Hussein Mansour V. Carnco Foods (Nigeria) Ltd (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Ruling)

This is an application by Notice of Motion filed by the Applicant on 8/09/09 seeking for the following orders from the court:

“1. AN ORDER enlarging the time within which the Appellant may transmit the records of Appeal in Suit No. 10/701/2005 and pertaining to the Notice of Appeal dated 12th November, 2008 to the Court of Appeal.

2 AN ORDER deeming the records of Appeal already transmitted and served on the Respondent as duly transmitted and served.

3. SUCH FURTHER ORDER(S) as the Court may deem fit to make in the circumstance.”

In support of the application is an 11 paragraph affidavit reposed to by Chima Ahanatu, a litigation officer in the employment of Akinlawon & Ajomo Chambers.

The Respondent reacting to the affidavit filed a counter affidavit of 8 paragraphs on 12/10/09 deposed to by Mercy Omage, a legal practitioner.

The Applicant in response filed a reply Affidavit on 4/11/09. On the directive of this court to the parties the learned counsels filed the written addresses and exchanged same. On the 14th of January, 2010 during the hearing of the Motion dated 8 September, 2009 the learned counsel Mr. Ajomo adopted and relied on the Applicant’s written address and also the reply address filed on 4/11/09 and 18/11/09 respectively as his argument in support of the application.

Chief Agbamuche adopted the written address of the Respondent filed on 9/11/09 and urged the court to dismiss the application.

In the Applicant’s written address, the learned counsel Mr. Ajomo referred to paragraphs 6 – 9 of the supporting affidavit wherein the reason for the delay is averred too as ascribable to errors from the Appellant’s counsel. He referred to Bowaje v. Adediwura (1976) 6 SC 143 at 147. Learned counsel’s contention is that the court will readily exercise its discretion to extend time where the delay is as a result of the inadvertence of counsel. It is his further contention that the Applicant has a right to compile a record founded on the interlocutory decision alone.

Learned counsel argued that the decision complained of in the Notice of Appeal is that of 30th October, 2008, an interlocutory decision where the High Court ruled that it had jurisdiction to entertain Respondents counterclaim. He contended therefore that the appeal is not in respect of the final decision and the record must comprise only relevant documents in existence and utilized during the proceedings and not documents which came into existence subsequent to the decision appealed against such as the final decision of the 16th September 2009. He submitted that the final decision will be the subject of another record.

It is his submission that by order 8 rule 6 of the Court of Appeal Rules 2007, the Respondent, if he feels there are additional records which may be necessary in disposing of the Appeal is at liberty to compile and transmit such additional Record within 15 days of receipt of the main record of Appeal. He referred to Turaki v. Dalhatu (2003) F.W.L.R. (pt. 170) 1378 @ 1391.

In respect of transmitting the case file Mr. Ajomo contended that failure to transmit the case file cannot form the basis of an objection to acceptance of the Record as record of appeal is separate and distinct from the case file. He urged the court to grant their application.

Chief M. A. Agbamuche in the Respondent’s written address formulated four Issues for determination which reads as follows:

“ISSUES FOR DETERMINATION: