The Government Of Kwara State & Ors V. Irepodun Block Manufacturing Company & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE OGBUINYA, J.C.A. (Delivering the Lead Ruling)

By a motion on notice, dated 01/06/2011, but filed on 02/06/2011, the applicant, Nigerian Metrological Agency, prayed this court for the following reliefs:

“1. Extension of time within which to seek leave as party interested under section 243 of the 1999 Constitution of the Federal Republic of Nigeria to appeal against the judgment of the lower court.

2. Extension of time to appeal as an interested party pursuant to section 243 of the 1999 Constitution of the Federal Republic of Nigeria against the judgment of this lower court.
3. Leave of court to appeal as an interested party against the judgment of the lower court.

AND FURTHER TAKE NOTICE THAT THE GROUNDS OF THE APPLICATION ARE:

1. The judgment of the lower court delivered on the 31st July, 2009 touches and adversely affects the interest of the Applicant.
2. By the time the applicant became aware of the judgment of the lower court the time within which it is required to seek leave of this court to appeal as a party interested as well as file notice of appeal against the judgment of the lower court delivered on the 31st July, 2009 has elapsed.
3. Part of the subject-matter that was in dispute in the lower court is the landed property of the Applicant situate and being at Ilorin and the Applicant was not a party to the proceedings in the lower court but the judgment of the lower court had the effect of nullifying the Applicant title to the said property without being heard.

AND FURTHER TAKE NOTICE THAT THE FOLLOWING DOCUMENTS ARE EXHIBITED IN THIS APPLICATION:-

1. Certified True Copy of the judgment of Honourable Justice E. B. Mohammed delivered on the 31st July, 2009.
2. Copy of the proposed grounds of appeal.
3. The present motion on notice.
4. Certified True copy of the ruling of Honourable Justice E.B. Mohammed delivered on the 21st September, 2010”.

The High court of Kwara State, presided over by Hon. Justice E.B. Mohammed, on 31/07/2009, delivered judgment in suit No. KWS/23/08 instituted by the claimants/respondents against the appellants/respondents. The lower court gave judgment in favour of the claimants/respondents whilst the appellants/respondents appealed against it on 29/09/2009.

“When the application came up for hearing, the Claimants/respondents (hereinafter abridged to “the respondents”) indicated their intention to oppose it. Sequel to that indication, this court ordered parties to file written addresses.

On 22/02/2012, the application came up for adoption of written addresses. Consequently, on that 22/02/2012, learned counsel for the applicant, D. O. Delano, Esq., adopted the applicant’s written addresses and written reply on points of law, filed on 21/11/2011 and 01/12/2011 respectively, as representing his arguments in support of the application. He prayed the court to grant it. Similarly, on that same 22/02/2012, learned counsel for the respondents, A. B. Jimoh, Esq., adopted the respondents written address, filed on 28/11/2011, as representing his arguments against the application. He urged the court to dismiss it.

The preliminary objection

The respondents raised a preliminary objection to the hearing of the applicant’s application on the following grounds: (a) Failure of the applicant to follow or comply with the Rules of this court (b) Lack of jurisdiction of this court to hear and determine the application.

Learned counsel pointed out that a similar application was filed and refused by the lower court on 21/09/2011 as shown in exhibit F attached to the applicant’s affidavit in support dated and filed on 02/06/2011. He stated that nine months later, the applicant filed the application contrary to the provision of Order 7 rule 3 of the Court of Appeal Rules, 2011. He submitted that that applicant failed to seek and obtain leave to bring the application out of time.

He asserted that “may” as applied in the provision of order 7 rule 2 was mandatory and the applicant ought to have prayed for enlargement of time as specified by those provisions. He placed reliance on the case of Otu vs. ACB (2008) 3 MJSC 191 at 206 – 207

He further submitted that the lower court examined all the issues raised in the applications, dated and filed on 29/06/2010 and 30/06/2010 respectively, on their merits as shown in paragraphs, 20 and 21 of the affidavit in support and exhibit F, on pages 9-13, attached to it. He added that the motion, as shown on pages 18-19 of exhibit F, was dismissed on the merit and the applicant could only appeal against it. He referred to section 14 (1) of the Court of Appeal Act. He prayed the court to dismiss the application because the applicant failed to comply with the rules and the law.

On behalf of the applicant, its learned counsel identified the grounds for the respondents’ preliminary objection thus: