Mited V. Okaku International Ltd & Ors. In The Court Of Appeal Of Nigeria (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MARY PETER-ODILI, J.C.A. (Delivering the Leading Judgment)

This is a MOTION ON NOTICE dated 22nd April, 2009 and filed 24/4/09 wherein the Applicant seeks the grant of 10 prayers which are as follows:-

1. AN ORDER of this Honourable Court for a departure from the Rules.
2. AN ORDER of this Honourable Court allowing the Appellant to use the duly certified bundle of documents hereinafter called the proceedings and marked Exhibit ‘A’.
3. AN ORDER of this Honourable Court for an extension of time within which to seek leave to appeal against the interlocutory Ruling of the Federal Capital Territory High Court in Suit NO. FCT/HC/CV/407/2002 delivered on 29th July, 2003.
4. AN ORDER allowing the Appellant/Applicant leave to appeal against the interlocutory Ruling of the Federal Capital Territory High Court in Suit No. FCT/HC/CV/407/2002 delivered on 29th 3uly, 2003.
5. AN ORDER of this Honourable Court granting the Appellant/Applicant extension of time within which to seek leave to appeal against the final Judgment of the Federal Capital Territory High court in Suit NO. FCT/HC/CV/407/2002 delivered on the 16th day of April, 2008.
6. AN ORDER of this Honourable Court granting leave to the Appellant/Applicant to appeal against the final Judgment in Suit NO. FCT/HC/CV/407/2002 delivered on the 16th day of April, 2008.
7. AN ORDER of this Honourable court granting the Appellant/Applicant an extension of time within which to file its Notice and Grounds of appeal containing both the interlocutory and substantive Appeal exhibited herein and marked Exhibit ‘B’
8. AN ORDER of this Honourable Court deeming the Appellant/Applicant’s Notice and Grounds of Appeal duly filed and served the appropriate statutory filing fees having been already paid.
9. AN ORDER of this Honourable Court for stay of the execution of the Judgment in Suit NO.FCT/HV/407/2002 pending the determination of this Appeal.

10.AN ORDER of this Honourable Court for an accelerated hearing of this Appeal.

11. And for such further or other ORDERS as this Honourable Court may deem fit to make in the circumstances.

On the 10/3/10 date of hearing Chief Osuman, SAN, learned Counsel for the Applicant adopted the written address filed on 3/7.09. He referred to a further affidavit filed on 26/1/10 and adopted their Reply on points of law filed on 10/3/10.

The Applicant did not in their written address formulate any issues.

Mr. Biose, learned Counsel for the 1st Respondent adopted their written address filed on 4/3/10 and deemed filed on 10/3/10. He stated that they had filed a counter-affidavit on 4/3/10 which was deemed filed on 10/3/10. In the written address were formulated two issues for determination which are:

1. Whether the Applicant has satisfied the requirements of the law and has set forth before this Honourable Court sufficient fact for the grant of the prayers made in its Motion on Notice.
2. Whether it will serve the interest of justice to grant the applicant’s prayers as contained in its motion prayer in the light of the facts and circumstances of the present case.

The issues suffice for use in the determination of this application and its many prayers especially since the 2nd-4th Respondents through their Counsel, Mr. Abari said they had no objection to the application and had not filed any address.

Learned Counsel for the Applicant in their written address filed on 13/7/09 sequel to the order of court and which arguments counsel admitted stated that the application is brought pursuant to Section 242(1) of the 1999 Constitution of Nigeria, Order 7 Rules 1 & 10, Order 19 Rules 2 & 3(1) of the Court of Appeal Rules 2007 and under the inherent jurisdiction of this Court. He said it will accord with justice to direct, as is supplicated, for a departure from the Rules. He referred to Order 19 Rules 2 and 3(1) of the Court of Appeal Rules 2007. Also that the nature of the appeal and the fact that the Applicant has itself procured and exhibited a certified bundle of documents that contains the proceedings, processes and exhibits in the lower court during trial. That should the departure prayed for be granted the time would be abridged and it will also be in the interest of justice. That the Ruling is contained on pp 359-367 and the judgment contained on pages 393-408 of the duly certified Record of Proceedings marked Exhibit ‘A’.

That the bundles of documents Exhibit ‘A’ contain legible prints and include relevant papers and serially paged for the purpose of this Appeal. He cited Nigeria -Arab Bank Ltd. v. Ogueri 91990) 6 NWLR (Pt. 159) 751 at 758.

Learned Counsel for the Applicant said having not filed their Appeal within 14 days of the ruling of the federal Capital Territory High court in suit No. FCT/HC/CV/407/2002 delivered on 29/7/2003, hence the prayers contained in paragraphs 3 & 4 of this application. Also that the Applicant prays for leave and an extension of time within which to appeal which prayers in relation thereto are contained in this same Application in paragraphs 5 & 6. He referred to REAN v. Anumnu (2004) AM FWLR (pt,.2O7) 611 at 634 – 635 G – A.

He stated on that the reasons for failure in appealing within time are deposed to in the supporting affidavit and so the leave should be granted. He cited Erisi v. Idika (1987) 4 NWLR (pt. 66) 503; The Notice and Grounds of Appeal Exhibit ‘B’.

For the Appellant it was further contended that they have sought a stay of the execution of the judgment of the Lower court which is prayer 9 of the Motion on Notice and this because of the following:-

(a) Protect the res

(b) Rescue the subject matter of the Appeal to wit, structures etc from being destroyed, the land being resold and its consequent redevelopment by someone else or others.