Adeshina Moses & Anor Vs Saibu Ogunlabi (1975) LLJR-SC

Adeshina Moses & Anor Vs Saibu Ogunlabi (1975)

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B. A. COKER, J.S.C. 

The present appellants were the defendants in proceedings in the High Court of Lagos in which they were sued for the following claims:-

“1. A declaration that the Volkswagen Bus registration No. LU 848 is the property of the plaintiff.

  1. 500 damages for the wrongful detention of the said Volkswagen Bus by the defendant.
  2. A return of the said Volkswagen Bus or its value of 1,450.
  3. The sum of 660 being the amount due to the plaintiff from the defendant upon the contract between the parties at the rate of 6 Pounds per day from Tuesday 30th of November 1971 to Monday the 13th day of March, 1972.”

It is right to say that the 1st defendant was the person actually sued by the plaintiff and that the 2nd defendant has asked to be joined and was so joined by Order of Court. Pleadings were filed and delivered by the parties and the case was heard by Adedipe, J. who, in a reserved judgment, stated that he did not believe the plaintiff and awarded the Volkswagen bus involved to the defendant. He however ordered that an amount of N900, which he believed was loaned to the defendants by the plaintiff, should be refunded by them to the plaintiff. The defendants have appealed to this Court against that judgement and this Ruling is a sequel to preliminary arguments that took place when the appeal was mentioned before us. Learned counsel for the plaintiff has filed –

(i) a Notice of Preliminary Objection to the appeal on the grounds that –

(a) the Notice of Appeal filed does not contain any paragraph stating the relief sought by the defendants; and

(b) that the bond supposed to be executed by the defendants was defective.

(ii) an application on behalf of the plaintiff for an extension of time within which to file a Notice of Appeal or rather cross-appeal against the judgment of the High Court.

We heard arguments on both applications. It is easier to dispose of the plaintiff’s application for extension of the time within which to file a Notice of Appeal. We have read the affidavit in support of the application wherein the two grounds urged for the delay are the impecuniosity of the plaintiff and the rather “protracted relapse of an old illness”. We are not satisfied that either or both of these grounds could justify our exercising our discretion on his behalf to grant an extension of time. The judgment in this case was delivered some eighteen months ago and although learned counsel contended for the plaintiff that he was just only recently instructed to appeal, we think that having regard to the fact suggested by learned counsel for the defendants that counsel who handled the case for the plaintiff in the High Court was from his chambers, the argument is untenable. We refuse the application for enlargement of time and the motion is accordingly dismissed.

With respect to the Notice of Preliminary Objection, quite apart from typographical errors appearing on the bond purportedly filed by the defendants, we observe that it was headed in the High Court when it should be headed in the Supreme Court and, what is worse, the bond did not provide for “the due prosecution of the appeal” as required by the provisions of Order 7 Rule 10 of the rules of this Court. The bond was only conditioned upon the payment of costs but even then the wording of it and the other defects to which we have already pointed are sufficient to characterise it clearly as defective. Learned counsel for the plaintiff in this connection has referred us to the cases of Funchee v. Henry Braide (1913) 2 N.L.R. 102 and Ogunmola v. Igbo (1941) 7 W.A.C.A. 137. We think these cases are in point and that in order to be entitled to exercise a right of appeal, the appellant must come within the provisions of the statutes creating such a right. We have concluded that the defendants’ appeal is not competent and it is struck out as not being properly before us.

The result is that the objection to the defendants’ appeal succeeds and the application of the plaintiff to enlarge the time to appeal fails. With respect to the argument about the non-inclusion of the relief sought on the Notice of Appeal, we discover that this was only a typist’s error and that the original notice contains such a relief.

The appeal is struck out and the application for extension of time is refused. We make no order for costs and the parties should bear their own costs.

Other Citation: (1975) LCN/2038(SC)

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