Nigeria Institute For Oil Palm Research (Nifor) V. Chief Isaac Udofa Udom (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A (Delivering the Lead Judgment)

The Applicant seeks the following orders:

1. Extension of time within which to seek leave to appeal against the Judgments/Orders of Hon Justice Pius P. Idiong delivered in this suit on the 29th April, 2010 and 13th December, 2010 in the High Court of Justice, Ukananfun Judicial Division, Ukanafun – Akwa Ibom State.
2. Leave to appeal against the judgments/orders delivered in this suit on the 29th April, 2010 and 13th December, 2010 by Hon Justice Pius P. Idiong of the High Court of Justice,Ukananfun Judicial Division,Ukanafun-Akwa Ibom State.
3. Extension of time within which to file an appeal against the said the Judgments/orders delivered in this suit on the 29th April, 2010 and 13th December, 2010 by Honourable Justice Pius P. Idiong of the High Court of Justice, Ukananfun Judicial Division, Ukanafun -Akwa Ibom State.

In support is a 26 paragraph affidavit deposed to by Felix Uwadiae, lawyer and Senior Administrative Officer of the Applicant. Annexed to the affidavit are four exhibits, marked A, B, C; D. Exhibit A is a certified copy of the Ruling of the lower court delivered on 29th April, 2010; Exhibit B is a certified copy of the Ruling of the lower court delivered on 13th December, 2010; Exhibit C is a certified copy of the Judgment delivered on 14th February, 2012; and Exhibit D is a copy of the Applicant’s proposed Notice and Grounds of Appeal.

Upon service, the Respondent filed a counter affidavit of 20 paragraphs, to which is annexed 3 exhibits as follows:

Exhibit CGi, the writ of summons and statement of claim in HUK/40/2009, Exhibit CGii, motion on notice for striking out/dismissal of Respondent’s statement of claim; Exhibit CGiii, a certified copy of the defendant’s statement of defence; Exhibit CGiv, a certified copy of the Ruling of Hon Justice Pius Idiong delivered on 13/12/2010; and, Exhibit CGv, a certified copy of the Judgment of Hon.Justice Ekanem delivered on 14th February, 2012.

Following an order of this Court directing Counsel to file written submissions, G.O. Giwa-Amu, Esq., learned Counsel for the Applicant, filed written submissions on 22/11/2012. Mrs. Comfort Gladstoone for the Respondent filed a Reply on 10/12/12. Respective Counsel adopted their written addresses on 19/3/2013.

In summary, the facts, as deposed by the applicant, reveal as follows: Suit No HUK/40/2009, instituted by the Respondent herein as plaintiff, was before Hon Justice Pius P. Idiong in Ukananfun High Court, Akwo Ibom State. The Applicant herein as defendant had filed a motion on notice seeking Orders to have the entire suit dismissed for being statute barred and incompetent. The motion was refused and dismissed. The Judge ruled that the action was not statute barred and not incompetent. At the end of the pre-trial sessions commenced on 2/12/2010, the learned trial Judge ruled on 13/12/2010, entering:

“Judgment for the Plaintiff for possession of the land in dispute only, while the other claims shall proceed to hearing”.

The matter was thereafter transferred, by the Hon Chief Judge of Akwa Ibom State from Ukananfun High Court to Abok High Court, Akwo Ibom State, upon the application of the Applicant. Hearing in the main suit was concluded by Hon Justice Joseph E. Ekanem; and, Judgment delivered by the Hon Trial Judge on 14/2/2012. The earlier grant of possession to the Respondent was not vacated; but the learned trial Judge concluded that the plaintiff, the Respondent herein, had failed to prove his case and the suit was dismissed. In the supporting affidavit, the Applicant had averred that the appeal against the grant of possession was being filed out of time because they had waited for the conclusion of the matter before filing an appeal.

In the counter affidavit, the Respondent averred that Possession was granted in his favour of the pre-trial conference following the oral application of their Counsel, since the Applicant had admitted in the statement of defence that the land in issue was that of the Respondent; and, that there was no application to set aside the Judgment of 13/12/2010 made to the lower court.

To my mind, the issue that arises for determination is thus:

Whether the Applicant has satisfied the conditions stipulated by the rules of this Honourable Court to enable it exercise its discretion in her favour in the circumstance of this application.

In his written submission, Mr. Giwa-Amu for the Applicant submitted that the Orders of the lower court sought to be appealed against were interlocutory orders made on 29th April, 2010 and 13th December, 2010; while this application is brought after the final Judgment in the case was delivered on 14th February, 2012, which determined the rights of the parties. It is submitted that interlocutory appeals are not encouraged and that after a final judgment has been Pronounced, on aggrieved party may appeal against an interlocutory order; relying on Obiuweubi vs. Central Bank of Nigeria (2011) ALL FWLR (PT 208) at 234: Arojoye vs. UBA (1986) 2 NWLR (PT 20) 101 at 112; Tukur vs. Gongola State (1989) 4 NWLR (PT 117) 517: Onwubuariri vs Igboasoyi (2011) 192 LRCN 1 at 17.

He also submitted that the Grounds of Appeal contained in the Proposed Notice of Appeal are prima facie good and substantial. That Grounds 3 and 4 raise the issue of jurisdiction, which is the threshold of a case, and very fundamental to its adjudication. He submitted that in determining whether an action is statute barred, which is an issue of jurisdiction, it is the statement of claim that is considered. The lower court in holding that the Limitation Law Akwa Ibom State did not apply had relied on facts not at all pleaded by the plaintiff in the Statement of claim, and which ought not to have been considered by the lower court. It is also submitted that jurisdiction can be raised of any stage of the Proceedings, including on appeal; relying on Dangana vs. Hon. Ali Usman (2012 208 LRCN 92 at 128.