Adekunle Ojora V. S. A. O. Bakare (1976)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, JSC

The present applicant was the defendant in Suit No. IK/19/69 in the Lagos High Court where Adebiyi, J., entered a judgment of non-suit against the plaintiff on the 15th of March, 1971. Being dissatisfied with the said judgment, the plaintiff filed a notice of appeal on the 18th of May, 1971; and, for his part, the defendant filed the present applicant on the 9th of October, 1974. On the 26th of October, 1974, the plaintiffs filed a notice dated 24th of October, 1974, of withdrawal of his appeal and the appeal was accordingly dismissed by this court on the 28th of October, 1974.    

It is sufficient for us to observe that at the hearing of this application, the only portion of the application pursued by the applicant was for an order for extension of time within which to file an appeal”, and we shall now proceed to consider the application.    

The application is supported by an affidavit sworn to by the defendant/applicant and also by a document in which he indicates that he proposes to contend at the hearing of the appeal that the decision of the court below be varied by substituting for the order of non-suit an order dismissing the plaintiff’s claim. The salient facts deposed to in the affidavit were as follows:

“2. That I briefed Mr. M.A. Phillips of Counsel to conduct my defence in the above action and directed him that he should in case of difficulty seek the services of Chief Rotimi Williams as leader.

. That I also specifically instructed the said Mr. M.A. Phillips that in the event of any appeal to the Supreme Court whether by the plaintiff or by the defendant he should engage the services of Chief Rotimi Williams.

4. That at no stage of the proceedings was I informed that I was required to be in court for the purpose of giving evidence.

5. That the said Mr. Phillips did inform me that judgment was given in my favour and I never heard anything further from him until a few days ago when I got in touch with him upon receiving a hearing notice dated 16th August, 1974 from this Honourable Court indicating that the above appeal will be heard on Monday the 28th day of October, 1974. I again informed Mr. Phillips that I would want Chief Rotimi Williams to lead him in the conduct of the case and at his request I sent him money to purchase a copy of the record of appeal.

6. That when I heard nothing further from him I then called at his chambers and saw his secretary who told me that he still had the money with him and that he had not seen Mr. Phillips for some few days.

7. That thereafter I went to the Court Registry myself and on the 4th of October 1974 I obtained a copy of the record of appeal as evidenced by the Treasury Receipt a copy of which is annexed to this affidavit and marked Exhibit “A”.

8. That on Monday the 7th of October, 1974 I contacted Chief Rotimi Williams directly and gave a copy of the record of appeal to him.

9. That after studying the record of appeal Chief Williams asked me whether I was served with a copy of the notice of appeal and I replied in the negative.

10. That I am advised by Chief Williams and I verily believe that a Cross Appeal should have been filed on my behalf.

11. That in the circumstances it is my prayer to this Honourable Court that I may be given extension of time within which to file a Cross Appeal in the form attached to this affidavit and marked Exhibit “B.”