Clement Ezenwosu V. Peter Ngonadi (1992)

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B. WALI, J.S.C. 

The appeal is against the Ruling of the Court of Appeal, Enugu in CA/E/IM/89, delivered on 10th October, 1989 in which Oguntade, J.C.A (With whom Kutigi and Katsina-Alu, J.J.C.A. agreed), granted the present respondent leave to appeal to the Supreme Court:

The facts of this case, as set out in the Ruling of Oguntade J.C.A, are as follows-

The respondent/appellant Clement Ezenwosu was the plaintiff in suit No. AA/44/72 in which he claimed against Aaron Ngonadi (now deceased) for a declaration of title and injunction in respect of a parcel of land situate at Umuchu in Aguata Local Government Area of the then Anambra State of Nigeria. At the end of the trial the learned trial judge, Obi Okoye delivered judgment on the 4th March, 1977 in favour of the plaintiff/respondent granting the two reliefs he asked for.

Sequent to the trial court’s judgment, Peter Ngonadi, (the son of Aaron Ngonadi), filed an application in the Court of Appeal Enugu, for leave to appeal as an interested party. The application was contested and in a considered Ruling of that court delivered by Katsina-Alu J.C.A, on 26th May 1989 (with which Macaulay and Oguntade agreed), he refused that application and dismissed it.

Mr. Peter Ngonadi, being not satisfied with the Court of Appeal Ruling of 26th May 1989 filed another application before the same court; though slightly differently constituted, seeking for leave of that court to appeal to the Supreme Court against the order refusing him to leave appeal. In support of that, among other things he filed, he exhibited three proposed grounds of appeal. In granting the prayers in the application, the learned justice concluded –

“The 3rd ground of appeal above clearly raises an issue of law and applicant can appeal thereupon as of right, without seeking the leave of this court. The complaint therein is that we have incorrectly applied the law to facts that are undisputed. This is an error in law. See Section 213 (2) (a) of the 1979 Constitution and Ogbechie v. Onochie (1986) 2 NWLR. (Pt. 23) 484.

I have considered closely the 1st and 2nd grounds of appeal. I think they raise important issues of mixed law and fact. I would therefore grant the applicant leave to appeal on those two grounds only,”

Henceforth both the applicant and the respondent will be referred to as the respondent and the appellant respectively in this judgment. .

The appellant and the respondent filed and exchanged briefs. Both the appellant and the respondent formulated three issues for determination in their respective briefs.

For the appellant the issues are:-

“(a)(i) Was the Ruling of the Court of Appeal delivered on the 26th of May, 1989, in CA/E/IM/89 a final decision or an interlocutory decision

(ii) Did the Practice Direction of the Court of Appeal No.1 of 1989 published as Government Notice No. 356 of 1989 suspend during the annual vacation of the Court of Appeal the running of time within which to apply for leave to appeal to the Supreme Court as provided in Section 31 (2) (a) of the Supreme Court Act, 1960

(iii) Had the Court of Appeal jurisdiction to hear or grant the applicant-respondent’s application for leave to appeal to the Supreme Court against the Ruling of the Court of Appeal dated the 26th day of May, 1989, dismissing the applicant respondent’s application for extension ‘of time within which to appeal against the judgment of the High Court delivered in Suit No.AA/44/72 on the 4th day of March, 1977.