Nigerian Industrial Development Bank Limited V. Elderson Nigeria Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Lead Ruling)

This is a motion on notice dated 17/10/2011 and filed on 18/10/2011 for the following orders:

1. AN ORDER of the Honourable Court for extension of time within which to appeal against the judgment of Ondo State High Court Coram Olateru-Olagbegi, J. delivered on 18th February, 2000 in Suit No. AK/34/1991.
2. AN ORDER of the Honourable Court extending time within which the appellant/applicant shall file her Notice and Grounds of Appeal against the judgment of the Ondo State High Court delivered on 18th February, 2000 in Suit No. AK/34/91.
3. LEAVE AND ORDER of the Honourable Court to rely on the Record of Proceedings in Suit No. AK/34/91 already transmitted to this Honourable Court and used in Appeal No. CA/B/300/2006.
4. AND for such further and other order(s) as the Honourable Court may deem fit to make in the circumstances of this case.

The grounds for the application are stated on the face of the motion paper. It is supported by a 19-paragraph affidavit deposed to by one Nurudeen Adegboye, counsel in the law firm of Yusuf O. Ali & Co., Solicitors to the appellant/applicant. Attached to the affidavit are 2 exhibits marked A & B respectively. Exhibit A is a certified true copy of the judgment sought to be appealed against. Exhibit B is the proposed Notice and Grounds of Appeal.

The application is brought pursuant to Order 7 Rules 1 and 10 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of the court.

In opposition to the application the respondent filed a 42-pargraph counter-affidavit deposed to by SALIHU ADEBAYO, a counsel in the chambers of Chief Afe Babalola, SAN & Co., solicitors to the respondent. The appellant filed a further affidavit in support of the motion on 14/2/2012.

0n 5/3/2013 the court ordered the parties to file written address. The applicant’s written address is dated and filed on 18/3/2013. The respondent’s written address in opposition dated 2/4/2013 was filed on 3/4/2013. The applicant also filed a Reply address dated 10/4/2013 and filed on 11/4/2013.

At the hearing of the motion on 29/4/2013, S. O. BABAKEBE ESQ. adopted and relied on the appellant’s written address and urged the court to grant the application. AKINTAYO ALUKO ESQ. adopted and relied on the respondent’s written address in opposition and urged the court to dismiss the application.

In his written address, learned counsel for the applicant relied on 4 out of the 11 grounds stated on the face of the motion paper as being germane to this application. The grounds are:

1. The appellant/applicant is dissatisfied with the judgment of the Ondo State High Court delivered on 18th February, 2000 by Honourable Justice Olateru Olagbegi and filed a Notice of Appeal within time against same on 17th May, 2000.
2. The Notice of Appeal was inadvertently signed by a person unknown to law i.e. law firm.
3. The Notice of Appeal filed on 17th May, 2000 was struck out on the 27th October, 2008 by this Honourable Court when the appellant/applicant’s attempt to amend same failed, upon sustaining the respondent’s objection.
4. The appellant/applicant vide an application dated 29th December, 2008 sought for an extension of time within which to file another Notice and Grounds of Appeal and same was granted on 10th November, 2009 by this Honourable Court and 14 days was given to the appellant/applicant within which to file its Notice and Grounds of Appeal.

He also extrapolated the following facts as averred in the supporting affidavit:

(a) “That a judgment was delivered by Ondo State High Court on the 18th February, 2000 against the appellant and in favour of the respondent.

(b) That in expression of her displeasure with the said judgment the appellant/applicant promptly filed a notice of appeal within time on the 17th May, 2000.

(c) That when the law firm of Yusuf O.A. 1. & Co. was briefed to take over the appeal in 2005, an attempt made by the firm to amend the notice of appeal was unsuccessful as this Honourable Court struck out the said Notice of Appeal and/or the entire appeal on the 27th October, 2008 for being incompetent upon sustaining objection of the respondent that the Notice of Appeal sought to be amended was signed by a law firm and not a legal practitioner known to law.

(d) That the appellant/applicant still aggrieved with the said judgment of the Ondo State High Court delivered on 18th February, 2005, (2000) instructed our law firm to file a fresh Notice and Grounds of Appeal to challenge the said judgment.

(e) That a motion on notice dated 29th December, 2008 was filed, moved and granted by the Honourable Court on 10th November, 2009 extending the time within which the appellant/applicant shall file another Notice and Grounds of Appeal and directing filing of same within 14 days from the date of its grant.