Apostle (Dr.) Moses Adetunji Fasawe V. Ilori Olawole Adekanbi & Anor (2013)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Lead Ruling)
By a motion on notice dated and filed on 14/10/2010, the Appellant/Applicants therein (now Respondents) sought an order that Suit No.HOW/4/2001 be heard de novo by another Judge by reason of the frustration of the appeal lodged thereto.
The main ground of the application for that motion before this Honourable Court then, was that the appellants/applicants filed an appeal but the appeal could not be prosecuted “because the case file, records and exhibits were and are still missing at the Lower Courts Registry.”Suits & Business Attire
In a considered Ruling delivered on the said application an 8/3/2012 by Kekere-Ekun JCA (as he then was) supported by Iyizoba and Adumein JJCA, this Court held at pages 16 – 17 of the Judgment as follows:
“….Where an appellant has done all that is required of him for the prosecution of his appeal and it is frustrated due to no fault of his, the Court has a duty to exercise its judicial powers in favour of enabling him to exercise his constitutional right of appeal.
See: Akaide Vs. The State (1996) 8 NWLR (468) 525 at 530 – 531 H – G; System Metal Ind. Ltd. vs. Ehizo (2003) 7 NWLR (820) 460; Haastrup (W.A) Ltd. Vs. Welding Eng. Co. (Nig) Ltd. (1996) 9 NWLR (470) 92 at 98 E – F. The effect of all that I have said is that I am of the view and I do hold that the applicants herein have satisfied the Court that this is a proper case in which to exercise its discretion in their favour.
The application has merit and is accordingly granted as prayed. It is hereby ordered that Suit No. HOW/4/2001 before the Ondo State High Court be heard de novo by another Judge of that Court. The Suit shall be granted an accelerated hearing there shall be no order of costs.”
Now, by a motion dated 2-7-2012 and filed on 3/7/2012, the applications who were Respondents in the motion at 14/10/2010 prayed this Court for:
“1. An order setting aside the decision/order contained in the Ruling of this Honourable court delivered in Appeal No.CA/B/173M/2010 on 8th March 2012 by Hon. Justice: Kudirat M. O. Kekere-Ekun JCA, Chinwe E. Iyizoba JCA and Moore A. A. Adumein JCA.
BETWEEN:
- ILORI OLAWALE ADEKANBI
- HIS HIGHNESS OBA RUFUS ADENIBUYAN ALADETANYE ( APPELLANTS)
AND
- ALHAJI ALWANI OLUFAWOYE
- APOSTEL (LDR) MOSES ADETUNJI FASAWE (RESPODNENTS)
(For themselves and the entire Members of Idobi family of Isuada)
- An order allowing the certified true copy of the Bundle of documents pages 1 – 138 compiled by the Registrar of the High Court of Justice Ondo State in Suit No. HOW/4/2001 a copy of which is attached herewith as Exhibit ‘A’ be used as the records of Appeal in the said suit HOW/4/2001 in this Honourable Court with the directive of Court that the Appellants is at liberty to file additional records of Appeal if not satisfied with the said Bundle of documents marked Exhibit ‘A’ (supra).
- An order abridging the period/time allowed by the Rules of this Honourable court within which the parties may file their respective Briefs of Argument in this case.
- An order striking out the name of Alhaji Alawani Olufawoye the 1st Respondent in suit No. HOW 4/2001 who died in his sleep and was buried in his hometown on Saturday April 28, 2012 at Isuada Owo, Ondo State.
- An order directing the Appellants/Respondents to file their bond of Appeal in this case at the registry of this Honourable Court being a condition required for the prosecution of this Appeal.
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The grounds for the said application as stated in the body of the motion are as follows.
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