LAFFERI (NIG.) LTD V. N.M.B. PLC (2015)

Background

The appellants, shareholders and contributories of Mennoil Petroleum and Petrochemicals Limited, had obtained judgment from the Federal High Court, Abuja, in suit no. FHC/ABJ/CS/114/99. The trial court nullified the appointment of Dr. Hamza Zayyad as receiver/manager of Mennoil and the acts undertaken during the receivership. The judgment, written by one judge and delivered by another on 4 March 2004, was adverse to the respondents.

The respondents initially filed a notice of appeal and an application for stay of execution. Following instructions from the first respondent, counsel applied before the Federal High Court for the notice of appeal and stay application to be struck out. The trial court struck out the stay application and stated that the notice of appeal “stands withdrawn.” When the appellants later commenced execution proceedings, the respondents sought an extension of time from the Court of Appeal to appeal. The Court of Appeal granted the application on 6 July 2005, prompting the present appeal.

Issues

The principal issue was whether, in the circumstances, the Court of Appeal was right to extend the time within which the respondents could appeal against the Federal High Court judgment of 4 March 2004. This required consideration of whether the earlier notice of appeal had been validly withdrawn or dismissed, whether the Federal High Court had jurisdiction to make the withdrawal-related pronouncement, and whether the requirements for enlargement of time had been satisfied.

Ratio Decidendi

An application for enlargement of time to appeal under Order 3 rule 4(1) and (2) of the Court of Appeal Rules 2002 is discretionary and must ordinarily satisfy two conjunctive conditions: good and substantial reasons for the delay and grounds of appeal which prima facie show good cause why the appeal should be heard. Where the proposed grounds raise a fundamental issue of jurisdiction, the reasons for delay may cease to be material.

A court cannot validly make an order outside its jurisdiction. The Federal High Court lacked jurisdiction to strike out or withdraw an appeal pending before the Court of Appeal. Its statement that the notice of appeal “stands withdrawn” therefore had no legal effect and could not trigger the consequence under Order 3 rule 18(5), by which an appeal validly withdrawn under that rule is deemed dismissed.

An order striking out an appeal is not a determination on the merits and, where the law permits, a fresh appeal or an application to relist may be pursued through the appropriate procedure, including an application for extension of time. An appellate court will not interfere with a lower court’s exercise of discretion merely because it might have exercised the discretion differently; the appellant must show that the discretion was not exercised judicially and judiciously.

Court Findings

The Supreme Court held that the respondents had not filed a formal notice of withdrawal under Order 3 rule 18 of the Court of Appeal Rules. Their application before the Federal High Court sought to strike out the notice of appeal and the stay application, and the Federal High Court itself lacked competence to determine the status of the appeal before the Court of Appeal.

The respondents adequately explained the delay. The first respondent had instructed counsel to discontinue because the assets of Mennoil had been sold, but execution proceedings and claims by purchasers subsequently caused it to reconsider. The second respondent had not initially been informed of the judgment and independently instructed counsel to appeal after learning of it. The proposed grounds of appeal raised substantial issues concerning the Companies and Allied Matters Act, the effect of the receiver/manager’s death, and the competence of the judgment delivered more than 90 days after final addresses.

The Court concluded that the Court of Appeal had exercised its discretion judicially and judiciously and that the appellants had not established any basis for interference. The respondents’ constitutional right of appeal under sections 241, 242 and 243 of the 1999 Constitution should not be foreclosed in the circumstances.

Conclusion

The appeal was dismissed. The Supreme Court affirmed the Court of Appeal’s ruling of 6 July 2005 and granted the respondents a further 14 days from 22 May 2015 to file their notice and grounds of appeal against the Federal High Court judgment. No order as to costs was made.

Significance

The decision clarifies the distinction between a valid withdrawal of an appeal under the Court of Appeal Rules and an ineffective pronouncement by a court lacking jurisdiction. It confirms that extension of time is governed by established discretionary conditions, while emphasizing that substantial jurisdictional questions and constitutionally protected rights of appeal may justify permitting an appeal to proceed despite procedural delay.