Setraco Nigeria Limited V. Joseph Kpaji (2017)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The plaintiff (now respondent in this appeal) instituted an action before the Nasarawa State High Court sitting in Keffi claiming the sum of Two Hundred and Fifty Million Naira (250,000,000.00) only as special and general damages as a result of injuries he had suffered due to negligence of the defendant/appellant. The suit is number NSD/K 25/2006. On 28/11/2008 the Nasarawa State High Court presided over by Viko J. entered judgment in favor of the plaintiff/respondent in the sum of N89,640,000.00 (Eighty-Nine Million, Six Hundred and Forty Thousand Naira) only. The defendant was dissatisfied with the said judgment and appealed against it to the Court of Appeal, Jos Division. The said Notice of Appeal was wrongly headed IN THE COURT OF APPEAL HOLDEN AT ABUJA. On discovering this mistake, Mr. Akin Adewale of counsel filed another Notice of Appeal on 16/12/2008. The appeal was entered as CA/J/43/2009 and the appellant filed its brief of argument. On being served with the appellant’s brief, the respondent raised a preliminary objection to the competency of the appeal on the

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grounds that:-

1. There was no competent appeal before the Court, and
2. There was no competent brief of argument filed by the appellant.

The preliminary objection was argued in the respondent’s brief wherein objection was also taken regarding the formulation of more than one issue from a single ground of appeal.

The appellant did not respond to the preliminary objection but instead decided to change counsel.

On 24/2/2012 a Notice of Withdrawal of Appeal No.CA/J/43/2009 was filed by Omale Omale, (see page 239 of the Records). The appeal was struck out on 24/4/2012 by virtue of Order 11 Rules (1) and (2) of the Court of Appeal Rules 2010 (as amended).

The new counsel S. A. Ngavan Esq. filed a fresh Motion on Notice on 25/4/2012 which was given appeal No.CA/MK/51/M/2012 praying 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

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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 are as follows:-

1. That following the delivery of the said judgment on 28/11/2008 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 the 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 the 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 day of April, 2012.
4. That the applicant is desirous of prosecuting the appeal to its logical conclusion.
5. That the lapses are caused by counsel
6. Extension of time by this Honorable Court is required to file a competent Notice of

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Appeal.

In paragraphs 3, 4, 5, 6, 7, 8 and 10 of the affidavit in support of the motion, Ephraim Fater Sarwuan a Legal Practitioner deposed to the following facts-