Incorporated Trustees Of Nigeria Association Of General Practice Pharmacists Employers V. Pharmacists Council Of Nigeria (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The Appellant/Applicant by motion on Notice filed on 8/1/2010 seeks the following order:

“i. Extending the time within which the appellant/applicant may compile the records of appeal in this case and transmit same to this Honourable Court.

ii. An Order deeming the record of appeal already compiled and transmitted to this Honourable Court to be properly compiled and transmitted.

iii. Restraining the respondent by themselves, their agents, servants and/or privies or otherwise howsoever, from implementing regulation 2(2) of the Registration of pharmaceutical premises regulations, 2005 against the members of the appellant/applicant and from in any way interfering with the businesses of any such member pending the determination of the appeal against the decision of the lower court delivered on 26th, 2009.

iv. Take further notice that the appellant/applicant will at the hearing of this application rely on the record of Appeal which is already before this Honourable Court.”

In support of the Application is a 23 paragraph affidavit deposed too by Prince Abubakar Kazeem, Managing Director of Kasco Pharmacy and a further Affidavit filed on 21/1/2010 deposed to by the same Prince Abubakar Kazeem.

The Respondent filed a33 paragraph counter affidavit on 13/1/2010 deposed to by Theobald Peter Dodo, a legal Practitioner.

The learner Senior Counsel O. Akeredolu arguing the Application on the 14th of December 2010 stated that the motion is brought under Order 7 Rule 10 and Order 4 Rule 6 of the Court of Appeal Rules, 2007, S.15 of the Court of Appeal Act and the inherent Jurisdiction of theCourt.

The learned Senior Counsel relying on paragraphs 7 and 8 of the affidavit in support and paragraphs 6, 7 and 8 of the further affidavit submitted that since the reasons given for the delay is attributed to the fault of Counsel, such negligence of Counsel should not be visited on client. He cited the case of Lone John v Blakk (1998) 6 NWLR Pt 555 Pg 524. He urged the Court to grant the extension of time to compile and transmit Record.

In respect of prayer three, the learned Senior Counsel submitted that it is settled law that the Court for which an Appeal lies should preserve its Res. It is his contention that in an application of this nature where they are talking about protecting business interest Vis a Vis protecting the relief, the need to protect interest of party has always favourably been considered. He cited the cases of:-

W.A.O.S. Ltd. v. PEL Farco Ltd. (1994) 1 NWLR Pt. 319 Pg 164 Voltic v. Doroupe (2003) 8 NWLR Pt. 821 pg 58 Josiem Holdines Ltd. v North Line Ltd. (1995) 1 NWLR Pt 371 Pg. 254

The learned Senior Counsel further urged the Court to strike out paragraphs 12, 13, 16, 17,18, 19 and 20 of the counter affidavit as they contain extraneous matters and thus offends the provisions of S.86, S.87 and S.88 of the Evidence Act.

The learned Counsel for the Respondent Mr. J.D Ebume opposing the application relied on the 33 paragraph counter affidavit. It is his contention that the nature of the Reliefs sought by the Appellant Applicant requires the exercise of the courts discretion and the Applicant must show substantial reason for the delay in not transmitting the record. He cited Chief Benson v. Nigeria Agip Co. Ltd. (1982) S.C pg 1.