S. Oyeniya & Anor V. Bola Familusi (1999)

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AMAIZU, J.C.A.

The preliminary objection raised by Chief Odeyemi, of counsel is sequel to a motion on notice brought to this Court by the defendants in the lower court, hereinafter called the applicants, praying the court for the following orders:

“1. Extension of time within which to apply for leave to appeal against the judgment of Orilonise. J. of the High Court of Kwara State sitting at Ilorin delivered on 20th May, 1998.

2. Leave to appeal against the judgment.
3. Extension of time within which the applicants are to file their notice and grounds of appeal against the said judgment of Orilonise J. delivered on 20th May, 1998.

And for such other order(s) as this Honourable Court may deem fit in the circumstance of this application.”

The respondent was served with a copy of the application. He reacted by filing a “Notice of Preliminary Objection”. It is this “Notice of Preliminary Objection” that is the subject of this ruling. The said notice reads:

“Take Notice that this honourable court will be moved on … day of … 1999 at the hour of 9 0′ Clock in the forenoon or so soon thereafter as counsel for the applicants in this application may seek the court’s order that the respondent’s application filed on 11/5/99 be struck out or dismissed. And, for such further or other orders as this honourable court might deem fit to make:

Grounds for the Application

i. The judgment which is the subject-matter of the proposed appeal had been executed.

ii. The executed judgment was delivered since 20/5/98 and leave to appeal was not filed until 11/5/99 after attachment of applicant’s movable property.

iii. This honourable court lacks jurisdiction to grant the respondent’s prayers, being prayers made in vacuo.

iv. The respondent’s said application did not comply with the rules of court under which it was brought.”

Before us, Chief Odeyemi, of counsel reminded the Court that the judgment the subject-matter of the application, was executed on 18/5/99. He referred to Exhs. 1 and 2 to the affidavit in support of the Notice of Preliminary Objection. It is his view that in consequence of the execution, any order made by the court now will be an order made in vacuo. He cited the cases of Etim Ekpenyong & Ors. v. Inyang Effiong Ntong & Ors. (1975) 2 SC 71 at 80 and Emmanuel Odufuwa & Ors. v.Mrs. Ayo Johnson (1971) 1 All NLR 142 at 145.

The second objection is that the application is incompetent because it does not comply with the provisions of Order 3 Rules 3(2) and 3(7d) of the Court of Appeal Rules, 1981, as amended. He referred to paragraph 20 of the affidavit in support of the application. He observed that it is averred therein that an application for leave to appeal was earlier made in the lower court. He then contended that in compliance with the Rules of this court the applicants should have attached a copy of the said application which was struck out to the present application.

Lastly, the learned counsel referred to the provisions of Order 3 Rule 3(2) of the Court of Appeal Rules, 1981, as amended. He observed that it is impari materia with the provision of Order 2 Rule 28(2) of the Supreme Court Rules, 1985. He reminded the court that in interpreting the latter provision, the Supreme Court in the case of Innocent Ibero & Ors. v. Eleazor Obioha (1994) 1 NWLR (Pt.322) 503; (1994) 1 SCNJ p. 44 at p. 51 held that under the rule ”except in a substantive appeal no brief of argument is required for any application except that for leave to appeal or for enlargement of time to appeal.” He urged the court to strike out the application.