Y.S.G. Dredging Company V. Boniface O. Omenkeukwu (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M. DATTIJO MUHAMMAD, (OFR) J.C.A. (Delivering the Lead Ruling)

By its motion on notice filed on 8th November, 2007 the Applicant seeks the orders of this court extending the time within which it applies for leave to appeal against the ruling of the High Court of Justice Rivers State dated 13th day of June, 2006 in Suit No PHC/439/2004, leave to appeal against the ruling as well as for an order extending time within which to file its Notice and grounds of appeal against the very order. The Applicant, finally seeks leave of this court to raise a fresh issue of law on jurisdiction by the first of its proposed grounds of appeal as contented in Exhibit E annexed to the instant application.

The Application which is pursuant to order 7 rule 10 (1) and, (2) of the Court of Appeal Rules 2007 and Section 25 of the Court of Appeal Act is supported by a ten paragraph affidavit and a nineteen paragraph further affidavit. The Respondent has filed an eight paragraph counter-affidavit in opposition to the application.

The facts upon which the application predicates are not in dispute. They are immediately supplied having been lifted from Applicant’s affidavits in support.

Applicant had in an application dated 25/6/2005 challenged the jurisdiction of the lower court to entertain suit No.PHC/439/2004 commenced against her by the Respondent herein on the ground of incompetent service of the court’s originating processes. The court by its ruling of 13th day of June, 2006 dismissed applicant’s motion. Dissatisfied with the ruling, the Applicant purportedly appealed against same to this court by a notice filed on 26th June, 2006. By motion No.CA/PH/287M/2006 dated 15th August, 2006, the Applicant sought to amend her Notice of Appeal. Reacting, the Respondent filed a motion on Notice dated 1st day of June, 2007 challenging the competence of Applicants application to amend her notice of Appeal. The Respondent asserted that Applicant’s Notice of Appeal sought to be amended was incompetent having been signed in the name of Applicant’s law firm instead of that of her counsel as required by law. The applicant having filed a notice of withdrawal of the purported appeal on the 7th day of November, 2007, this court dismissed same.

Applicant’s desire to prosecute her appeal informs the filing of the instant application. Exhibit C is the ruling of the lower court the Applicant seeks to appeal against; Exhibit D the Notice of Appeal filed by the Applicant on the 26th June, 2006 and Exhibit E a copy of the Notice of withdrawal of Exhibit D. Exhibit F is Applicants proposed Notice of Appeal dated 8th November, 2007 annexed to the instant application.

Paragraph 10 of the affidavit in support of the instant application asserts thus:-

“(10) That the Applicant indeed regret her present predicament occasioned by her solicitors seemingly (sic) error of judgment in this regard and vehemently affirm their willingness and desire to pursue their appeal against the said ruling”

Respondent’s eight paragraph counter-affidavit does not seem to have effectively controverted the facts averred to in Applicant’s supporting affidavits.

Following an order of this court, parties have filed and exchanged written addresses which, at the hearing, were adopted and relied upon as their arguments for or against the application.

The Applicant has formulated four issues read:-

1. Whether the dismissal of an appeal upon withdrawal of same under Order 11 Rules 1 and 5 of Court of Appeal Rules 2007 is one on the merits of the appeal.
2. Whether an appeal dismissed not on its merit precludes or bars a party from taking further steps to exercise her constitutional right of appeal.
3. Whether the provision of Order 11 Rule 5 of the Court of Appeal Rules 2007 as it affects Rule 1 thereof has the effect of precluding a party from taking further steps to exercise her constitutional right of appeal unlike earlier provisions of the Court’s Rule which are inparimateria with same.
4. Whether the applicant has made out a case for extension of time and leave to appeal out of time as per the motion paper.

The Respondent have identified three issues in their written address as being relevant in the determination of the application. The issues are:

i. Whether the appellant appeal which has been dismissed or deemed dismissed can be brought back for hearing.

ii. Whether the appellant has shown good and substantial reason to warrant extension of time within which to appeal.