Alhaji Ayinla Mukadam V. Alhaji Laaro Akanbi (2000)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

 This is an appeal against the ruling of the Kwara State High Court holden at Ilorin sitting in its appellate jurisdiction, coram T. A. Oyeyipo CJ, R. Elelu-Habeeb and M. A. Folayan J.J.C.A delivered on 29/10/97 wherein the court dismissed the preliminary objection attacking the jurisdiction of the court to entertain the motion for leave to appeal out of time filed on 15/10/97 by the Respondent on the grounds of being functus officio. The court proceeded thereafter to grant the application for leave to appeal and adjourned for the hearing of the appeal.

The facts of this case briefly put were as follows: This case involves land dispute that arose from Upper Area Court Ilorin in 1971. At the Ilorin trial Upper Area Court judgment was entered for the Appellant herein as Plaintiff and against the Respondent herein in the said judgment delivered on 17/11/94.
Being dissatisfied with that judgment, the Respondent herein appealed within time to the High Court of Justice Ilorin by a Notice filed on 15/12/94. That appeal came up on 9/10/95 for hearing and was struck out on 10/4/96 for lack of diligent prosecution due to 2 successive applications for adjournment on the ground of illness by the Appellant’s Counsel which the Court discountenanced.
The order was made in the presence of both learned Counsel to the parties. The respondent thereafter filed a motion to relist the appeal which was dismissed on 9/7/96 in a considered ruling for failure of the Respondent to ask for extension of time after the Court had taken arguments from both sides (vide pages 31-33 of the records). Another motion on Notice dated 12/11/96 was filed at the same Kwara State High Court, Ilorin for extension of time within which to appeal against the same judgment of the upper Area Court in UAC/1/CUF/97/93 by the Respondent on 14/11/96 (vide pages 34-40 of the records) after the Respondent had complied with the order of possession made by the trial court. The Appellant herein raised a preliminary objection to the hearing of the said application for leave and extension of time within which to appeal against the judgment of the Upper Area Court (hereinafter referred to as the trial court) in UAC/1/CUF/97/93 delivered on 19/11/94 and this objection was filed on 16/1/97 (vide pages 41-46 of the records).
The ruling on the preliminary objection was delivered in favour of the Appellants on 23/1/97 and the Respondents motion filed on 13/11/96 was struck out. (See pages 47-61 of the record) on the sole ground that the Respondent was in contempt of the orders of the trial court asking him to yield the possession of the disputed land to the Appellant.

Again on 15/10/97 the Respondent, at the same Kwara State High Court holden at Ilorin, filed another motion on notice seeking leave of the court to appeal out of time against the same judgment of the UAC delivered on 17/11/94 (see pages 62-75 of the record). The Appellant also responded by filing another notice of preliminary objection dated 20/10/97 to the said motion (see page 76 of the record). On 29/10/97 the High Court (Appellate Session) heard both parties and in a considered ruling dismissed the preliminary objection and proceeded to hear the motion of 15/10/97 and granted same (see pages 77-82 of the record).

Dissatisfied with this ruling the Appellant herein appealed to this honourable court on 3 grounds. From the 3 grounds of appeal the Appellant has formulated the following issue for determination in this appeal, viz:-
“Whether the Ilorin High Court(sitting in its appellate jurisdiction) has jurisdiction to resuscitate and hear an appeal (vide motion for leave to appeal out of time etc) which it had previously struck out twice and dismissed once vide similar applications.”

The learned counsel to the Respondent also formulated an issue from the grounds which but for style agrees in substance with the above issue formulated by Appellant. It goes thus:-
“Whether the High Court appellate Session Ilorin was not right to have entertained the Respondent’s application seeking for leave to appeal out of time from the decision of the Upper Area Court as it did on 29th day of October, 1997 and for granting same.

Both learned Counsel to the parties filed their briefs of arguments. Both learned Counsel to the parties adopted and relied on these briefs filed herein on behalf of their respective clients and went further to address us viva voce to highlight some points canvassed in the said briefs. Learned counsel to the Appellant Mr. Akin Akintoye Jnr. leading Mr Iyiola Olajubu adopted and relied on the Appellant’s brief of argument filed herein on 5/5/99 pursuant to the order of this honourable court made on 20/4/99. Learned Counsel contended that he had nothing to add and urged the Court to allow the appeal.
By way of reply, learned Counsel to the Respondent Mr. A.O. Adelodun adopted and relied on the Respondent’s brief filed herein on 3/6/99. Learned Counsel stated that he had nothing to add and urged the Court to dismiss the appeal. Reacting to the submission of learned Counsel to the Respondent the leading Counsel to the Appellant replied that he had nothing to add.

I have considered the submission of both learned Counsel to the parties on the two segments of a common issue raised by them vis-a-vis the records and the prevailing law. It is necessary to give my views on points raised and canvassed by both learned Counsel to the parties in their briefs. The learned leading Counsel to the Appellant Mr. Akin Akintoye Jnr. by way of summary at page 10 of the Appellant’s brief submitted that the lower Court acted without jurisdiction when it overruled the preliminary objection of the Appellant herein to the application of the Respondent seeking leave to appeal out of time, granted the application and proceeded to adjourn the appeal for hearing. Learned Counsel to the Appellant predicated his submission on the following seven points, viz:
i. The order striking out the initial appeal on 10/4/96 for want of diligent prosecution was not made in default and therefore actually ought to be dismissed without option to relist.
ii. The order dismissing the motion to relist the appeal struck out which was made on 9/7/96 was an order on the merit. And having not been appealed against nor set aside, it operates as a bar against subsequent applications attempting to resuscitate the appeal struck out.
iii. Reference and reliance by the lower court to the order of striking out the motion for leave to appeal out of time made on 23/1/97 instead of the order of dismissal made on 9/7/96 in the court’s ruling of 29/10/97 were erroneous and misleading and therefore led to a miscarriage of justice in the decision that the order was not on merit.
iv. An order of dismissal of a motion seeking to relist an appeal struck out has the effect of stating that the said proposed appeal cannot be brought before the same court except the said order is set aside or appealed against. There is no world of difference between the said motion and the said proposed appeal.
v. That the lower court is functus officio after giving the order of dismissal of the motion seeking to relist the appeal struck out.
vi. That the lower court’s decision to grant the Respondent’s application seeking leave to appeal out of time after it has struck out twice and dismissed once similar applications to resuscitate the appeal, is tantamount to sitting on appeal over its earlier decision.
vii. That the cases of (i) Ikeakwu v. Nwankpa (1967) NMLR 224, (ii) FMBN v. Fojule (1994) 3 NWLR (Pt. 331) 228 and Okeke v. Modu (1996) 6 NWLR (Pt. 470)121 p. 127 (all references are mine) relied upon by the lower court in its ruling of 29/10/97 are not applicable to the present case.

Learned Counsel to the Appellant relied on many judicial authorities for the above submissions. These include among others the cases of Ikeakwu v. Nwankpa (Supra); Yonwuren v. Modern Signs (1985) 1 NWLR (Pt.2) 244 p. 258; Sanusi v. Ayoola (1992) 11 & 12 SCNJ 142; Mohammed v. Olawunmi (1993) 4 NWLR (Pt.287) 255; Williams v.Hope Rising (1980) 1-2 SC 14; Buwaje v. Adediwura (1976) 6 SC 143 as well as Order 2 Rules 1 & 2 and Order 37 Rule 9 of the Kwara State High Court (Civil Procedure) Rules, 1989.

By way of reply learned leading Counsel to the Respondent Mr. Yusuf O. Ali SAN by way of summary at page 9 of the Respondent’s brief urged the court to resolve the lone issue in this appeal against the Appellant and to uphold the ruling of the High Court and to dismiss the appeal Because:
1. The learned judges (appellate session) were right to have refused the appellant’s submission on preliminary objection that sought to rob them of jurisdiction to entertain the appeal at the Court below.
2. The reasons advanced for the refusal to decline jurisdiction is correct, convincing and in accordance with the applicable laws and the laid down judicial authorities which an appellate court will not interfere with.
3. The court below was not functus officio to have entertained and granted the motion for extension of time.
4. The appeal of the Respondent pending before the Court below has not been determined at all or on merit.
5. Undue technicality should not be allowed to take away the constitutional right of the Respondent to pursue his appeal at the lower court.

Learned leading counsel for the Respondent predicated the above submissions on many judicial and statutory authorities. These included among others the cases of DATA v. F.C.D.A (1994) 4 NWLR (Pt. 340) 549 pp. 556-557; Folorunsho v. Shaloub (1994) 3 NWLR (Pt. 333) 413; Okeke v. Modu (1996) 6 NWLR (Pt.470) 121 p. 127; Ikeakwu & Ors v. Nwankpa (1966) 4 NSCCC 83 p. 86; FMB v. Fojule (1994) 1 NWLR (Pt.331) 228 p. 238; Chima v. Chima (1995) 6 NWLR (Pt.404) 734 pp. 750-751; Erhahon v. Erhahon (1997) 6 NWLR (Pt.510) 667 p. 681 as well as Order 44 Rule 11 of the Kwara State High Court (Civil Procedure) Rules 1989 Supra.

I have considered the submissions of both learned Counsel to the parties on the lone issue in this appeal vis-a-vis the records and the prevailing law. In my considered view, the submissions boil down to the following sub-issues viz:

1. Whether an appeal struck out not on the merit can be brought back vis-a-vis application for extension of time to appeal. OR
Whether such an appeal or motion can be relisted.

2. Whether the Court can entertain another application for leave to appeal after the applicant had satisfied the conditions which led to its earlier striking out.
OR
Whether the application for leave to appeal brought before the court and struck out as in the instant case for various technical reasons can be adjudged to have been dealt with on merit thereby making the court functus officio.