Mrs. Comfort Ogbogoro V. Christopher Omenuwoma & Anor (2004)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The applicant is praying this court for an enlargement of time, within which to appeal against the judgment of Hon. Justice I.E. Ogbodu, delivered on 22nd July, 2002, in suit No.HCO/5/87: Christopher Omenuwoma v. Comfort Ogbogoro & Mrs. Queen Omenuwoma; for an extension of time within which to file the notice and grounds of appeal against the said judgment. The application is supported by a 20 paragraph affidavit, sworn to by the 1st respondent wherein she deposed to the following facts in paragraphs 2 to 19:

2. That the plaintiff filed suit No. HCO/5/87 against me and his wife as 1st and 2nd defendants respectively, in High Court of Justice, Oleh, in 1987, whereby he claimed damages for detinue.

3. That in my defence, I counter-claimed for forfeiture of plaintiff’s vehicle deposited with me as a pledge.

4. That the case went de-novo several times before a warrant was given to Hon. Justice I. E. Ogbodu to hear and determine the case, whereupon his Lordship was hearing the case while sitting in High Court of Justice, Ogwashi-Uku in Delta State.

5. That Hon. Justice I. E. Ogbodu delivered judgment in the case on 22nd July, 2002. I am dissatisfied with the judgment. John Omonosan Izioma, Esq., advised me I verily believe that I have three months within; which to file my notice and grounds of appeal and I instructed him to file an appeal against same.

6. That I was informed by my said counsel and I verily believed that he demanded for a copy of the said judgment from the clerk of court on 22nd July, 2002 and he was informed by the clerk of court and he verily believed that the judgment was read in manuscript and it had not been typed out wherefore there was no copy to give him.

7. I was informed by my said counsel and I verily believe that he took down notes, when the judgment was being delivered, from which he formulated some grounds of appeal.

8. That my said counsel advised me and I verily believe that the grounds of appeal formulated by him, raise issue and/or questions of mixed law and facts and, it is necessary to obtain leave of the trial court, to appeal against the said judgment and I give him instruction to file same into High Court of Justice, Oleh, sitting at Ogwashi-Uku.

9. That on 2nd August, 2002, shortly before the court went on vacation, I accompanied my said counsel to High Court of Justice, Ogwashi-Uku, where we filed application for leave to appeal, stay of execution and deeming the attached notice and grounds of appeal as duly filed and served. A copy of the motion for leave to appeal and the affidavit in support is attached hereto and marked as exhibit ‘IZO’.

10. That I am informed by my said counsel and I verily believed that since after court vacation, he had checked in the High Court Registry, Ogwashi-Uku on several occasions and the said application for leave was not fixed for hearing. It was after several more visits by my counsel that the motion was fixed for hearing on 25th November, 2002.

11. That on 25th November, 2002, counsel to the plaintiff/respondent in the said motion applied for and obtained an adjournment on ground that he heard an announcement over the radio that Delta State Chief Judge was visiting the Ogwashi-uku prison on that day. When the court told him that Prison visit comes up early in December, 2002, plaintiff replied that he made a mistake as to date and he was not prepared to go on. The matter was then adjourned to 27th January, 2003.

12. That on Saturday the 25th January, 2003, I met my said counsel in chambers to remind him of the date for the hearing of the motion for leave to appeal and he informed me, and I verily believe that while preparing his arguments on the motion, he found no leave required to appeal against a final decision such as the one I seek to appeal against.

13. That my said counsel also informed me, and I verily believed him that he did not advert to the fact that the decision appealed against is a final decision; he was pre-occupied by the notice on grounds of appeal, which raise issues of mixed law and facts and by the time he realized that leave of court was not required, the three months limited by law within which I can file my notice and grounds of appeal in the trial court has elapsed.