John Nwaghodo & Ors V. Mrs. Elizabeth Kamene Nwaokobia (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO JCA (Delivering the Leading Ruling)

The applicants were respondents in Suit No. HCI/M16/06 determined by the High Court of Delta State sitting at the Issele-Uku Judicial Division on 28th July 2010. It was a fundamental Right proceeding in which the trial court adjudged as follows:

“This application therefore succeeds and the applicant is granted the following reliefs:

1. Public apology from the respondents in view of the humiliating and inhuman treatment meted out to them.
2. The sum of N2 million as damages to the applicant for the violation of her rights as afore-mentioned plus injury suffered by her especially in view of her age as shown in the affidavit evidence before the court.
3. The respondents and their agents are hereby restrained from further interfering with the rights of the applicants as afore-mentioned in sections 34 and 35 of the 1999 Constitution.”

The applicants took no steps to challenge this judgment until 24/2/2011 when they filed an incompetent application before this court seeking the trinity prayers and later withdrew it. This motion filed on 11/5/2012 is seeking the following prayers:-

“1. An order for extension of time within which the applicants may seek leave to appeal against the ruling delivered on 12/8/2010 by Hon. Justice I.E. Okogwu in Suit No. HCI/M16/06 sitting in High Court, Issele-Uku, Delta State.

2. Leave to appeal against the ruling delivered on 12/8/2010 by Hon. Justice I.E. Okogwu in Suit No. HCI/M16/06 sitting in High court, Issele-Uku, Delta State.
3. An order for enlargement of time within which the Applicants may file their Notice and Grounds of Appeal against the ruling delivered on 12/8/2010 by Hon. Justice I.E. Okogwu in Suit No. HCI/M16/06 sitting in High Court, Issele-Uku, Delta State, the time prescribed by the rules of this Honourable Court having expired.”

Their reasons for failure to appeal within three months as provided by law are set out in paragraphs 3 to 8 of the affidavit in support which paragraphs are reproduced hereunder:

“3. That ruling in this suit No. HCI/M16/06 was delivered by his Lordship Hon. Justice I.E. Okogwu on 12/8/2010 at Issele-Uku High Court, Delta State. Attached herewith as Exhibit “A” is a certified True Copy (CTC) of the judgment.

4. That the time allowed by the rules of court for the applicants to file appeal against the said ruling has elapsed.
5. That the delay in filing this appeal is not deliberate but due to the misfortune of the chambers of chief Osaheni Uzamere and Co., Solicitors briefed by the applicants to prosecute this appeal to get the said ruling from the lower court in time.
6. That the applicants at the trial court were not represented by the Chief Osaheni Uzamere & Co., rather the applicants were represented by E.E. Ogwezzy and Co. who did the matter for them to it finality at the trial court.
7. That Chief Osaheni Uzamere & co. could not get the ruling from the lower court, Issele-Uku High Court until 25/10/10 and before the chambers could study the said ruling, put its house in order to file applicants’ appeal, the statutory time allowed for the applicants to file their appeal had elapsed.
8. That the Law Firm of Chief Osaheni Uzamere & co. could not have filed the Applicants’ Notice and Grounds of Appeal in vacuum having not seen a copy of the Ruling to appeal against and more so not being the Applicants’ counsel at the trial court.”

The respondent is contesting this application and relies on the counter-affidavit of which paragraphs 3 and 4 are cogent and bear reproduction:

|”3. That JOE EGWU ESQ, my employer and also the counsel to the respondents informed me and I verily believed him to be true as follows:

(a) That paragraphs 1, 2, 3 and 4 of the Affidavit in Support of the Motion of Notice are true while paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 are false.

(b) That the trial court delivered judgment in this suit and the two other sister cases HCI/M15/2006 and HCI/N16/2006 on the same day (12/8/2010) in open court at Issele-Uku in the presence of the parties and their respective counsels.

(c) That the law chambers of Chief Osaheni Uzamere did not represent the applicants at the lower court. Applicant’s solicitors at the lower court were E.E. Ogwezzy Esq.

(d) The applicant’s received the judgment of the lower court before 25/10/2010 but only filed appeal on Suit No. HCI/M/15/2006.

(e) That by the time the applicant received the judgment of the lower court they were still within time but chose to sleep on their rights.