Setraco Nigeria Limited V. Joseph Kpaji (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL C. OSEJI, J.C.A. (Delivering the Lead Ruling)

The applicant in this motion was the defendant in suit No NSD/25/2006 filed in the High Court of Justice Keffi Division, Nasarawa State. The respondent herein had as plaintiff claimed the sum of N250, 000,000 for the negligence of the applicant when it blasted rocks at Kofar Hausawa Primary School Keffi, and one of such rocks hit the respondent resulting in his left leg being amputated.

The suit ended in favour of the respondent wherein the trial court awarded the sum of N89, 640,000 as damages against the applicant.

Being dissatisfied with the judgment, the applicant filed two Notices of Appeal. The first was dated 29/11/2008 and filed on 1-12-2008. It was wrongly headed ‘IN THE COURT OF APPEAL, HOLDEN AT ABUJA’. The second one dated 16-12-2008 did not provide the name of the appellant as person interested in the appeal. The appeal was entered as Appeal No CA/J/43/2009.

Briefs were subsequently filed and exchanged wherein the respondent in his brief of argument raised a preliminary objection to the competence of the appeal.

The applicant then filed a notice of discontinuance of the appeal. Pursuant thereto the said Appeal No CA/J/43/2008 was on 24-4-2012 struck out by virtue of order II Rules (1) and (2) of the Rules of this court.

Thereafter, by a motion on notice dated and filed on 25-4-2012, the applicant herein prayed this court for the following reliefs: –

(1)” Extension of time within which the applicant may apply for leave to appeal against the judgment of Hon. Justice John A. Viko of Keffi High Court, Nasarawa State in suit No NSD/K25/2006 delivered on the 28th day of November 2008.

(2) Leave for the applicant to appeal against the said judgment of Hon. Justice John A. Viko in Suit No. NSD/K25/2006 delivered on the 28th day of November 2008.

(3) Extension of time within which the applicant may file its notice and grounds of appeal against the judgment stated in (1) and (2) above.”

The grounds upon which the application was brought were stated as follows: –

(1) That following the delivery of the said judgment on 28/11/2008 the applicant immediately caused her counsel then Akin Adewale Esq. to file an appeal against it and the said counsel actually filed a Notice of Appeal dated 29th day of November 2008 and filed on 1st December 2008 but was wrongly headed “In the Court of Appeal Holden at Abuja”.

(2) That another Notice of Appeal dated 16th December 2008 was filed on 6th February 2009 within the statutory period for appealing.

(3) That the said Appeal No CA/J/43/2009 was struck out by this Honourable Court on the 24th April 2012.