Monday Eyo Usoro V. L. Obot Esquire (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the lead Ruling)

The Applicant by this motion prays the court for the following reliefs:

“(a) An order of this Honourable court extending the time within which the Applicant may file his notice of appeal against the judgment of O. E. Okpo, J. sitting at the Ikot Abasi Judicial Division of the Akwa Ibom State High Court, given on 14th August, 1977 in suit No. HAB/38/94.

(b) Such further orders (s) as this honourable (sic) may deem fit to make in the circumstances of this application.”

The motion which was filed on the 21/3/2011 is supported by a thirty (30) paragraphs affidavit deposed to by the Applicant to which copies of processes in the High Court were annexed and marked as Exhibits A – K. Two (2) further and better affidavits of five (5) paragraphs each deposed by the Applicant were filed on the 21/2/13 and 5/4/2011 and by direction of the court, a written address was filed by the learned counsel for the Applicant on the 4/3/13.

A notice of preliminary objection to the motion was filed by the Respondent on the 3/5/2011 and a twelve (12) paragraphs counter affidavit deposed to by him on the 14/3/2011. The Respondent’s written address was filed on the 19/3/2013 and with the leave of court, the Applicant’s Rejoinder on law filed on the 11/4/13, was deemed on the 15/4/13; the date of the oral hearing of the motion.

The addresses were adopted by the learned counsel for the Applicant and by the Respondent respectively, each urging the court to uphold his submissions therein.

Nsima E. Nsima, Esq., learned counsel for the Applicant had in his address, submitted the following sole issue for decision in the motion:-

“Whether the Appellant/Applicant has satisfied the twin requirements for extension of time within which to appeal to warrant this Honourable Court to grant the application?”

On his part, the Respondent had raised two (2) issues under the preliminary objection as follows:-

“(i) Whether or not the application by counsel for the applicant containing inter alia one prayer for:

(a) an order of this Honourable Court extending the time within which the applicant may file his Notice of Appeal against the judgment of O. E. Ekpo, J; sitting at the Ikot Abasi Judicial Division of the Akwa Ibom State High Court given on 14th August, 1977 in suit No. HAB/38/1994.”

ought to have included two compulsory “first and second” prayers seeking extension of time within which to seek leave to appeal, and for leave to appeal in addition to the existing prayer for extension of time within which to appeal which includes filing the notice of appeal; and the implication failure to include the said two prayers therein.

(ii) Whether or not Appeal No. CAC/216M/2009 which was struck out on 14th March, 2011 is competent before this honourable court.”