Igwe Josiah Agu & Ors. V. Ozo I. O. U. Ayalogu & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

JUSTIN THOMPSON AKPABIA, J.C.A.

This was an application brought pursuant to Order 3 Rule 3 of the Court of Appeal Rules, 1981, as amended and under the inherent jurisdiction of this Court on behalf of the Defendants/Appellants/Applicants for the following orders of this Court:-

“(a) For extension of time within which to apply for leave to appeal against the Ruling of Hon. Justice C. Onyia dated 19th November, 1992.

(b) For leave to appeal against the said ruling.

(c) For extension of time to file the notice and grounds of appeal.”

The said application was supported in the first instance by a 13- paragraph affidavit sworn to by Harold Eya, a Legal Practitioner in the Law Firm of Mogbo & Co, as well as a copy of the proposed Notice of Appeal.

However, about five weeks after that, a 23-paragraph Further Affidavit sworn to by Chief A.O. Mogboh, SAN, himself was filed. To this later Further Affidavit were exhibited the following documents:-

(a) A record of proceedings incorporating a Ruling showing what took place before Hon. Justice P.C. Onyia, at the High Court, Enugu, in Suit No. E/434/92 on 19th day of November, 1992. (Exh. HE2).

(b) copy of a Motion on Notice dated 15th day of January, 1995, showing that the applicants herein made a similar application as the instant one at this Court praying for the identical reliefs, as well as a 16-paragraph affidavit in support, (marked Ext. HE3).

(c) A Notice of Appeal dated 15th day of January, 1995, against a ruling of Onyia, J. dated 3/5/94, as well as a receipt (Exbt.HE.4).

The sum total of both the affidavit and Further affidavit was that in the course of the proceedings in suit No. E/434/93, before Onyia, J., at the Court below, the learned trial Judge made a series of interlocutory orders which they considered erroneous. That one of such interlocutory rulings was delivered on 19/11/92 in which the learned trial judge made interim orders against the Appellants/Applicants based on a Motion on Notice which was not served on the Appellants/Applicants, then Defendants/Respondents. That a complaint against that order had earlier been raised in a Notice of Appeal dated 24/1/96 and filed on 31/1/96 by which Notice they appealed against another order of the trial court made on 3/5/94. That the Appellants had raised Grounds of Appeal in that Notice of Appeal challenging the validity of the various rulings given on 19/11/92, 4/12/92, 10/12/93, 9/2/94 and 3/5/94. That subsequently the Appellants’ Counsel discovered that complaints against all the rulings above could not be subsumed by one Notice of Appeal. They therefore decided to appeal against the rulings individually. That by the time they made that realisation, they became out of time, hence they were making this application for leave and extension of time etc.

In paragraphs 9 and 12 of their Further Affidavit sworn to on 16/6/97 at the Court of Appeal Registry, Enugu, the appellants further deposed to as follows:-

“9. The Appellants/Applicants who had not been served with the writ of Summons or Motion for the injunction were not in Court when the order of 3/5/94 as well as the other orders were made against them and were not aware of them.

12. That it was only after Appellants/Applicants read about the order of 3/5/94 from a newspaper publication which appeared very long after the said order was made and on further inquiries they became aware of that and the series of other orders made against them, and decided to appeal against them.

The order sought to be appealed against in the instant application is contained in the last paragraph of P.7 of the Ruling Exbt HE2, which reads as follows: