Alhaji Kewulere Olaiya V. Okeho Community Bank Ltd. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Lead Ruling)

The applicant by an application dated 9th September, 2009, filed on 29th September, 2009 sought the following prayers before this court:

“AN ORDER of court setting aside the dismissal of the Appellant’s Appeal No. CA/I/33/08 and restoring the hearing of same to the cause list of this Honourable Court.

And such further or other order as this Honourable court may deem fit to make in the circumstances.”

The sole ground for the application was:

“The order dismissing the Appellant’s Appeal for failure to file a Brief of Argument within time was made without jurisdiction and in error.”

In support of the application, was a fourteen (14) paragraph affidavit deposed to by Abdulfatai Mohammed, a Legal Practitioner in the Law firm of Akanbi and Wigwe. There is also a further and better affidavit in support of the application dated and filed on 22nd September, 2010 deposed to by Kewulere Olaiya, a business man which was also relied upon in moving the application.

The application was brought under the inherent jurisdiction of the court.

In arguing the application, the learned counsel to the applicant A.A. Mohammed Esq. applied to come under Order 8 Rule 20 of the Court of Appeal Rules, 2011 (The Rules). Reference was made to Exhibits AA1 and AA2 (the record of proceedings of this court dismissing the appeal and the certificate of service of the Notice of Appeal on the applicant, respectively) as well as all the paragraphs of the affidavit and further and better affidavit, especially paragraphs 4 and 5 of the affidavit. It was submitted that this court has a discretionary power to restore the appeal to the cause list and relied on Order 8 Rule 20 of the 2011 Rules. It was argued that the applicant had placed enough facts before the court for the exercise of discretion in his favour, reliance was placed on the case of GUFFANTI (NIG.) PLC. Vs. VADUZ (2012) 3 NWLR (Pt. 1288) at 458. We were urged to exercise our discretion in favour of the applicant.

The learned counsel to the Respondent was served with the hearing Notice on 8th November, 2012 but failed to attend court and did not fire any counter affidavit; therefore the application was not opposed. Even though the application was not opposed it does not mean automatic grant of same. The sole relief sought by the applicant are two faced:

(1) Setting aside the dismissal of the Appeal No. CA/I/33/2008 of 15th June, 2009 by this court.

(2) Restoring the hearing of the appeal to the cause list.

No doubt, the appeal was dismissed on the basis of the appellant not filing any brief of argument in absence of any motion for leave to file his brief out of time following which the notice of appeal filed on 1st April, 2005 was dismissed for want of diligent prosecution, see Exhibit AA1, the ruling of this court of 15th June, 2009; attached to the affidavit in support of the application.

The appeal was dismissed pursuant to Order 17 Rule 10 of the Court of Appear Rules, 2007 part of which provides as follows: