Easy Street Limited V. Mv Kosmos (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Lead Ruling)

This is a motion filed on 24th of October, 2014 praying for:

a. An Order granting the Applicant herein extension of time within which to seek leave of the Court of Appeal to grounds (sic) of facts and/or mixed law facts;

b. An Order granting leave to the Applicant to argue the said grounds of facts, and/or mixed law and facts in the Appellant’s Brief of Argument;

c. An Order for extension of time within which to file its Appellant’s Brief of Argument

d. An Order deeming the grounds of facts and/or mixed law and facts already argued in the Appellant’s Brief of Argument already filed and served as properly argued and the Appellant’s Brief properly filed and served, and for such order or further orders as this honourable Court may deem fit to make in the circumstances.

The grounds of this application are as follows:

1. The Appellant’s appeal before this honourable Court has been entered, the Records of Appeal having been transmitted from the Federal High Court, Lagos to this Court, and the Appellant has also filed its Appellant’s Brief of Argument incorporating all the grounds and same served on the Respondent albeit out of time.
2. Although some of the grounds are pure grounds of law, some of the other grounds in the Appellant’s Notice of Appeal are on fact and/or mixed law and facts.
3. By virtue of the provision of Section 242 (i) of the 1999 Constitution grounds of facts, and/or mixed law and facts require leave of Court to be first sought and obtained before the institution of the appeal.
4. The time prescribed by the Court of Appeal Act and the Rules within which an application for leave to appeal ought to be filed has elapsed thus, the need to extend the time within which to seek leave to argue the said grounds.
5. The Appellant’s Brief of Argument has now been filed separately and the appropriate penalty fees paid for the said filing.
6. The order of this honourable Court is also required to regularize the Appellant’s Brief of Argument already filed and served before this honourable Court, which contains arguments on the grounds of law and on fact and/or mixed law and facts.
7. The order of this honourable court is required to deem the Appellant’s Brief of Argument already filed out of time and on the issues of fact, and/or mixed law and facts as having been properly argued, filed and served.

In support is a six-paragraph affidavit sworn to by one Bunmi Bukoye. Also attached are three exhibits. Counsel relies on all the paragraphs and exhibits in urging the court to grant his prayers. Counsel submitted that grounds 3, 4, and 5 are of Law and referred the court to Minister of Petroleum Resources (2014) 4 NWLR (Pt.1396) pg.24.

Counsel argues that ground 4 is of pure law and it is enough to ground an appeal even if all the other grounds are of mixed law and fact, see Pharmartec Industry Ltd vs. Ojo (1996) 1 NWLR (Pt.424) pg. 332, Unifam Industry Ltd vs. Oceanic International Bank Ltd (2005) 3 NWLR (Pt.911) pg. 83, BB Construction Ltd vs. Ahmed (1998) 9 NWLR (Pt.566) pg.486, Nwadike vs. Ibekwe (1987) 4 NWLR (Pt.67) pg.718. Counsel finally urged the court to grant his prayers.

In response, Learned Counsel to the Respondent submitted that ground 3 is on discretion of the court on cost. Ground 4 is also of mixed law and facts. Counsel referred the court to Section 241 (2) (c) of the 1999 Constitution and Unifam Industry Ltd vs. Oceanic International Bank Ltd (supra).

This ground is a ground that questions the discretion of the court in which the Appellant was to post the bank guarantee. All these particulars are on the issue of facts.

Counsel submits that grounds 1, 2, and 6 are of mixed law and facts and grounds 3, 4, and 5 cannot support this notice. See Ault & Wibong Nig. Ltd vs. Nibling Ltd (2010) 16 NWLR (Pt.1220) pg.486.

Counsel finally urged the court to hold that the motion is incompetent and that it needs the trinity prayers. See Unifam Industry Ltd vs. Oceanic International Bank Ltd (supra) Oketade vs. Adewunmi (2010) 8 NWLR (Pt.1195) pg.63 at 81, See also Section 241 (2) (c) of the 1999 Constitution which does not stipulate any specie of cost. Any appeal arising from the exercise of any Learned Judge’s discretion regarding the issue of cost in whatsoever manner requires the leave of court.

Counsel urges the court to refuse this application.