CORAM

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DENNIS ONYEJIFE EDOZIE

OKWUCHUKWU OPENE

MONICA B. DONGBAN-MENSEM , JUSTICE, COURT OF APPEAL

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PARTIES

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AQUA RIVER HOTEL APPELLANTS

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UMO-ETUK R. BASSEY RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

SUMMARY OF FACTS
The Appellant being a Defendant at the trial court appealed against the judgement of the court by raising three grounds of appeal with an additional ground of appeal, the Respondent however in response to the notice of appeal filed a preliminary objection challenging the competence of the appeal on the grounds that it was filed out of time and that leave was not sought

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HELD

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Appeal struck out. Preliminary objection sustained.

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ISSUES

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Whether the composite notice of appeal containing the original grounds of appeal and additional ground of appeal and also the appellant’s brief of argument were filed out of time on 17/5/2001 Whether this case should be sent back for trial on the merits, in the overall interest of Justice

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RATIONES DECIDENDI

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APPEAL AGAINST AN INTERLOCUTORY DECISION- TIME WITHIN WHICH TO FILE NOTICE OF APPEAL

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“The refusal of the application for adjournment being an interlocutory decision of the Court below, the appellant should have filed an interlocutory appeal against it within 14 days of the decision pursuant to Section 25(2)(a) of the Court of Appeal Act Cap 75 1990, or within such extended time as the Court may permit pursuant to Section 25(4) of the Act. The decision of the Court below refusing the oral application for adjournment was made on 1/2/2000 while the Notice of Appeal with the original grounds of appeal including the said ground 2 was filed on 1/3/2000, more than 14 days of the interlocutory decision complained of”.

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APPEALS -WHETHER AN APPEAL AGAINST A RULING IN AN INTERLOCUTORY APPLICATION CAN BE INCLUDED IN AN APPEAL AGAINST THE FINAL JUDGMENT

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“A party can include an appeal against a ruling in an interlocutory application when he comes to appeal against the final judgment in the case, and this should be encouraged in order to save litigation costs and avoid delay caused by appealing separately against the interlocutory and final decision.

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ADJOURNMENT-GRANT OR REFUSAL OF

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“It is trite that the grant or refusal of an application for adjournment by trial Judge involves an exercise of his discretionary power”.

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APPEAL WITH LEAVE OF COURT- WHEN REQUIRED- EFFECT OF

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“Where an appeal can only be lodged with the leave of the court, it is the leave that confers jurisdiction on the Court and it is very vital and fundamental that leave be obtained before an appeal is filed, and any appeal filed without leave is incompetent as no jurisdiction can be conferred on the Court”.

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ISSUE NOT COVERED BY ANY GROUND APPEAL- EFFECT OF

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“It is settled law that an issue for determination of appeal not covered or related to any ground of appeal is incompetent and should be struck out”.

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CASES CITED

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Ardo V. Ardo (1998) 10 N.W.L.R (PT 571) 700|Emecheta V. Oguerie (1988) 12 N.W.L.R (PT 579) 502|Kaine V. Ojukwu (2000) F.W.L.R (PT 228) 2231|Metal construction W.A Ltd V. Miglore (1990) 1 N.W.L.R (PT 126) 299|Nwadike V. ibekwe (1987) 4 N.W.L.R (PT 67) 718|Ogbechie V. Onochie 1988 1 N.W.L.R (PT 70) 370|Ogigie V. obiyan (1997) 10 NWLR (PT 524) at 179|Ojemen & ors V. His Highness William O. Momodu & ORS 1983 11-12 SC|Sha(Jnr) V. Kwan (2000) 8 N.W.L.R (PT. 670) 685

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STATUTES REFERRED TO

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Court of Appeal Act 1990|

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CLICK HERE TO READ FULL JUDGMENT

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