BANK OF BARODA & ANOR V. MERCANTILE BANK NIG. LTD.

• Pages: 892-899

892

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NIGERIAN SUPREME COURT CASES

[1987] 2 N.S.C.C.

BANK OF BARODA & ANOR V. MERCANTILE

BANK NIG. LTD.

5

BANK OF BARODA & ANOR

V

MERCANTILE BANK (NIG.) LTD.

APPELLANTS

RESPONDENT

SUIT NO. SC 199/1985

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SUPREME COURT OF NIGERIA

ESO,

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J.S.C.

ANIAGOLU,

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J.S.C.

UWAIS,

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J.S.C.

KAWU,

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J.S.C.

BELGORE,

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J.S.C.

26th June, 1987

Appeal - Appeal on issue relating to facts - Power of appeal court to examine

new relevant facts and circumstances - Trial court not independent of supervision

Practice and Procedure - Application for enlargement of time to file notice -

Burden on applicant to adduce acceptable reason for failure to file within

time - Reason not to be based on contradictory evidence - Application for

enlargement not granted as matter of course - Court can further extend time

if earlier order of extension is not complied with - Consideration of interlocutory

application - Court to confine itself to issues raised in application, not issues

arising in substantive matter.

ISSUE:

1. Whether the Court of Appeal has jurisdiction to grant an application for further

extension of time within which to appeal where its earlier order of extension of

time was not complied with.

FACTS:

The appellants recovered judgment in the Lagos High Court on the 13th of De-

cember, 1982 against the respondents. Five months later, the respondents ap-

plied to the Court of Appeal for extension of time within which to appeal as the

statutory period within which they could appeal had elapsed. They also sought

stay of execution of the judgment. In its ruling on the 17th of July, 1983, the Court

of Appeal granted the applications on terms, extending the time within which to

appeal by 15 days from the date of the ruling. The respondents did nothing until

about 20 months later when they brought another application for a further exten-

sion of time.

This second application was opposed by the appellants (unlike the first appli-

cation). The Court of Appeal on grounds that it was satisfied with the explanation

for the delay in complying with its earlier order and that because the judgment

sought to be appealed against was a nullity, granted this second application. One

of the affidavits supporting the application, the affidavit of one R.E. contained con-

tradictory evidence to the effect that the case file relating to the matter was mis-

placed in the chambers of the respondents counsel and was recovered on 25th

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