Adisa Adeosun V. Dr. Adetunji Akinyemi (2006)

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GALINJE, J.C.A.

The applicant herein brought this application by way of motion on notice pursuant to section 243(A) of the 1999 Constitution and Order 3 rule 4 of the Court of Appeal Rules, 2002. Although the document that is referred to as 1999 Constitution is strange, I presume that the applicant is referring to the Constitution of the Federal Republic of Nigeria, 1999.

The applicant’s prayers as set out in his motion paper which is dated 11th November, 2004 read as follows: –

“1. Enlarging the time within which the applicant may apply for leave to appeal from the ruling of Adeyinka J. sitting in the High Court of Lagos State dated 19/11/02.

2. Granting leave to the applicant to appeal as a party interested in and aggrieved by the said ruling.
3. An order extending the time within which the applicant’s notice of appeal annexed to the affidavit in support of this application can be filed.
4. Such further or other order as the Honourable Court may deem fit to make in the circumstances of this case.”

This application is accompanied by a nineteen paragraph affidavit deposed to by the applicant himself. Annexed to the affidavit are, exhibits A, B, C and D. Exhibit A is the ruling of Adeyinka J. against which the applicant herein is seeking to appeal. Exhibit B is a copy of the ruling in an application for leave and extension of time to appeal before the High Court which is dated 17th April, 2003. Exhibit C is the copy of the proposed ground of appeal while exhibit D is a ruling in which the execution of the order of possession was stayed. It is dated 12th July, 2004.

The respondent filed an eight paragraphs counter affidavit which is deposed to by one Adebayo Adeyefa, one of the legal practitioners handling this matter and a copy of the proceedings of 25th May, 1993 in a suit between Dr. Adetunji Akinyemi and (1) Chief Jimoh Arowolo (2) Mr. Adisa Adeogun is annexed to the affidavit as exhibit AA.

A further affidavit in support of the application of 11th November, 2004 and dated 17th of January, 2006 was filed by the applicant.

The facts which gave rise to this application can be distilled from the affidavit in support of this application, the counter affidavit as well as the further affidavit which are placed before this court.

The facts as disclosed by the various affidavits are as follows:

During the pendency of the suit No. ID/339/88 at the Lagos High Court in which Dr. Akinyemi claimed a declaration of title against Chief Arowolo who defended the ease on behalf of Ola-Arokun family, the plaintiff filed an application dated 16th March, 1993 in which he sought to join the applicant herein on the ground that the land he was occupying was part of the land that formed the subject matter of the case that was then pending at the High Court. The application came up on Tuesday the 25th of May, 1993. Mr. Apampa who appeared for the applicant then opposed the application. On that basis the plaintiff’s application was dismissed.

At the end of the proceedings in that suit judgment was given in favour of the plaintiff who is the respondent herein.

On 31st December, 1999 the respondent as plaintiff in that judgment filed a motion ex-parte for possession of the land over which he had been granted a declaration of title in suit No. ID/339/88. On 17th October, 2001 the applicant herein filed an application before the High Court to be joined as a defendant or party interested for the purpose of opposing the respondent’s application for possession since his land was included in the application for possession. Hon. Justice Adeyinka of the Lagos High Court refused that application in his ruling of 19th November, 2002. After the ruling, nothing was done in respect of this application until on the 11th day of November, 2004 almost two years before this application was filed.

This application came up for hearing on the 18th January, 2006. In arguing the application, Mr. Duro Oluwa, learned counsel for the applicant in his submission relied on all the paragraphs of the supporting affidavit particularly paragraphs 9-13 and paragraph 3 of the further affidavit. In a further submission, learned counsel said all the reasons why they are out of time are set out in their affidavit.

On the issue of the grounds of appeal, learned counsel submitted that the grounds of appeal, exhibit C prima facie show good cause why the appeal should be heard.