JOZEBSON IND. CO. V. R. LAUWERS IMPORT-EXPORT

• Pages: 87-110

JOZEBSON IND. CO

. V. R. LAUWERS IMPORT-EXPORT



87 •

JOZEBSON IND. CO

. V. R. LAUWERS

IMPORT-EXPORT

5

10

15

JOZEBSON IND. CO

.

V

R. LAUWERS IMPORT-EXPORT

SUPREME COURT OF NIGERIA

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

KAWU,



J.S.C.

20



BELGORE,



J.S.C.

AGBAJE,



J.S.C.

1st July, 1988.

RESPONDENT/

APPELLANT (PLAINTIFF)

APPLICANT/

RESPONDENT (DEFENDANT)

SUIT NO. SC188/1988

Civil Procedure - Appeals - Application for extension of time within which to appeal - Order

25





3 rule 4(2), Court of Appeal Rules - "Good and substantial reasons for delay" and

grounds of appeal showing good cause why the appeal should be heard Failure by lower

appellate court to show that it gave adequate considerations to reasons for delay before

accepting them - effect, Judgments - Consent judgment - What constitutes - Submission

to judgment by defendant accepting liability - Whether consent judgment.

30

Estoppel - Waiver - irregularities in judicial proceedings - Waiver by party whether complete

answer to irregularities - Raising the question of irregularities in appeal in those

circumstances - Effect.

ISSUES:

35





1. (a) What principle should always guide the court in exercising its judicial dis-

cretion in granting an extension of time within which to apply for leave to ap-

peal.

(b) Whether the sins of counsel should be visited on his client in such circum-

stances.

40





2. In granting an application for an extension of time within which to appeal, is it

sufficient for a court merely to hold, (without stating how and why) that the

reasons for such a delay had been made out.

3. Where a defendant to an action admits liability and submits to judgment, is it open

to him to raise objections as to the capacity of the plaintiff:

45





4. Whether non-compliance with, or the breach of court rules will always result, as

a matter of course, in the judgment in the case being set-aside on appeal.

5.

When may a party to a suit be said to have waived an irregularity in procedure.

6.

What is the effect where a lower court, granting an application for an extension

of time within which to appeal, does so rather arbitrarily without an adequate

50



consideration of the reasons adduced for the delay.

7.

Where an applicant for an extension of time blames his delay on counsel's

negligence, will it be a complete defence to merely contend that there is no

evidence that such counsel was instructed to file an appeal or that his advice was

sought.

88



NIGERIAN SUPREME COURT CASES

[1988] 2 N.S.C.C.

8. Whether the fact that a defendant in a suit had admitted liability and submitted to

judgment makes such a judgment a consent judgment, requiring leave of court

to be appealed against by virtue of the provisions of section 220(2)(e) of the 1979

constitution.

FACTS:

The appellant as plaintiff in the Anambra State High Court, (Onitsha) claimed the

sum of One million, one hundred and seventy six thousand, three hundred and

eighty-two naira fifty-four kobo (N1,176,382.54k) from the defendant company for

goods suplied at the request of the latter. The claim of the plaintiff was titled "claim

on the undefended list," and the summons bore the same legend: "Undefended list."



1

The defendant however, filed a notice to defend. On the return date, the defendants

admitted liability in the sum of Nine hundred and four thousand, six hundred and

forty-four naira thirty-nine kobo (N904,644.39k) and as there was no further demur

on the part of the plaintiff, the court entered judgment for the sum against the de-

fendant. Subsequently, the defendant applied for and obtained an order for instal-



1

mental payment. By a further application in that regard, the defendant obtained yet,

a variation of the order for instalmental payment. The defendant then paid to the

plaintiff, the sum of four hundred and thirty-two thousand, eight hundred and fifty-

one naira, five kobo (N432,851.05k), in compliance with the variation order. When

the defendant subsequently defaulted on further payments, the plaintiff caused ex-



21

ecution to be levied against it for the balance of the judgment debt. The defendant's

application to the High Court for the discharge of the writ of execution was refused.

The defendant then applied and obtained leave of the court of Appeal, (Enugu Divi-

sion) to appeal against the ruling of Awogu J. refusing his application for discharge,

and for a stay of execution of the earlier judgment to which Awogu J's ruling related



2f

two years after the latter was given. On a latter date, the defendant moved the Court

of Appeal for an enlargment of time within which to appeal against the judgment of

Nwokedi J. (the earlier judgment). Other prayers were annexed relating to proce-

dure, with a final prayer for stay of execution of the judgment in question. Pursuant

to the provisions of Order 3 Rule 4(2) of the court of Appeal Rules, the defendant,



3(

now applicant, deposed to an affidavit, explaining its reasons for delay, among which

were that (1) not knowing anything about court procedure, it had relied completely

on its counsel for its defence and guidance and (2), that counsel did not inform it

that it could appeal against court order and finally, that the reasons for delay were

absolutely not due to any fault on its part but due to the inadvertence of counsel in



3:

not appealing or advising it to appeal against the judgment. For grounds of appeal

as required by the rule, the defendant complained, among other things, the trial court

lacked jurisdiction as the plaintiff had no jurisdiction and that there had been an error

of law by the court in entertaining the action and giving judgment where there was

neither a claim or a statement of claim as known to law. Granting the application,



4C

the Court of Appeal, held, without stating how, that the reasons for the delay had

been made out. The plaintiff/appellant appealed to the Supreme Court contending

that the Court of Appeal had not directed itself properly in granting the applicant/re-

spondents' application for an extension of time within which to appeal having regard

to the provisions of Order 3 Rule 4(2) of the Court of Appeal rules which requires that



4:

an application for an extension of time within which to appeal must be supported by

an affidavit setting forth good and substantial reasons for the delay and grounds of

appeal showing good cause why the appeal should be heard. Other complaints re-

lated to the issues of procedure and the fact that the Court of Appeal had not ad-

verted its mind to the partial compliance by the defendant, with the judgment



5(

appealed against. Being of opinion that the judgment in question was a consent

judgment, the appellant contended that the Court of Appeal was in breach of sec-

tion 220(2)(c) of the constitution by which an appeal against a consent judgment

must be by leave of court.