Cedar Stationery Products Ltd. V. International Bank for West Africa Ltd. (2000)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

The judgment or ruling being sought to be cross-appealed by the respondent was delivered on 21st of August, 1990. The record of appeal was received in this court as the number of appeal suggests as far back as 1991. The appellant’s brief of argument which was filed out of time on 19/12/95 was deemed as properly filed and served on 30th January, 1997.

The applicant has made two unsuccessful attempts to cross-appeal the last of which was dated 26th June, 1998 and filed on 29th June, 1998. It was struck out like the previous one. In the present application, the applicant is seeking for the following reliefs:-

“(i) Leave of the court to raise a fresh issue on this appeal.

(ii) Leave of enlargement of time within which the applicant may file and serve a respondent s notice of cross-appeal against the judgment of the Federal High Court Kano in suit No. FHC/K/M5/85 dated the 21st August, 1990.

(iii) An order deeming as duly filed and served the respondent’s notice of cross-appeal exhibited to this application.

(iv) An order enlarging the time within which the applicant may file and serve the respondent’s brief of argument in this appeal”.

The applicant abandoned prayer three thereof seeking the deeming of the notice of cross-appeal to be properly filed and served.

I wish to observe that prayers 2 and 3 are clumsy or inelegantly drawn up. In one breath, prayer 2 is seeking for leave and in another it is asking for an enlargement of time to appeal. It equally created doubt as to the intention of the applicant. It is not clear whether he is asking for leave to file a respondent’s notice or he is praying for enlargement of time to cross-appeal.

The application is supported by affidavit, a further affidavit and a further and better affidavit. There is no counter-affidavit nevertheless the application was strenuously opposed by Miss O. O. Bello of counsel.

In moving the application, the learned counsel for applicant, Mr. Offiong, postulated that in considering prayer (ii) there are two requirements to be met by a prospective appellant and the two conditions are embodied in Order 3 rule 4(2) of the Court of Appeal Rules, namely good and substantial reason why the appeal was not brought within the prescribed time as well as grounds of appeal showing good cause why the appeal must be heard. He referred to paragraphs 7-14 and 16-18 as showing the reason why they did not appeal within time.

Learned counsel contended that the competence of the trial court is challenged by the grounds of appeal. He argued further that where the jurisdiction of the trial court is being put in issue or contested on the authority of In Re-Famart Produce and Shipping Line v. E De Comm (1971) NSCC 246 and Victor Ugwu v. Chief Mark Bunge (1997) 8 NWLR (Pt. 518) 527, 541 the relief must be granted.

On prayer 1, he contended that grounds (i) and (ii) of the proposed notice of appeal are grounds of law in respect of which no fresh evidence would be required: P.D.C. Okenwa v. Military Governor of Imo State & Others (1996) 6 NWLR (Pt.455) 394, 407.

Learned counsel in respect of prayer (iv) that is application for extension of time for filing respondent’s brief of argument he informed the court that the reason is contained in paragraph 14 of the affidavit in support. He then urges the court to grant the application.