Fermab Chemicals Limited V. Marine Inspection Services (Nig) Ltd. (2008)

LawGlobal-Hub Lead Judgment Report

HON. JUSTICE R.C. AGBO, J.C.A.

This court, according to the appellant, on 18/1/07 struck out its appeal No. CA/L/359/05 for want of prosecution. The appellant/applicant thereafter filed this application seeking the following orders:-

(a) Relisting onto the cause list the above appeal struck out on 18th January 2007.

(b) Extending the time within which the appellant may file its brief of argument in this appeal.

The application which is by motion on notice is supported by a short 12 paragraph affidavit in support which bears reproduction and is reproduced hereunder:-

“I Jesse Johnson, male, Nigerian, Litigation Clerk, residing at No. 15, Seriki Aro Avenue, Ikeja, Lagos State, make Oath and state as follows:

1. I am a Litigation Clerk in the Chambers of M.A. Apampa & Co., Legal Practitioners to the Appellant herein.

2. On the 27th of February 2006, this Honourable Court granted the appellant a departure from the rules’ so that its appeal may be considered on the bundle of papers compiled by it and marked EXHIBIT XXY annexed to the motion on notice dated 1st July, 2005,

3. The time allowed the appellant for filing of its brief by Order 6 Rule 2 of the Court of Appeal Rules, 2002 is SIXTY (60) days, i.e. up to the end of April, 2006.

4. In mid-March 2006, the Chambers of M.A. Apampa & Co., Legal Practitioners to the appellant/applicant, relocated from its former address at No. 11, Seriki Aro Avenue, Ikeja, Lagos State, to its present location at No. 42, on the same Avenue, and in the process some files (including that involving the appeal herein) got into wrong jackets and shelves.

5. It was during the long vacation of 2006 while the chambers was over-viewing case files in the past year that the file relating to this appeal was recovered and the brief which had earlier been prepared by appellant’s counsel, MR. M.A. Apampa, was filed into court on the 14th of August, 2006.

6. On the 18th of January 2007, the appeal in this suit was listed before this Honourable Court which suo motu kindly drew the attention of counsel to the appellant to the brief dated 14th August 2006 being out of time for three (3) months. The afore-said brief was consequently struck out. And so too was the appeal on which it was founded.

7. The appellant and his counsel are willing desirous to prosecute this appeal but for the exigency of the relocation of the chambers which resulted in the misplacement of the brief earlier prepared for filing in March, 2006.

8. The default in the late filing of the former brief which has been struck out was that the chambers and not of the appellant who is willing and ready to prosecute this appeal.