Katol Investment Ltd V. Uacn Property Development Company Plc (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A. (Delivering the Lead Ruling)

By an application dated and filed on 2nd July, 2010, the applicant herein prayed for the following reliefs:

“1. LEAVE OF THIS HONOURABLE COURT for an order restoring the notice of appeal filed on the 2nd day of July, 2009 by the applicant, which was dismissed on the 19th day of April, 2010, by this Honourable Court for non-compilation on the records of appeal.

2. AN ORDER of this Honourable Court restoring the notice of appeal filed on the 2nd day of July, 2009 by the applicant.
3. LEAVE OF THIS HONOURABLE COURT enlarging the time within which the applicant may compile and transmit the records of appeal in this suit to this Honourable Court.
4. AN ORDER enlarging the time within which the applicant may compile and transmit the records of appeal in this suit to this Honourable Court.
5. AN ORDER deeming the records of appeal attached herewith and marked Exhibit “D” as proper and as the records of appeal in this case; and
6. SUCH FURTHER OR OTHER ORDERS as the Honourable Court may deem fit to make in the circumstance.”

The grounds upon which the application is anchored as stated on the face of the motion paper are as follows:-

“a. The circumstances of this case strongly justify the grant of the orders sought herein.

b. The issues raised in the notice of appeal are substantial and raises serious issues of law.

c. The appeal raises substantial and arguable points of law including jurisdiction.

d. This application is brought in good faith in the interest of justice.”

Chief A. I. Idigbe SAN for the applicant stated that the application is supported by a 38 paragraphed affidavit and reliance is being made on all the paragraphs. Learned senior counsel submitted that, the fact that execution has been levied as contended by the respondent is not a barrier to the granting of the application. Learned senior counsel further stated that failure to transmit the record within the stipulated time was not the fault of the applicant and that good and substantial reason had been given for the delay. Learned senior counsel placed reliance on Order 8 Rule 20 of the Court of Appeal Rules, 2007 and urged the court to grant the application in the interest of justice by restoring the appeal and allowing the record as compiled and transmitted. In support of the application, reference was made to the cases of P.M.B. Ltd. v. U.T.C Ltd (2007) 3 NWLR (Pt. 1021) Pg. 315, Akpoku v. Ilombu (1998) 8 NWLR (Pt. 561) 288 and Williams v. Mokpe (2005) 14 NWLR (Pt. 945) 249.

Mr. Alaaya Mohammed for the respondent, in opposing the application stated that a 34 paragraphed counter affidavit with 4 exhibits was filed on 6th July, 2010 and a further counter affidavit with 6 exhibits was filed on 9th November, 2010. Learned counsel relied on the averments in the counter affidavit and posited that two issues have been distilled as apt and germane for the determination of the application, namely:

(i). Whether the application should be granted having regards to the affidavit of Ezekiel Uzebu in support of the application.

(ii). Whether the appeal can be relisted even after the intervention of a third party interest.

With regard to the first issue, learned counsel stated that the power of court to restore an appeal earlier dismissed must be subject to sufficient reasons given in the affidavit as sincere and true. Learned counsel submitted that the applicant has failed to show any good reason to warrant exercising the discretion in his favour, hence the application should be refused. Learned counsel further submitted that the notice of appeal attached to the application was not certified, though a public document. Learned counsel therefore urged the court not to accord any weight or consideration to the said notice, and in support of this contention reference was made to the case of Araka v. Esbue (2003)17 NWLR (Pt. 848) Pg 1.

On the second issue, learned counsel submitted that a third party interest has already intervened upon the dismissal of the appeal. Learned counsel stated that the property, the subject of litigation had been sold in 2002 and the documents evidencing transfer of title and cheques evidencing payment have been exhibited. Learned counsel further posited that where there is the intervention of a third party interest the appeal will not be restored and the dismissal will be a final dismissal. In support of this contention reference was made to the cases of Dangardi v. Jibril (1997) 4 NWLR (Pt. 501) 590. Wellington v. Registered Trustees of Ijebu Ode (2000) 3 NWLR (Pt. 647) 130 and N. A. INT. S.A. v. N. H. H. Ltd (2007) 7 NWLR (Pt. 1032) 86. Learned counsel further contended that the averments in their further counter affidavit had not been controverted, hence same should be deemed admitted. In concluding, learned counsel urged the court to dismiss the application.