Leave of Supreme Court to Appeal Out of Time: What Applicant Must Show
The Respondent obtained judgement against Admiralty Fleet Ltd (Judgement Debtor) in the sum of N99,600,457.05k, at the High Court of Rivers State. In a bid to enforce the judgement, it commenced Garnishee Proceedings against the Appellant/ Applicant (Applicant) and some other banks. The trial court granted the Motion Ex-parte, and made a Garnishee Order Nisi against the Applicant and some other banks. Upon being served with the Order of Court, the banks filed their Affidavits to show cause, as to why the Order should not be made Absolute. In the Affidavit filed by the Applicant, deposed to by its External Counsel, based on the information provided by one of its Legal Officers by the name – Eddy Henshaw – it was averred that the Judgement Debtor maintained an account with the Applicant, and that the sum of N99,600,457.05k in the account had been blocked. The Applicant subsequently, filed a Further and Better Affidavit, wherein it averred that the Affidavit filed earlier was incorrect because the Legal Officer of the Applicant inadvertently lifted the judgement sum stated on the Order Nisi, and mistakenly reproduced it as available in the Judgement Debtor’s account.
On the scheduled date, the Court discharged the other Banks, but in respect of the Applicant, it ordered that the Legal Officer appear in Court at the next proceedings to clarify his explanation on oath, for the contradictory information supplied to the Deponent and be cross-examined by the Garnishor thereon. On the return date, the Legal Officer was not in Court as ordered. Counsel for the Applicant informed the Court, that he was no longer in the employment of the Applicant. He addressed the Court, and in its Ruling, the Court held that the Applicant failed to utilise the opportunity granted it to clarify the contradictions. The Court adjudged the explanations in the Further and Better Affidavit an afterthought and discountenanced it; the Order Nisi was thereby, made Absolute.
The Appeal by the Applicant to the Court of Appeal, was unsuccessful. The Applicant, who was desirous of appealing the decision of the lower Court, did not appeal to the Supreme Court within time; hence, it filed this application, seeking the trinity prayers; leave to introduce and argue a fresh ground of appeal, among other reliefs sought.
Issue for Determination:
The Applicant submitted four issues for determination of the appeal, which issues were adopted by the Respondent. The Supreme Court however, determined the appeal on the first issue submitted by the Applicant thus:
Whether in the present circumstances, the Appellant is entitled to the exercise of the discretion of this Court granting it (i) extension of time to file its appeal; (ii) leave to appeal; and (iii) extension of time to file its appeal against the judgement of the lower Court.
The Applicant contended under issue one, that it is entitled to the exercise of the Court’s discretion in granting the three reliefs sought therein. Regarding the position of the law in an application of this nature, Counsel referred to the provisions of Section 233(2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 and the authority of AKEREDOLU v
AKINREMI (1986) 2 NWLR (Pt. 25) 710, on the requirement of leave to appeal grounds other than of law alone; onus on party seeking leave to appeal out of time – Order 2 Rule 31(2) of the Supreme Court Rules, RE-ADEWUNMI (1988) 3 NWLR (Pt. 83) 483; and the need to refrain from deciding upon the merits of the grounds of appeal, when considering an application for leave to appeal – HOLMAN BROS. (NIG.) LTD. v KIGO
(NIG.) LTD. & ANOR. (1980) 8-11 SC 43 at 62. The Applicant argued further that, the Supreme Court has the power to extend the statutory period prescribed for giving notice of appeal or notice of application for leave to appeal, vide the provision of Section 27(2) and (4) of the Supreme Court Act, and that the discretion must be exercised judicially and judiciously upon the consideration of the affidavit evidence in support of the application. To this end, Counsel quoted extensively the affidavit filed in support of the application, in urging the Court to hold that the Applicant had provided good and substantial reasons for the grant of the application, since the failure to file the application for leave to appeal within time, was due to inadvertence of the Applicant’s Counsel and not the fault of the Applicant. He relied on LAMAI v ORBIH (1980) 12 NSCC 188. Counsel also submitted that, the Grounds of Appeal prima facie show good cause why the appeal should be heard, and that the Grounds are not frivolous, but raise substantial issues of fact or law for consideration.
On his part, Counsel for the Respondent, contended that the Grounds of Appeal filed by the Applicant do not raise any issue of general importance or novel points of law, or show a prima facie arguable appeal. In relation to Grounds 3 and 4 of the appeal, Counsel relied on the decision in ILOABACHIE
v ILOABAEWE (2000) 5 NWLR (Pt. 656) 178 and Order 2 Rule 32 of the Supreme Court Rules, to submit that where the Court of Appeal affirmed a finding of fact of the trial Court, the Supreme Court can only grant leave to appeal against same in exceptional circumstances, which were non-existent in this case.
Replying on Points of Law, Counsel for the Applicant countered that the submissions of the Respondent were entirely misconceived, as they suggested that a Ground of Appeal must disclose a likelihood of success, as opposed to an arguable point before a relief sought can be granted, which is not the position of the law. He stated that the Respondent was inviting the Court to consider the merits of the appeal at the preliminary stage, contrary to known principle, as all that is required at this stage, is to show that there are arguable grounds of appeal, and not necessarily grounds that may eventually succeed. CBN
v AHMED (2001) 11 NWLR (Pt. 724) 368.
Court’s Judgement and Rationale
In its consideration of the application, the Supreme Court held that before an application of this nature is granted, two conditions spelt out by law must be satisfied, to wit: (i) it must be in the interest of justice; and (ii) the application shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal, and to apply for leave to appeal within the prescribed period. In view of the above, an Applicant has to convince the Court, that the delay in bringing the application is neither wilful nor inordinate, and that there are good and substantial reasons for the failure to appeal within the prescribed period. The two conditions are conjunctive and not disjunctive; hence, they must co-exist.
NWORA v NWABUEZE (2011) 15 NWLR (Pt. 1271) 467. In this case, delay in filing the application was attributed to inadvertence of Counsel; this is a familiar refrain in applications of this nature. While it is correct that inadvertence of Counsel or Counsel’s error in judgement, if reasonable, is an acceptable explanation for delay in applying for leave, however, the Honourable Nnaemeka-Agu, JSC warned in IROEGBU v
OKWORDU (1990) 6 NWLR (Pt. 159) 643 that notwithstanding the earlier decision of the Apex Court on the point, “The Courts will not regard this as a universal talisman, the waiver of which will act as panacea in all cases. The Courts must be satisfied that, the allegation of the fault of Counsel is true and genuine, but also that it is availing, having regard to the circumstances of the particular case.”
Owing to the abuse in attributing all non-compliance with the Law and Rules of Court to inadvertence of Counsel, the current trend in judicial practice is to distinguish inadvertence of Counsel from ineptitude of Counsel – MALARI & ORS
v LEIGH (unreported) APPEAL NO. SC.113/2013 delivered on 12/01/18. Thus, the rule that a litigant should not be punished for the mistake or inadvertence of Counsel, does not extend to a situation where his Counsel has exhibited tardiness or incompetence.
In this case, the Court had to decide whether the inadvertence of Counsel, was within the permissible limits or crossed the line of sheer ineptitude on the part of Counsel for the Applicant. Going by the fact that the Applicant had filed an initial application within time before the error in not including the first prayer to extend the time was discovered, though Counsel ought to have been more diligent, the error does not suggest ineptitude on the part of Counsel.
Regarding the second condition requiring the Applicant to show that there are grounds which prima facie show good cause why the appeal should be heard, as submitted by Counsel for the Respondent, leave to appeal in this case where the Court of Appeal affirmed the findings of the trial Court, can only be granted in exceptional circumstances – Order 2 Rule 32 of the Supreme Court Rules. The word ‘exceptional’ is defined as ‘much greater than usual’. Hence, in this case, the Applicant has to jump through an extra hoop, to convince this Court to grant this application. There is nothing exceptional about the circumstances of this case, to sway the Court to grant the application. The Applicant’s four Grounds of Appeal must show on the face of it, good cause why the appeal should be heard, for the application to be granted. The application is not granted as a matter of course. In this case, there is no redeeming feature, to warrant the Supreme Court to indulge the Applicant by granting its application.
Application Dismissed. Representation:
Afolabi Kuti Esq. with Pius Owhoawodua Esq. for the Appellant Mrs. Nonye Nzewi-Agbasi Esq. for the Respondent.
Reported by Optimum Law Publishers Limited