Alhaji Ramoni Mohammed Opekun V. Alhaji Alidu Afolabi Sadiq & Ors (2002)

LawGlobal-Hub Lead Judgment Report

Onnoghen, J.C.A. 

This is a ruling on an application by the appellant/applicant praying the court for “an order re-listing this appeal which was struck out on 21st day of May, 1998.” The application is supported by an affidavit of 10 paragraphs as well as a further affidavit of 3 paragraphs on which the applicant relied in moving the court. On the other hand the 1st respondent caused a notice of preliminary objection to the said motion to be filed as well as a counter affidavit.

When the matter came up for hearing on 27th March, 2002, learned counsel for the appellant/applicant, Seeni Okunloye, Esq. informed the court that the application is grounded on Order 3 rule 25(2) of the Court of Appeal Rules. Referring to paragraph 6(i) of the supporting affidavit and exhibit F A I attached to the further affidavit, learned counsel submitted that the main reason for striking out of the appeal is the absence of the counsel for the appellant on the date in question. Learned counsel further stated that the reason for the failure to attend court that date are as stated in paragraph 4, 5(a)(b)(c)(d)(e)(f) of the supporting affidavit particularly that the applicant did not know that the matter was struck out hence the delay in presenting the present application to relist. That the circumstances leading to the applicant knowing that the appeal had been struck out are as deposed to in paragraph (6)(a) – (j) of the affidavit in support. That the applicant finally knew that the appeal had been struck out on 15/3/01 from the registry of this court. That the appeal was entered at Kaduna with two different numbers which was a mistake by the court registry.

Learned counsel then submitted that where the reason for nonattendance is lack of knowledge of the date of hearing, the court should be favourably disposed to relisting the appeal relying on Unipetrol (Nig.) Plc. v. Bukar (1994) 5 NWLR (Pt. 344) 360 – 366.

Turning to the counter affidavit, learned counsel submitted that it does not state or show that the applicant was aware of the date for hearing. That it does not therefore contradict the fact that the applicant had no knowledge of the hearing date. That it was only the learned counsel for the applicant that was served with hearing notice regarding that date of hearing but he did not bring it to the notice of the applicant, learned counsel further stated referring to paragraph 5 (c) and 5 (e) of the supporting affidavit. That learned counsel did not also inform the applicant that the appeal had been struck out. Relying on Olowu v. Abolor (1993) 5 NWLR (Pt. 295) 255,271 – 272. Akujinwa v. Nwaonuwa (1998) 13NWLR (Pt. 583) 632 – 653; Mukadam v. Akanbi (2000) 13 NWLR (Pt. 685) 616 at 624 learned counsel submitted that the interest of justice demands that parties be heard on merit as regards their grievances.

On the notice of preliminary objection learned counsel urged the court to discountenance same on the ground that it is misconceived. That the application before the court is not in abuse of process simply because two mutually exclusive prayers are asked for in separate applications before the court.

On the counter affidavit filed on 9/11/01 counsel submitted that the facts therein contained are not relevant to the determination of the present application for relistment of the appeal before the court and finally urged the court to discountenance same and grant the application.

In his reply, learned counsel for the 1st respondent, T. O. S. Gbedeyan, Esq., referred the court to the notice of preliminary objection filed on 9/11/01 and submitted that the application is incompetent, misleading and an abuse of court process.

On abuse of process counsel submitted that there has been a subsisting application before the court filed on 12/3/01 praying for enlargement of time to seek leave to appeal which has not been heard before the present application was filed on 4/4/01. For this counsel relied on Olowokore v. A. N. N. Ltd. (1993) 5 NWLR (Pt. 295) 583.

Counsel then submitted that the court should consider four issues in determining the competence of the application viz:

(i) The reason for the applicant’s failure to appear in court when the case was heard;

(ii) Whether there has been undue delay in making the application so as to prejudice the other party;

(iii) Whether the other party would be prejudiced or embarrassed by an order for a new trial so as to render it inequitable to re-open the case, and;

(iv) Whether the applicant’s case is manifestly unsupportable.