JULIUS BERGER NIGERIA PLC & ANOR v. MRS. PHILOMENA UGO
(2014)LCN/7183(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of May, 2014
CA/OW/146/2010(R)
RATIO
CONSIDERING AN APPLICATION TO TERMINATE A SUIT AND AN APPLICATION TO SUSTAIN A SUIT
This law is firmly established that when a court is faced in any matter with adverse applications one is seeking to terminate a proceeding including an appeal either for non compliance with the rules of the relevant Court or substantive law and there is another one seeking to remedy or rescue the case or a process or proceeding from the destructive effect of the alleged non-compliance or breach, the application seeking to put an end to the suit or matter will be put on hold. This is to enable the court hear the application seeking to remedy the situation and see if it is possible to save the case from imminent collapse or termination. The further reason for this approach is that an application seeking to bring a case to terminal end would not be taken if the application seeking to sustain the suit or matter succeeds so as to avoid putting the cart before the horse. That is why the Apex Court and this Court have laid down guiding principles for consideration of such multiple applications. See NALSA & TEAM ASSOCIATES v. N.N.P.C. (1991) & NWLR (Pt. 212) 652 AT 676 BC TO 677A. Per PETER OLABISI IGE, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1. JULIUS BERGER NIGERIA PLC
2. GODWIN OBADO
APPELLANTS/CROSS RESPONDENTS/RESPONDENTS Appellant(s)
AND
MRS. PHILOMENA UGO
RESPONDENT/CROSS APPELLANT/APPLICANT Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Lead Ruling): By her application dated 31st day of July, 2013 and filed on the same day, the RESPONDENT/CROSS APPELLANT/APPLICANT seeks the following reliefs namely:
1. AN ORDER granting the Respondent/Cross Appellant enlargement of time within which to file the Respondent’s Notice of Cross Appeal.
2. AN ORDER deeming as properly filed and served the Respondent’s Notice of Cross Appeal already filed and serve, necessary statutory fees having been paid.
3. AN ORDER granting the Respondent/Cross Appellant enlargement of time within which to file the Cross Appellant’s brief of argument.
4. AN ORDER deeming as properly filed and served the Cross Appellant’s brief of argument already filed and serve, necessary statutory fees having been paid and for any further Order(s) that this Honourable Court may make to give effect to the above prayers.”
The grounds upon which the application is brought are as follows:
“a. Judgment in the above suit was delivered on Monday the 26th day of October, 2009 and on Friday, the 30th day of October, 2009, the judicial workers of the High Court of Imo State embarked on an indefinites strike only to resume on the 18th day of January, 2010.
b. That during the said strike, the registry of the High Court of Imo State was completely shut down and there was nowhere to file processes during the said strike period.
c. That upon resumption of work by the judicial workers on the 18th day of January, 2010, the Appellants filed her Original Notice of Appeal on the 18th day of January, 2010. See pp. 357 – 360 of the Record of Appeal.
d. That the Respondent/Cross Appellant filed her Notice of Cross Appeal on the 8th day of March, 2010 on the belief that time for the filing of the Notice of Appeal began to run from the 18th day of January, 2010.
e. That if time for the filing of the Notice of Appeal runs with the industrial strike aforestated, the Respondent/Cross Appellant is definitely out of time and would need only an order enlarging the time within which to regularize the already filed Cross-Appeal and the Cross-Appellant’s brief of argument.
f. That an Order of this Honourable Court is hereby required to validate the already filed Notice of Cross-Appeal and the Cross-Appellant brief of argument.”
The application was supported by 14 paragraphs Affidavit sworn to by EMEKA OZOANI, Legal Practitioner to the Applicant in the Registry of this Court on 31st day of July, 2013.
This Appellant/Cross Respondents/Respondents filed counter Affidavit consisting of four paragraphs against the said application. It was deposed to by the 2nd Appellant in this appeal on day of October, 2013.
At the direction of this Court the parties filed written Addresses which were adopted on 13th day of February when this matter came up for hearing.
The Notice of Cross Appeal filed out of time on 8th day of March, 2010 is contained on pages 305-313 of the Record of Appeal in this matter.
Emeka Ozoani, Esq. for the Respondent/Cross Appellant/Applicant began his submission by making reference to section 24 (2) (A) (4) of the Court of Appeal Act, Cap C. 36 Laws of the Federation of Nigeria and ORDER 7 Rule 10(b) of the Court of Appeal Rules 2011 under which the application was brought. He referred to the reliefs set out in the motion and the grounds upon which the application was predicated. He relied on the supporting Affidavit and the Exhibits attached. He raised two issues for determination on the application viz:
1. Whether raising a Preliminary Objection precludes the Cross-Appellant/Applicant from taking steps to regularize her position/process.
2. Whether a process struck out or dismissed renders such proceeds useless for the purpose of all judicial proceedings.
In respect of issue one the Learned counsel to the applicant stated that raising a preliminary objection does not preclude the Cross-Appellant/Applicant from taking out the Motion herein to regularize her Cross Appeal and Cross Appellant’s brief of Argument. That the power to grant or refuse an application of this nature is an exercise of judicial discretion which is usually exercised judicially and judiciously. He relied on the case of N.L.C. & ANOR v. PACIFIC MERCHANT BANK LTD (2012) 6 SC (Pt. 1) P. I. He relied on exhibits a AND b to the supporting Affidavit to submit that the grounds stated by the Applicant for late filing of the Cross Appeal had been admitted by the Appellant/Respondent in this application. He relied on the case of EZEMBA v. IBENEME (2004) 7 SC (Pt. 1) 45 and Section 20 of the Evidence Act 2011. That appeal is a continuation of the suit and that Exhibits A, B and C bind the Respondent to this application. He relied on the case of NWAIBE V. THE STATE (1996) 9 NWLR (Pt. 472) 343 CA. That the Respondent/Cross Appellant/Applicant would be denied her constitutional right of appeal if this Court accede to Appellants/Respondent’s ARGUMENT. He relied on the case of ODEH v. FEDERAL REPUBLIC OF NIGERIA (2008) 3-4 SC 149 AND PAM & ANOR v. MOHAMMED (2008) 5-6 SC (Pt. 1) 83.
That where there are two Motions, one seeking for time to regularize some process the Court should give priority to the Motion seeking to regularize. See MOBIL PRODUCING NIG. UNLIMITED v. MONOKPO (2003) 12 SC (Pt. 11) 50. That Notice of preliminary objection filed by the Appellants/Respondents will not preclude the CROSS APPELLANT from bringing this application. He relied on the case of SHANU v. AFRIBANK (Nig.) Plc (2000) 13 NWLR (Pt. 684) 392 at 404 F-G PER AYOOLA, JSC and the Case of TSOKWA OIL MARKETING CO. NIG. LTD BANK of the NORTH (2002) 11 NWLR (Pt. 777) 163 at 185-186 G-B per ONU, JSC. He urged the Court to resolve issue one in favour of the Respondent/Cross Appellant/Applicant as according to the Learned Counsel to the said Applicant, sufficient material particulars to account for the delay in filing her processes are before the Court.
The Appellants Learned Counsel couched their own issue one thus.
Whether the Respondent/Applicant’s Motion of 31st July, 2013 is competent.
I am of the view that the question posed as issue one by the Applicant and Appellants’ issue one are conterminous. It is the argument of the Appellants’ Learned Counsel
1. ORUMOR Esq. that a Notice of Cross appeal is subject in the same rule as a Notice of appeal with reference to time of filing and other conditions. Reliance was placed on the case of OGUMA v. IBWA (1988) NWLR (Pt. 73) 658 and the case of OGBODU v. QUALITY FINANCE LTD (2003) 6 NWLR (Pt. 815) 153. That a cross Appeal based on an incompetent Notice of Cross appeal for reason of being out of time is void ab initio and incurably bad and cannot be cured. He relied on MACFOY v. U.A.C. (1962) 1 AC 1 and MR VALENTINE CHRIS OGAR ENEJI & ANOR v. AJOR IDAGU AGAJI & Ors (2011) LPELR-4540 (CA). That the Respondent’s motion on NOTICE IS ANCHORED AN INCOMPETENT NOTICE of Cross Appeal. He relied on the cases of (1) THE REGISTERED TRUSTEE OF FOURSQUARE GOSPEL CHURCH IN NIGERIA (RTEGCN) v. PROFESSOR FRANK OKOEBOR (2007) 13 NWLR (Pt. 1052) 471 AT 474.
2. NWA v. SPDC (NIG.) LTD (2007) 1 NWLR (Pt. 1015) 315.
3. UWAZURUIKE v. A.G. FEDERATION (2007) 8 NWLR (Pt.1035) 1
AND
4. FRN v. TANAKALITU & Ors (2013) 5-7 (Pt. 111) MJS PG 112.
That the MOTION ON notice filed by the Respondent/Applicant is incompetent having regard to the cases cited by the Appellants. He urged the court to dismiss the Motion.
Issue two as raised by the Respondent/Cross Appellant/Applicant is whether a process struck out or dismissed renders such process useless for the purpose of all judicial proceedings.
Emeka Ozoani, Esq. for the Applicant argued that the argument of Respondent that Exhibits A, B and C no longer have any value should be disregarded having regard to the decision of this Court in the case of AFRIBANK (NIG.) PLC v. GENERAL (1999) 12 NWLR (Pt. 632) 567 per OGUNTADE, JCA as he then was. He also relied on the case of DAGGASH v. BULAMA & ORS (2004) 14 NWLR (Pt. 892) 144 at 233. That the objection OF THE Respondent is a calculated decoy to delay the hearing of the substantive appeal. He urged the Court to grant the application.
The 2nd issue raised by the Appellants is:
Whether the Respondent/Applicant has put materials before this Honourable Court for the exercise of the discretion of this Court in her favour.
The Learned Counsel to the Appellant/Respondent, T. ORUMOR Esq. submitted that an Applicant seeking a Court’s discretion in his favour with respect to an application for extension of time, must place material facts, good and substantial reasons and good grounds Exhibits A, B and C which were former processes filed by the Appellant before trial Court instead of discharging the legal burden required of her. That exhibits A and B have nothing to do with the Respondent/Applicant’s application herein. That the time for filing of Notice of Cross Appeal lapsed on 26th January, 2010 but that the Respondent/Applicant filed her Notice of Cross appeal on 18th March, 2010.
That the Applicant has not placed any material facts before this Court to enable it exercise its discretion in her favour. That the APPLICANT refused to make any reference to the grounds of appeal knowing fully well that the said grounds of appeal are verbose, vague, vain and academic. That no good excuse has been offered by the applicant. He urged the Court to dismiss the application.
I am of the opinion that the issues that call for determination on this application are as formulated by the Appellants/Respondents to the application under consideration and they are:
1. Whether the Respondent/Applicant’s Motion of 31st July, 2013 is competent.
2. Whether the Respondent/Applicant has put material facts before this Honourable Court for the exercise of the discretion of this Court in her favour.
The issues will be treated in sequence.
ISSUE 1
WHETHER THE RESPONDENT/APPLICANT’S MOTION OF 31ST JULY, 2013 IS COMPETENT.
I have elaborately set out the argument of the Learned Counsel to the parties in this appeal concerning this issue.
The main plank of the Respondent/Cross Appellant/Applicant’s submission is that the Applicant cannot be precluded from bringing application to regularize her processes.
The Appellants’ contention is that the motion was predicated on a Notice of Cross Appeal that was void or incompetent ab initio.
I agree with the submission of the RESPONDENT/CROSS APPELLANT/APPLICANT’S Learned counsel that the decision of the apex Court in the land in the cases of SHANU v. AFRIBANK NIG PLC (2000) 13 NWLR (Pt. 684) 392 at 404 F-G and TSOKWA OIL MARKETING CO. NIG. LTD v. BANK OF THE NORTH (2002)s 11 NWLR (Pt. 777) 163 at 185-186. G-B enable the APPLICANT herein to bring this application notwithstanding that the Appellants have filed Notice of Preliminary objection against the RESPONDENT/CROSS APPELLANT’S NOTICE OF CROSS APPEAL.
This law is firmly established that when a court is faced in any matter with adverse applications one is seeking to terminate a proceeding including an appeal either for non compliance with the rules of the relevant Court or substantive law and there is another one seeking to remedy or rescue the case or a process or proceeding from the destructive effect of the alleged non-compliance or breach, the application seeking to put an end to the suit or matter will be put on hold. This is to enable the court hear the application seeking to remedy the situation and see if it is possible to save the case from imminent collapse or termination. The further reason for this approach is that an application seeking to bring a case to terminal end would not be taken if the application seeking to sustain the suit or matter succeeds so as to avoid putting the cart before the horse. That is why the Apex Court and this Court have laid down guiding principles for consideration of such multiple applications. See NALSA & TEAM ASSOCIATES v. N.N.P.C. (1991) & NWLR (Pt. 212) 652 AT 676 BC TO 677A
Where KARIBI-WHYTE, JSC who said:-
“It is an elementary and fundamental principle of our administration of justice to hear all application properly brought before our Courts. Accordingly where an application is properly brought before the Court the principles of fair hearing demands that it should be heard on its merit; See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 SC. I agree entirety with the well settled proposition that where there are two motions before a court requiring to be heard, the interest of justice demands that the motion the determination of which would save the substantive action should first be heard. This principle is grounded on the reasoning that where the application succeeds, then the other application cannot be taken….. in the exercise of its discretion to hear application before it, the court is qualified by considerations of doing justice between the parties, and to ensure ultimately that the dispute between the parties was decided on its merits. See KHAWAM v. ELIAS (1960) FSC 224 (1960) SCNLR 516. Where in the exercise of its discretion application to dismiss the action was first heard resulting in the action being struck out, justice would not have been done to an applicant, whose application to regularize his appeal, the basis for the application to dismiss the appeal is still pending. This will TANTAMOUNT to a wrongful exercise of discretion. See Abiefbe & Ors v. UGBODUME & ORS supra.”
The same principle surfaced in the case ATTORNEY-GENERAL OF THE FEDERAION v. A.I.C. LTD & ORS (1995) 2 NWLR (Pt. 378) 388 at 397 E-F where KUTIGI, JSC later CJN RTD, who read the leading judgment had this to say:-
“when the two motions came before us for hearing on 5th December, 1994 Professor Kasunmu learned Senior Counsel for the Respondent/Applicant insisted that his motion must be taken first since it was earlier in time and if granted there would be no further need for the appellant’s motion. It was then pointed out to him that since the appellant motion which is wider in scope also clearly covered his own, the two motions would be taken together beginning with appellant’s counsel. I would have thought that professor Kasunmu ought to have been aware of the general practice by now that where in the same case there are two adversely competing motions before a court one “constructive” and other potentially “destructive” the court will normally proceed to the former motion first unless it will be inequitable to do so, so that if it succeeds, there would be no need for the latter motion which will then be withdrawn and struck out accordingly.”
Issue one is resolved against the Appellant/Respondent in favour of Respondent/Cross Appellant/Applicant.
ISSUE 2
WHETHER THE RESPONDENT/APPLICANT HAS PUT MATERIAL FACTS BEFORE THIS HONOURABLE COURT FOR THE EXERCISE OF THE DISCRETION OF THIS COURT IN HER FAVOUR.
The Applicant’s position is that sufficient or enough materials have been placed before this Court to make the application succeed while the Appellants are of the view that there are no material facts placed before this Court to enable it exercise its discretion in favour of the Applicant.
It must be stated that whether an application or motion seeking for extension of time will be granted or refused depends largely on the facts or materials presented to the Court by the Applicant. Judicial discretion donated to the Court must be exercised judicially and judiciously. Thus Order 7 Rule 10 of the Court of Appeal Rules 2011 provides as follows:
“10(1) The Court may enlarge the time provided by these Rules for doing of anything to which these Rules apply except the filing of Notice of intention not to contest an application under Rules 8 above.
(2) Every application for 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.”
Therefore in dealing with an application for extension of time what the court is concerned with is whether there were good and substantial reasons for the failure to lodge an appeal within the prescribed period and whether there are grounds of Appeals which prima facie, show good cause why the appeal should be heard.
See (1) IKENTA BEST (NIG.) LTD v. A.G. RIVERS STATE (2008) 2-3 SC (Pt. 1) 28.
(2) MINISTER OF PETROLEUM & ANOR v. EXPOSHIPPING LINE (NIG.) LTD & ANOR (2010) 5 SCM 111 AT 125 per CHUKWUMA-ENEH, JSC who said:
“The foregoing provisions have clearly prescribed two pre-conditions to be met for the exercise of Court’s discretion in favour of an application in that regard and they are firstly, an affidavit in support of the application which has to set out good and substantial reasons for failing to appeal within the prescribed period in this case it is 3 months since in this instance the decision appealed from is final; and secondly, the applicant has to file grounds of appeal which prima facie show good cause why the appeal should be heard.”
The guiding legal principles were profoundly restated recently by the Supreme Court of this Country in the case of RT. HON. (DR.) OLISA IMEGWU v. MR. EUGENE UCHE OKOLOCHA & ORS (2013) 9 NWLR (Pt. 1359) 347 AT 369 H TO 371 A per ARIWOOLA, JSC who said:
“Before examining the facts deposed in support of this application, I shall restate the guiding principles:
i. The discretion of the court to grant the extension of time within which to appeal will be exercised only when the two conditions circumscribed by Order 7 Rule 10(2) of the Court of Appeal Rules, 2002 or Order 2 Rule 31 (2) of the Rules of the Supreme Court, as amended in 2009, are satisfied conjunctively but not disjunctively. See: N. A. Williams & Ors v. Hope Rising Voluntary Funds Society (1982) ALL NLR (Pt. 1) (1982) 1-2 SC 145 at 152; Yonwuren v. Modern Signs Ltd (1985) 1 NWLR (Pt. 2) 244; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143. In other words, the affidavit evidence in support of the application must disclose and set forth good and substantial reasons for the failure to appeal or to seek leave to appeal with the prescribed period of time. And the proposed notice of appeal must contain grounds of appeal which prima facia show good cause why the appeal should be heard.
ii. The length of time that has lapsed between the dates of the judgment sought to be appealed against and the filing of the application is always a material to be considered in the decision whether or not to grant the application. However, the court has held that the length of time notwithstanding, the time may still be extended once the court is satisfied with the reasons for delay. See; Alagbe v. Abimbola (1978) 2 SC 39; Ojora v. Bakare (1976) 1 SC 47; Shittu v. Osibanjo – in Re: Adewunmi (1988) 7 SC (Pt. 11) 1, (1998) 3 NWLR (Pt. 83) 483.
iii. 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. Okwordu, (1990) 6 NWLR (Pt. 159) 643. Where it appear 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.
iv. The grounds of appeal proposed must be drawn by the applicant to be arguable but not frivolous. He is however not expected to show that the appeal will succeed, yet he is expected to exhibit good grounds showing reasonable prospect of success in the appeal. See; Holman Bros. (Nig.) Ltd v. Kigo (Nig.) Ltd. 1980 8 – 11 SC 42.
v. In the determination of applications for enlargement of time to appeal each case is to be treated and decided on its own peculiar facts and circumstances. The reason being that facts to be taken into consideration by the court are not exhaustive. See, University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 156; C.C.B. (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (Pt. 284) 630.”
Now, the Affidavit in support of the Respondent/Cross Appellant/Applicant’s motion dated 31st day of July, 2013 reads as follows:
AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION
I, Emeka Ozoani, male, Nigeria citizen, legal practitioner of No. 41 James Robertson Street Surulere, Lagos, do hereby make oath and state as follows:
1. That I am the Counsel to the Respondent/Cross Appellant/Applicant herein and by virtue of which I am conversant with the facts of this case.
2. That I have the consent and authority of the Respondent/Cross Appellant/Applicant to depose to the facts stated herein.
3. That on Monday the 26th day of October, 2009, the trial court delivered its judgment in Suit No. HOW/581/2007.
4. That on Friday, the 30th day of October, 2009, the Imo State Judicial workers embarked on an indefinite strike which strike was called off on the 18th day of January, 2010.
5. That on the 18th day of January, 2010, The Appellants filed their original Notice of Appeal and stay of execution. The said original Notice of Appeal is at pages 257-260 of the records of appeal, while the Motion for stay of execution is annexed herein and marked as exhibit “A”.
6. That the Appellants admitted the foregoing facts in their affidavit on oath dated the 16th Day of April, 2010 filed before the High Court wherein at paragraph two they deposed thus:
“That this Honourable court delivered judgment in this suit on the 26th day of October, 2009, a few days after which the court workers went on an indefinite strike action which prompted the closure of the court for more than two months”
The said Appellants affidavit referred to herein is hereby annexed and marked as exhibit “B” See also paragraph 3 thereof.
7. That learned counsel to the Appellant T. Orumor, Esq. in his written address submitted at the trial High Court dated the 16th day of April, 2010 at paragraph 4.3.1.
Submitted thus:
“Judgment in this case was delivered on the 26th October, 2009, a few days after which the court workers went on an indefinite strike action which prompted the closure of the court for more than two months.”
The said written address is hereby annexed and marked as exhibit “C”.
8. That the Respondent filed her Notice of Cross-Appeal on the 18th day of March, 2010, on the belief on the part of learned counsel that time to file the Notice of Cross Appeal began to run from the 18th day of January, 2010, when the judicial industrial strike was called off.
9. That if time to file the Notice of Cross Appeal is computed from the 18th day of January, 2010, the Respondent’s Notice of Cross Appeal was filed within time but if the period of the strike is reckoned with the Respondent’s Notice of Cross Appeal was filed out of time.
10. That on Order of this Honourable Court validating the Respondent’s Notice of Cross-Appeal and the brief of argument filed thereto is required to regularize the aforestated processes.
11. That granting this application will enable the Honourable Court to determine on merit the Respondent’s Notice of Cross Appeal.
12. That the Appellants would not be prejudiced if this application is granted as the Appellants have already filed their brief of argument in respect of the Cross-Appeal.
13. That the only relief required by the Respondent/Cross Appellant from this Honourable court is an order of enlargement of time.
14. That I depose to this affidavit in good faith.
…………………………
DEPONENT
Sworn to at the Appeal
Court Registry Owerri
This …… day of July, 2013.
BEFORE ME
COMMISSIONER FOR OATHS
In opposition to the said application the Appellants/Respondent filed Counter Affidavit which reads thus:
I, Godwin Obado, Male, Nigeria citizen of Julius Berger Nigeria Plc, Azikoro Yard, Yenagoa, Bayelsa State do hereby make oath and state as follows:
1. That I am the 2nd Appellant/Cross Respondent/Respondent herein by virtue of which position I am familiar with the facts to which I herein depose to. I have the consent of the 1st Appellant/Cross Respondent/Respondent to depose to this counter affidavit also on its behalf.
2. That I have seen and read through the affidavit in support of the Respondent/Cross Appellant/Applicant’s notice of motion dated 31st July, 2013 and I understand the contents of same.
3. That I am informed by Theophilus Orumor, of counsel in the law firm of Femi Okunnu & Co. having the conduct of this matter for the Appellants/Cross Respondent/Respondent, on 25th September, 2013 by 11am at the 1st Appellant’s Yenagoa office at the aforesaid Azikoro yard and I verily believe him to be true:
a. That contrary to the aforesaid paragraphs 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the said affidavit in support, the strike embarked upon by the judiciary workers was called off in 2009.
b. That contrary to the aforesaid paragraphs 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the said affidavit in support, the strike embarked upon by the judiciary workers was called off in 2009.
c. That in any case, the Respondent/Cross Appellant/Applicant’s non filing of her notice of cross appeal within time has nothing to do with the strike, or Exhibit A (which was struck out by the lower court) Exhibit B or Exhibit C attached to the said affidavit in support.
d. That the Respondent/Cross Appellant/Applicant’s present application is an after-thought as the Appellants have already raised a preliminary objection (in the Appellants’ Reply Brief dated 21st June, 2013) against the Respondent/Cross Appellant/Applicant’s Notice of Cross Appeal and the Respondent/Cross Appellant/Applicant’s entire Cross Appeal on the ground of its been incompetent, null and void.
e. That the Respondent/Cross Appellant/Applicant’s present application is brought malafide to delay the hearing of the Appellants’ appeal and scuttle same.
f. That it will be in the interest of justice if the Respondent/Cross Appellant/Applicant’s application herein is refused.
4. That I depose to this counter affidavit in good faith and believe the contents of same to be true and in accordance with OATHS ACT.
I have examined the facts and circumstance surrounding the application of the Respondent/Cross Appellant/Applicant and I am of the settled view that the Applicant has shown that the mobility to file the Notice of Cross Appeal to time was largely due to the court strike and the mistake of her learned counsel on the latter’s misapprehension as to when RESPONDENT/CROSS APPELLANT/APPLICANT’S time to cross appeal started to run. The mistake of counsel and the strike by the court workers actually caused the delay in late filing of the Notice of the Cross Appeal as posited in the Affidavit evidence before this Court.
My opinion is also that cogent and substantial reasons and materials strong enough to sway this court in favour of the Applicant’s motion been placed before this court to enable it exercise its discretion in applicant’s favour. There is no doubt that the RESPONDENT/CROSS APPELLANT/APPLICANT has constitutional right of appeal. The decision she is appealing against is a final decision of the High Court of Imo State. It is not an appeal that requires that leave must first be sought and obtained. However, due to her lateness in filing the appeal she must confirm with Order 7 rule 10 of the Court of Appeal Rules 2011. She needs an order of this Court for extension of time within which to appeal. She has met the two conditions stipulated in the aforesaid Order 7 Rule 10 (1) (2) of the Rules of this Court.
I have perused calmly the grounds contained in the Notice of Cross Appeal filed on 8th of March, 2010 which can be found on pages 305-313 of the Record of Appeal, I am of the opinion that the grounds are not frivolous. They are arguable grounds of Appeal.
The Appellants have not shown what prejudice or miscarriage of justice they stand to suffer if the application is granted. As a matter of fact the Appellants motion on Notice dated 21/6/13 seeking the following prayers viz:
“1. AN ORDER extending the time within which to file the Appellants’ Reply Brief to the Respondent’s Preliminary Objection, Reply Brief to the Respondent’s substantive Brief of Argument and Appellants’ Preliminary objection to the Respondent’s Cross Appeal, all contained in one bundle of document.
2. AN ORDER deeming the Appellants/Applicants Reply Brief to the Respondent’s Preliminary Objection, Reply Brief to the Respondent’s substantive Brief of Argument, Appellants’ Preliminary objection to the Respondent’s Cross Appeal and Appellant’s Reply Brief to the Respondent’s Cross Appeal as properly filed and served, the appropriate filing fees having been paid.
AND for such further order or orders as the Honourable Court may deem fit to make in the circumstances.”
Was granted as prayed on 14/10/2013 while the motion under consideration was pending. It is therefore in the interest of justice to grant the RESPONDENT/CROSS APPELLANT/APPLICANT’S MOTION dated and filed on 21st July, 2013. See VIB A. LTD & ANOR v. DIKE NWORA (1978) NSCC 519 AT 525 per FATAYI-WILLIAMS, JSC who said:
“Looking at this particular case where each defendant has filed a statement of defence which, having regard to his observation, the learned Chief Judge must have found to disclose substantial ground of defence, it seems to us that is a wrong exercise of his discretion to have ordered the defendants to file an “application for enlargement of time within which to file a defence within 10 days” from the date of his order, thus indicating, albeit by implication, that no statements of defence has been filed before. With respect, we think it was erroneous of him to have ordered them, in those circumstances, to apply for extension of time to file what amounted to new statements of defence within ten days. Surely, this discretion, which the learned Chief Judge undoubtedly has in the matter, must be exercised judiciously, bearing in mind that it is the duty of the court whenever possible, not only to minimize the cost of litigation, but also to see to it that justice is not delayed unnecessarily.
In our view, the learned Chief Judge, in the exercise of his power under Order 18 Rule 6, should have extended the time suo motu up to 18th April, 1976, the day when he delivered his ruling. By ordering the defendants, as he did, to apply within ten days to file another statement of defence, the learned Chief Judge, if we may say so, again with respect was merely taking refuge in an unnecessary legal technically which would obviously delay the hearing of the action further. We think he should have extended the time to file the statements of defence to the date of his ruling, order that the statement of defence already filed has been duly filed, and then fix a date for the hearing of the case.”
In the result, the RESPONDENT/CROSS APPELLANT/APPLICANT Motion dated and filed on 31st day of July, 2013 is hereby granted as prayed.
Time is extended till today to enable the RESPONDENT/CROSS APPELLANT/APPLICANT file her Notice of Cross Appeal.
The Notice of Cross filed on 8th day of March, 2010 is hereby deemed properly filed and served.
The Respondent/Cross Appellant/Applicant is also granted extension of time within which to file CROSS APPELLANT’S BRIEF OF ARGUMENT and the Cross Appellant Brief already filed and served is hereby deemed to have been properly filed and served.
There will be no order as to costs.
UWANI MUSA ABBA AJI, J.C.A.: I agree.
PHILOMENA MBUA EKPE, J.C.A.: I agree.
Appearances
I. O. Orumor and C. I. Njoku Esq.For Appellant
AND
Mrs. F. S. Osudike, Esq. and D. M. Manumaihe, Esq. (Miss) for Respondent/Cross AppellantFor Respondent
