Julius Berger Nigeria PLC & Anor V. Mrs. Philomena Ugo (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE, J.C.A. (Delivering the Lead Ruling)

By her application dated 31st day of July, 2013 and filed on the same day, the RESPONDENT/CROSS APPELLANT/APPLICANT seeks the following reliefs namely:

1. AN ORDER granting the Respondent/Cross Appellant enlargement of time within which to file the Respondent’s Notice of Cross Appeal.
2. AN ORDER deeming as properly filed and served the Respondent’s Notice of Cross Appeal already filed and serve, necessary statutory fees having been paid.
3. AN ORDER granting the Respondent/Cross Appellant enlargement of time within which to file the Cross Appellant’s brief of argument.
4. AN ORDER deeming as properly filed and served the Cross Appellant’s brief of argument already filed and serve, necessary statutory fees having been paid and for any further Order(s) that this Honourable Court may make to give effect to the above prayers.”

The grounds upon which the application is brought are as follows:

“a. Judgment in the above suit was delivered on Monday the 26th day of October, 2009 and on Friday, the 30th day of October, 2009, the judicial workers of the High Court of Imo State embarked on an indefinites strike only to resume on the 18th day of January, 2010.

b. That during the said strike, the registry of the High Court of Imo State was completely shut down and there was nowhere to file processes during the said strike period.

c. That upon resumption of work by the judicial workers on the 18th day of January, 2010, the Appellants filed her Original Notice of Appeal on the 18th day of January, 2010. See pp. 357 – 360 of the Record of Appeal.

d. That the Respondent/Cross Appellant filed her Notice of Cross Appeal on the 8th day of March, 2010 on the belief that time for the filing of the Notice of Appeal began to run from the 18th day of January, 2010.

e. That if time for the filing of the Notice of Appeal runs with the industrial strike aforestated, the Respondent/Cross Appellant is definitely out of time and would need only an order enlarging the time within which to regularize the already filed Cross-Appeal and the Cross-Appellant’s brief of argument.

f. That an Order of this Honourable Court is hereby required to validate the already filed Notice of Cross-Appeal and the Cross-Appellant brief of argument.”

The application was supported by 14 paragraphs Affidavit sworn to by EMEKA OZOANI, Legal Practitioner to the Applicant in the Registry of this Court on 31st day of July, 2013.

This Appellant/Cross Respondents/Respondents filed counter Affidavit consisting of four paragraphs against the said application. It was deposed to by the 2nd Appellant in this appeal on day of October, 2013.

At the direction of this Court the parties filed written Addresses which were adopted on 13th day of February when this matter came up for hearing.

The Notice of Cross Appeal filed out of time on 8th day of March, 2010 is contained on pages 305-313 of the Record of Appeal in this matter.

Emeka Ozoani, Esq. for the Respondent/Cross Appellant/Applicant began his submission by making reference to section 24 (2) (A) (4) of the Court of Appeal Act, Cap C. 36 Laws of the Federation of Nigeria and ORDER 7 Rule 10(b) of the Court of Appeal Rules 2011 under which the application was brought. He referred to the reliefs set out in the motion and the grounds upon which the application was predicated. He relied on the supporting Affidavit and the Exhibits attached. He raised two issues for determination on the application viz: