Owners Of The Mt “marigold” V. Nnpc & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED LAWAL GARBA, J.S.C. 

By the Motion on Notice dated and filed on the 19th April, 2006, before the Lagos Division of the Court of Appeal, (Court below), the Appellant prayed for:-

“a) An order granting the Appellant herein extension of time within which to apply for leave to appeal against the ruling of the Federal High Court, Lagos per Honourable Justice E. O. Sanyaolu dated 7/4/2003 Suit No: FHC/L/CS/293/98.

b) An order granting leave to the Applicant herein to appeal against the said ruling dated 7/4/03 in the said suits and for leave to appeal on grounds of facts and/or mixed law and facts.

c) An order for extension of time within which to appeal against the ruling aforesaid and for such order or further orders as this Honourable Court may deem fit to make in the circumstances.

Dated this 19th day of April, 2006.”

The motion was supported by a 19 paragraphs Affidavit deposed to by a Legal Practitioner in the Chamber or Appellant’s Counsel to which were annexed, copies of documents marked as exhibits.

On the 20th November, 2009, the motion was moved by learned Counsel for the Appellant; Mr. Ferdinand Egede, who also deposed to the Affidavit in support thereof and urged the Court below to grant same while Mrs. Hope Nwambe, counsel for the Respondent did not file a Court-Affidavit in reaction to the affidavit in support of the motion but only opposed the request for an adjournment. The Court below rendered the following ruling, thereafter:-

“The application dated 19th April, 2006 and filed on the same day seeks the trinity prayers for extension of time, for leave to appeal and extension of time within which to appeal against the ruling of the Federal High Court, Lagos State delivered on the 7th April, 2003 in suit no. FHC/L/SC/293/98. Same is supported by an affidavit of nineteen paragraphs deposed to by Egede Fedinard, the learned counsel for the applicant who relied on all. For the application of this nature to earn the favour of the Court, the applicant must satisfy two conditions as restated in Order 3 Rule 4(2) of the Rule of this Court. In other words, it is incumbent on the applicant to satisfactorily explain good and substantial reasons why he failed to appeal within time. Secondly that the grounds ofappeal must be substantial and arguable and same requirement which must co-exist conjunctively with relevance to the affidavit in support, the applicant counsel relied on paragraphs 8 – 15 of same and urged specifically that the error to come within time is that of counsel. Specifically, paragraph 13 accuses the former counsel Mr. Ubong – Abasi Iyang who was said to have left chamber in June last year and was therefore responsible for the failure to have filed the notice within time. It is interesting to note that by the use of the phrase June last year, is not enough and specific a time when the said counsel left the chambers. The learned counsel, Mr. Egede has also admitted before us that the accusation lodged against Mr. Ubong – Abasi Iyang was not brought to his notice.

Casting aspersions on a counsel’s integrity is very serious matter which needed to have been drawn to his attention. The failure to do so is a serious defect on the application. Furthermore and even in the absence of any counter-affidavit, the requirement placed upon the applicant is a burden which he ought to discharge. He cannot rely on the weakness of the respondent to prove his case. At any rate, the facts of the affidavit as deposed to are those within the knowledge of the applicant and to which the respondent is not obliged to respond to.

The applicant on the totality of his application has not explained his failure to file his notice of appeal three years after the ruling was delivered. The 1st condition having not explained, it is unnecessary to dwell into the 2nd relating to the grounds of appeal. The satisfaction of the second is dependent upon the 1st. On the totality, the application lack merit and same is accordingly refused and dismissed. Costs of N2,500.00 to the respondent.”

Against the ruling, the Appellant brought this appeal vide the undated Notice of Appeal which appears at page 28 – 31 of the Record of Appeal, (without particulars):-

“GROUND 1

The learned Justice of the Court of Appeal erred in law in dismissing the Appellant’s Motion on Notice dated 19th April, 2006 for, inter alia, an order for extension of time within which to appeal against the ruling of the Federal High Court, Lagos dated 07/04/2003 on the grounds that “the Applicant on the totality of his application has not explained his failure to file his Notice of Appeal three years after the ruling was delivered.