ALRAINE SHIPPINNG AGENCIES NIGERIA LIMITED/ CROSS MARINE SERVICES & ORS V. NIGERIAN SHIPPERS’ COUNCIL & ANOR
In The Court of Appeal of Nigeria
On Thursday, the 26th day of January, 2017
Before Their Lordships
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
1. ALRAINE SHIPPING AGENCIES (NIG) LTD/ CROSS MARINE SERVICES
2. CMA CGM DELMAS
3. COMMENT SHIPPING SERVICES (NIG) LTD
4. GRIMALDI AGENCY (NIG) LTD
5.GULF AGENCY & SHIPPING (NIG) LTD
6. HULL BLYTH (NIG) LTD
7. LAGOS & NIGER SHIPPING AGENCIES LTD
8. MAERSK NIG. LTD/SAGMARINE
9. MED. SHIPPING CO. (NIG) LTD
10. MITSUI OSK LINES (WA)
11. PIL (NIG) LTD
12. SHARAF SHIPPING AGENCY
13. ASSOCIATION OF SHIPPING LINES AGENTS –Appellant
NIGERIAN SHIPPERS’ COUNCIL -1ST DEFENDANT/RESPONDENT
THE REGISTERED TRUSTEES OF SHIPPERS’ ASSOCIATION LAGOS STATE
-2ND DEFENDANT/RESPONDENT –Respondents
MOHAMMED LAWAL GARBA. J.C.A. (Delivering the Lead Ruling): On the 17th November, 2014, the Federal High Court, Lagos, had granted the 2nd Respondent’s application to be joined in the Appellants’ suit No. FHC/L/CS/1646/2014, as a party and in the judgment delivered on the 17th December, 2014 , dismissed the suit.The Appellants, aggrieved by the judgment, filed a Notice of Appeal containing five (5) grounds on the same day of the judgment which was subsequently amended two (2)times by the Amended Notice of Appeal filed on the 13th May, 2015 and the Further Amended Notice of Appeal filed on the 17th May, 2015. In the Further Amended Notice of Appeal, the Appellants included a ground against the order, joining the 2nd Respondent to the suit which was made on the 17th November, 2014.
Because of the objection raised by the 2nd Respondent to the ground of appeal against order for joinder, the Appellants have brought this application on the 17th May, 2016 seeking the following reliefs: –
“1. AN ORDER of this Honourable Court granting the Appellants/Applicants enlargement of time within which to seek leave to appeal against the Ruling of the Lower Court dated November 17, 2014 joining the 2nd Defendant/Respondent to this action;
2. AN ORDER of this Honourable Court granting the Appellants/Applicants leave to appeal against the Ruling of the lower Court dated November 17, 2014 joining the 2nd Defendant/Respondent to this action.
3. AN ORDER of this Honourable Court granting the Appellants/Applicants enlargement of time within which to appeal against the Ruling of the Lower Court dated November 17, 2014 joining 2nd Defendant/Respondent to this action as in the Proposed Notice of Appeal annexed herein as Exhibit D1-2.
4. AN ORDER of this Honourable Court permitting the Appellants to rely on and refer to the Record of Appeal and the Supplementary Record of Appeal compiled and transmitted in respect of the Appeal No. CA/I/188/2015 in the determination of this Appeal;
5. AND for such further or other Orders as this Honourable Court may deem fit to make in the circumstance.”
The grounds upon which the motion is predicated are given thus: –
“i. To enable the Appellants/Applicants effectively challenge the Order of the Court below dated November 17, 2015 joining the 2nd Respondent as a party to this action.
ii. The time within which the Appellants/Applicants are to file and serve their Notice of Appeal has elapsed and on Order of this Court is required to enlarge time to file and serve same.
iii. To further promote the interest of justice and fair hearing of this appeal.
iv. The 2nd Respondent is not a necessary party to this action.
v. The Order of this Honourable Court is required for the Plaintiffs/Appellants to appeal and argue against the Ruling of the lower Court.”
The motion is supported by a 20 paragraph affidavit to which were attached, copies of the Ruling of 17th November, 2014 and a Proposed Notice of Appeal.
The Respondents opposed the motion and pursuant to a directive by the Court, learned Counsel or the parties have filed Written Addresses in support of their respective positions in the motion. Applicants/Appellants’ address was filed on the 27th October, 2016, the 1st Respondent’s address was filed on the 15th November, 2016 and the 2nd Respondent’s address was filed on the 9th November, 2016.
The addresses were adopted on the 10th January , 2017 by the learned Counsel for the parties.
A sole issue was formulated by the learned Counsel for the Appellants and the 1st Respondent and adopted by the learned Counsel for the 2nd Respondent for determination in the motion. It is as follows: –
“Whether the Applicants are entitled to seek the Reliefs sought herein to appeal against the Ruling of Hon. Justice I. N. Buba of the Federal High Court, Lagos (an interlocutory decision) delivered on November 17, 2014 as a distinct appeal having filed Appeal No. CA/L/188/2015 before this Honourable Court.”
After reference to the requirements to be met for the grant of motions like this one, and the case of Braithwaite v. Dalhatu (2016) 13 NWLR (1528) 32 @ 51 & 56. in addition to one other, it was submitted for the Appellants’ that the facts deposed to in Paragraphs 11, 12, 13, 14, 15 and 16 of the affidavit in support of the motion have satisfied the conditions for the grant of the reliefs sought by the Applicants/Appellants. That the delay in bringing the application was due to the inadvertence of the Counsel and the proposed Notice of Appeal show arguable grounds. The Court is urged not to visit the sin of Counsel on Applicants/Appellants and to grant the motion as prayed because leave is required for the appeal which is not intended to overreach the Respondents, but to bring of all relevant issues in contention between the parties before the Court. Inter alia, Nwora v. Nwabueze (2011) 15 NWLR (1271) 467 was cited on attitude of the Courts not to visit sin of Counsel on the parties.
1st RESPONDENT’S SUBMISSIONS:
It was submitted that the motion is an abuse of Court process since the Applicants/Appellants already have appeal No. CA/L/188/15 against the judgment of the lower Court, and the law is that in situations such as the Applicants/Appellants, they should file a single Notice of Appeal against the interlocutory and final decision and obtain leave where they were out of time to do so. Tijani v. Akinwunmi (1990) NWLR (125) 237 @ 250-1 and Ajayi v. Ojomo (2000) 14 NWLR (688) 447 @ 457 were cited and it was argued that failure by the Applicants/Appellants to obtain leave to appeal against the interlocutory decision is fatal to the appeal No. CA/L/188/15. The Court is urged to so hold. The case of Jev v. Iyortom (2012) LPELR 9291 (CA) cited in the Appellants’ address it is argued, does not assist them since the Appellants therein appealed against both interlocutory and final decisions, but failed to obtain leave for the interlocutory appeal which was struck out for being incompetent. According to Counsel, the Applicants/Appellants should simply seek leave to argue the ground relating to the interlocutory order in the appeal No. CA/L/188/15, as the present application is not recognized by law.
2ND RESPONDENT’S ARGUMENTS:
It was argued that the motion is an abuse of the Court process because the Applicants are guilty of delay since their right of appeal is not at large. That the 2nd Respondent would be overreached since it has raised and argued a preliminary objection to the ground of appeal against the interlocutory order of joinder being lumped together with the appeal against the judgment contrary to the law. Cases,
including Saiki v. Esheveshe Nig. Ltd. (2013) LPELR – 20739 (CA) were cited on abuse of Court process and it was contended that the Applicants/Appellants did not show any good and substantial reasons for the delay in appealing as mistake or inadvertence of counsel is no such reason. Reference was made to Brawal Shipping Nig. Ltd. v. Ometraco Int. Ltd in appeal No. CA/L/121/2007 unreported and Ahmed v. Ahmed (2013) ALL FWLR (699) 1025 @ 1057-8 for the argument.
I should start a consideration of the issue in this application by pointing out that there is a very wrong and deep misconception by the Respondents’ counsel of the principle of abuse of a Court process in their respective address in relation to the motion by the Appellants. They both seem to argue that since the 2nd Respondent has objected to the inclusion of a ground of appeal on the order for joinder in the Further Amended Notice of appeal and argued it in the 2nd Respondent’s brief , the Applicants/Appellants have no right to seek to correct the defect in doing so by way of the present motion. Also, that the 2nd Respondent would be overreached and so the motion is an abuse of the Court process. In relation to the motion, an abuse of Court process may arise if:-
(a) There is no iota of law supporting it; and
(b) It is premised on frivolity recklessness or/and is inequitable to the Respondents.
The motion is supported and grounded in the provisions of Sections 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), 24(2) and (4) of the Court of Appeal Act Cap, 2004 and Order 7, Rule 10 (1) and (2) of the Court of Appeal Rules, 2011 which provides:-
“10(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.
(2) Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
The motion is therefore firmly supported by the law and the Respondents have not demonstrated that it is frivolous, reckless or inequitable to them since they all admit that the Applicants have a right to appeal against the order joining the 2nd Respondent to their suit. The fact that the right of appeal may be exercised out of time by a party desirous of an appeal, is the primary reason why the Court of Appeal Act in Section 24(4) and the Court of Appeal Act, 2011 in Order 7, Rule 10(1) and (2) above, provide for the discretionary power of the Court to extend the times stipulated by the law for such party to appeal, in deserving cases.
In addition, there is no law which prevents a party from applying to cure a defect in his process simply because the other party discovered the defect and raised an objection to the process on the basis of the defect. A defect that is purely and merely procedural may be corrected of any stage it was discovered by the parties or even the Court, in appropriate cases for the purpose of a hearing on the merit and to prevent a temporary technical knockout which would result in further delay in the determination of a case on the merit.
The motion in the above premises is not an abuse of the Court process even if the Respondents are irritated (unreasonably) by it.
It is now very well known that all or every application made to the Court which call/calls for the exercise of its judicial discretion one way or the other, are/is not granted as a matter of course because of the requirement of the law that every such discretion must be exercised judicially and judiciously. Onagoruwa v. IGP (1991) 5 NWLR (193) 593; Flemingdon Dev. Nig. Ltd v. Anaemene (2006) ALL FWLR (3001) 1915.
Simply put, acting judicially imports the consideration of the facts and cases of both parties to a case or process and weighing them in order to arrive at fair and just decision. Acting judiciously, means proceeding from/on sound reasoning, marked by perspicacity, wisdom, good sense, and discernment. Eronimi v. Iheuko (1989) 12 NWLR (101) 46 @ 60; ACB Ltd. v. Nnamani (1991) 4 NWLR (186) 486; Onagoruwa v. IGP (supra).
This application seeks for the exercise of the Court’s discretion and involves the competing rights and interests of the Applicants/Appellants to exercise their constitutional right of appeal and not to be shut out of the appellate process, and the right and interest of the Respondents to the benefit of the joinder order made by the lower Court and the expeditious determination of the appeal against the final judgment given in their favour. It therefore calls for a judicial and judicious consideration. ANPP v. Albishir (2010) 9 NWLR (1198) 118.
Under the provisions of Order 7, Rule 10 (2), two (2) conditions have been identified and established over the years by this Court and the Apex Court which have to be satisfied by an Applicant for reliefs such as in the present motion of trinity prayers and for extension of time to appeal to be granted. The conditions are:-
(a) That there are good and substantial reasons for the failure to appeal within the prescribed period of time:
(b) That there good grounds which prima facie, show good cause why the appeal should be heard.
By practice however, another requirement was also recognized, and called for in such application. It is that: – The delay in bringing the application is neither willful nor inordinate.
See Okere v. Nlem (1992) 4 NWLR (234) 132: S. B. N. Plc. v. Abdulkadir (1996) 4 NWLR (443) 460: Re: Ojukwu(1998) 5 NWLR (551) 673: Ogbogoro v. Omenuwoma (2005) 1 NWLR (906) 1; Frinam Nig. Ltd v. Ukueku (2006) ALL FWLR (293) 296; Oyegun v. Nzeribe (2010) 16 NWLR (1220) 568; Ede v. Mba (II) 12 MJSC (Pt. III) 113. The law is settled that the twin conditions set out above, have to be satisfied together or conjunctively by on Applicant to be entitled to the grant of the motion and that failure to satisfy any of them would result in the failure and refusal of the motion. Oba v. Egberongbe (1999) 8 NWLR (615) 485 @ 489-0: SBN Plc v. CBN (2007) 44 WRN, 37 @ 50-1; Ebele v. Ikweki (2012) 15 NWLR (1322) 173: Lafferi Nig. Ltd v. NAL Merchant Bank, Plc (15) 5 SC (Pt. II) 49. The conditions have to be satisfied by the facts in the Applicant’s affidavit on which he relies in support of the reliefs he seeks from the Court. In his address, as seen earlier, learned Counsel has submitted that the first condition; i.e. that there are good and substantial reasons for the delay in appeal within the time prescribed by the law, has been met by the facts deposed to in Paragraphs 11-16 of the affidavit in support. The paragraphs are as follows:
“(11) That in the course of the preparation of the Appellants’ Further Amended Notice of Appeal and the Appellant Brief of Argument with Appeal No- CA/L/188/2015, appealing against the judgment of the
Federal High Court, Lagos dated 17th December, 2014 delivered by Hon. Justice I. A. Buba, it was discovered and there were some issues that arose in the course of the proceedings, apart from the judgment, at the lower Court that needed to be appealed against in order to narrow off issues for determination and parties, properly before this Court.
(12) That the Appellants seek to challenge the Ruling of the lower Court joining the 2nd Respondent in this action.
(13) That the Plaintiffs/Appellants had earlier applied vide a Motion on Notice dated June 17, 2015 to Further Amend their Amended Notice of Appeal which also contain trinity prayers so that the Ruling of November 17, 2014 would be reflected in the Further Amended Notice of Appeal and argued in the Appellants’ brief .
(14) The Court of Appeal sitting in Chambers granted the said Motion on Notice on June 17, 2015
(15) The Plaintiffs/Appellants later observe that the said Ruling of November 17, 2014 was inadvertently omitted in the Further Amended Notice of Appeal as one of the Decisions of the lower Court being appealed against and that in the first of the trinity prayers, the Appellants inadvertently omitted the words “to seek leave” so that the prayer will read: An order of this Honourable Court granting the Appellants/Applicant, enlargement of time within which to seek leave to appeal.
(16) That sue to the observed defects in the Further Amended Notice of Appeal relating to the inadvertent omission of the Ruling of November 17, 2014 and the apparent omission in the trinity prayers contained in the said Motion on Notice, the Plaintiffs/Appellants cannot validly argue Ground 17 contained in the Further Amended Notice of Appeal in their Brief and have decided to abandon Ground 17 and issue 12 in the Appellants Brief . The Appellants are now bringing this application to file a substantive appeal separate from Appeal No. CA/L/188/2015 to challenge the Ruling of the lower Court dated November 17, 2014 joining the 2nd Defendant/Respondent in this action. A proposed Notice of Appeal showing that the appeal raises a recondite issue is attached herewith and marked Exhibit D1-2.”
Briefly, the above facts tell and show the steps taken in the appeal against the Judgment delivered on 17th December, 2014 by Counsel in the course of which he realized the need for leave to appeal against the Ruling of 17th November, 2014, after the 2nd Respondent filed the motion dated the 20th January, 2016 to challenge the inclusion of a ground of appeal on the Ruling in the Further Amended Notice of Appeal filed on 17th May, 2015. These facts do not show willful and inordinate delay on the part of Counsel to bring the present application, but they demonstrate that the failure to appeal against the Ruling of 17th November, 2014 was entirely due to not a professional mistake but inadvertence of Counsel to do so within the prescribed time. This is supported by the evidence of the Notice of Appeal against the judgment which was promptly filed the same date of the judgment; the 17th December, 2014 and also the application to further amend the Notice of appeal to incorporate the ground against the Ruling. Counsel was completely responsible due to inadvertence to file the appeal against the Ruling either within the prescribed period or incorporate a ground of appeal in the Notice of Appeal against the judgment and seek for the requisite leave to argue same by way of the trinity prayers. It is a known practice and attitude of the Courts not to penalize a litigant for the fault, mistake or inadvertence of his Counsel because the primary object of the Courts is to decide the rights of the
parties on the merit and not to punish them for procedural mistakes made in the conduct of the cases by Counsel. In the case of Imegwu v. Okolocha (2013) 9 NWLR (1359) 347 @ 370, Paragr. E-H; Ariwoola, JSC, in the lead judgment had restated the position when he said:-
“In view of the settled principle of law that a litigant should not be punished for the mistake or inadvertence of his counsel, an application for extension of time to appeal ought to be granted if the Court is satisfied that the failure to appeal within the period prescribed by law was due to the true and genuine mistake or error of judgment of counsel. In other words, the Court must be satisfied that the excuse is availing having regard to the facts and circumstances of the case. See: Iroegbu v. Okowordu (1990) 6 NWLR (Pt. 159) 643. Where it appears to the Court that the delay was actually occasioned by the genuine mistake of counsel, it will be up to the respondent to show in what respect he would be prejudiced if the indulgence sought is granted.”
See also Ukawu v. Bunge (1991) 3 NWLR (182) 677: Shanu v. Afribank (2000) 11-12 SC, 1 @ 11-12: Alabe v. Abimbola (1978) 2 SC 99.
None of the Respondents, the 2nd in particular has demonstrated how it would reasonably be prejudiced save for the bare assertion that it would be overreached because the defect sought to be cured was raised and argued by it. However, since the Respondents would have the opportunity of responding to the ground or the appeal against the Ruling, no real prejudice would be occasioned by the grant of the motion. The delay in hearing the appeal No. CA/L/188/2015 which may result by the grant of the motion can adequately be assuaged by costs.
The Applicants/Appellants have, in the above circumstances, satisfied the first condition for the grant of the motion.
The next condition is that, prima facie, the grounds of the appeal must show good cause why the appeal should be heard. I should state here that the condition does not require that the Applicants/Appellants are to show that the ground(s) would or are to succeed at the appeal. What is required is that the grounds must apparently be reasonable and arguable and that they are not frivolous. See Holman Bros. Nig. Ltd v. Kigo Nig. Ltd. (1980) 8 – 11 SC, 43: University of Lagos v. Aigoro (1985) 1 NWLR (1) 143: Oyegun v. Nzeribe (supra).
The lone ground contained on the proposed Notice of Appeal attached to the affidavit in support of the motion is in the following terms:-
“The Learned trial Judge erred in Law, when he granted the 2nd Respondent’s application for joinder as a party to this suit given that the 2nd Respondent was not a party to the 2001 MOU, Exhibit AOA1 and no relief was sought against it in the Originating Summons.
Particulars of Error:
i. The joinder of the 2nd Respondent is unnecessary in Law for the determination of the questions and reliefs sought by the Plaintiffs/Appellants in the Originating Summons.
ii. The Appellants did not seek any rights or reliefs sought by the 2nd Respondent.
iii. The 2nd Respondent is not a party to the 2001 MOU Exhibit AOA1.
iv. The 2nd Respondent’s joinder contravenes the provisions of Orders 3 and 9 of the Federal High Court (Civil Procedure) Rules 2009.”
Carefully looking at the above ground, it apparently shows that it is not frivolous, but reasonable and arguable in respect
of the Ruling it seeks to challenge. Without the need to waste verbiage, the ground prima facie shows good and substantial reason why the appeal against the Ruling should be heard. Consequently, the Applicants/Appellants have satisfied the 2nd Condition for the grant of the motion. Because the two (2) conditions for the grant of the motion have been satisfied together, the motion deserves to be granted as prayed.
It is granted, but instead of filing a separate Notice of Appeal against the Ruling of 17th November, 2014 joining the 2nd Respondent to the suit before the Court below, in order to save time and as a consequential order, the Appellants’ Further Amended Notice of Appeal filed on the 17th May, 2015 which incorporated the ground of appeal against the said Ruling as ground 17 and the Appellants’ Amended brief filed on the same date and deemed on the 27th October, 2016, shall remain deemed for the purpose of the said ground of appeal.
The Respondents are entitled to costs for the grant of the motion which are assessed at Twenty Thousand Naira (N20,000,00) for each of them.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the draft of the ruling just delivered by my learned brother, MOHAMMED LAWAL GARBA, JCA. I agree with the reasoning and conclusion arrived at.
There is nothing more useful to add to what has been said. I also grant the prayers in the application of the Applicants and abide by the consequential orders made in the lead judgment.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Mohammed Lawal Garba, JCA, made available to me the draft of the Ruling just delivered. Having also read the processes filed by the parties, I am allegiant to the indubitable conclusion in the lead Ruling that the Applicants/Appellants have furnished sufficient materials for discretion to be exercised in their favour in respect of the indulgence they supplicate for.
Order 6 Rule 9 (1) and (2) of the Court of Appeal Rules 2016 provides:
9 (1) The Court may enlarge the time provided by these Rules for thedoing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the notice of appeal. (Emphasis supplied)
From the above provision, it is evident that an application for enlargement of time within which to appeal is not granted as a matter of course. It is within the discretionary powers of the Court which as with all discretionary powers, must be exercised judicially and judiciously. Thus the pre-conditions for the exercise of the Court’s discretion in an applicant’s favour, which must be disclosed in a supporting affidavit, are:
1. Good and substantial reasons for failing to appeal within the prescribed period; and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
It is settled law that the two conditions must co-exist; it is not sufficient to satisfy one without
the other. See:IBODO vs. ENAROFIA (1980) 5-6 SC 42; HOLMAN BROS. (NIG.) LTD. vs. KlGO (1980) 8-11 SC 43; KOTOYE vs. SARAKI (1995) 5 NWLR (PT. 395) 256, MINISTER OF PETROLEUM & MINERAL RESOURCES vs. EXPO-SHIPPING LINE (NIG.) LTD. (2010) 12 NWLR (PT 1208) 261 and LAFFERI NIG LTD. vs. NAL MERCHANT BANK (2015) LPELR (24726) 1 at 21. The materials furnished by the Applicants/Appellants satisfy the conjunctive requirements of good and substantial reasons for failing to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. In the circumstances, the judicial and judicious exercise of discretion demands that the application should be granted.
It is for this reason and the more elaborate reasons in the lead Ruling that I equally join in granting the application. I abide by the consequential orders including the order as to costs contained in the lead Ruling.
Babajide Koku, SAN with him, L. Chidi Ikogu, SAN and Donald Ibekuike. For Appellant
Emeka Akabogu with him, Babatunde Ogungbamila and lfeatu Medidem (Ms.) for the 1st Respondent.
Chief E.O. Nwogbara with him, U. R. Imnade for the 2nd Respondent. For Respondent.