Arma Ya’u Abdullahi & Sons Ltd. Anor V. Fha Homes Ltd (2005)

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RHODES-VIVOUR, J.C.A.

This is a ruling on an application filed on the 1st of April, 2005 by the appellants/applicants praying the court for an order re-listing two motions struck out on the 21st of February, 2005. They are:

(a) Motion No: CA/A/168/M/04 dated 3/11/04 and filed on 15/11/04;

(b) Motion No: CA/ A/168/M/04 dated 4/11/04 and filed on 17/11/04.

The application is supported by a 4-paragraph affidavit. Annexed thereto are documents marked exhibits A, A1, B and C.

The respondent did not file a counter-affidavit. Neither side filed briefs of argument. Both counsels addressed us orally on the 26th of May, 2005.

Learned counsel for the appellants/applicants, A. D. Abdullahi, Esq. referred the court to paragraph 3 of the affidavit in support to explain his absence from court on the 21st February, 2005, the day his motions were struck out.

Relying on Lauwers Import Export v. Jozebson Ind. Ltd. (1988) 3 NWLR (Pt. 83) p. 429, he observed that his absence from court was due to mistake of counsel, contending that the respondent could not be prejudiced by the grant of this application.

Opposing on points of law, learned counsel for the respondent, N. A. Obina, Esq. observed the application to be novel in that it is wrong for the application to be brought under no rule; neither is there any grounds as required by Order 3 rule 3(1) of the Court of Appeal Rules.

He submitted that under the rule this court can only relist an appeal struck out but cannot relist an application for extension of time to appeal. Relying on Mobil (Nig.) Production Unlimited v. Monokpo (2003) 18 NWLR (Pt. 852) p. 436, he contended that a motion cannot sustain another motion. Continuing his submissions, learned counsel observed that the court lacks jurisdiction to extend prayers as contained in the motion paper. Further reference was made to Nig. Air-force v. Shekete (2002) 18 NWLR (Pt. 798) p. 129.

Concluding his submissions he observed that the applicant does not meet the requirement for relisting since he failed to explain why he was not in court on the 21st of February, 2005, the day the application was struck out.

In a brief reply, learned counsel for the appellant/applicants observed that not stating the rule under which the application was brought will not stop the court from the reliefs sought.

The records of this court for the 21st day of February, 2005 are clear. Motion No. CA/A/168/M/04 dated 3/11/04 and filed on 15/11/04 was struck out. Motion No. CA/A/168/M/04 dated 4/11/04 and filed on 17/11/04 is thus irrelevant to this proceeding. It was not struck out. It shall remain pending.

Order 3 rule 3(1) of the Court of Appeal Rules stated that: