Incar Nigeria Plc & Anor V. Bolex Enterprises Nigeria Limited (1997)

LAWGLOBAL HUB Lead Judgment Report

O. OGWUEGBU, J.S.C.

By an application dated 24th February, 1997 and filed on the same date, the applicants Incar Nigeria PLC and Trevi Foundation (Nigeria) Ltd. through their counsel applied to this court for the following orders:-

“(i) directing a departure from the provision of Order 6 rule 2(1)(c) of the Supreme Court Rules in so far as the defendants/applicants herein are required to exhibit with the affidavit in support of this motion on notice the judgments with which the application is concerned that is, both of the court below and the court of first instance,

(ii) for enlargement of time within which to seek leave to appeal to the Supreme Court on questions other than those of law alone from the judgment of the Court of Appeal delivered herein on the 30th day of January, 1996 and

(iii) for leave to appeal to the Supreme Court on questions other than those of law alone and

(iv) to deem the Notice of Appeal already filed by each defendant to have been duly and properly filed,

(v) for extension of time within which to file the Appellant’s Brief in support of the Appeal and to deem the Brief already filed to have been duly and properly filed.

The application is supported by an affidavit of fourteen paragraphs deposed to by Tokunbo Eniola Williams, Esq., legal practitioner in the Chambers of Chief F. R. A. Williams, S. A. N. which is representing the applicants. It was averred that the Court of Appeal delivered its final judgment in the case on 30th January, 1996 and by motions dated 13/3/96 and 28/2/96 respectively each of the defendants moved the court below for leave to appeal to this court on questions other than questions of law alone and in its ruling dated 6th June, 1996, leave was granted.

It is appropriate to reproduce paragraphs 7, 8, 9, 11, 12, 13 and 14 of the supporting affidavit. They read thus:

“7. At the material time when leave was granted as mentioned in paragraph 6 hereof, Chief Rotimi Williams S.A.N. did advise both defendants that the order of the Court below purporting to grant such leave was void but that leave was in any event unnecessary since the appeal appeared to him to involve questions of law alone.

8. I actively participated with Chief Williams when he was preparing the Appellants’ Brief herein. Consequently, I know that in the course of preparing that Brief Chief Williams became aware that some areas of the argument necessary to be presented to the court on behalf of the defendants may to some extent be said to involve questions other than questions of law alone.
9. As soon as the preparation of the Brief was completed, Chief Williams decided to apply to this Honourable Court for leave to appeal to the Supreme Court on questions other than those of law alone and the necessary order enlarging the time within which to seek such leave.
10. To the best of my knowledge, information and belief, the time for the Appellants to file their Brief expired on the 30th day of December 1996.
11. To my knowledge C.I.I. Joseph Esq. who had earlier been separately briefed for the 2nd defendant herein and who filed the Notice of Appeal on its behalf and settled a draft brief in support of that defendant’s case around the middle of November 1996. (sic) It was after this that the defendants agreed that Chief Williams should lead in the final appeal and submit a single Brief. A copy of the Brief prepared by Mr. Joseph was given to Chief Williams.
12. The failure of Chief Williams to complete the preparation of the brief of the Appellants herein was due mainly to heavy pressure of other work particularly in the months of November 1996 to January 1997 and he regrets extremely the delay caused in filing and serving the Brief herein.
13. I depose to this Affidavit in support of the motion on notice filed herein this day.”

The applicants filed a brief in support of the application which is one of the requirements of Order 6 rule 2(1) of the Supreme Court Rules. This court is being called upon to exercise its jurisdiction under section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979 to grant the applicants leave to appeal on grounds of fact or of mixed law and fact. A brief in opposition to the application was also filed on behalf of the respondent’s company. One issue was formulated in the applicants’ brief as arising for determination in the motion. It reads:

“Whether the defendants ought to be granted leave to appeal to this court on questions other than those of law alone as well as the extension of time necessary to seek such leave.”

In the introduction to the respondent’s brief Mr. Ayanlaja, S. A. N. stated as follows:

“the plaintiff does not oppose prayers (i), (ii), (iv), (v) and (vi) thereof but shall oppose prayer (iii) which seeks:-