Chidozie Ifekandu & Anor. V. Julius Uzoegwu (2008)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

The applicants by their motion filed on 5-3-07 seek the following reliefs:

“1.Extending the time within which to apply for leave to appeal against the judgment of the Court of Appeal, Enugu Division delivered on 2nd April, 2001 on grounds of mixed law and facts and or facts;

2. Granting leave to appeal against the said decision on mixed law and facts and/or facts alone.
3. Extending the time to file notice of appeal against the said decision on mixed law and facts and/or facts alone.
4. Granting leave to file and argue three additional grounds of appeal on law and mixed law and facts.
5. Extending of the time within which to file the appellants brief in the said appeal.

And for such further and/or other order as to the court may seem fit.”

In paragraphs 3 to 9 of the affidavit in support of the motion, the 1st appellant/applicant deposed thus:

“3.The plaintiff instituted this suit against me alone on 22nd February, 1977, and on 7th October, 1994, the High Court of Anambra State sitting in the Onitsha Judicial Division, dismissed the plaintiffs suit with costs.

4. On appeal by the plaintiff, the Court of Appeal, Enugu Division, set aside the judgment of the High Court and in substitution therefore awarded the plaintiff the reliefs he sought in the suit on 2nd April, 2001.

5.The 2nd defendant and I filed Notice of Appeal dated 8th May 2001 on 11th May, 2001, containing fourteen grounds of appeal, all except the omnibus ground said to be errors in law.

6.The legal practitioner who handled my defence in the High Court and who represented me in the Court of Appeal filed the said Notice and Grounds of Appeal as well as a motion for stay of execution of the said judgment pending the determination of the appeal to this Court.

7. I then briefed A. N. Anyamene Esquire, Senior Advocate of Nigeria to handle the appeal. The record of proceedings for use in the appeal was forwarded to this Court by the Deputy Chief Registrar of the court below under cover of his letter dated 3rd January, 2002.
8. Mr. A. N. Anyamene advises me that though the grounds of appeal were tagged errors in law many of them are in fact grounds of mixed law and fact for which leave must be obtained to appeal on the said grounds.
9. No leave to appeal on grounds of mixed law and fact or fact alone was obtained.”

The judgment of the court below and the proposed Notice of appeal were annexed as exhibits to the application.

The respondent filed a counter-affidavit. Paragraphs 10 to 37 of the counter-affidavit read thus:

“10.That paragraphs 5, 7, 9,10,11,12 and 13 are not correct and untrue, this I verily believe.

11.That the Applicants have not manifested good faith in this matter, this I verily believe.

12. That the Applicants filed the Notice of Appeal long before the Court of Appeal delivered its Judgment in this case.

13.That I believe that the Registrar of the Court of appeal doubted the honesty of the Defendants that he wrote on the process “Time 9.50a.m, on 2/4/2001″.

14.That by that time, the Court of Appeal had not started sitting and had not delivered any judgment to be appealed against.