litigants have a duty to be diligent and must check on their counsel to ensure cases are properly conducted, and that tardy litigants are not entitled to court indulgence.

6. The Court applied the equity maxim that “equity aids the vigilant and not the indolent” and that “delay defeats equity.”

7. Cost of N200,000 was awarded against the Applicant in favour of the Respondent.

 

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ISSUES

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The Applicant’s Counsel raised a lone issue: “Whether the Applicant is entitled to a favourable exercise of the Court’s discretion re-listing this suit in the General Cause List of this Honourable Court and granting the leave to substitute the 1st Respondent in this matter?”

The 1st Respondent’s Counsel raised two issues:

1. Whether the Motion on Notice dated 8th March, 2024 is competent having regard to the inclusion of the name of Keystone Bank Limited as a party in the suit without an order of Court having been obtained for such substitution.

2. Whether, in the circumstances of this case, there is sufficient, credible, untainted and material evidence presented by the Applicant to enable the Court to exercise in her favour its discretion to grant the reliefs contained in her Motion on Notice.

 

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RATIONES DECIDENDI

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SUBSTITUTION OF PARTIES – INCOMPETENCE FROM PREMATURE JOINDER WITHOUT COURT ORDER

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However, without the order of Court, the Applicant has, on his own accord, joined Keystone Bank as the 1st Respondent and reflected its name as the 1st Respondent in all the processes, as can be seen in this application. That is putting the cart before the horse; and makes the application incompetent. – Per UWABUNKEONYE ONWOSI, J.C.A.

 

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CONDITIONS PRECEDENT FOR COURT JURISDICTION – EFFECT OF NON-COMPLIANCE

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One of the conditions for exercise of Court’s jurisdiction is that the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceeding is a nullity, however well conducted and decided, the defect is extrinsic to the adjudication. – Per UWABUNKEONYE ONWOSI, J.C.A.

 

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RELISTING OF APPEALS – DISCRETIONARY NATURE AND JUDICIAL EXERCISE

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The learned trial Judge at pages 207 – 210 of the record of appeal, in considering the Appellant’s application to re- list its suit that was struck out on 2nd March, 1994 had carefully and meticulously perused the affidavit evidence placed before him by both parties. He found that the reasons proffered by the Appellant for the delay in bringing the application were not good enough. I agree with him. The grant or otherwise of the application was entirely at the discretion of his Lordship, which had to be exercised not only judicially but also judiciously. – Per UWABUNKEONYE ONWOSI, J.C.A. (quoting BARNAX AIRLINES LTD V. MOBIL OIL NIG. PLC & ANOR)

 

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FACTORS FOR RELISTING APPLICATIONS – GOOD REASONS AND PREJUDICE TO OTHER PARTY

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In exercising such discretion, the factors that would guide the judex, are whether the Applicant has good reason for his absence from Court at the hearing of the matter, on the date that it was struck out and whether the delay in making the application, was prejudicial to the other party, the Respondents.” – Per UWABUNKEONYE ONWOSI, J.C.A. (quoting BARNAX AIRLINES LTD V. MOBIL OIL NIG. PLC & ANOR)

 

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INORDINATE DELAY – EFFECT ON RELISTING APPLICATIONS

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Indeed, it is obvious that it had been about 12 years since the appeal was struck out. There was inordinate delay. The reasons given by the Applicant for her ineptitude or dilatory attitude towards the appeal as in his depositions are stratagem, which cannot justify the inordinate delay. And the Applicant has not by her deposition satisfy the Court on why all the previous applications especially from 2013, when the matter was struck out to 2015 failed to achieve the desired end – Per UWABUNKEONYE ONWOSI, J.C.A.

 

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ABANDONMENT OF APPEAL – EFFECT OF LITIGANT’S NEGLIGENCE

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In other words, she banked on the promise by his Counsel and left to Abuja, and the Counsel got appointment and left to Akwa Ibom State. According to her, she left to Abuja in 2010, and never asked for the progress of the matter till 2014. This is clear admission that the appeal was indeed abandoned by the Applicant and his Counsel.– Per UWABUNKEONYE ONWOSI, J.C.A.

 

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LITIGANT’S DUTY FOR DILIGENT PROSECUTION – NO INDULGENCE FOR TARDY LITIGANTS

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The Appellant as a litigant has a duty to be diligent and must check on his counsel to ensure his case is properly conducted in Court. A litigant who has been tardy in the prosecution of his case will not be entitled to any indulgence from the Court… The Appellant went to sleep notwithstanding that he was aware that proceedings were going on in Court against him. He must pay the price. He is not entitled to any indulgence from the Court. – Per UWABUNKEONYE ONWOSI, J.C.A. (quoting OYEDEMI V. FALADE)

 

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COURT’S STANCE ON DILATORY LITIGANTS – NOT A WAREHOUSE FOR UNSERIOUS LITIGANTS

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The Applicant has gone to sleep with his new promotion to managerial level in her work place; and so, should continue in her slumber unperturbed. Our Courts are not warehouse for dilatory or unserious litigants, who file matters for the sake of filing it in Court without intention to prosecute same, for what may be their ulterior motive.– Per UWABUNKEONYE ONWOSI, J.C.A.

 

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EQUITY MAXIMS – EQUITY AIDS THE VIGILANT AND NOT THE INDOLENT

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The age-long principles of law are that that equity aids the vigilant and not the indolent; and delay defeats equity. – Per UWABUNKEONYE ONWOSI, J.C.A.

 

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EQUITY PRINCIPLES – ASSISTANCE ONLY TO THE VIGILANT

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It is elementary law that the rules or principles of equity help only the vigilant and they do not assist an indolent party who fails to pursue his right diligently and within a reasonable time. Where this happens, the Courts regard such delay or indolence of the party either as fatal to his case or as amounting to a waiver of his right under the maxim that equity helps only the vigilant. – Per YARGATA BYENCHIT NIMPAR, J.C.A.

 

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ABANDONMENT AND DELAY – INSUFFICIENT JUSTIFICATION FOR INORDINATE DELAY

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In the instant appeal, the evidence adduced at trial revealed that it had been about 12 years since the appeal was struck out. The reasons given by the Appellant/Applicant that she was promoted to a managerial level at her work place and transferred to Abuja, cannot justify the inordinate delay. She relied on the promise of her solicitor, Mr. Wilfred, who she claimed, unknown to her, also abandoned the appeal upon securing a political appointment in Akwa Ibom State. She left for her new position in Abuja in 2010 and never asked for the progress of the matter till 2014. This was clear that the appeal was abandoned by the Appellant/Applicant and her Counsel. – Per YARGATA BYENCHIT NIMPAR, J.C.A.

 

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COMPETENCE AND JURISDICTION – FATAL NATURE OF COMPETENCE DEFECTS

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Therefore, this application is bad and incompetent for failure to comply with conditions for exercise of Court’s jurisdiction in a matter of this nature… Therefore, this application is incompetent, and robs the Court of the jurisdiction to entertain same.– Per UWABUNKEONYE ONWOSI, J.C.A.

 

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SUBSTITUTION OF PARTIES – PROCEDURAL REQUIREMENTS AND CONSEQUENCES OF PREMATURE ACTION

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One thing is praying a Court for a relief; another is whether the relief is couched in a manner it could be granted by the Court. Our Court is not Santa Claus that doles out unmerited and/or surprise gifts which a party did not ask for to such party… A counsel should be meticulous and have a hard look on his processes before filing same in Court, and not to be running from pillar to post; because once a process is filed in Court, it is taken for what it is on the face of it, except the omission or the error is one that can be classified as irregularity. – Per UWABUNKEONYE ONWOSI, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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1. Court of Appeal Rules 2021

2. Order 8 Rule 18(3) of the Court of Appeal Rules 2021

3. Order 8 Rule 18(4) of the Court of Appeal Rules 2021

4. Order 6 Rule 9 of the Court of Appeal Rules 2021

5. Order 15 Rules 1, 2 and 4 of the Court of Appeal Rules 2021

6. Order 16 of the Court of Appeal Rules 2021

• Order 4 Rule 11 of the Court of Appeal Rules 2021

 

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