Edward Goji V. Joseph Ewete (2006)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

Edward Goji sued Joseph Ewete before the Upper Area Court, Jos on 8/8/90 in suit No. JUAC-CU-04-89 claiming damages for trespass over a piece of land in Laranto, Jos within Jos Metropolis. In the course of the trial, learned counsel for the defendant brought a motion before the said Upper Area Court praying that court to strike out the suit for lack of jurisdiction since the land was held under a statutory right of occupancy. The Upper Area court ruled on the application refusing to strike out the suit. The defendant appealed to the Plateau State High Court against the ruling. The High Court sitting on appeal (Coram Oyetunde J., and Galadima J., (as he then was) affirmed the decision of the Upper Area Court and dismissed the appeal in suit No. PLD/J76A/90. The Upper Area Court then proceeded with the case and entered judgment for the plaintiff. Aggrieved with the decision, the defendant appealed to the High Court (now differently constituted by Uloko CJ and Sankey J.,) in suit No. PLD/J74/94. On 21/1/98 the High Court sitting on appeal allowed the appeal and remitted the suit to the High Court for trial. The plaintiff was dissatisfied with the decision and appealed against it to the Court of Appeal in Appeal No. CA/J/103/99. On 10/7/2001, this Court upheld a preliminary objection raised by the defendant on the competency of the appeal and struck out the appeal. It is an effort to have a competent appeal that the appellant was prompted to bring this motion dated 18/7/2001, but filed on the 19/7/2001 praying this court for the following reliefs:

(i) Extension of time within which to apply for leave to appeal against the judgment of the High Court of Justice, Jos sitting on appeal, delivered on 21/1/98.

(ii) Leave to appeal against the said judgment.

(iii) Leave to appeal against the said judgment on grounds of mixed law and facts.

(iv) Leave to raise and argue fresh issues of law and facts which were not raised before the lower court.

(v) Extension of time within which to appeal against the said judgment.

(vi) Leave to use and adopt the record of appeal in respect of appeal No. CA/J/103/99 which was struck out on 10/7/2001 as the record in this present appeal.

The application is supported with a 10 paragraph affidavit and a further affidavit dated 5/3/02 to which two judgments of the High Court sitting on appeal have been annexed. There is a further affidavit to which the judgment of the Court of Appeal was annexed. Mr. O. B. James, learned counsel for the applicant argued that at the stage of this application this court should not consider the merit or otherwise of the proposed appeal; rather the court should consider the application based on the materials presented before it. He referred to exhibit 2 attached to the counter-affidavit and submitted that no cogent reason has been advanced why the application should not be granted. He said that the order made by Uloko CJ and Sankey J., is appellable because it constitutes a decision, citing sections 242 and 318(1) 1999 Constitution and the case of Mohammed v. Olawunmi (No.2) (1993) 5 SCNJ 94 at 109-110, (1993) 4 NWLR (Pt.288) 384 in support. He therefore urged this court to grant the application.

Mr. Okafor, SAN, representing the respondent opposed the application and he filed a 10 paragraph affidavit dated 23/10/01 in opposition to the motion attaching two exhibits namely motion dated 6/5/99 and the ruling dated 11/1/2000. He contended that by Order 3 rule 4(2) Court of Appeal Rules, 2002, the applicant must satisfy two conditions – the affidavit should show good and substantial reasons why the appeal was not filed within time. He contends that exhibit “B” annexed to the further affidavit dated 5/3/02 namely the proposed ground of appeal is not a good and arguable ground of appeal. He said the High Court should be allowed to determine who has title to the land. The second point for opposing the application is that the applicant has consistently disobeyed the order made on costs as none has been paid. He relied on Shugaba v. U.B.N. Plc (1999) 11NWLR (Pt.627) 459 at 459 and 475 – 476 and urged this Court to dismiss the application.

Mr. James in reply stated that he was not aware that the costs awarded were yet to be paid. That notwithstanding no specific order has been made with regard to payment of costs as was the case in Shugaba v. U.S.N. Plc supra. He nevertheless offered to pay the cost within two weeks.

By virtue of Order 3 rule 4(2) Court of Appeal Rules, an application for extension of time to appeal must be supported by an affidavit setting forth good reasons why the appeal was not brought within the stipulated time and by grounds of appeal showing prima facie why the appeal must be heard and not why it should succeed. See: Cedar Stationeries Ltd. v. I.B. WA. Ltd. (2000) 15 NWLR (Pt. 690) 338.

In paragraphs 8 and 9 of the affidavit in support of the motion, the applicant deposed to the following facts:

“8. That I am informed by O. B. James Esq., of counsel whom I verily believe as follows: