Welko Industrile Spa Milan V. J. I. Nwanyanwu and Sons Ent. (Nig.) Ltd. (2000)

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GALADIMA,  J.C.A. 

On 30/3/98 respondent/appellant filed motion on notice for preliminary objection and pray for an order dismissing and/or striking out the appellant’s notice of appeal dated 4/3/96 filed by the law firm of Messrs Akinrele & Co., purportedly acting as counsel for the defendant/appellant as it constitutes an abuse of the process of the court.

The grounds of objection were stated as follows:-

“(a) The plaintiff/respondent/applicant is served with two notices of appeals dated 4/3/96 and 23/5/96 filed by the law firms of Messrs Akinrele & Co. and Messrs S.I.O. Okpuno & Co., respectively on behalf of the defendant/appellant.

(b) The law firm of Messrs Akinrele & Co. is not properly before the Honourable Court as the issue of representation of both counsels for the defendant for the purpose of appeal that arose during proceedings at the court below had not yet been determined by the lower court.

(c) The preliminary objection dated 14/6/96 filed by the law firm of Messrs Akinrele & Co. to determine the issue of representation of counsel for the defendant/appellant is still pending before the court below and has not been struck out/dismissed.

(d) The law firm of Messrs S.I.O. Okpuno & Co., has not only filed a notice of appeal as aforesaid but has also filed a motion for stay of execution dated 23rd day of May, 1996.

(e) None of the said applications filed by the respective counsel and pending before the lower court has been heard or struck out by the Honourable Court nor withdrawn by any of the respective legal firms.

On the 18th day of October, 1999 upon reading the above motion and the affidavit and having heard A. Akinrele S.A.N., counsel for the appellant in the absence of the respondent and its counsel, this court struck out the above application and adjourned the appeal to 10/1/2000 for hearing.

On 1/12/99 the respondent/applicant filed a motion on notice, subject of this ruling praying for the following orders:

“(1) Enlarging the time within which to apply for leave to file an application setting aside an order made in the absence of the applicant.

(2) Leave to file the application out of time; and

(3) Extension of time setting aside the order of the honourable court made on 18/10/99.

The grounds for which this application was brought are as follows: