Reynolds Ezediaro V. Ghaddar Machinery & Co. Limited (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A (Delivering the Lead Ruling)

The Applicant herein brought a motion on notice pursuant to Order 4 Rule 6, Order 7 Rules 1, 2 & 3 and Order 18 Rule 11 of the Court of Appeal Rules 2011 and under the Inherent Jurisdiction of this Honourable Court. By the said motion filed on 15th April 2011, applicant prayed for the following orders: –

“1. AN ORDER extending time for the Appellant/Applicant to file this application in this Honourable Court after the Lower Court per Adefope J. of the High Court of Lagos State refused a similar application on 28th February 2011.

2. AN ORDER staying execution of the Judgment/Ruling of the High court of Lagos state per Honourable Justice Adefope Okojie delivered on 18th January 2011 in suit No.LD318/2010 pending the hearing and determination of the Appellant/Applicant’s appeal at the court of Appeal, Lagos.

3a. AN ORDER of interlocutory injunction restraining the Respondent from taking any step and/or action against the Appellant/Applicant’s business pending the hearing and – determination of the Appellant/Applicant’s appeal at the court of Appeal, Lagos;

IN THE ALTERNATIVE

3b. AN ORDER extending the time for the Appellant/Applicant to give up possession of the property in dispute till after the hearing and determination of the Appellant/Applicant’s appeal at the court of Appeal, Lagos;

4. AND ORDER granting accelerated hearing of the appeal and abridging the time within which parties are to file their briefs of argument;

AND for such further orders as this Honourable court may deem fit to make in the circumstances of this application.”

The grounds for this application are that: –

1. The Appellant/Applicant had earlier filed an application seeking a sole order of (staying of execution) dated 28th February 2011 within the time prescribed by the Rules of this Honourable Court. However, on 14th April 2011 when the application came up for hearing, counsel to the applicant had to withdraw same owing to the hint that the Rules of the Honourable Court prohibit the grant of such an order;
2. The applicant has gone through the Rules of this Honourable Court and did not see any such provision and is therefore seeking amongst other reliefs, an order of stay of execution;
3. Order 4 Rule 6 of the Rules of this Honourable Court provides that this appellate court has power to make any necessary order for the protection of property or person pending the determination of an appeal, even though no such order was sought at the lower court;
4. The lower court lacked the jurisdiction to deliver the judgment/ruling on 18th January 2011;
5. The Appellant/Applicant’s constitutional right to fair hearing has been grossly infringed as a result of the said judgment/ruling;
6. The Respondent has no interest whatsoever in the subject property in dispute;
7. All the above inter alia constitute special circumstances that warrant the grant of this application in order not to render the decision of the Honourable Court nugatory if in favour of the Applicant;
8. It is in the interest of justice and upholding the rule of law that this application be granted.

The motion is supported by a 13 paragraph affidavit and two Exhibits. A further affidavit was filed on 31/5/11 containing 6 paragraphs and one Exhibit “YB1” certified true copy of the ruling of the lower court.

In opposing the application the Respondent filed notice of preliminary objection on 25/5/11 and a counter affidavit filed also on 25/5/11 containing 15 paragraphs.

When the motion filed on 15/4/11 came up for hearing on 1/6/11 the argument in respect of the preliminary objection and the main motion were taken together. Dr. Braithwaite argued his notice of preliminary objection first. For clarity the Notice of Preliminary objection is reproduced hereunder as follows: –

“TAKE Notice that the Respondent herein named intends at the hearing of the Appellant/Applicant’s motion on notice dated 15th April, 2011 to rely upon the following preliminary objection notice whereof is hereby given to you VIZ:

That the Appellant/Applicant’s motion on notice dated 15th April, 2011 should not be heard and should be dismissed by this Honourable Court.

“AND TAKE NOTICE that the grounds of the said objection are as follows: –