Kehinde Akoanu Zannu & Ors V. Emmanuel Padonu Toyinmi Wusu (2009)

LawGlobal-Hub Lead Judgment Report

ADZIRA GANA MSHELIA, J.C.A.

The applicants by a motion on notice dated 29th day of December, 2005 and filed on 4th day of January 2006 sought for the following orders:-

“1. AN ORDER OF ENLARGEMENT of time within which the Defendants/applicants can appeal against the final judgment of the High Court of Lagos State; Lagos Division dated 2nd of December, 2004 by Honourable Justice H.A.O. Abiru.

2. SUCH further ORDER OR other ORDERS AS THE Honourable Court of Appeal, may deem fit to make in the circumstances of this motion.

The application is supported by 22 paragraph affidavit deposed to by one Kehinde Akoanu Zanu the 1st applicant. Applicants also filed affidavit in support on 19/01/09 and a further and better affidavit in support of motion filed on 9/2/09. On 25/10/06 applicants also filed a reply to the counter affidavit. The Judgment is attached as Exhibit KZ1, while Notice of Appeal is attached as Exhibit KZ2.

Learned counsel for the applicants Chief Fasae contended that applicants could have filed their appeal within time but for the communication gap between former counsel and the applicants. It is settled that sin counsel of should not visited on a litigant. Learned counsel submitted that applicants did not know that their appeal was not filed by the counsel even after being instructed. Learned counsel further submitted that he personally tried to trace the former counsel Mr. Omolodun but he did not leave any address as such he could not get him to react to the allegation raised in the affidavit in support. Learned counsel contended that the grounds of appeal are also arguable. He urged the court to grant the application.

Respondent’s counsel on the other hand opposed the application. Respondent filed on 20/6/06 32 paragraphs counter-affidavit deposed to by one Samuel Toyinmi Wusu the respondent herein. Exhibits TJ1 and TJ2 were also attached to the counter – affidavit. Learned counsel urged the court to dismiss the application with substantial costs.

Section 25 of the Court of Appeal Act Cap 75 Laws of the Federation 1990 which is relevant to the application and which also prescribed the period within which the applicants are required to have filed their notice and grounds of appeal reads:-

“S.25 (1) where a Court desires to appeal to the Court of Appeal he shall give notice of Appeal of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.

(2). The period of the giving of notice of appeal or notice of application for leave to appeal (a) In an appeal in Civil cause or matter fourteen days where the appeal is against Interlocutory decisions and three months where the appeal is against a final decision.

(b) In an appeal in a criminal cause or matter ninety days from the date of the decision appealed against.

(3). where an application for leave to appeal is made in the first instance to the Court below a person making such application shall in addition to the period prescribed by sub-section (2) of this section, be allowed a further period of fifteen days from the date of determination of the application by the court below, to make another application to the Court of Appeal.

(4). The Court of Appeal may extend the period prescribed In subsection (2) and (3) of this section”.

Order 7 rule 10 of the Court of Appeal Rules, 2007 which lays down the conditions to be satisfied by an applicant in order to succeed in application such as the one at hand also states:-