ETEIDUNG UDO WILSON UMOREN v. BERNARD EVANSON UDOSEN
(2013)LCN/6486(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of November, 2013
CA/C/136M/2012
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
ETEIDUNG UDO WILSON UMOREN – Appellant(s)
AND
BERNARD EVANSON UDOSEN – Respondent(s)PER
RATIO
WHETHER OR NOT PARTIES MUST IN INTERLOCUTORY APPLICATIONS, STRICTLY MAINTAIN THEIR PRAYER IN A MOTION PAPER
Let me immediately state here that the Applicant in his written address went beyond what was sought for in the prayers in the motion paper. The courts have warned severally that in interlocutory applications, the Applicant, the Respondent and even the court should be cautious to maintain strictly what was prayed for in the motion paper. The Applicant in this motion has gone beyond this and has ventured into the substantive issues in the Appeal. NDUKWE-ANYANWU, J.C.A.
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Ruling): This is a motion on notice brought pursuant to
1. SECTION 15 OF THE COURT OF APPEAL ACT, 2004.
2. ORDER 7 RULE 10 OF THE COURT OF APPEAL RULES 2011.
3. INHERENT JURISDICTION OF THE COURT PRESERVED BY SECTION 6(6)(a) OF THE AMENDED CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA.
The Appellant/Applicant had prayed the court for the following orders.
i. An order for enlargement of the time within which to seek leave to appeal against the decision given in the ruling dated 15th December, 2011 in suit No. HME/07/2003 of Akwa Ibom State High Court of Mkpat Enin Judicial Division to the Court of Appeal of Nigeria; Calabar Judicial Division.
ii. Leave to appeal against the decision given in the said ruling;
iii. an order for enlargement of time within which to appeal against the decision given in the said ruling in suit No HME/07/2003.
iv. an order deeming the notice of appeal filed as duly and regularly filed upon payment of the prescribed requisite filing fees.
v. a further order of court staying the decision given in the said ruling and of further proceedings in the action pending the adjudication and determination of the appeal interlocutory appeal.
AND for such further order or other orders as the Court may deem just, fair and convenient to make in the overriding interest of substantial justice.
This motion was brought on the following grounds:
In all the circumstances of the case to preserve the res or the subject matter in dispute between the parties and thus prevent any act(s) which will destroy the subject matter of the proceedings or foist upon the court a situation of complete helplessness or rendering nugatory any judgment, orders(s) of the Court of Appeal or provide a situation in which whatever happens to the case and, in particular, even if the applicant succeeds in the appeal, there would be no return to the status quo.
In support of this motion is a four paragraph affidavit with several subparagraphs. The Applicant also filed Exhibit A, B and C.
On the date of hearing of the motion, the Applicant adopted his 12 paged written address. The Respondent filed no counter affidavit but filed his seven paged written reply, and also adopted same.
Let me immediately state here that the Applicant in his written address went beyond what was sought for in the prayers in the motion paper. The courts have warned severally that in interlocutory applications, the Applicant, the Respondent and even the court should be cautious to maintain strictly what was prayed for in the motion paper. The Applicant in this motion has gone beyond this and has ventured into the substantive issues in the Appeal.
It appears that the Applicant was confused about which one of the rulings, he is arguing about in his written address.
The Applicant argued about an order given by the court on an exparte application. The application prayed the court for an order to enter the land and survey it for purposes of this suit. This was granted on 3rd June, 2003.
Another motion on notice was filed by Plaintiff putting the defendant on notice. The learned trial Judge heard the application and delivered his considered ruling holding thus:
1. That an interlocutory order of injunction be and is hereby issued against the plaintiff/Respondent, his servants, agents, privies and coharts or howsoever otherwise from taking any further steps in this action capable of jeopardizing and/or being detrimental to the adjudication and determination of the substantive Suit.
2. That the plaintiff/Respondent be and is hereby restrained by an order of interlocutory injunction from entry in any manner whatsoever into the disputed Land/or to do or doing any manner of work whatsoever on the said land without the authority of the Court until the determination of this substantive suit filed on 5th July, 2012.
The court cannot rightly go into the merits of this ruling delivered at this stage as the court has not been called to do so.
The applicant is seeking an order to appeal against the ruling of the court. I have seen no reason why these orders cannot be granted. Every litigant is entitled to a level playing field to air his grievance.
In the circumstances, I see no reason to deny the Applicant of such an opportunity.
I am, therefore, inclined to grant the Applicant’s prayers:
1. The court hereby grants an enlargement of time to seek leave to appeal against the decision given in the ruling delivering on 15th December, 2011 in Suit No. HMB/07/2003.
2. The Appellant is hereby granted leave to appeal against the said ruling.
3. Time is also extended for the Appellant to appeal against the said ruling.
4. The Appellant is given 14 (fourteen) days to file and serve his notice and grounds of appeal.
5. Prayers four and five are refused and therefore dismissed.
MOHAMMED LAWAL GARBA, J.C.A.: I have read in draft, the lead ruling delivered by my learned brother Uzo I. Ndukwe-Anyanwu, JCA, in this application and agree with the reasoning and conclusion that the Applicant deserves to be granted the trinity prayers to appeal against the Ruling of the High Court.
I join in granting the application in terms of the lead ruling.
ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft, the Ruling delivered by my learned Brother, Ndukwe-Anyanwu JCA. I completely agree with his reasoning and conclusion; and grant the application in terms of the lead Ruling.
Appearances
For Appellant
AND
U. Utim Esq.For Respondent
