Chief Iyiola Oladiti & Anor. V. Moriamo Ode & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A (Delivering the Leading Judgment)

The Appellants/Applicants moved this Court on 21st of January, 2010 for an Order of this Court granting the restoration of the appeal which was struck out from the Court list for want of diligent prosecution on 27th May, 2009 back to the Court list.

The application was filed on the 4th of Aug. 09. In support of the application is a nineteen paragraph affidavit deposed to by Chief Iyiola Oladiti the 1st Appellant/Applicant.

2nd Respondent, Yekini Kolawole Oladiti on behalf of the Respondents in opposing the application filed a counter affidavit of fourteen paragraphs. At the hearing of the application, learned Counsel for the Applicants submitted that she relied on all the paragraphs of the supporting affidavit. The appeal was struck out due to the absence of Counsel in Court and the reason for the Counsel’s absence had been stated in paragraphs 4, 5,7,8,9,10,11,17 and 18 of the supporting affidavit. Learned Counsel to the Appellant/Applicant urged the Court to exercise its discretion in favour of the Applicants and not to shut them out. She concluded that the sin of Counsel for failure to appear in Court on the 27th May, 2009 should not be visited on the litigant. Learned Counsel urged the Court to grant the application as prayed.

Learned Counsel to the Respondent in reply submitted that the discretion of the Court is not granted as a matter of course. He argued that Applicants have not shown good and substantial reason for the granting of the application. He urged the Court to refuse the application.

Order 8 rule 20 of the Court of Appeal Rules 2007 says:

”Appellant whose appeal has been dismissed under this rule may apply by notice of motion that this appeal be restored and any such application may be made to the Court; who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”

By the provision of the order reproduced above, Appellant/Applicant must show good and substantial reason before the Court can exercise its discretion in favour of the Applicants.

I have carefully examined the affidavit in support of the application and the counter affidavit. I observed that the Appellant/Applicants have filed their Appellant’s brief long time before the appeal was slated for dismissal. I refer to paragraphs 7,8,9,10,11 and 15 of the supporting affidavit to the application which say:

(7) That I was told by the registry that the said appeal was to be dismissed because of failure to file Appellant’s brief

(8) That I immediately told them that we have filed court Appellant’s brief and showed them a copy of it filed on 22nd day of July, 2008.

(9) That I hereby exhibit, the 1st page of the said Appellants brief as Exhibit A

(10) The Registry told me and I verily believed her that she would take out the said Appeal No.CA/I/148/08 from the list already compiled.

(11) That the said Registry told me and I verily believed her that it would be unnecessary for me to come to the Court on that day as my appeal would not be listed any more hence I did not come to Court on 27-5-08