Jonas Onu V. Pius Onu (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI (PJ) J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the ruling of the Customary Court of Appeal, Abia State sitting at Umuahia delivered on the 10th November, 2011 wherein the Customary Court of Appeal granted the Respondent leave to appeal and extension of time to file Notice and Grounds of Appeal,

By a motion on notice dated 29th September, 2011 and filed on 4th October, 2011 the Defendant/Applicant now Respondent prayed the Customary Court of Appeal Umuahia seeking the following reliefs:

(1) “an order granting the Defendant/Applicant leave to appeal out of time against the decision of the Customary Court holden at Ebelebe in Suit no. CC/MA/15-16/2001. Jonas Onu v. Pius Onu on the 23rd day of May, 2002.

(2) Extending the time within which the Defendant/Applicant could file Notice of Appeal against the said decision.

The grounds upon which the application was brought were “mistake of Counsel of Applicant and the Applicant’s serious ill-health”. The said motion was supported by eight (8) paragraphs affidavit and Ten Exhibits marked A – 1. The Plaintiff/Respondent, now Appellant in this appeal, filed a 25 paragraph counter affidavit in opposition which was accompanied by a written address.

In a considered ruling of 10th November, 2011, the Customary Court of Appeal rejected the arguments of the Appellant and made an order granting leave to the Respondent to appeal out of time against the judgment of the Customary Court sitting at Ebelebe in Suit Nos. CC/NA/15/2001 and CC/NA/16/2001 (consolidated) delivered on 23/5/2006.

Dissatisfied with the said ruling, the Appellant filed a Notice of Appeal dated 23rd November, 2011 containing three (3) Grounds of Appeal. The grounds of appeal are hereunder reproduced without their particulars.

GROUNDS OF APPEAL

1. ERROR IN LAW

The Customary Court of Appeal erred in Law when it granted the Defendant/Applicant/Respondent’s motion and made an order extending the time for him to appeal against the judgment of Customary Court, Nneato, delivered since 23rd May, 2006, even though the Defendant/Applicant/Respondent did not show good cause for his failure to appeal within time.

2. ERROR IN LAW

The Customary Court of Appeal erred in Law when it extended the time during which the Defendant/Applicant/Respondent may appeal against the judgment of Customary Court, Nneato, delivered since 23rd May, 2006, on the ground that Ground one of his proposed Grounds of Appeal raises issue of fair hearing.

3. ERROR IN LAW

The Customary Court of Appeal erred in Law when it granted the application of the Defendant/Applicant/Respondent extending the time for him to appeal against the judgment of Customary Court, Nneato, delivered since 23rd May, 2006, without given consideration to the fact that the Defendant/Applicant/Respondent instead of appealing against the said judgment sought for remedies in other courts over the same issue.

Upon the receipt of the Records of Appeal, both parties filed and exchanged their respective briefs of argument. In the Appellant’s brief of argument settled by Innocent Okoronye, Esq., Learned Counsel nominated three (3) issues for determination as follows:

(1) “Whether the Defendant/Applicant/Respondent showed good cause why he failed to appeal within the time limited to appeal so as to justify the lower court’s decision to grant him leave to appeal out of time. (Formulated from ground one).