Reynolds Construction Company Nigeria Limited V. Bis-aianco Nigeria Limited & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

In the motion before us dated 18th October, 2011 and filed 19th October, 2011, brought pursuant to order 7 Rules 1 and 10(1) and order 1g Rule 11(1) and (2) of the Court of Appeal Rules, 2011 the appellant/applicant (hereinafter referred to as applicant) has prayed as follows:

(i) Extension of time within which to perfect the conditions of Appeal in Suit No.HIF/96/2001: Bis-Alanco & Anor v. Reynolds Construction Company Nigeria Limited.

(ii) To deem as properly perfected the Conditions of Appeal already compiled with; and

(iii) Variation of the Order made by the Osun State High Court, Ile-Ife in Suit No.HIF/96/2001: Bis-Alanco & Anor. vs. Reynolds Construction Company Limited on 27th October, 2010 granting Conditional Stay of Execution of the judgment of the Osun State High Court sitting at Ile-Ife delivered on 5th day of July, 2010 pending the final determination of the appeal against the said judgment.

The grounds of the application are that:

(i) The time within which to perfect the conditions of appeal as made available by the Registrar of the Appeal section in the lower court has since expired.

(ii) The appellant/applicant perfected the conditions of appeal on 13th April, 2011, out of time

(iii) The applicant is no longer conducting any substantial business as the Federal Government of Nigeria has since not awarded road construction contracts to the applicant.

(iv) To be able to pay the whole judgment debt, the applicant would have to sell its construction equipment and machinery at great loss

In support of the application is an affidavit of 26 paragraphs deposed to by one Sola Sullyman, Esq., a Legal Practitioner of Plot 14 Adelaja Street, Mokola, Ibadan. Attached to the affidavit are 5 exhibits marked A, B, C, D and E respectively. Exhibit A is a copy of the judgment in Suit No: HIF/96/2001 delivered on 6th July, 2010 at Osun State High Court sitting at Ile-Ife. Exhibit B is a copy of the Notice of Appeal against the judgment dated 7th July, 2010 and filed 9th July ,2010. Exhibit C is the receipt issued to that effect. Exhibit D is the copy of receipt issued for the sum of N300 being fees paid for filing of Bond to Prosecute the appeal on suit no: HIF/96/2001, while Exhibit E is a copy of the receipt issued for money paid for Compilation of Record of Appeal on suit nos: HIF/96/2001. The applicant’s written address dated 12th November, 2012 was fifed 18th December, 2012 and same was deemed as properly filed on 14th January, 2013 when the motion was heard. With the adoption of their written address, the learned applicant’s counsel urged the court to grant their application.

On the part of the respondents, in opposing the motion they filed a paragraphed counter affidavit deposed to by one Ibukun Abimbola Oduntan, a Litigation Clerk of No. 130 Obafemi Awolowo Way, Liberty Road junction, Oke-Ado, Ibadan. Attached to the counter affidavit as Exhibit A is a copy of the Ruling of the lower court delivered 27th of October, 2010. The respondents’ counsel also filed a written address dated 8th January, 2013 in support of their counter affidavit. Learned counsel adopted and relied on both processes in opposing the motion adding that no compelling circumstances have been proffered to support the application. He therefore urged the court to dismiss the application for being frivolous and unmeritorious, except the 1st and 2nd legs which they are not opposing.

While making his oral submission at the hearing on 14th January, 2013, the learned applicant’s counsel by way of reply on points of law said that the counter affidavit does not comply with the provisions of section 115 (a) of the Evidence Act, 2011 and as such it should be struck out. He referred to paragraph 4 of the said counter affidavit and cited the authorities of Abiodun vs. C. J. Kwara State (2007) 18 NWLR (Pt.1065) 109 at 145 D-F; and ACB. vs. Nnamani (1991) 4 NWLR (Pt.186) 86,498 paras A-B.

The brief antecedent that gave rise to the instant motion is that on 6th July, 2010, the Osun State High Court sitting at Ile-Ife delivered its judgment (Exhibit A) in suit nos: HIF/96/2001. Being dissatisfied with the said judgment the defendant/applicant therein who is applicant herein filed a Notice of Appeal (Exhibit B). By way of a Motion on Notice filed before the lower court, the defendant/applicant who sought for an order of stay of execution of the judgment, were granted the following orders: