LawGlobal-Hub Lead Judgment Report

WALI, J.S.C. 

In the High Court of Justice, Onitsha Judicial Division the present appellant as plaintiff obtained judgment against the present respondent as defendant for the sum of N56, 410.25 with interest at 5% from the date of judgment. The respondent appealed against the judgment.

Three years thereafter, the present appellant brought an application before the Enugu Division of the Court of Appeal praying for-

“(a) Order for extension of time within which the plaintiff/applicant in the above appeal can file its Notice and Grounds of Cross-Appeal,

(b) regard the notice and grounds of Cross-Appeal, Exhibit B, filed on 21st January 1987 and already served on the defendant/respondent as duly filed and served on the defendant/respondent the necessary fees having been paid;

(c) to amend the name of the plaintiff/cross-appellant bank in the Notice of the Cross-Appeal and other processes filed in this appeal to read Co-operative & Commerce Bank (Nig.) Ltd.” In a two to one judgment, the Court of Appeal (Uwaifo and Oguntade JJ.C.A.). refused the application for extension of time to file the Notice of Cross-appeal and dismissed it.

The present appellant who will henceforth be referred to as the appellant, has now appealed to this court. In compliance with Order 6 rule 2 of the Supreme Court Rules, 1985, the parties filed and exchanged briefs of argument. In the appellant’s brief the following three issues were formulated for consideration and determination by this court-

i. Whether it was proper for the Justices of Court of Appeal at this premature stage in their majority decision to have delved into the merits and demerits of cross appeal in order to ascertain whether the appeal will succeed or fail before determining whether it was just to grant the appellant’s prayer for extension of time within which to file its notice and grounds of cross appeal.

ii. Whether it was right for the learned Justices of the Court of Appeal in their majority decision to have gone to adopt the reasoning of the trial Judge in his judgment with regards to the indemnity contract as it affects the claim for 9% interest without relating it to the proposed grounds of cross-appeal and its particulars therein before declaring that the proposed notice and grounds of cross appeal were not arguable.

iii. Whether it was right for the Justices of the Court of Appeal in their majority decision not to have considered all the reasons averred by the appellant in their affidavit and further affidavit for failing to file their notice and grounds of cross-appeal within time before declaring the reasons insubstantial and exercising their discretion based on the same. Kate Enterprises Limited v. Daewoo (Nig) Ltd (1985)2 NWLR (Pt.5) 116 Woluchem v. Gudi (1981) 5 SC 291 Applied University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143″

In the brief filed by the defendant/respondent who will from now on be referred to as the respondent, six issues were formulated for determination. These are –

“3.01. Whether the appellant has complied with the provision of Order 3 rule 4(2) of the Court of Appeal Rules 1981 which specifically stipulates that: ‘Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed Period, and by grounds of appeal which prima facie show good cause why the appeal should be heard’.

3.02 Whether on the correct interpretation of Order 3 rule 4(2) of the Court of Appeal Rules 1981 the reason given by the appellant at page 10 of the record in paragraphs 8 and 9 in support of the application for failing to appeal as of right within the 3 months statutory period allowed by Order 3 rule 4(2) of the Court of Appeal Rules 1981 constitute good and substantial reasons for the failure to appeal within the prescribed period.

3.03. Whether the Court of Appeal adopted the correct approach when it refused to grant leave to cross-appeal.