Dominic Nwani V. Joseph A. Bakari & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.C.A.

The applicant along with the 2nd respondent herein were sued by the 1st respondent herein, claiming a parcel of land situate and lying at Donga Close in Upper Luggere Ward of Jimeta town in the Yola Local Government Area of Adamawa State. The action was instituted at the Yola High Court of Justice in suit No. ADSY/36/92 presided over by B.S. Bansi, C. J., who delivered his judgment on the 16th day of September, 1999. The judgment was in favour of the 1st respondent. By this notice of motion, the applicant is praying for the following reliefs: –

1. Enlargement of time within which to appeal against the judgment delivered on the 16th day of September, 1999 in suit No. ADSY/36/92,
2. Leave to file notice and grounds of appeal against the judgment aforesaid out of time; and
3. Order granting a departure from the rules of the court by permitting the use of the record of appeal compiled and transmitted by the Yola High Court to this court in respect of appeal No. CA/247/2001 for the purpose of arguing this appeal.

The motion is supported by a 21-point affidavit deposed to by the applicant herein. The relevant depositions are contained in paragraphs 2 to 15 and also paragraph 18 of the affidavit and they read thus:

2. That I was the 1st defendant in suit No. ADSY/36/92 instituted by the then plaintiff who is now the 1st respondent at Yola High Court No.1, Yola.
3. That after full hearing of the case at the trial court, the presiding Judge, the Hon. Chief Judge of Adamawa State gave judgment for the plaintiff/respondent on 16th September, 1999. Copy of the judgment is annexed as exhibit 1.
4. That I was dissatisfied with the judgment and took out an appeal to the Court of Appeal. Copy of the notice of appeal filed and the receipt of payment are annexed as exhibit 2(A) & 2(B) respectively.
5. That brief of argument were filed at the Court of Appeal and 1st respondent herein took a preliminary objection to my appeal in his brief of argument which objection was unheld (sic) and my appeal was struck out on 9/12/2004 by the Court of Appeal. The certified copy of the judgment is herein annexed as exhibit 3.
6. That the period between my appeal and when same was struck out was five years.
7. That the reasons for striking out my appeal were that there was no evidence of payment for the notice of appeal and the name of the legal practitioner who signed the notice of appeal was not stated in the notice of appeal in addition to the fact that the notice of appeal was defective.
8. That my previous appeal that was struck out was prepared and filed by my counsel and the defect herein were not attributable to me but were due to mistake and inadvertence of my counsel
9. That I was not present in court when my previous appeal was struck out on 9/12/2004 and my counsel informed me of the outcome on 9/1/2005 after which I gave instructions to him to seek the leave of court to file the appeal out of time.
10. That my previous appeal was struck out and I am desirous of having my appeal determined on the merits.
11. That I was all along under the mistaken impression that I had a valid appeal until same was struck out on 9/12/2004.
12. That my counsel has now prepared my proposed notice of appeal and grounds of appeal and same is herein annexed as exhibit 4.
13. That my reasons for not filing my appeal before now was that I was under the erroneous belief that my previous appeal filed by the counsel was valid.
14. That by the time the defective appeal was struck out I was already out of time by a period of over 5 years.
15. That I am prepared to expeditiously prosecute this appeal as the record of proceedings has already been compiled and used in the previous appeal.
16. That there is need to seek leave of court to extend time to file the proposed notice and grounds of appeal and leave to file the appeal.

These depositions relate to the application for enlargement of time within which to appeal and for leave to file the appeal out of time.

The averments in paragraph 19 relate to the prayer for departure from the rules by permitting the applicant to use the record of appeal transmitted by the Yola High Court in respect of appeal No. CA/J/247/2001 for the purpose of arguing this appeal.

Six exhibits are annexed to the motion paper. These are-

(1) the judgment of the Yola High Court – (2) the notice and grounds of appeal dated the 8th day of October, 1999 – (3) receipt No.001755790 issued on 17-10-99 being payment for notice of appeal.

It was issued in the name of the applicant – (4) judgment of the Court of Appeal in appeal No. CA/J/24 7/2001 delivered on Thursday, the 9th day of December, 2004 – (5) proposed notice of appeal – and (6) record of proceedings before the Yola High Court in suit No.ADSY/36/92 between Joseph A. Bakari as plaintiff and Dominic Nwani as defendant respectively. The record includes some documents tendered before that court as exhibits.

The 1st respondent deposed to a 10-paragraph counter-affidavit in opposing the application. Paragraphs 3 to 8 of this counter-affidavit are hereunder reproduced: –

3. That I know as of fact that the receipt evidencing payment of a notice of appeal attached to the applicant’s affidavit in support with No. 001755790 did not relate to the purported notice of appeal between applicant and myself.
4. That it is now five (5) years seven (7) months since the judgment in the suit between myself and the applicant was decided and he did not file an appeal.
5. That the purported notice and grounds of appeal dated the 8th of October, 1999 which was struck out by the Hon. Court was filed with the knowledge of the applicant.
6. That the applicant sponsored all the filings of documents and trips made to and fro Jos in the course of prosecution the appeal whose notice and appeal was struck out by the Honourable Court.
7. That I am no longer the owner of the land in dispute, as I donated same to the Catholic Diocese of Yola soon after the striking out of the appeal in December 2004, and the applicant is aware.
8. That I have been informed by my counsel – Innocent Daa’gba, Esq. in his Chambers on the 10th day of April, 2005 at about, 5:00pm, and I verily believe him to be true as follows: –

(a) That the grounds of appeal as proposed in his application are almost the same with the ones earlier struck out by the Honourable Court. That the concurrent judgment of Ogbuagu, JCA (as he then was) dismissed the appeal under consideration.

(c) That this application is defective.

When the application came up on the 9th day of May, 2006, one Innocent Daa’ gba, Esq. appeared for the 1st respondent while the 2nd respondent was not represented and the matter was adjourned to the 25th day of September, 2006 for hearing with the order that hearing notice be served on the 2nd respondent. When the case was called for hearing on the 25th day of September, 2006, both the 1st and 2nd respondents were absent and not represented. There is, however, a proof of service on the 2nd respondent on the 16th day of May, 2006 against the 25th day of September, 2006. We proceeded to hear the application.

Arguing the motion, Eyitayo Jegede, Esq., learned counsel for the applicant, submitted that the proposed appeal is against the final decision of the Yola High Court, sitting as a court of first instance.

He relied on Order 3, rule 4(2) and Order 7, rule 2 of the Court of Appeal Rules. He submitted that the reasons for the delay have been explained in the depositions in the supporting affidavit, citing paragraphs 5, 6, 7, 8, 9,12,13 and 14 thereof. He informed the court that an earlier appeal in appeal No. CA/J/247/2001 was struck out as being incompetent. He then submitted that the present application is meant to correct the error committed by counsel in the earlier appeal so that the appeal may be heard on the merits. He submitted further that the grounds of appeal being proposed are arguable and that they show good cause why the appeal should be heard.