Umonam Nigeria Ltd. & Anor V. Samuel Gregory Effiong (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A.: (Delivering the leading Judgment)

This is a motion on notice filed on 12th April, 2012 brought pursuant to Order 7 rule 10(1) and (2), Order 4 rule 2 Court of Appeal Rules, 2011 and under the inherent jurisdiction of the Court. The Appellants/Applicants are praying for the following orders;

“(1) An order for leave to extend time, within which Applicants may file Appellants’ Brief struck out on 14th December, 2011.

(2) An order for leave to file Appellants’ Brief herein marked Exhibit “A” and to deem same as duly filed and served on payment of prescribed fees.

(3) An order for leave to adduce Further evidence (documentary) showing Plan No.IN 2323 and Plan No.2326 obtained from the Achieves after judgment in the Court below and which fraudulently substituted the former plan for the latter herein exhibited and marked “B” and “C” respectively.

(4) An order for leave to argue a point of law namely, the said substitution by the respondent which was not taken at the Court below.

Any further or other order(s) as the Court may deem fit to make in the circumstance.

In support of this motion is a 16 paragraphs affidavit deposed to by one Rev. Charles Akpan Umoh. By the order of this court, the Appellants/applicants filed a Written Address on 7th May 2012 and a reply on 28th May, 2012. In response the Respondent also filed his Respondent’s address on 21st May, 2012.

The Appellants/Applicants articulated 4 issues for determination as follows:

(i) Whether this court can grant an order for extension of time to file Appellants’ Brief and to deem same as properly filed on payment of prescribed fees?

(ii) Whether this court can receive Further Evidence in the circumstances of this case where the respondent fraudulently substituted a different plan for the plan of the land in dispute with the sole purpose of ever reaching the applicants?

(iii) Whether in the circumstances of this case, this court can allow the applicants to argue a point of law regarding issue of fraudulent substitution which was not argued in the Court below?

(iv) Whether the respondent can be heard to oppose this application in the absence of his not filing a Counter-Affidavit?

I will deal with issues 2 & 3 together first and thereafter issues 1 & 4 together.