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CaseLaw

Setraco (Nig) Ltd V. Kpaji (2017) CLR 1(d) (SC)

Judgement delivered on January 13th 2017

Brief

  • Appeal (when same would be deemed withdrawn) - - - - - - - - - - -
  • APPEAL (Withdrawal of an appeal – effect of)
  • Interpretation of statute (Principles guiding same)
  • Notice of appeal – Effect where wrongly headed
  • Order 11 Rule 5 of the Supreme Court Rules 1985
  • Order 3 Rule 18(5) of the Court of Appeal Rules 1981
  • Order 7 Rule 17(5) of the Supreme Court Rules 1985
  • Order 11 Rule 5 of the Court of Appeal Rules 2011
  • Order 3 Rule 18 of the Court of Appeal Rules
  • Section 36 of the 1999 Constitution
  • Section 241 of the 1999 Constitution
  • Section 242 of the 1999 Constitution
  • Section 243 of the 1999 Constitution

Facts

The respondent as plaintiff at the High Court of Nasarawa State sitting at Keffi Coram: Viko J claiming the sum of N250,000,000.00 for the negligence of the appellant as defendant which resulted in the amputation of his leg. After full trial, judgment was entered for the plaintiff/respondent in the sum of N89,600,000.00 and dissatisfied, the defendant appealed to the Court of Appeal, Makurdi Division and also filed a motion for stay of execution.

At the Court of Appeal or Lower Court or Court below the appellant and respondent agreed that the judgment be stayed on terms being that appellant pay the sum of N29,600,000.00 to the present respondent and bring a bank guarantee for the balance sum of N60,000,000.00. The appellant appealed against the order to the Supreme Court inspite of the agreement. The appellant then paid the sum of N29,600,000.00 into the account of the Chief Registrar of the Court below to abide the outcome of the main appeal. On the 13th day of February, 2012, the application for leave to appeal against the judgment was filed and on the 24th day of February, 2012, the present appellant withdrew the appeal and on 24th day of April 2012, the Court below struck out the appeal pursuant to Order 11, Rules 1 and 2 of the Court of Appeal Rules 2011.

The appellant on the 25th day of April, 2012 sought leave to appeal the same said judgment and the present respondent opposed it on the ground that the appeal having been withdrawn pursuant to Order 11, the appeal deemed dismissed and it is against that refusal of the application for leave to appeal that the appellant has come before the Supreme Court.

Issues

Whether an appeal which has been withdrawn and struck out pursuant to Order 11, Rules 1 and 2 of the Court of Appeal Rules, 2011 can be relitigated?...

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