Alh. Atanda Bodunrin Seriki & Anor. V. Mr. Jonah Togun Obafemi Aduralere (2006)

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JUMMAI HANNATU SANKEY, J.C.A.

The defendants/applicants by a motion on notice dated 4th May, 2006 and filed on 5th May, 2006 seek the following Orders from this court:

1. An order for enlargement of time within which the defendants/applicants can seek leave to appeal and file a notice of appeal out of time against the ruling of the High Court of Kwara State sitting at Ilorin and delivered on the 20th day of March, 2006.
2. An order for leave to appeal and file a notice of appeal out of time against the ruling of the High Court of Kwara State sitting at Ilorin and delivered on the 20th day of March, 2006.
3. An order for extension of time within which to appeal and to file the notice of appeal out of time against the ruling of the High Court of Kwara State sitting at Ilorin and delivered on the 20th day of March, 2006.
4. An order of this court deeming the notice of appeal herein annexed and marked as exhibit ‘C’ as been properly filed and served on the plaintiff/respondent. And for such further order or orders as this Honorable Court may deem fit to make in the circumstance of this application.

The sole ground for this application as set down on the face of the motion paper is that the time within which to seek leave to appeal and file a notice of appeal against the ruling of the court below delivered on the 20th day of March, 2006, has expired. In support of the application is an 18 paragraph affidavit annexed to which are exhibits A, B and C, being the ruling of the High Court of Kwara State against which leave is sought to appeal, a revenue collector’s receipt indicating payment of filing fees and the notice and grounds of appeal respectively.

In response to the applicant’s affidavit, the respondent filed a counter-affidavit of 10 paragraphs dated and filed on the 19th May, 2006.

In pursuance of the application, the defendants/applicants filed their written address on the 26th May, 2006 which address was adopted in court by Mr. Ibraheem, learned counsel for the applicants on the 10th July, 2006. In like vein, the respondent’s counsel, being out of time, sought the leave of court to file his written address out of time. The application was heard and duly granted on the 10th July, 2006, and same was deemed as duly filed and served. Thereafter, Mr. Opadere, learned counsel for the respondent, also adopted his written address.

The background of facts leading to this application as disclosed by the affidavit, counter-affidavit and exhibits are straightforward. The respondent/plaintiff filed a suit on the 30th July, 1999 against the applicants/defendants at the Kwara State High Court, and pleadings were duly exchanged. After the matter was adjourned a number of times for hearing over a period of almost two years, the suit was dismissed on the 20th May, 2002 pursuant to Order 37 rule 9 of the Kwara State High Court (Civil Procedure) Rules, 1989. It took another nine months before the respondent/plaintiff filed a motion at the court below seeking an order of court setting aside the order dismissing the suit and re-listing same for hearing. The defendants/applicants opposed the application. However, after due consideration, the learned trial Judge granted the application on the sole ground that the suit should be determined on its merit. Therefore, in its ruling of the 20th March, 2006, it set aside its order dismissing the suit and re-listed same for hearing. It is against this order that the defendants/applicants, being aggrieved, are now seeking an enlargement of time within which to appeal and leave to appeal.

In his brief of argument, learned counsel for the applicants has not identified any issue for the determination in this application. However, learned counsel for the respondent formulated one issue thus:

Whether the defendants/applicants have discharged the onus on them to warrant the court exercise its discretion in their favour to enable them appeal against the ruling of the trial court dated 20 March, 2006.

On my part, however, I am of the view that the issue which will aptly, deal with the crux of this application is:

Whether or not, on the material presented by the applicants and having regard to the counter-affidavit of the respondents, the discretion of this court to enlarge the time within which to seek leave to appeal and to grant leave to appeal should be exercised in favour of the applicants.

The applicants’ application is brought under Order 3 rules 2 and 4 of the Court of Appeal Rules hereinafter called the Rules.

They provide as follows:

“2(1) All appeals shall be by way of rehearing and shall be brought by way of notice (hereinafter called the “notice of appeal”) to be filed in the Registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.

4(1) The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply.