CHIEF ONYEWUCHI IWUAGWU & ANOR v. JOHN AKUJOBI & ORS
(2018)LCN/11919(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2018
CA/OW/328M/2017(R)
RATIO
COURT AND PROCEDURE: PRAYER TO SEEK TO EXTENSION OF TIME
“Order 6 Rule 7
The application for leave to appeal from a decision of a lower Court shall contain copies of the following items namely:
(a) notice of motion for leave to appeal;
(b) a certified true copy of the decision of the Court below sought to be appealed against.
(c) a copy of the proposed grounds of appeal; and
(d) where leave has been refused by the lower Court, a copy of the order refusing leave. Prayers (a), (b) and (c) founded on the purported ruling delivered on 23-11-16 therefore fails and are hereby struck out. Prayer (d) seeks an enlargement of time to appeal against the judgment on the counter-claim delivered on 16-12-16. By Order 6 Rule 9 of the Court of Appeal Rules 2016, an applicant for extension of time within which to appeal shall by affidavit evidence set forth good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. The reason given by the applicant for not partaking in the hearing of the suit was that they were not served hearing notices.” 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
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
CHIEF ONYEWUCHI IWUAGWU & ANR Appellant(s)
AND
JOHN AKUJOBI & ORS Respondent(s)
RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Lead Ruling):
The applicants were claimants in suit no. HOW/436/2011 while the Respondents were defendants/counter-claimants. On 23-11-16 the applicants claim was struck out while the Respondent’s counter-claim was determined on the merit on 16-12-16. On 17-8-2017 the applicants filed this motion praying the Court as follows: –
a. Enlarging the time within which claimants/applicants shall seek leave of the Court of Appeal against the interlocutory decision of the Imo State High Court, holden at Owerri foreclosing striking out the claims of claimants and as contained in the Ruling of His Lordship Hon. Justice E. F. Njemanze, delivered on 23-11-16 in Suit No. HOW/436/11; Iwuagwu & Anor. Vs. Akujobi & 3 Ors.
b. Leave of the Court to Appeal to appeal against the said interlocutory decision of the Imo State High Court, holden at Owerri foreclosing striking out the claims of claimants and as contained in the Ruling of His Lordship Hon. justice E. F. Njemanze, delivered on 23/11/16 in Suit No. HOW/436/11; Iwuagwu & Anor. Vs. Akujobi & 3 Ors.
c. Enlarging the time within which claimants/ applicants may file and serve their appeal against the said interlocutory decision of the Imo State High Court, holden at Owerri foreclosing striking out the claims of claimants and as contained in the Ruling of His Lordship Hon. justice E. F. Njemanze, delivered on 23/11/16 in Suit No. HOW /436/11; Iwuagwu & Anor. Vs. Akujobi & 3 Ors.
d. Enlarging the time within which claimants/ applicants may file and serve their appeal against the judgment of His Lordship Hon. justice E. F. Njemanze, delivered on 16/12/16 in Suit No. HOW /436/11; Iwuagwu & Anor. Vs. Akujobi & 3 Ors.
Annexed to the affidavit were exhibits ‘A’ on application to the Registrar of the trial Court to peruse the case file, and exhibit ‘B’ which is a copy of the judgment delivered on the counter-claim on 16th December 2016. A certified true copy of the ruling delivered on 23-11-16 striking out the applicant’s suit was not exhibited. This was in clear breach of Order 6 Rule 7 of the Court of Appeal Rule 2016 which provides as follows:
Order 6 Rule 7
The application for leave to appeal from a decision of a lower Court shall contain copies of the following items namely:
(a) notice of motion for leave to appeal;
(b) a certified true copy of the decision of the Court below sought to be appealed against.
(c) a copy of the proposed grounds of appeal; and
(d) where leave has been refused by the lower Court, a copy of the order refusing leave.
Prayers (a), (b) and (c) founded on the purported ruling delivered on 23-11-16 therefore fails and are hereby struck out.
Prayer (d) seeks an enlargement of time to appeal against the judgment on the counter-claim delivered on 16-12-16. By Order 6 Rule 9 of the Court of Appeal Rules 2016, an applicant for extension of time within which to appeal shall by affidavit evidence set forth good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. The reason given by the applicant for not partaking in the hearing of the suit was that they were not served hearing notices.
However, the judgment of the trial Court shows that one Mr. G. Killiwe Nwachukwu of counsel for the applicants refused service on the ground that he had lost touch with the applicants who were owing him. Having served the processes on counsel presented to the Court by the applicants as their agent, the Court had done all it could do. Parties are bound by the acts of their counsel.
The applicants never withdrew in Court their representation by Mr. Killiwe Nwachukwu. They were duty bound to prudently follow their case. This they did not do. The applicants have clearly not presented to the Court good and substantial reasons for failure to appeal within the prescribed period. There is no merit in this application. Prayer (d) is hereby dismissed. N50,000.00 costs to the Respondents.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree
Appearances:
H.C. IgweFor Appellant(s)
U.N. UzombaFor Respondent(s)
