Prof. Alfred C. Ikeme & Anor V. Dr. Benjamin Ugwu (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE, J.C.A. (Delivering the Lead Ruling)

By his application dated and filed the 8th day of May, 2013, the Respondent/Applicant prays for the following Orders viz:

“1. An order granting the applicant leave to appeal against the judgment of this Honourable Court in Appeal No: CA/J/15/2010 dated 27th March, 2013 to the Supreme Court of Nigeria on grounds of mixed law and fact.

2. And for such further order or orders as the Honourable court may deem fit to make in the circumstance.”

The application is predicated on six grounds namely:-

“1. The Honourable court on the 27th March, 2013, delivered its Judgment in respect of this appeal in favour of the appellant and against the respondent.

2. Dissatisfied by the said decision, the Respondent/Applicant instructed the law firm of Solomon E. Umoh SAN & Co to appeal against the said decision.
3. The aforesaid applicant’s counsel has prepared the Notice and Grounds of Appeal against the judgment of this Honourable Court in the above appeal.
4. The grounds of appeal contained in the said Notice of Appeal are substantial and arguable and stand a good chance of success on appeal.
5. The said grounds of appeal border on questions of law, and mixed law and facts.
6. It is trite law that a party who seeks to appeal against a decision of the court of law on grounds of mixed law and facts must first seek the leave of Court.”

The application was supported by 12 paragraph Affidavit sworn to in the Registry of this court on 8th May, 2013 by EUGENE N. EZE ESQ a Counsel in the Law Firm of Solomon E. Umoh (SAN) & Co. The application was accompanied by a written address. The Affidavit in support also had attached to it the judgment of this court delivered on 27th day of March, 2013 and Notice of Appeal marked as Exhibits BU1 and BU2 respectively.

The Appellants/Respondents filed Counter Affidavit consisting of 12 paragraphs against the Motion on Notice seeking the leave of this court to Appeal the judgment of this court in CA/J/15/2010 delivered on 27th March, 2013 as aforesaid. It was sworn to by MRS. O. N. ADESE a Learned counsel in the chambers of G. Ofodile Okafor & Co. for the Appellants/Respondents.

The said Counter Affidavit was accompanied with written Address in support of the said counter Affidavit. The APPLICANT found it necessary to depose AN APPLICANT’S FURTHER AND BETTER AFFIDAVIT TITLED FURTHER AND BETTER AFFIDAVIT AND WRITTEN ADDRESS IN SUPPORT OF same on 22nd day of May, 2013. It is observed that no written Address was attached thereto. What the Applicant did was that it filed APPLICANT’S REPLY ON POINTS OF LAW TO THE RESPONDENT’S COUNTER AFFIDAVIT ON 28th day of May, 2013. The Appellants/Respondents had earlier on, on 23rd day of May, 2013 filed FURTHER AND BETTER COUNTER AFFIDAVIT sworn to by O. N. Adese Mrs. a Legal practitioner in G. Ofodile Okafor & Co. The motion on Notice was argued on 3rd day of June, 2013 when learned Senior Counsel for the parties adopted their written Addresses and adumbrated on them.

In his written Address dated 21st day of May, 2013, the learned Senior counsel to the Respondent/Applicant, Solomon E. Umoh, SAN, stated that the Applicant filed the application to seek for the leave of this court to appeal against the judgment of this Court delivered on 27th day of March, 2013 to the Supreme Court on grounds of facts or mixed law and fact. He drew attention to the fact that upon being served with the Respondent/Applicant’s application the Appellants now Respondent to the Application under consideration and that the Applicant also filed Further and Better Affidavit as well as written address as ordered by this Court.

He gave a brief history of the action leading to appeal in this court and culminating in the present application seeking leave to appeal. That the plaintiff initiated this action at the Plateau State High Court sometime in 1994. The case thereafter went through a number of Judges including Hon. Justice Felicia Dusu (deceased) Hon. Justice Oyetunde (Rtd), Hon Justice Naron (Rtd) as well as Hon Justice Damulak. That none of the Judges was able to conclude the hearing owing to what learned silk stated to be sudden death, retirement and otherwise.

The plaintiff’s matter was later reassigned to Hon. Justice Sirajo who fixed the case for hearing. According to Solomon E. Umoh SAN.

“When the matter came up before Hon. Justice Sirajo for the 1st time after series of exchange with the Plaintiff’s counsel, the Honourable court dismissed the matter for want of diligent prosecution at the instance of the defendant.

Aggrieved by the said decision, the applicant instructed his Counsel to file the relevant application to relist the suit as he was in court and still desirous of having his case determined on the merit. Following the said instruction, the applicant’s Counsel filed the said application and argued same which was granted and the matter was relisted with a view to having the matter determined on the merits.

However, before hearing could commence in the matter, the respondent brought a notice of appeal challenging the decision of the trial court regarding the relisting of the matter. This Honourable Court heard the appeal and allowed the appeal in part on 27th March, 2013 and accordingly proceeded to set aside the part of the ruling of the trial court relisting the matter as well as restored the earlier decision of the trial court dismissing the matter.”