Chief Benjamin O. Okumagba & Ors. V. Chief Felix Esisi & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

In

he motion dated and filed on 10/10/2003, the honourable Attorney-General of Delta State is praying for the following reliefs namely:-
1. Extension of time to seek leave to appeal, against the interlocutory ruling of the High Court, Warri, in suit No.M/51/92, delivered on the 19th day of May, 1992.

2. Leave to appeal against the interlocutory ruling of the High Court, delivered on the 19th day of May, 1992.

3. Extension of time within which to appeal against the interlocutory ruling of the High Court, delivered on the 19th day of May, 1992.

4. An order deeming as properly filed and served ground 3 of the notice of appeal, which is a ground of appeal against the ruling of the High Court delivered on the 19th day of May, 1992.

5. An order deeming as filed and served the 7th and 8th defendants/appellants brief of argument deemed filed on 13th day of October, 1998, already containing the arguments arising from the appeal against the interlocutory ruling of 19th May, 1992.

The grounds for the application are:-
1. The ruling of 19th May, 1992, complained of is an interlocutory ruling raising substantial issues of law.

2. The ground 3 of the notice of appeal dated 4th December, 1992, raises substantial and arguable issues of substantive law and procedure.

3. By virtue of the rules of court, it is necessary to obtain leave of court to appeal against an interlocutory ruling even if the complaint is contained in the final judgment.

Professor A. A. Utuama, the learned Attorney-General of Delta State in moving the motion, relied on paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the affidavit, in support and exhibits ‘A’, ‘B’ and ‘C’, which were attached to the affidavit in support. He wants to regularize ground 3 of the grounds of appeal contained in exhibit ‘B’ over which the plaintiffs/ respondents had earlier filed a preliminary objection, challenging the said ground as being incompetent. He argued that the preliminary objection did not foreclose the 7th – 8th appellants/applicants from taking steps to correct the error and cited the case of Francis Shanu & Anor. v. Afribank Nigeria Plc. (2000) FWLR (Pt.23) 1221; (2000) 13 NWLR (Pt.684) 392 in support.

He contended that the current trend is to do substantial justice by determining an appeal on the merit, rather than defeat the course of justice by mere technicalities and placed reliance on Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 676; Central Bank of Nigeria v. Ahmed (2001) 6 NSCQR 859; (2001) 11 NWLR (Pt.724) 369, where it was decided that the inadvertence of counsel should not be visited on the client. He therefore, urged the court to grant the application.
Chief Otomiewo, learned Counsel for the 1st-6th appellants associated himself with the submissions of the learned Attorney-General and argued that the granting of the application will not occasion any miscarriage of justice, but may cause only a delay in the hearing of the appeal and this type of inconvenience can be adequately compensated by costs. He relied on the case of Evbuomwan v. Elema (1994) 6 NWLR (Pt.353) 638, in support of his argument.

Mr. Oritsejafor, learned Counsel for the plaintiffs/respondents opposed the application and he filed a counter-affidavit on 15/10/2003 in opposition on which he relied. He argued that the affidavit in support of the application has not disclosed good and substantial reasons why the applicant failed to appeal within the 14 days period allowed by the rules. His contention is that there is an inordinate delay of over 11 years in bringing the application. He picked holes in the affidavit in support. He submitted that the inadvertence of counsel is not a universal talisman, the waiver of which will act as a panacea to cure all the defects in the application and that if a counsel takes a deliberate decision and losses thereby, then it is his privilege to lose.

The following cases were cited to buttress the argument: Ukwu v. Bunge (1991) 3 NWLR (Pt.182) 677; Ojora v. Bakare (1976) 1 SC 47, (1976) 10 NSCC 16. He harped on the delay in bringing the application and that it is a factor to be considered in an application for extension of time and that where the delay is so inordinate the application will not merit any sympathetic consideration. He went further to submit that the Court of Appeal refrains from deeming 8 grounds to be filed retrospectively. On this submission he cited the case of Co-operative Bank v. Ogwuru (1991) 1 NWLR (Pt. 168) 458 at 467. He therefore, urged this court to dismiss the application.