Danladi Deme & Ors V. Alabi Rwang & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BODE RHODES-VIVOUR, J.C.A (Delivering the Leading Judgment)

In the Motion on Notice Filed on the 22nd day of January 2008 and brought under Or 6 r 2 (1), Or 7 r 6 of the Court of Appeal Rules 2007.

Section 242(1) of the Constitution, Learned Counsel for the applicants seeks the following reliefs:

1. An order enlarging time within which the applicant can seek leave to appeal against the decision of the Plateau State High Court sitting in its appellate jurisdiction in Appeal No. PLD/BL8A/2002
2. An order granting leave to the applicants to appeal against the decision of the Plateau State High Court sitting in its appellate jurisdiction in appeal No. PLD/BL8A/2002 delivered on the 4th June, 2004.
3. An order extending the time within which the applicants can appeal to the Court of Appeal against the decision of the Plateau State High Court in appeal No. PLD/BL8A/2002 delivered on the 4th June, 2004.
4. An order extending the time within which the applicants shall file their Notice and Ground of Appeal against the decision of the Plateau State High Court in appeal No. PLD/BL8A/2002 delivered on the 4th June, 2004.
5. An order granting leave to the applicants to appeal on facts, and mixed law and facts against the decision of the Plateau State High Court in appeal No. PLD/BL8A/2002 delivered on the 4th June, 2004.
6. An order deeming the Notice and Grounds of Appeal already filed as duly filed and served.
7. An order extending time within which the applicants shall file their brief of argument.

The application is supported by a 15 paragraph affidavit and an 8 paragraph further and better affidavit, both deposed to by Danladi Deme, the 1st applicant. Annexed to the affidavit are the following documents:

(a) Judgment in Suit No. PLD/BL 8A/2008/2002 – Exhibit A.

(b) Cash receipt from chambers of Madaki, Nyako and Associates – Exhibit A 1

(c) Notice of Appeal-Exhibit B.

Alabi Rwang, the 1st Respondent deposed to an 8 paragraph counter-affidavit.

On the 14th of January 2009 this Court ordered counsel to filed written addresses and in compliance with this directive Learned Counsel for the applicants Mr. G. G. Achi filed his written address on the 21st of January 2009, while Learned Counsel for the Respondents, Mr. M. A. Ekone filed his written address on the 2nd of February 2009.

On the 31st of March 2010, the date fixed for adoption of addresses Learned Counsel for the applicants adopted his address and urged us to grant the application. Learned Counsel for the respondents adopted his address and urged us to refuse the application.

The facts:

This application arose as a result of the failure of the applicants to file an appeal within time against the decision of the Plateau State High Court which sat in its appellate jurisdiction in Suit No. PLD/BL 8A/2002.

In that Suit the applicants in this application were the respondents while the respondents in the application were appellants.

Judgment was entered in favour of the appellants (now the respondents). Dissatisfied with the judgment the respondents (now applicants) claimed to have instructed their counsel to file an appeal. An appeal not filed within time. That explains why this application was filed. Furthermore an appeal from the decision of a High Court delivered in its appellate jurisdiction requires the leave of the High Court or this Court and non compliance renders the appeal incompetent.