African Timber & Plywood Nigeria Limited & Ors V. Chief Warri Ogodo & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A (Delivering the Leading Judgment)

The Respondents/Applicants who were plaintiffs in Suit No. S/67/76 at the then Bendel State High Court of Justice Holden at Sapele had claimed some declaratory reliefs and compensatory damages against the Appellant/Respondent along with two others in respect of a parcel of land situate at A.T & P area in Sapele. The action was hotly contested and at the end, judgment was entered in favour of the respondents/applicants.

The appellant/respondent herein, who was the 1st defendant at the court below, was not being satisfied with the aforesaid judgment, appealed to this court, against it. The other two defendants, that is, Okpe Communal Lands Trustees and the Attorney General & Commissioner for Justice, Delta State respectively, did not appeal against the aforesaid judgment.

On the 22nd September, 2003 and at the instance of the respondents/applicants,the appellant’s notice and grounds of appeal was struck out by this court, “for being incurably defective.”

The appellant, in an application dated 23rd December,2003 sought for leave for an extension of time within which to apply for leave to appeal. The hearing notice dated 21st January, 2004 with respect to the application was served on John Alele & Co.,Solicitors of No.19 Warri/Sapele Road, Warri, Delta State, for the respondents/applicants. This was on 27th April,2004. The appellant/respondent’s application was heard in the absence of the respondents/applicants on 10th May,2004 by this court and granted. Consequently, the appellant/respondent filed a Notice and grounds of appeal at the court below, on 2nd June, 2004.

In this application made pursuant to Order 3, Rules 2(7), 3(1) and 5(1) of the Court of Appeal Rules, 2002; Section 97 & 99 of the Sheriffs and Civil Process Act, Cap. 407 Laws of the Federation of Nigeria, 2004; and under the Inherent Jurisdiction of this Honourable court, the respondents/applicants, prayed for the following order:-

“1.AN ORDER SETTING ASIDE SERVICE of the Hearing Notice dated 21st day of January, 2004 and all process attached, Road, Warri, on the 27th day of April 2004 for the hearing of Motion on Notice for Extension of time for leave to appeal;

2. AN ORDER SETTING ASIDE the order of this Honourable Court dated 10th day of May 2004 made in favour of the Appellant/Respondent extending time for them to apply for leave to appeal against the judgment of the Sapele High Court dated 17th July, 1984; granting leave for them to appeal against the said judgment and file their Notice and Grounds of Appeal within 30 days and to use the Record of Proceeding complied for Appeal No. CA/B/73/2000;
3. AN ORDER STRIKING OUT the Notice and Grounds of Appeal filed in the Court below by the Defendant/Appellant on the 2nd day of June 2004 and all other processes in this appeal; upon the grounds hereinafter stated.

FURTHER TAKE NOTICE that the Plaintiffs/Respondents/Applicants shall at the hearing of this application rely on all processes already filed by the Defendant/Appellant/Respondent herein. AND FOR SUCH FUTHER ORDER or other order(s) as the Honourable Court may deem fit to make in the circumstances. GROUNDS UPON WHICH THE APPLICATION IS BROUGHT

(a) The appeal No. CA/B/250/2003 was not commenced by due process of law.

PARTICULARS

I. The Plaintiffs/Applicants were not invited and did not take part in any meeting to settled records in the court below, and were not served with any Record of Proceedings in Appeal No. CA/B/73/2000 before it was struck out on the 22nd day of September 2003.

II. After Appeal No. CA/B/250/2003 was struck out for being incurably defective on the 22nd day of September 2003, the plaintiff/Applicants were not aware of the proceedings in this appeal until the motion for enlargement of time within which the applicants may file their brief of argument was served on the 2nd Plaintiff/Applicant.

III. Motion for Extension of time for the Defendant/Appellant to apply for leave to appeal was not served personally on the Plaintiffs/Applicants being the party affected.

IV. John Alele & Co. on whom the originating process in this appeal was purportedly served are not the party affected and did not have the authority of the Plaintiffs/Applicants to accept/receive service of the said process(e)s on their behalf.