Chief (Dr.) Pere Ajuwa & Anor V. The Shell Petroleum Development Company Of Nigeria Limited (2008)

LawGlobal-Hub Lead Judgment Report

OMOLEYE, J.C.A.

This is an application at the instance of the respondents/plaintiffs (hereinafter referred to as the applicants) praying this court for an order, dismissing or striking out the substantive appeal for being a flagrant abuse of court process, incompetent, invalid, null and void. The application is predicated on the following amended grounds:

“(i) The judgment of the lower court (per Okechukwu Okeke, J.) herein appealed against was delivered on February 24, 2006.

The defendant/appellant herein purportedly lodged an appeal against the said judgment vide its notice of appeal endorsed and filed in the registry of the lower court on the same date (i.e. February 24, 2006) at 10:45am.

(iii) The delivery of the judgment of the lower court which commenced at 10.15am lasted about three hours and was not concluded until about 12:30p.m.

(iv) As at 10.45am on 24/2/2006 when the defendant/appellant purported to have filed its notice of appeal there was no judgment of the lower court against which an appeal could have been lodged

(v) The appeal purportedly filed by the defendant/appellant herein constitutes a flagrant abuse of the processes of this Honourable Court and is invalid, incompetent, null and void.

(vi) As there is no valid pending appeal, this Honourable Court lacks the jurisdiction to entertain, hear and determine the said appeal.”

The application is supported by three sets of affidavits of sixteen paragraphs, eight paragraphs and seven paragraphs respectively. The other accompaniments of the application are the judgment of the trial court in suit No. FHC/YNG/CS/3/05 exhibit IJAW 1 delivered by O.J. Okeke, J. on 24/2/06, this is the judgment that is being appealed; the notice of appeal exhibit IJAW 4 containing twelve grounds of appeal, and a publication of the said judgment in THIS DAY newspaper.

The relevant portions of the applicants’ affidavits are:

paragraphs 1-15 of the 1st affidavit which read as follows:

“1. I am the 1st respondent/applicant herein and I am conversant with the facts of this case.

2. I have been duly authorized to depose to this affidavit on behalf of the respondents/applicants, and all facts to which I now depose are within my personal knowledge save where otherwise stated.
3. On Friday, 24 February, 2006, the Federal High Court (Coram; Okechukwu Okeke, J) delivered judgment in suit No. FHC/YNG/CS/3/05 in favour of the respondents/applicants against the defendant/appellant.
4. That same day (i.e. 24/2/06), the defendant/appellant purported to lodge an appeal at the judgment by filling a notice of appeal at the Registry of the Federal High Court, Port Harcourt,
5. On 10/5/07, this Honourable Court delivered a considered ruling in which it granted unconditional stay of execution of the judgment of the lower court as well as leave to the defendant/appellant to amend its notice of appeal and raise fresh issues.
6. Being dissatisfied, the plaintiffs/respondents lodged an appeal against the ruling of the Honourable court to the Supreme Court of Nigeria.
7. By a letter dated July 16,2007, one of our Solicitors, Chief Kingsley Ononuju applied for and obtained certified true copies of all court processes and proceedings in order to compile record of appeal for purposes of the appeal to the Supreme Court as aforesaid. The said letter and the Revenue Collectors’ Receipt evidencing payment of the prescribed fee therefore are the documents referred to as exhibits IJAW 2-3 in the 2nd affidavit in support of this motion.
8. Upon a close examination of the notice of appeal filed by the defendant/appellant, it was discovered the same was presented for filing and was endorsed as having been filed at 10.45am on 24/2/06. A certified true copy of the said notice of appeal is the document referred to as exhibit IJAW – 4 in the 2nd affidavit in support.
9. I was personally present in court when the judgment appealed against was delivered by the Honourable Justice Okechukwu Okeke an 24/2/06.
10. I am aware that the Honourable Justice Okechukwu Okeke who presided over the case and delivered the judgment is the presiding Judge of the Yenagoa Division of the Federal High Court where the case was originally instituted and he is ordinarily resident in Yenagoa, Bayelsa State.
11. Following the directive of the Honourable Chief Judge of the Federal High Court that the matter be heard in Port Harcourt, Rivers State by the Honourable Justice Okeke, he traveled from Yenagoa to Port Harcourt on each date the matter came up in court.
12. I know as a fact that on 24/12/06 when judgment was delivered, the actual delivery of judgment which commenced at about 10.15am lasted about three hours and was not concluded until about 12:30p.m.
13. I also know as a fact that as al 10:45am on 24/2/2006 when the defendant/appellant purported to have filed its notice of appeal, the delivery of the judgment was still ongoing.
14. I am informed by Tayo Oyetibo, SAN of counsel, in his Chambers on Monday 6/8/07 at about 2:30p.m. and I verily believe him that:

(i) As at 10:45am on 24/2/06 when the defendant/appellant filed the notice of appeal there was no judgment of the lower court against which an appeal could have been lodged.

(ii) The appeal purportedly filed by the defendant/appellant at 10.45am on 24/2/2006 when the delivery of the judgment was still ongoing constitutes a flagrant abuse of the processes of this Honourable court, and it is invalid, incompetent, null and void.