Ben Anachebe Esq V. Kingsley Ijeoma & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

By a Writ of Summons filed on 15th June, 2000 and issued on 18th July, 2000, the appellant, a private Legal Practitioner initially sued all the three Respondents jointly and severally for a liquidated sum of money in settlement of his professional fees and agreed commission for services duly rendered at the instance of the appellant/respondent for the benefit of all the Respondents. It was specifically pleaded in the statement of claim that the 1st Respondent (now before us as the only respondent to be so designated) had withheld the said fees/commission.

It is the appellant’s contention that the writ of summons and statement of claim were duly served on the Respondents in July 2000 and that for over 18 months thereafter, the latter failed or refused to file their joint or several defence, though they and their counsel occasionally attended or appeared in court. In further contention, the appellant alleged that he subsequently filed a motion for judgment in default of pleadings which same was served on the respondents who were duly represented in court by their staff on 9th April, 2002, the day the said motion was moved and judgment entered without objection; that the respondent did not appeal against the judgment for over two years and only woke up from his slumber in March 2004 and filed an application at the lower court praying for leave to appeal and extension of time within which to appeal.

On the side of the respondents it was argued that the 1st respondent only knew of the default judgment when the bailiffs of the court came to execute same; that this was because his former counsel had wrongly made him to believe that the matter was under control. Consequently he therefore engaged services of a new counsel to remedy the situation by filing two motions on his behalf.

In a ruling delivered on 13th September, 2004, the Court of Appeal granted the application sought and made an order that the notice and grounds of appeal be filed within 7 days.

The appellant was dissatisfied with the ruling and hence has appealed on four grounds to this court inclusive of the additional ground for which leave was sought and obtained.

In accordance with the rules of court, both parties filed their respective briefs of arguments. The appellant’s amended brief and cross respondents’ brief were prepared by A. Ben Anachebe, SAN and C.A.N. Nwokeukwu, Esq. and both were filed on 14th February, 2009 and 28th November, 2013 respectively. The respondents, brief and also the cross appellants’ brief were both filed on 14th June, 2010 and deemed properly filed on 27th September, 2010.

By an order of court sought and obtained on the 28th November, 2013, the appellant discontinued against the 2nd and 3rd respondents through a motion filed on 20th January, 2013. The names of the said respondents were struck out accordingly and the only subsisting respondent is in the person of Kingsley Ijeoma now before us.

On 31st March, 2014 at the hearing of the appeal, both counsel adopted and relied on their respective briefs of arguments. On the one hand, the learned appellant’s counsel urged that the cross appeal be dismissed and the appeal be allowed; on the other hand however, Mr. Uduzor, Esq on behalf of the respondent applied to abandon the notice of preliminary objection filed on 14th June, 2014 and same is hereby struck out. The counsel proceeded to adopt the respondent’s briefs and urged that the appeal be dismissed while the cross appeal should be allowed. It is the counsel’s further submission that the cross respondent’s brief should be discountenanced as it is not an answer to the cross appellant’s brief.

The two issues formulated by the appellant are:-

(i) Whether the Court of Appeal exercised its discretion judicially and judiciously to grant Extension of Time within which to appeal etc, in the absence of cognizable reason for the delay/failure to appeal within the prescribed statutory period and thereafter until his application.

(ii) Whether the Respondent’s appeal in the lower court is competent and maintainable in the absence of the mandatory tripartite prayers for leave to appeal, etc required to involve (sic) the court’s appellate jurisdiction.

The respondent’s issues are a replication of those of the appellant’s; reproduction of same will only be a repetition. I will adopt the formulation by the appellant and take them serially for the determination of this appeal.

The 1st issue questions the exercise of discretion by the lower court. In otherwords, whether the court acted judicially and judiciously when it granted the extension of time within which to appeal It is the contention of the appellant’s counsel that the application of this nature entails exercise of discretion, which is either a matter of law, as in the instant case, or mixed law and fact. Counsel cites the decision of this court in Metal Construction (W.A) Ltd. V. Mighore (1990) l NWLR (Pt.126) P.299; also the case of N.S.C.C. V. E.S,V. (1990) 7 NWLR (Pt.164) P.526; that the discretion vested in the court is required to be exercised judicially and judiciously. Such exercise, counsel submits must entail the application of legal principles to relevant facts/materials in order to arrive at a just and equitable decision, otherwise this court would rightfully interfere. Several authorities by this court in support of the foregoing proposition include Williams V. Hope Rise Voluntary Society 1982 ANLR P.1; Okere V. Nlem (1992) 4 NWIR (Pt.234) P.132; United Bank for Africa V. GMBH & Co. (1989) 3 NWLR (Pt. 110) P.374 also Oyeyemi V. Irewole e Local Govt. (1993) 1 NWLR (Pt.270) P.462.