CORAM

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ANDREWS OTUTU OBASEKI

MUHAMMADU LAWAL UWAIS

CHUKWUDIFU AKUNNE OPUTA

EBENEZER BABASANYA CRAIG

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PARTIES

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EBENEZER BABASANYA CRAIG APPELLANTS

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WEMA BANK RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Plaintiff by a Writ of Summons sued the Defendants in the High Court of Lagos, for Specific performance of an agreement between the parties and evidenced in letters, wherein the Defendants promised to execute legal mortgage of the Defendant’s properties lying and situate at (a) 400 Herbert Macaulay Street, Yaba (Lagos) (b) Adekunle Fajuyi Street, Ibadan (c) Ijebu-Bye Pass, Oke-Ado, Ibadan (d) 21 Barracks Road, Calabar and (e) Mile 3 Aba/Port-Harcourt Road, Aba; in favour of the Plaintiffs to secure various overdrafts amounting to over N2,000,000.00, made to the Defendants in Lagos between 1976 and 1979. The Plaintiffs also claimed interest on the said sum. The 2nd Defendant was sued as a guarantor of the 1st Defendant. By Deed of Guarantee, the 2nd Defendant guaranteed payment to the Plaintiffs of all monies and liabilities owing or incurred to the Plaintiffs by Bronik Motors unincorporated and the 1st Defendants up to the limit of N500,000.00. At the end of trial, the learned trial Judge entered judgment for the Plaintiff on the personal liability of the 2nd Defendant as a guarantor of the 1st Defendant to the tune of ‘half a million Naira (N500,000.00) chargeable with interest at the rate of 8% per annum, and on the whole, the Plaintiff’s reliefs were granted. Dissatisfied, the Defendants appealed to the Federal Court of Appeal, and in a well considered judgment, the lower court dismissed the appeal, save the trial court’s order for specific performance. Still dissatisfied, the Defendants appealed to the Supreme Court, where the trial court’s jurisdiction was challenged. In a unanimous decision, the Court held that the State High Court did have jurisdiction. Now, the 2nd Defendant/Appellant brought an interlocutory application vide a notice of motion before the Court of Appeal after judgment in the principal case stated above, for an order: granting an extension of time within which to appeal; leave to appeal against the Ruling of the trial Court dated 17/6/85; and a stay of execution of the said trial Court’s order pending the determination of this appeal. The lower Court refused those prayers and gave as its reasons the fact that the proposed grounds of appeal were not prima facie substantial grounds. It is against this decision that this appeal was filed before this court.

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HELD

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Appeal Allowed

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ISSUES

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Not Available

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RATIONES DECIDENDI

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JUDGE – WHETHER A JUDGE HAS THE LATITUDE TO EXPOUND SCOPE OF THE ENQUIRY BEFORE THE COURT

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“But a Judge does not have such latitude. He must confine himself within respectable limits of the scope of the enquiry before the Court. A motion should be dealt with as a Motion, whilst an appeal should be treated in all respects as an appeal. The Judge should not be seen to have prejudged a legal point which is yet to come before him in related proceedings otherwise he would disqualify himself from sitting on the latter aspect of the case”.

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COURT – WHETHER A COURT CAN ENTERTAIN THE SUBSTANTIVE MATTER WHILE DETERMINING AN APPLICATION BEFORE IT

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“As stated before, I do not think that this court should, as at now, be called upon to express any opinion on that question. Unfortunately, the lower Court allowed itself to be drawn into the vortex of the conflict and was persuaded to decide at the hearing of a Motion for leave to appeal, points of law which would necessarily need to be decided at the hearing of the appeal itself. This is not right. See Igboho Local Government v. Boundary Settlement Commissioner (1988) 1 NWLR (Pt.69) 189.

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EXERCISE OF JUDICIAL DISCRETION – DUTY ON THE COURT OF APPEAL TO EXERCISE ITS DISCRETION IN THE GRANT OR REFUSAL OF AN APPLICATION JUDICIALLY

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“It is in the discretion of the Court of Appeal to grant or refuse any such application but the discretion has to be exercised judicially having regard to the requirements set out by the Rules.”

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EXTENSION OF TIME WITHIN WHICH TO APPEAL- WHETHER THE GROUND OF APPEAL FOR EXTENSION OF TIME NEEDS TO SHOW GOOD CAUSE WHY THE APPEAL SHOULD BE ALLOWED

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“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.”

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GROUND OF APPEAL- WHAT IS A GROUND OF APPEAL SHOWING GOOD CAUSE WHY AN APPEAL SHOULD BE HERAD?

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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. See Ukpe Ibodo v. Enarofia (1980) 5-7 S.C.42 at 53. See also Holman Brothers (Nigeria) Ltd. v. Kigo (Nigeria) and anor. (1980) 8-11 S.C.43 at 62-63.”

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APPLICATION FOR EXTENSION OF TIME TO APPEAL – DUTY OF COURT IN CONSIDERING WHETHER OR NOT TO GRANT AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL

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“In considering whether or not to grant an application brought pursuant to Order 3 Rule 4 of the Court of Appeal Rules, 1981 and Section 221 (1) of the 1979 Constitution, the Court must be satisfied that the proposed grounds of appeal on which the applicant is relying to prosecute the appeal show good cause why the appeal should be heard. In addition to this, good and substantial reasons for failure to appeal within time allowed must also be shown – See Ukpe Ibodo and ors. v. Iguasi Enarofia (1980) 5-7 S.C.42.”

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Banking Act, 1969|Constitution of the Federal Republic of Nigeria, 1979|Court of Appeal Rules 1981|Evidence Act|

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