Chemical & Wire Manufacturing Ltd V. Ibachem (Ibafon Chemicals) Ltd (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A. (Delivered the Leading Judgment)

This is an appeal against the judgment of the Lagos State High Court in suit No.ID/1514/2000 delivered on the 5th June, 2000 coram Adeniji, J.

The facts culminating in this appeal can be briefly summarized as follows: By a writ of summons and statement of claim dated 19th May, 2000 and 22nd May, 2000 respectively, the respondent claimed against the defendant now appellant, the sum of N1,010,000.00 being outstanding amount payable to the respondent for the supply of 23 metric tonnes of HL Polyol (chemical). The respondent further claimed interest on the said sum at the rate of 18% per annum from 25th June, 1998 until judgment and thereafter 6% per annum until final liquidation of the judgment sum. The respondent filed along with the originating processes a motion ex parte for injunction and substituted service and another motion on notice for injunction. On 30th May, 2000 the respondent filed a motion on notice for final judgment against the appellant.

On 5th June, 2000 judgment was entered against the appellant in the sum of N1,010,000.00 with interest at the rate of 18% per annum from 25th June, 1998 until judgment and thereafter at the rate of 7? % per annum until full payment. On 27th November, 2000 the respective counsel representing the two parties moved the lower court to enter a terms of settlement dated 20th November 2000. The appellant pursuant to the aforesaid terms of settlement paid the respondent through some cheques the sum of Seven Hundred Thousand Naira out of the One Million and Ten Thousand Naira claimed.

The appellant after the aforesaid steps, had a change of mind and felt disenchanted with the whole arrangement. In order to ventilate his dissatisfaction to the happenings he decided to appeal, hence applied to this court for extension of time to appeal which was granted on 19th November, 2002. Thereafter the appellant filed his notice of appeal in this court with grounds of appeal questioning the regularity of the court processes and the validity of their service. In line with the Rules of Court, briefs of argument were filed and exchanged and subsequently adopted on the date the appeal was heard.

In the course of writing the judgment, it was discovered from page 1 of the respondent’s brief that the notice of appeal in respect of this appeal dated 15th February, 2002 was filed in the registry of this court. This discovery prompted the court to invite parties to address it on the competence of the notice of appeal filed in this court in view of the provisions of order 6 Rule 2 (1) of the Court of Appeal Rules 2007, which provides thus:

“2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of…

On the date fixed for the further address, Mr. G. O. Anizoba appeared for the appellant and admitted that the notice of appeal was not filed in the lower court but in the registry of this court. Learned counsel stated that he could not file the notice of appeal in the lower court because the time for filing an appeal had lapsed, hence had to file an application for extension of time to appeal on 8th November, 2002. Learned counsel further stated that the extension of time to appeal was granted on 10th November, 2002 and he filed the notice of appeal in this court and subsequently compiled and transmitted record by order of court on 7th February, 2006. Learned counsel submitted that the appeal was filed in line with the Court of Appeal Rule 2002.

Learned counsel restated that the notice of appeal was filed in this court because time within which to appeal had lapsed and therefore urged the court to accept the notice of appeal as properly filed before this court.

In response, Miss. Chinwe Oguchi for the respondent, submitted that the notice of appeal is incompetent and defective for being filed in the registry of this court instead of the lower court as provided in Order 6 Rule 2 (1) of Court of Appeal Rules, 2007. Learned counsel argued that though the appeal was filed pursuant to an extension of time granted, the notice of appeal ought to have been filed in the registry of the lower court. Learned counsel therefore urged the court to hold that the notice of appeal is incompetent and same be struck out. Mr. Anizoba stated that he had nothing more to add by way of reply on points of law.

It is not in dispute that the notice of appeal originating this appeal dated 15th February 2002, was filed in the registry of this court. The issue now to be resolved is whether the said notice of appeal is competent. The relevant Rules of Court that call for consideration in resolving this issue are Order 6 Rule 2(1), Order 7 Rules 10 and 11 of both the 2007 and 2011 Court of Appeal Rules. For the purposes of clarity even at the expense of repetition, order 6 Rule 2 (1) is hereby reproduced thus:

“2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below as complained of order 1 Rule 5 of the same Rules defined “court below” as follows:

“court below” or “lower court” means any court or tribunal from which appeal is brought”.

The earlier cited Order 6 Rule 2 (1) of the 2007 and 2011 Rules of Court are in pari materia with Order 3 Rule 2 (1) of the 2002 Rules. In Korede v. Adedokun (2001) 7 NSCQR 327 at 324 D-G. Ejiwunmi JSC (of blessed memory) while interpreting order 3 Rule 2 (1) of the 2002 Rules had this to say: