Anthony G. Okotcha V. Herwa Limited (2000)

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OGUNTADE, J.C.A.

O

n 27-9-99, this court upon a motion by Telephone Cables Ltd., now respondent made orders in the following words:-

“C. Court orders as prayed. Leave is granted to the applicant to appeal as an interested party against the judgment of Jinadu J. in suit No.FHC/L/CS/1044/95 delivered on 21st April, 1998.

2. Time to appeal against the said judgment is extended till today 27th September, 1991 and the Notice of Appeal dated 3rd August, 1998 marked Exhibit (FC01) is deemed properly filed.
3. Appeal is to be heard on the bundle of documents annexed and marked Exhibit FC02 and such other documents as the respondents may wish to file within 21 days from today.
4. The execution of the terms of the judgment of Jinadu J. in suit NO.FHC/L/CS/1044/95 delivered on 21st April, 1998 is unconditionally stayed pending the determination of the appeal.”

Before we allowed Mr. Chike Ofodile SAN to move the application in respect of which we gave the above orders, we had satisfied ourselves that both parties to the application were in court on 25-6-99 when the matter last came up. In reaction to the orders made above, the plaintiff has now brought this application praying for the following orders:

“1. An order setting aside the order of this Honourable Court made on 27-9-99 granting the application of the applicant/respondent dated 30th October, 1998 including, to wit, Staying the execution of the judgment of Jinadu J. in suit No. FHC/L/CS/1044/95 delivered on 21st April, 1995.

2. (a) An order granting rehearing of the whole of the said application/respondent’s application; or

(b) An order granting the plaintiff/applicant leave to be heard on the application before ruling can be delivered on it.

ALTERNATIVELY:

3. An order enlarging time within which the plaintiff/applicant may file his reply to the Notice of Appeal filed by the applicant/respondent.

And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.

And take further notice that the grounds upon which this application is brought are:

i) That the order sought to be set aside was made in the absence of the plaintiff/respondent.

ii) The said order, particularly as it affects the judgment of Jinadu J. is null and void and of no affect as the said judgment is a declaratory one and cannot be stayed.”

A 21 paragraph affidavit to which were annexed several documentary exhibits was filed in support of the application. The respondent i.e. Telephone Cables Ltd. filed a counter-affidavit on 23-11-99; and the applicant filed a reply to the said counter-affidavit on 1-12-99. We heard arguments for and against the application on 18-4-2000.

In paragraphs 4 to 14 of the affidavit in support of the application, it was deposed thus: