MR. Emmanuel Maduike V. Tetelis Nigeria Limited (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Honourable Justice A. A. Phillips of the Lagos State High Court delivered on 22nd May 2008 entering final judgment in favour of the Respondent/Claimant.

The facts of this case seem straightforward. The Claimant had commenced an action against the Defendant before the Lower Court by a writ of summons and statement of claim dated 17th of April 2007 for the recovery of possession of the Respondent’s premises which the Appellant hold of as yearly tenant from March 1998. The Appellant failed to file his statement of defence within the time stipulated by the High Court of Lagos State (Civil Procedure) Rules 2004.

Subsequently, the Appellant filed an application to regularize his statement of defence which was struck out by the Lower Court on 22nd May 2008 for want of diligent prosecution. Judgment was entered pursuant to an application for summary judgment filed by the Respondent/ Claimant’s counsel. The Appellant’s application to set aside the judgment was dismissed by the Lower Court.

Being dissatisfied with the judgment and ruling of the Lower Court, the Appellant filed an appeal vide a notice of appeal dated 3/11/2009 seeking for an order allowing the appeal, setting aside the judgment of the trial court and ordering a retrial of the matter. Appellant raised just one ground of appeal.

In compliance with the rules of court, Appellant filed his brief of argument dated and filed on 8/04/2013 and a reply brief dated 14/05/2013 and filed on 16/05/2013. Appellant’s brief was settled by Olanlokun Omolodun. The Amended Respondent’s brief which was settled by Chief Anthony I. Idigbe SAN and Nnamdi Oragwu is dated and filed on 19/02/2014.

Appellant’s sole issue as raised in his brief is as follows:

Whether the Lower Court was right in entering summary Judgment against the defendant when crucial proof of the claim was lacking.

In the Respondent’s brief, one issue was also identified for determination of the appeal. But as they are similar to those set out above from the Appellant’s brief, I do not need to have them reproduced here. However, the Respondent in its brief raised a preliminary objection as to the competence of the notice of appeal.

It is therefore appropriate that I address the preliminary objection before considering the issues raised by the parties. Respondent’s counsel argued that the time stipulated for the filing of an appeal against the decision of a Lower Court to the Court of Appeal in respect of final judgment is three months and in respect of ruling the stipulated time is 14 days. Counsel referred to Rule 24 of the Court of Appeal Rules 2004 and the case of IFELODUN LOCAL GOVT v BELLO [2012] 4 NWLR (PT.1289) 17 at 21.

Counsel submitted that in the instant appeal, the Appellant did not bring the appeal within the time stipulated by law. Counsel noted that it is evident from the grounds of appeal that the appeal in this case is against the judgment of the court delivered on 22nd May 2008 but the notice of appeal was filed on 6th November 2009. He further submitted that the appeal is incompetent and urged the court to dismiss same. Counsel cited NWOKO v AZEKWO [2012] 12 NWLR (PT.1313) 151 at 156.

Counsel further submitted that the Appellant in the notice of appeal included the ruling of 30th October 2009 as part of the decision appealed against in order to bring it within the stipulated time to appeal but that the ground of appeal exhibited therein does not cover that ruling of the lower court. Counsel contended that a ground of appeal must be against the decision which the Appellant is appealing against and not against any other judgment.

On this position, Counsel placed reliance on ADEBIYI v UMAR (2012) 9 NWLR (PT.1305) 279 at 286. Respondent’s Counsel submitted that since there is no ground of appeal covering the decision of the Lower Court aside the summary judgment entered by the Lower Court, it is deemed that the Appellant has abandoned it and does not intend to appeal against the decision of the Lower Court dismissing the motion to set aside the summary judgment.

It is also the contention of the Respondent’s counsel that the Appellant did not seek the leave of the court to bring this appeal within the stipulated time. Counsel submitted that the court cannot therefore exercise any discretion in this matter because the Appellant has not done what the law stipulates.