Alhaji Abdul Lateef Olanrewaju Bakare V. Honourable Justice James Oduneye (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Ruling)

The Respondent/Applicant by Motion on Notice dated and filed 23/10/09 prays for the following reliefs:

“1. An order of enlargement of time within which the Respondent/Applicant shall file his Notice of Cross-Appeal.

2. An order of enlargement of time within which the Respondent/Applicant shall file the Respondent/Cross-Appellant’s Brief and for such further or other orders as this Honourable Court may deem fit to make in the circumstance”.

In support of the application is a 5 paragraph affidavit deposed to by Eta Olaremu exhibiting exhibits ‘E01’ to ‘E03’.

The Appellant/Respondent in response filed first a 16 paragraph Affidavit deposed to by Omikunle Hussein and on 17/11/09 filed 9 paragraphs further and better Counter-Affidavit and on 22/01/10 another Counter-Affidavit of 11 paragraphs.

Learned counsel to the Respondent/Applicant arguing the Motion on Notice on the 9/2/10 submitted that the applicant seeks an order of enlargement of time within which the Respondent/Applicant shall file his Notice of Cross-Appeal relying on Order 7 Rule 10(1) of the Rules of Court 2007. Learned counsel argued that, application of this nature requires a consideration of whether there is cogent explanation for the delay. It is his submission that the reason they have given is founded on the inadvertence of counsel. It is his further submission that the position of the law is that a litigant, should not be punished for the inadvertence of counsel. He cited Odutola v. Kayode (1994) 2 N.W.L.R. (pt.324) pg.1.

Learned counsel further contended that the length of delay is not material provided the Applicant can defend the delay. He cited ACB v. Enosiuba (1991) 3 N.W.L.R. (pt.178) pg 133 para 144; Unongu v. State (2000) 11 N.W.L.R. (pt.677) pg.187 para 195.

It is his submission that the Counter-Affidavit filed by the Respondent does not show compelling reason why the application should not be granted. Finally, that the Notice of Appeal and Grounds therein contain arguable grounds whilst the delay in the present application can be compensated by way of cost.

Learned counsel for the Respondent Mr. Fajimite opposing the application relied on the Counter-Affidavit filed 2/11/09, the further better Counter-Affidavit filed on 17/11/09 and another Counter-Affidavit filed on 22/01/10.

Learned counsel observed that the Affidavit in Support of the Application was sworn to by Eta Olaremu and not the Applicant himself. He contended that the time and date the information was communicated to deponent is not stated in paragraph 3 of the Affidavit in Support contrary to the provision of S.89 of the Evidence Act and that the paragraph should be struck out for non-compliance with the provision of the Evidence Act.

He referred to the case of Taraku Mills Ltd. v. Saint Engineer Ltd. & Another (2009) 6 N.W.L.R. (pt.1136) 1 at pg.11. He urged the court to strike out paragraph 3 of Affidavit and once that is done there will be no fact explaining the reason for the delay in the application.

It is his submission that if the court overrules him on paragraph 3, the applicant’s reason contained in the affidavit for the delay is unreasonable and not good to be the basis for the grant of the discretionary order. He referred to paragraph 3 (b) of the affidavit and contends that the person alleged to have committed an offence should have deposed to an affidavit. Therefore since she did not the court should not believe the facts in 3(iv).

It is his further contention that the Applicant himself did not show he took any positive step. He referred to Onuaguluchi v. Ndu (2000) 11 N.W.L.R. (pt.679) pg. 519 at 554 para C to D. The learned counsel further submitted that the mistake of counsel is not a magic word to earn court’s indulgence. He referred to Internal Trust Savings & Loans Ltd. v. Tennuno (2000) 15 N.W.L.R. (pt.689) pg.109; Okoli v. EFCC (2008) 5 N.W.L.R. (pt.1081) pg.508.

On point of law, learned counsel Mr. Seriki contends the deponent disclosed he is a Litigation Clerk and that the case cited by the Respondent counsel is not relevant.