Joseph A. Akinnawo V. Kayode Kuteyi (2016)

LawGlobal-Hub Lead Judgment Report

JAMES SHEHU ABIRIYI, J.C.A. 

In the High Court of Ondo State sitting at Ondo, the Appellant/Applicant claimed against the Respondent a declaration that he is entitled to statutory right of occupancy, damages for trespass and injunction in respect of the land in dispute.

On 30th March, 1995 the lower Court dismissed the Appellant’s/Applicant’s claim in its entirety.

The Appellant/Applicant appealed to this Court by an initial notice of appeal dated 29th May 1995 but filed on 30th May 1995.

On the 11th April, 2014, the Appellant/Applicant filed an application seeking leave to file and argue additional grounds of appeal, leave to amend the notice of appeal by incorporating grounds 6 and 7 and amending ground 2 particular C, enlargement of time to file appellant’s brief of argument and an order deeming as properly filed the amended notice of appeal and appellant’s brief.

The application is brought on the ground of change of counsel and the time it took to retrieve the record of appeal served on former counsel
ii) Failure to forward to the registry of this Division, the record of appeal

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and other documents related to the appeal from the Benin Division of this Court in good time. See particularly paragraph 12 of the affidavit in support of the application which reads thus:
?12 That the delay in filing the Appellant’s Brief of Argument timeously is occasioned by difficulties encountered by the registry of this Court in retrieving the records of appeal and all necessary documents pertaining to this appeal from the registry of the Court of Appeal, Benin.”

Annexed to the affidavit in support of the application are exhibits
A Notice of Appeal dated 29th May 1995 and filed 30th May 1995, Exhibit B Schedule of Additional Grounds of Appeal and Exhibit C Proposed Amended Notice of Appeal.

In the counter affidavit in opposition to the application the Respondent deposed to the fact that a similar application was filed on 1st March 2005 in the Benin Division of this Court but was struck out on 4th October 2007.

That as a result of the failure to prosecute the appeal diligently the land involved in this matter has been sold to third parties and partitioned among members of the respondent’s family.
?
Attached to the counter

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affidavit are Exhibit A, a similar motion struck out on 4th October 2007 and Exhibit B a motion for stay of execution of the judgment of the lower Court.

The motion was contested on the following briefs of argument:
1. Appellant’s/Applicant’s Brief of Argument dated and filed 28th September 2015.
2. Respondent’s Written Reply Address dated and filed on 6th October 2015