Dominic Ede & Anor V. Nwagbara Nwodo Mba & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

I.T. MUHAMMAD, J.S.C.

By a Motion on Notice dated and filed on the 3rd day of March, 2010, the applicants herein, asked for the following reliefs:

1) AN ORDER setting aside the Ruling of this Court delivered on the 4th day of April, 1996.

2) AN ORDER of this Court directing this appeal to be re-entered for hearing on the merits.

3) AND for such further Order or Orders as the Court may deem fit to make in the circumstances.

Chief (Mrs) Offiah, SAN moved the Motion on Notice. She stated that the application was brought pursuant to section 22 of the Supreme Court Act, Order 8 R16, and Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. The application is supported by two sets of affidavits: [i] sworn to by one Mr. Godwin Onovo who averred that he is a member of Umunwezete family of Obeagu Ugbawka on whose behalf and authority this action was instituted in a representative capacity. It contains 73 paragraphs and some exhibits attached; [ii] an affidavit in support of the Motion on Notice sworn to by Mrs. A. J, Offiah, SAN, who is the leading counsel for the applicants. This affidavit is of 49 paragraphs with some exhibits attached. In reaction to the counter affidavit and Notice of Preliminary Objection filed by the respondents, the learned SAN filed two further affidavits; a reply to the respondents’ Notice of Preliminary Objection and a brief of argument in support of the Motion on Notice. She placed reliance on the averments contained in all the affidavits. She adopted and relied on the brief of argument in support of the application.

In her brief of argument in support of the application and her oral adumbration thereof, the learned SAN for the applicants submitted vigorously that as at the time when this Court delivered its ruling, dismissing the appeal, brief of arguments for the appellant had in fact been filed and payment of fees for late filing had been made. In their words, the applicants had done all that the law mandated them to do in the circumstances. It was an omission or error on the part of the Registry not to have the briefs in the files of the Justices at the time the ruling was delivered in chambers, dismissing the applicants appeal for non-filing of the brief. Learned SAN made reference to Order 8 Rule 16 of the Supreme Court Rules as amended in 1999. She submitted further that this Court has been given a lee-way to review its judgment or Order. She referred to the averments in paragraphs 23 -25, 40, 52, 52a – m, 54 – 55, 56, 57 and 58 of the affidavit in support by the applicants’ Motion on Notice as well as exhibits 5, 6 and 7. Learned SAN cited in support the cases of Duke v. Akpabuyo Local Govt. (2006) All FWLR (Pt.294) 559 at 576; Olowu v. Abolore (1993) 5 NWLR (Pt.293) at 255.

On the apparent delay why the applicants did not bring this application since 1996 until now, the learned SAN submitted that the applicants have copiously stated facts in their affidavit especially in paragraphs 17 – 20, 29 – 37 and 57 – 61, stating the reason for the apparent delay supported by documentary evidence as required by law. She referred to the case of Long Jack v. Dolcila (1998) 6 NWLR (Pt.555) 524.

On whether the respondents will be prejudiced by granting the reliefs sought the learned SAN argued that on a scale of convenience, the respondents will not suffer any prejudice or hardship looking at the antecedent of the suit which has been on since 1978. If the application is granted, the prosecution of the appeal will in no way lead to a depreciation of the land or alter the nature of the land and the respondents have nothing to lose. Learned SAN for the applicants submitted that they have arguable grounds of appeal and viable issues to be determined in the appeal if it is relisted and heard on its merit. Learned SAN urged this court to grant this application and re-list the appeal in order to allow for substantial justice.

Mr. Onoja, SAN, in opposing the Motion stated that he filed two sets of counter affidavits. He also filed a brief of argument in which he set out a preliminary objection that the application is incompetent in law and an abuse of Court process. He placed reliance on the averments contained in the counter-affidavits and adopts his brief of argument.

It is pertinent to start with the Preliminary Objection. This Objection is set out on page 2 of the respondent’s brief which supports their counter-affidavits. In a summarized manner, the grounds of objection are as follows;

a) Applicants motion filed on 3/3/10 is incompetent in law and an abuse of Court process.

b) The ruling/order of this Court on 4/4/96 is a final judgment which cannot be set aside.

c) The jurisdiction of this Court is statutory. The 1999 Constitution of the Federal Republic of Nigeria and the Rules of this Court have no provisions for an application of this nature. Section 22 of the Supreme Court Act does not apply to a mere application to set aside or re-list an appeal.