Chief E.O.I. Ojumo & Ors. V. Momodu Adalemo & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A.: (Delivering the Leading Judgment)

In a Motion on Notice dated 18th September, 2010 and filed on the 21st September, 2010, the Applicants prayed for the following reliefs:-

(a) An order granting leave to the Appellants/Applicants herein to apply for re-listing of this appeal which was dismissed by this Honourable Court on the 21st May, 2009 for want of diligent prosecution.

(b) An Order re-listing this appeal which was dismissed by this Honourable Court on the 21st May, 2009 for want of diligent prosecution.

And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.

The application was supported by a sixteen (16) paragraphs affidavit deposed by Raji Anis Idowu, the 3rd Appellant/Applicant. Attached to the supporting affidavit are:-

(1) Motion on Notice for Leave to the Appellants/Applicants to file more grounds of appeal dated 13/05/2009 and filed on the 14/05/2009, marked as Exhibit ‘A’.

(2) The treasury receipt for filing of Exhibit ‘A’ with receipt No. 2007751138, dated 14/05/2009, marked as Exhibit ‘B’. (3) Hearing Notice served on the 12/05/2009, marked as Exhibit ‘C’.

(4) Enrolled Order of this Court dismissing the Appellants/Applicants’ appeal, marked as Exhibit ‘D’.

(5) The proposed Appellants’ Brief of Argument, marked as Exhibit ‘E’.

While arguing the application, the learned Counsel to the Appellants/applicants, T. G. Adeosun Esquire, submitted that, the application was brought pursuant to Order 8 Rule 20 of the Court of Appeal Rules, 2007 and under the Inherent Jurisdiction of this Court. The learned Applicants’ Counsel blamed the dismissal of the appeal on the failure of the former Counsel to the Applicants, M .A. Zakariyau who failed to file a Notice informing the Registrar of this Court that, he was debriefed by the Applicants on this appeal under Order 2 Rule 5, Court of Appeal Rules, 2007; and consequently, Hearing Notice was served on him, which he kept away from the Appellants. The Appellants were therefore not aware that the appeal was slated for dismissal.

Learned Counsel to the Applicants further argued that, Exhibit ‘A’ which is a Motion on Notice dated 13/05/2009 was pending before this Court, a week preceeding when the appeal was dismissed. Exhibit ‘B’ is the receipt of filing fees of Exhibit ‘A’. Exhibit ‘C’ is the Hearing Notice on Zakariyau. Exhibit ‘D’ is the proceeding when the appeal was dismissed, while Exhibit ‘E’ is the proposed Brief of Argument of the Appellants/Applicants. Learned Counsel to the Applicants further submitted that, under Order 8 Rule 20 of the Rules of this Court, the Court is empowered to grant this application when the Applicants have not been informed of the date of the dismissal. See: Peak Merchant Bank Ltd. vs, Venture Trust Ltd, (2007) 3 NWLR (Part 7027) 339 At 352 C-D. Also, The Young Shall Grow Motors Ltd. vs. Okwonkwo (2010) All FWLR (Part 528) 803 At 877 Paragraphs C-E. Learned Counsel to the Applicants finally urged this Court to grant this application in the interest of justice.

Learned Cornel to the 1st and 2nd Respondents, Olumide Akinbinu, on points of law argued that, this Court lacks the jurisdiction to relist this appeal. By Exhibit ‘D’, this appeal was dismissed under Order 77 Rule 10 of the Court of Appeal Rules, 2007. No re-listing of appeal for failure to file Briefs. Also, see:- Order 6 Rule 10 of the Court of Appeal Rules, 2002. Several judicial interpretations have been given on this kind of application. See:- Kraus Thompson Organisation vs. NIPSS (2004) All FWLR (Part 218) 797 at 808 Paragraph D.

1st and 2nd Respondents’ Counsel further submitted that, the Applicants brought their application under Order 8 Rule 20 of the Court of Appeal Rules, 2007 which is failure to compile records, not the failure to file Briefs. This Court is urged to refuse the Applicants’ application.