Francis A. S. Bwala V. Ashaka Cement Plc (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BODE RHODES-VIVOUR, J.C.A (Delivering the leading Judgment)

Learned Counsel for the Respondent/Appellant seeks by his motion filed on 26th February 2008 and brought under Order 17 Rules 1 and 10 of the Court of Appeal Rules 2007 the following:

1. An Order to strike out the Appellants brief dated and filed on 10/5/07 on the ground it was filed out of time and without the leave of this Court.
2. An-Order dismissing this appeal for want of prosecution.
3. And for such further or other orders as the Honourable court shall deem fit to make in the circumstances.

Abubakar Imam Esq. a legal practitioner in chambers of Learned of Counsel for the Respondent/Appellant deposed to a 7 paragraph affidavit in support of the motion.

Mr. Francis A. S. Bwala, the Appellant/Respondent deposed to a 12 paragraph counter-affidavit Annexed to it is document marked Exhibit A.

He also deposed to a 12 paragraph further and better counter-affidavit. Annexed to it are documents marked Exhibit A, and B.

At the hearing of the application on the 18th of May 2010 Learned Counsel for the Respondent/Applicant, Mr. A. Dauda observed that the Record of Appeal was served on parties on the 20th of October 2005, while the Appellants brief was filed on the 10th of May 2007. He submitted that the Appellants brief was filed out of time and there was no application for extension of time. He urged us to grant the prayers.

In reply Learned Counsel for the Appellant/Respondent Mr. J. John observed that under Order 6 Rule 2 of the Court of Appeal Rules 2002 he had 60 days to file his brief after receipt of Record of Appeal. He further observed that the Record of Appeal was served on him on the 28th day of March 2007 while his brief was filed on the 10th of May 2007, contending that the Appellants brief was filed within-time and so the application should be dismissed.

The Notice of Appeal was filed in 2005. The applicable Rules were the Court of Appeal Rules 2002. The current Rules i.e. the Court of Appeal Rules 2007 came into force on the 1st of September, 2007 and so not applicable to this application as regards filing of Record of Appeal and Briefs. Under Order 6 Rule 2 of the applicable Rules the Appellant/Respondent had sixty days after being served with the Record of Appeal to file the Appellants brief and where he is unable to file his brief within 6o days he can do so after 60 days if he files on application for extension of time. See Order 7 Rule 10 of the Court of Appeal Rules 2007.

The Appellant/Respondent says his brief was filed within 60 days after he was served with the Record of Appeal. I have examined the counter-affidavit and further and better counter-affidavit, and nowhere in these processes is it stated when the Appellant was served with the Record of Appeal. Intact at the “hearing or this application Learned Counsel for the Appellant/Respondent was asked by the Court to identify the paragraph in his affidavits which show when he was served the Record of Appeal. His answer was none my Lord.

The central issue in this matter is when the Appellant was served the Record of Appeal and whether the appellant filed his brief within 60 days from that day (i.e. the day the Record of Appeal was served on the Appellant).

Paragraph 3 (a) of the Affidavit in Support reads:

(a) That they have since on the 20th of October, 2005 received a copy of Record of Proceedings in this appeal.

In his submissions before us Learned Counsel for the Appellant/Respondent said that the Record of Appeal was served on him on the 28th of March 2007, but admitted that nowhere in his affidavit has he said so.

To my mind the deposition that the Record of Appeal was served on Counsel on or about the 20th of October 2005 is unchallenged.