Nigeria Agip Oil Company Ltd. V. Peter Ogini & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

By a motion on Notice dated and filed on 16th September, 2008, the applicant, Nigeria Agip Oil Company ltd, who was the Defendant/Judgment/Debtor in the Garnishee proceeding in Suit No.HOW/42M/2008 prays this court for the following reliefs:

“1. An order of this Honourable Court enlarging the time within which the applicant may seek the leave of court to appeal the decision of the High Court of Imo State, Owerri Judicial Division coram: The Honourable Justice C. I. Durueke delivered on the 12th day of March, 2008 in respect of Suit No. HOW/41M/2008 between Peter Ogini, Okechukwu Okoro, Hon. Damian Ezeru (for themselves and as representing the elected Representatives of Etekwuru Village, Egbema, Ohaji/Egbema Local Government Area of Imo State) and JJ-LYN Nigeria Limited vs Nigeria Agip Oil Company Limited. And United Bank for Africa Plc.

2. An order of this Honourable Court granting the applicant leave to appeal the decision of the High Court of Imo State, Owerri Judicial Division coram: The Honourable Justice C. I. Durueke delivered on the 12th day of March,2008 in respect of Suit No.HOW41M/2008 between Peter Ogini Okechukwu Okoro, Hon. Damian Ezeru (for themselves and as representing the elected Representatives of Etekwuru Village, Egbema, Ohaji/Egbema Local Government Area of Imo State) and JJ-LYN Nigeria Limited. vs Nigeria Agip Oil Company Limited And United Bank for Africa Plc.
3. An order of this Honourable Court enlarging the time within which the applicant may appeal the decision of the High Court of Imo State, Owerri Judicial Division, coram: The Honourable Justice C. l. Durueke delivered on the 12th day of March, 2008 in respect of Suit No HOW/41M/2008 between Peter Ogini Okechukwu Okoro, Hon. Damian Ezeru (for themselves and as representing the elected Representatives of Etekwuru Village Egbema, Ohaji/Egbema Local Government Area of Imo State) and JJ-LYN Nigeria Limited. vs. Nigeria Agip oil company Limited. And United Bank for Africa Plc.”

The applicant’s motion is supported by Affidavit dated 16th September 2008, sworn to by one Messiah Edafe Ugbeta and three(3) other further Affidavits as follows:

“1. Further Affidavit in support of Motion on Notice dated and filed on 12/2/10 sworn to by Inyefai Wobo, with four (4) Exhibits annexed thereto.

2. Further Affidavit No. 2 in support of Motion on Notice filed on September 16,2008 dated and filed on 12/12/10 sworn to by Messiah Edafe Ugbeta; with one (1) Exhibit annexed hereto.
3. Further Affidavit of Abel Ikio in support of Motion on Notice dated 16th September, 2008, dated and filed on 15/3/10 sworn to by Abel Ikio with one (1) Exhibit annexed thereto”

The respondents in opposition to the applicant’s motion for enlargement of time filed a counter-affidavit dated and filed on 9/2/09 sworn to by Ngozi Ononuju, with one (1) Exhibit annexed thereto.

By order of court the parties to this application filed Written Addresses as follows:

1. Written Address in support of Applicant’s Motion dated 16th, September, 2008 dated and filed 25/2/10 prepared by Babatunde J. Fagbohunlu, SAN.
2. 1st to 4th Respondents’ Written Address in opposition to the Applicant’s Motion on Notice of 16th September, 2008 prepared by L. C. Ugorji Esq. dated and filed on 4/3/10.
3. Reply Address to 1st – 4th Respondents Written Address in opposition to Applicant’s Motion on Notice of 16th September,2008 prepared by Babatunde J, Fagbohunlu, SAN, dated and filed 15/3/10.

The facts of the case from the Affidavits filed by the parties are as follows: In Suit No. HOW/22/2001 between Peter Ogini & Ors. vs. Nigeria Agip Oil Company Ltd. Hon. Justice N. Okoronkwo on 4/2/06, gave judgment in favour of the plaintiffs therein and awarded damages totalling N180,260,000.00 (one hundred and eighty million, two hundred and sixty thousand naira) against the defendant.

The present applicant, as Defendant/Appellant filed a Notice of Appeal dated 8/11/2006 before this court in which the Defendant/Appellant complained on the judgment delivered on 4/12/2006. The Defendant’s/Appellant’s appeal was entered in the Court of Appeal as CA/PH/247/2007.

On 10/5/2007, Hon. Justice Nonyerem Okoronkwo delivered a Ruling in which Lordship dismissed the Appellant’s/Applicant’s for stay of execution in Suit No.HOW/22/2001.

By a motion dated and filed on 4th March, 2008 the Appellant/Applicant applied to the Court of Appeal for a stay of execution of the judgment of Okoronkwo J., in Suit No. HOW/22/2002 and by another motion dated and filed on 10/3/2008, the same Appellant/Applicant prayed the court of Appeal for enlargement of time to file the motion for stay of execution and a deeming order.

The Appellant/Applicant’s motion for enlargement of time and a deeming order to fire the Applicant’s Motion for stay of execution dated 10/3/2008 has not been heard in this Court when the Hon Justice C. I. Durueke also of the Owerri Judicial Division of the High court of Imo State made an order Nisi in a Garnishee proceeding in suit No.HOW/41M/2008 which order was made absolute by the same C. I. Durueke, J, on 23rd June, 2008.

The Appellant/Applicant on 241612008,filed a Notice of Appear against the Garnrsnee order absolute of 23/6/2008. The said appeal was entered in the court of Appeal as CA/PH/273/2008. Also, on 23/6/2008, the Applicant/Appellant filed a Motion on Notice for stay of execution of the garnishee order absolute of 23/6/2008 in suit No.HOW/41M/2008 before the High Court of Owerri.

In support of the Applicant’s Motion for trinity reliefs for leave to appeal the garnishee order nisi of 12/3/2008 by C. I. Durueke, J. learned senior counsel for the Applicant has submitted that the issue for determination by this court is ,,whether the court of Appeal in the circumstances of this case ought to grant the applicant (i) extension of time to apply for leave to appeal, (ii) leave to appeal and (iii) extension of time to appeal”.