UKANDU ODUMUKO v. JONAH ABI & ORS
(2018)LCN/12316(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of December, 2018
CA/OW/116M/2016(R)
APPEAL: WHERE THE APPLICANT FAILS TO FILE ON TIME
“For the applicant to succeed in this application, he must meet the requirements contained in Order 6 Rule 9 (2) of the Court of Appeal Rules 2016. This provision requires the applicant to set forth in his affidavit in support, good and substantial reasons for failure to appeal within the time prescribed by law and place before the Court grounds of appeal which prima facie show good cause why the appeal should be heard. From the affidavit reproduced above, the basic reason why the applicant did not appeal within the time provided by the Court of Appeal Act was because he did not know of the existence of the suit, having not been served with any process.” PER RAPHAEL CHIKWE AGBO, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
UKANDU ODUMUKO Appellant(s)
AND
1. JONAH ABI
2. NDUBUISI EGWUCHUKWU
3. OSONDU MARK
(For themselves and as representing Umuekenta Family of Ahaba-Ehuma Ahabalmenyi, Isuikwuato) Respondent(s)
RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Lead Ruling):
The applicant in this motion is seeking the trinity prayers. He wants extension of time within which to appeal. The motion is accompanied by a ten paragraph affidavit which is reproduced hereunder.
I, PASTOR UKANDU JAMES ODIMUKO, Male Adult, Clergy, Christian and Nigerian citizen of Umuokwu, Ahaba Ehume, AhabaImenyi in Isuikwuato L.G.A of Abia State do hereby make oath and state as follows:
1. That I am the applicant on record; by virtue of which I am very conversant with the facts deposed hereunder in support of the Motion.
That the fact herein deposed as facts within my knowledge and where they are not, my sources of information are also disclosed.
2. That about the 12th day of October, 2014 the bailiff of Court levied execution against me. That accord to the bailiffs of Court, the execution levied against me was pursuant to the judgment in Suit No. HS/12/2000 JONAH ABI & 2ORS vs. ODUMUKO UKANDU & 3 ORS delivered on the 7th day of May, 2010 by his Lordship, Honourable Justice O. ORJI. That a certified copy of the judgment of the Court is herewith marked and filed as EXHIBIT A.
3. That I was not aware of the suit, neither was I personally served with the originating processes of that suit and I never attended the Court sitting at any time whatsoever. That I was not served with the judgment in the said suit delivered on the 7th day of May, 2010 and was never aware that judgment was entered against me as a party. That because of this, I did not file a Notice of Appeal appealing the decision of the Court, within the time limited for me to do so.
4. That upon becoming aware of the suit about the 12th day of October, 2014 I took steps to apply for the Judgment which is already filed as EXHIBIT A as the judiciary staff union went on strike after the execution. That I am aware that K.C. ONYEABOR ESQ of counsel has also applied for the records of proceeding of the Court and for a copy or all the processes filed in this suit, so as to enable me appeal the decision of the Court. That the application is herewith filed as EXHIBIT B. That due to the Judiciary strike embarked on by the judiciary Staff Union of Nigeria, the processes of Court and the judgment was not made available to us on time.
5. That upon receiving the processes of the Court below, it is clear that I was not served with the writ of summons and there is no endorsement showing that I signed and was served with the Writ. That I never attended Court at any material time throughout the pendency of the suit and was in fact, not personally served with the writ in line with the Rules of Court. That a copy of the Writ is herewith marked and filed as EXHIBIT C.
6. That the Court below had no jurisdiction when it heard the matter and determined same on the grounds that I was not personally served with the Writ and all other originating processes in line with the Rules of court.
7. That more still, due to the judiciary strike by its workers and our inability, to get a copy of the judgment on time have also added to the delay in entering the Appeal, hence this application. That the delay is not due to my fault.
8. That K.C. ONYEABOR ESQ has informed me and I verily believe him that by the Rules of Court, I am allowed 90 (Ninety) days within which to file the Notice of Appeal. That the Notice of Appeal is ready, and a proposed copy is herewith filed as EXHIBIT D.
That I am out of time in filing the Notice of Appeal. That without the leave of Court, I will not be able to file the Appeal.
9. That erroneously, counsel filed a Motion on Notice for the extension of time to appeal before the High Court of Abia State and had to withdraw same before filing the instant application. That a copy of the application filed at the High Court is herewith marked and filed as EXHIBIT E. That the said application had now been withdrawn.
10. That it is in the interest of justice to grant the prayers.
AND that I make this affidavit in good faith believing same to be good and correct in accordance with the Oaths Act, 2004.
The applicant also exhibited the judgment he seeks to appeal against.
For the applicant to succeed in this application, he must meet the requirements contained in Order 6 Rule 9 (2) of the Court of Appeal Rules 2016. This provision requires the applicant to set forth in his affidavit in support, good and substantial reasons for failure to appeal within the time prescribed by law and place before the Court grounds of appeal which prima facie show good cause why the appeal should be heard.
From the affidavit reproduced above, the basic reason why the applicant did not appeal within the time provided by the Court of Appeal Act was because he did not know of the existence of the suit, having not been served with any process. This assertion flies in the face of the applicant’s exhibit ‘A’ which is the judgment of the trial Court. On the first page of the judgment, the judge wrote thus The defendants with their counsel appeared in the suit when hearing commenced. The defendants’ counsel dropped out and later the defendants also dropped out of the matter. And despite being served hearing notice ordered by the Court, the defendants did not attend Court again. Until this finding of fact is avoided, the applicant cannot be heard to state otherwise.
The applicant not having set out good and substantial reasons why his appeal should be heard, this application cannot be granted. This motion is dismissed.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
IBRAHIM ALI ANDENYANGTSO, J.C.A.:I agree
Appearances:
K. C. Onyeabor For Appellant(s)
1st Respondent served hearing notice on 6th August, 2018. So also the 2nd and 3rd Respondents.
Appearances
K. C. OnyeaborFor Appellant
AND
1st Respondent served hearing notice on 6th August, 2018. So also the 2nd and 3rd Respondents.For Respondent
