Nigerian Ports Authority V. Dr. Sama Ekpo Sama & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A (Delivering the leading Judgment)

The present appeal is against the ruling of the High Court of Cross River State, holden at Calabar Judicial Division, delivered on February 7, 2013 in suit No. HC/MSC.129/2012. By the said ruling, the Court below overruled the Appellant’s objection and accordingly granted ‘the Respondents’ application for an extension to file his counter affidavit and written address in opposition to the Appellant’s motion.

BACKGROUND FACTS

On September 28, 2012, the Appellant filed in the Court below a motion on notice seeking to set aside the orders of the Court, below, dated September 4, 2012, granting leave to the 1st Respondent to enforce a judgment deliver in 1985.

The motion was predicated upon a total of four grounds, one of which raises the fundamental question of jurisdiction.

On December 3, 2012, the 1st Respondent filed a motion seeking an extension of time to file a counter affidavit to the Appellant’s motion and deeming order. On the said February 7, 2013, the Court below overruled the Appellant’s objection, and accordingly granted the reliefs sought in the

1st Respondent’s motion in question. Dissatisfied with the said ruling, the Appellant filed the notice of appeal thereof on February 20, 2013 in the Court below.

Consequent upon the entering of the appeal the parties filed their respective briefs of argument. Most particularly, the Appellant’s brief was filed on 02/5/13. It spans a total of 22 pages.

On the part thereof, the 1st Respondent filed a brief on 14/3/14, but deemed properly filed on 26/5/15. It spans a total of 28 pages. A preliminary objection is raised and canvassed at pages 7 – 15 of the brief. The preliminary objection is predicated upon three grounds, viz:

“1. The Appellant’s appeal is invalid, incompetent and therefore liable to be struck out because it is an interlocutory appeal complaining about or challenging the exercise of the discretion of the learned trial Judge against which the Appellant cannot appeal as a right but with waive, either of this Honourable Court or the Court below.

2. Grounds of appeal No. one (1) and two (2) in the Appellant’s notice of appeal are respectively, argumentative narrative and verbose and therefore offend the Provisions of Order 6,

Rule 2 (3) of the Court of Appeal Rules, 2011.

3. Ground of appear No. Three (3) is not only the repetition of the particulars of grounds of appeal No. one (1) and two (2). It is also a ground of mixed law and facts in an interlocutory appeal against which the Appellant cannot appeal as of right but with the leave either of this Honourable Court or the Court below, and a complaint against a comment made by the learned trial Judge upon which a ground of appeal cannot be found..”

Ground 1 of the preliminary objection is canvassed at pages 7 – 109, the 1st Respondent’s brief, to the effect that failure to obtain leave to appeal renders the appeal incompetent and liable to be struck out. See Oyegun v. Nzeribe (2010) 10 NWLR (Pt 1220) 568.

Secondly, the five grounds of the notice of appeal raise issues of fact, or at best mixed law and facts, thus Appellant cannot appeal as of right. See Excel Plastic Industry Ltd vs. First Bank of Nig. Plc (2005) NWLR (Pt. 739) 59 at 91 G; 96 C.

That for failure to obtain leave, contrary to Section 241(1)(b) of the 1999 Constitution, the appeal should be declared incompetent and struck out. See Nwabueze v.