Dr. Braha Usuk Unyi Etim Okon & Anor V. Field Bird Co-operative Limited & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Ruling)

The applicants filed this motion on 18th day of July, 2012 praying for the following reliefs:

“1. An order for an extension of time within which to seek leave to appeal against the decision contained in the judgment of Honourable Justice Akon B. Ikpeme of the High Court of Cross River State, Calabar delivered on the 24th day of January, 2012 in Suit No. HC/88/2011.

2. An order granting leave to the Applicants herein to appeal against the aforementioned decision.
3. An order for extension of time within which the Applicants may appeal against the aforesaid decision.
4. And for such further order (s) as this Honourable Court may deem fit to make in the circumstances of the case.”

Annexed to the 18 paragraph affidavit of the 1st applicant is the inventory of the properties attached by the lower Court now the subject matter in this appeal (Exhibit “A”). The judgment of the High Court of Justice, Calabar, Cross River State (Exhibit “B”) and the proposed Notice of Appeal (Exhibit “G”) are annexed to the affidavit. The Respondent opposed the application by filling a Notice of Preliminary Objection on 28th November, 2012 followed by a 23 paragraph Counter-affidavit on 4th day of March, 2013. In view of this development the Court ordered Counsel to file written addresses which they did. The written addresses were adopted on 20th day of March, 2013. The facts in support of the application are set out in the 1st applicant’s affidavit as follows:

“1. That I am the 1st Applicant in this application.

2. That by virtue of paragraph 1 above, I am conversant with the facts of this case.
3. That I have the consent of the 2nd Applicant to depose to this affidavit.
4. That the Respondents filed Suit No. HC/88/2011 against the 2nd Applicant and I and got judgment in their favour on the 24th day of January, 2012 without serving us the originating processes and hearing notices.
5. That the Respondents’ refusal and or neglect to serve us the originating processes and hearing notices made us not to be aware of the matter in the trial Court.
6. That even when the trial Court entered judgment in favour of the Respondents they did not bother to inform us so to have opportunity to appeal against it within time.
7. That we became aware of the matter when the bailiffs of the trial Court in company with the Respondents levied execution on my properties in respect of the judgment on the 6th day of July, 2012. The inventory of my property taken is hereby attached and marked as Exhibit “A”.
8. That the 2nd Applicant and I felt terribly embarrassed and on inquiry at the High Court Registrar, Calabar, we discovered that the matter was filed on the 17th day of March, 2011 and judgment delivered on the 24th day of January, 2012. The said Judgment is hereby attached and marked as Exhibit “B”.
9. That all the purported proof of service in respect of the originating process and hearing notices shown to us in the course of our inquiry at the High Court Registrar, Calabar were false and irregular.
10. That the bailiff that claimed to served the originating service and hearing notice on the 2nd Applicant and I personally could not produce anything to show where we signed acknowledging receipt of the processes.
11. That as we were not satisfied with the decision contained in the said judgment we briefed the Law Firm of Fidelis Ibiang & Associates of No.80 Mayne Avenue, Calabar to file an appeal against the decision on our behalf.
12. That Fidelis Ibiang, Esq. of the aforesaid Law Firm informed us in his office at No.80 Mayne Avenue, Calabar on the 8th day of July, 2012 at about 3:30pm and we verily believed him that we were out of time to appeal against the said decision and we needed leave of this Honourable Court to appeal, hence this application.
13. That our proposed Notice and Grounds of Appeal is ready and is hereby attached and marked as Exhibit “C”.
14. That our said proposed Notice and Grounds of Appeal seriously challenged the jurisdiction of the trial Court to entertain the matter.
15. That we are ready and willing to prosecute the appeal to a logical conclusion as the trial Court in the first place lacked jurisdiction to hear and determined the matter.
16. That the Respondents will not be prejudiced if this motion is granted.
17. That it will be in the interest of justice if this motion is granted.
18. That this application is brought in good faith and in accordance with the Oath Act.”

Otaba O. Obeten, Esq., Legal Practitioner of No.80 Mayne Avenue, Calabar, Gross River State deposed to a Counter-affidavit on 13th day of December, 2012 to wit:

“1. That I am a Legal Practitioner in the Law Firm of Fidelis Ibiang & Associates briefed by the Respondents to conduct this matter.

2. That by virtue of the above paragraph I am conversant with the facts of this case and I have the consent of the Applicants to depose to this affidavit.
3. That paragraphs 1 and 2 are not true. The 2nd Applicant is not conversant with the fact and circumstances of this matter.
4. That paragraph 3 is true.
5. That paragraph 4 is not true. The Respondent’s motion on Notice dated 17th day of July, 2012 was properly served on the Applicants through the Law Firm of Iruka Geo Francis & Associates, No. 47 Nelson Mandela Road, Calabar.
6. That the said Law Firm represented the Applicants at the trial Court and also in the execution of the judgment.
7. That paragraph 5 is true only to the extent that judgment in suit No. HC/88/2011 was delivered on the 24th day of January, 2012; execution of the said judgment was carried out on the 6th day of July, 2012. The list of inventory as regards the said execution is hereby attached and marked as Exhibit “A”.
8. That the Respondents’ motion on Notice for leave to appeal dated 17th July, 2012 was filed on the 18th day of July, 2012 when the Law Firm of Iruka Geo Francis & Associates was still handling the execution of the judgment.
9. That paragraphs 7 and 8 are not true. The Applicants were properly served as the motion on Notice was served through the Law Firm of Iruka Geo Francis Associates. The secretary of the Law Firm – Aniefon E. Akpan willingly received the motion on notice and acknowledged receipt of it. The endorsement confirming the aforesaid position is hereby attached and marked as Exhibit “B”.
10. That paragraphs 9 and 13 of the affidavit in support of the Applicants’ motion on Notice shows that Iruka Geoffrey Francis is aware of the Respondents’ motion on Notice dated 17th day of July, 2012 and has equally reacted to it in this his motion on Notice filed on the 28th day of November, 2012.
11. That paragraph 9 is not true. The Respondents’ Motion on Notice dated 17th July, 2012 was property served and I.G. Francis, Esq. has been in possession of the said Motion on Notice.
12. That paragraph 10 is not true. Execution of the judgment u/as done on the 6th day of July, 2012 and it has not been concluded.
13. That paragraphs 11 and 12 are not true. Execution of the judgment has not been concluded as none of the properties especially the vehicle has been sold.
14. That paragraphs 13 and 14 are not true. Paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 are facts and not issues of Law.
15. That I swear to this affidavit conscientiously believing the content to be true and correct and in accordance with the Oaths Act.”

There is the Counter-affidavit of the 2nd Respondent Pastor Bassey Archibong of 4th day of March, 2013. Paragraphs 11-23 of the Counter-affidavit reads as follows.

11. That all the processes in this suit was served to the applicants/appellants through the 1st appellant/applicant by the process server, Mr. Emmanuel Edet Umoh Chief bailiff 1 of the lower Court, Calabar, popularly known as stainless.
12. That the process Mr. Emmanuel Edet Umoh informed me that he served the 1st appellant/applicant with all the processes in the suit, and he deposed to, an affidavit for proof of services and I verily believed him.
13. That Chief Bailiff 1 Mr. Emmanuel Edet Umoh also informed me on the 22nd day of January, 2013 that he also served hearing notice to the appellants through the 1st appellant/applicant and I verily believed him.
14. That the Chief Bailiff (1) Mr. Emmanuel Edet Umoh who served the process in the said suit at the lower court informed me on the 22nd day of January, 2013 and I verily believed him. That he deposed to, an affidavit of service, when he served the 1st appellant/applicant, the said processes and the hearing notice. The said certified proof of services for the processes and the hearing notice is herein exhibited and marked as Exhibit “A” and “B”.
15. That paragraphs 4, 5, 6 and 7 are not true, all the processes in the suit were served to the appellant/applicant through the 1st appellant/applicant by the process server of the court Mr. Emmanuel Edet Umoh.
16. That the 1st appellant is aware of the suit No. HC/88/2011 when the suit was pending in court till judgment, and was served with the judgment order. By the bailiff, Mr. Emmanuel Edet Umoh.
17. That our Counsel I.G. Francis Esq. informed me, after gone through the affidavit, deposed by the 1st appellant/applicant that paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 are not allow in affidavit deposition as affidavit evidence are predicated on facts and I verily believed him.
18. That the contents of Exhibit “C” of the supporting affidavit of the appellant/applicant is not true, the loan agreement entered with the appellant/applicants were duly executed by the appellants/applicants and the defendants/respondents.
19. That the hand written application apply and signed by the 1st appellant/applicant with his passport photograph on it, is herein exhibited and marked as Exhibit “C”.
20. That the contents of the certified judgment of the lower Court annexed by the appellant/applicants is clear to the effect that paragraph 2 of the said judgment confirmed that there was a proof of service served on the appellants/applicants through the 1st appellant/applicant.
21. That our Counsel I.G. Francis, Esq. informed me at his office on the 24th day of July, 2012 as thus:-
22. That the appellants’ depositions are self serving, specious, mischievous aimed at avoiding their obligation to pay off the judgment sum and to deceive this honourable court and I verily believed him.”

The learned trial Judge gave reasons for entering judgment against the applicants as follows:

“This case commenced by way of Motion Ex-parte seeking an order of this court to place the suit under the Undefended List and to mark the writ of summons accordingly. On the 7th June, 2011, this court ordered that the suit be placed under the undefended List and that the writ of summons be accordingly marked. I further ordered that this court’s order, together with all the processes filed be served on the Defendants before the next adjourned date.

On the 12th July, 2011, I.G. Francis, Esq. for the Claimant/Applicant reported that they have effected service of the processes on the Respondents. This court looked into the file and observed that proofs of service on the two Respondents were filed in Court on the 6th July, 2011. The second Respondent by the proof of service was served through the first Respondent. On that 12th July, 2011 this Court gave a long adjournment to enable the Respondent react.”

Order 7 rule 10(1) and (2) of the Court of Appeal Rules, 2011 provides that:

“(1) The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.

(2) Every application for an enlargement of time within 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. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”