Chief S.O. Maduabuchukwu V. Engr. Boniface O. Maduabuchukwu(2005)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A.

By the application filed on the 26th of January, 2005, the defendant/applicant is praying this Court for an order:

“Extending the time within which to appeal against the ruling of the Abia State High Court, sitting in Umuahia, in Suit No. HU/78/2004, dismissing his motion, praying for an order striking out the plaintiff/respondent’s suit for incompetence by reason of being statute barred.”

The said application was supported by a 13-paragraph affidavit, to which were attached two exhibits viz: (a) copy of the Notice of Appeal and (b) a certified true copy of the ruling of the Court below – marked Exhibits A and B respectively. In opposition to the said application is a 14- paragraph counter-affidavit. When this application came before us on the 6th of June, 2005 for argument, for the reason that many matters among which were substantive appeals, were calling for attention in the Court and with the time available, we could not entertain oral argument of counsel, this Court ordered counsel on both sides to reduce their submissions for and against the grant of the application into writing; and thereafter, adjourned the application to 11th October, 2005 for the adoption of their different written submissions and argument of the said application.

On the 11th October, 2005, when this matter came upon Court, Dr. Ijiomah, learned Counsel for the applicant, in arguing the said application, filed on 26th January, 2005; he referred to, adopted and relied on the applicant’s written submissions filed on the 15th of June, 2005 and the applicant’s reply filed on the 7th of July, 2005 in response to the respondent’s written submission filed on the 27th June, 2005; he further submitted that the grounds contained on the proposed Notice of Appeal are purely grounds of law and as such no leave of Court was needed to appeal against the said ruling. While citing the decision in NELSON ONYEO & ORS. V. REV. CHUN [2005] 29 WRN 125 at 146 – 147 at support of his argument; he urged that the application be granted.

Mr. Amechi, of Counsel for the respondent adopted and relied on his client’s written submission filed on 27th June, 2005 and urged us to dismiss the application.

What led to the filing of written submissions by the parties was the clear manifestation of opposition to the grant of the application on the ground that the appeal arose from an interlocutory ruling and that leave of Court was required by the applicant to file the appeal. Suffice it to say that no leave was sought by the applicant who, through his counsel, had submitted orally in the open Court, that having regard to the proposed grounds of appeal contained in the proposed Notice of Appeal, leave of Court was not required to file the Notice of Appeal. In his written submissions three issues were identified for the determination of this application and as set out, they are in the following terms:

“(1) Having regard to the provisions of Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria 1999, whether the applicant needs leave of Court to file the appeal in this case.

(2) Whether the proposed grounds of appeal attached and marked Exhibit A in the affidavit in support of the motion are arguable.

(3) Whether the applicant has shown good and substantial reasons for failure to appeal within the prescribed period.”

The respondent, in his contention that leave of the Court to appeal is a sine qua non and as such the trinity prayers i.e; (i) order extending the time within which to apply for leave, (ii) leave to appeal and (iii) and an order extending the time to file the Notice of Appeal – must be sought and obtained, formulated two issues for determination and as set out in his written address; they are as follows:

“(1) Whether the application which failed to incorporate the trinity prayers for extension of time to apply for leave, leave to appeal and extension of time to appeal can be said to be competent having regard to the subject ruling and the proposed grounds of appeal exhibited to the application.

(2) Whether having regard to the deposed facts in this application and the proposed grounds of appeal the applicant can be said to have satisfied the two legal conditions for granting an extension of time to appeal.”

After a very careful examination of the issues identified by both parties; it is my view that Issue Nos. 1 and 2 in the applicant’s written submission can be taken together with issue No. 1 in the respondent’s written submission; while Issue No. 3 in the written submission of the applicant will be taken along with issue No.2 in the respondent’s written submission.