Green Palms Nigeria Limited V. Casagrande Nigeria Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the lead Ruling)

This Ruling is on an application for an extension of time within which to appeal. Judgment was given against the applicant Green Palms Nigeria Ltd in a counter-claim of the Respondent Casagrande Nigeria Ltd wherein the respondent by way of a counter-claim sought –

(1) A declaration that the applicant does not have a right of way or easement on the respondents land at Ijade village on the Lagos/Sokoto Highway in Abeokuta North Local Government Area;

(2) A declaration that the opening up of a road over the respondent’s land by the applicant is wrongful, unlawful and a breach of the respondent’s right to quiet enjoyment of its possession;

(3) An order directing the applicant to close up the road wrongfully constructed on the respondent’s land and to remove all culverts, bridges and other construction on the road through the respondent’s land;

(4) The sum of N20,000 being damages for trespass by the applicant on the respondent’s land; and

(5) An order of injunction restraining the applicant by itself, its agents, servants, privies and any other person whatsoever from further trespassing on or in anyway disturbing the quiet enjoyment of the respondent of its land or any portion of it or from generally interfering with the operation of the respondent’s quarrying licence.

The Respondent’s claim against the applicant by way of the counter-claim was adjusted by way of an amendment. By the amendment, the respondent in addition to the reliefs earlier mentioned, also sought a declaration that the road constructed by the applicant in February and March 2004 over the area covered by the Respondent’s Quarry Licence Nos.QLS.27616 and QLS.27617 both dated 12th January, 2004 is wrongful, illegal and contrary to the provisions of the Minerals and Mining Act. The claim for damages was significantly revised. By the amendment, the respondent by way of its counter-claim, sought from the applicant the sum of N100,000,000.00 as special and general damages for trespass.

The lower court accepted that the respondent had proved its counter-claim and therefore granted the reliefs claimed by the respondent almost in their entirety except that instead of the N100,000,000 claimed as general and special damages against the appellant, it awarded the sum of N70,325,000.00. The judgment was delivered on 30/9/11. It was not until 27/2/2012 that the applicant, according to its averment in the affidavit in support of its motion filed on 14/2/14, got to know that the respondent had been given judgment.

On that day according to the affidavit in support, Bailiffs of the High Court accompanied by armed policemen entered the applicant’s premises with a Writ of Execution and proceeded to attach the applicant’s machines and equipment. Jolted by that act, the applicant has approached this court via the motion on notice referred to and seeks the following orders:

1. An order of extension of time within which the Applicant can appeal against the judgment of Hon, Justice P. A. Onamade of the High Court of Ogun State, Abeokuta Judicial Division on 30th September, 2011 in Suit No. AB/68/2004; Between Green Palms Nigeria Limited and Casagrande Nigeria Limited;
2. An order of this honourable court stopping the sale of the properties of the Applicant attached on 27/2/2012 based on the judgment of Hon. Justice P. A. Onamade sitting in the High Court of Ogun State,

Abeokuta Judicial Division delivered on 30th September, 2011 in Suit No. AB/68/2004.

The Motion on Notice was supported by an affidavit of 12 paragraphs as well as 7 exhibits. The applicant also filed on 13/11/14, a further affidavit of 19 paragraphs deposed to by Abass Nurudeen a legal practitioner and also, a Supporting Affidavit of 13 paragraphs deposed to by Olukunmi Lalude, also a legal practitioner. Both the further affidavit and the supporting affidavit were filed in response to the Respondent’s counter affidavit which counter affidavit of 27 paragraphs was deposed to by Femi Onakoya, a legal practitioner. The counter affidavit was filed on 21/2/14.

When the motion came up for hearing before us on 24/11/14, applicant’s learned counsel Afolabi Fashanu SAN withdrew prayer 2 in the motion paper and moved in terms of prayer 1 only. He submitted that all that is required at this stage is that there are good grounds for hearing the application. The merits of the case he emphasized, are not required to be considered at this stage.

Learned Counsel contended that the reasons for not filing an appeal in time have been stated in the affidavit in support of the application. In a nutshell, the reason he argued, is that the Director of the applicant who briefed counsel in the matter died and the applicant company was not aware of the matter in court until execution was levied on the applicant company.