Fatayi Sule Dakan & Ors V Alhaji Lasisi Asalu & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The respondents in this appeal [as plaintiffs], on behalf of themselves and the Osolo Royal Family, took out a Writ of Summons against the appellants herein [as defendants] at the High Court of Justice, Ogun State, holden at Abeokuta. They [the respondents, as plaintiffs] claimed against them [appellants, as defendants], jointly and severally, as follows:

1. Declaration that the plaintiffs are entitled to Certificate of Occupancy in respect of the land situate, lying and being at Osi Quarters, Otta, Egba Division, Ogun State;
2. N100,000 (One Hundred Thousand Naira) damages from each of the defendants for trespass committed on the said land by clearing and constructing building thereon without the consent of the plaintiffs;
3. An injunction against the defendants jointly and severally restraining them from entering the said land and doing anything thereon without the consent of the plaintiffs.

Issues were, duly, joined in the settled pleadings. At the conclusion of the hearing, the said court hereinafter referred to as “the trial court”), in a considered judgment delivered on November 6, 1985, dismissed the respondents’ case [as shown above, they were the plaintiffs at the trial court], Dissatisfied with the judgment, they appealed to the Court of Appeal, Ibadan Division (subsequently in this judgment to be referred to, simply, as “the lower Court”).

Sequel to an application by the appellants [as applicants], the lower Court, in a ruling of November 17, 1994, dismissed the said appeal. Subsequently, they [the respondents], beseeched the lower Court with an application to set aside its ruling which, as shown above, dismissed the appeal. The lower Court dismissed the said application in its ruling of November 23, 2000, holding that, as the appeal was dismissed for want of prosecution, the respondents [as applicants] were not entitled to the relief provided in Order 3 Rule 20 (4) of the Rules of the lower Court [in force at the material time]. Finding no merit in the application, the lower Court dismissed it with costs in favour of the appellants [as respondents to the application].

What prompted the present appeal was a later ruling by the lower Court dated December 3, 2002. By their application of June 28, 2002, the respondents, again, approached the lower Court for:

i. An order extending the time within which the plaintiffs/appellants/applicants may file the appellants’ brief of argument in these proceedings;

ii. An order granting leave to the plaintiffs/appellants/applicants herein to file and argue additional grounds of appeal.

Instructively, as at June 28, 2002, when the said application was filed, there were no pending proceedings before the lower Court between the parties, the said court having, as shown above, dismissed the respondents’ application to set aside the earlier ruling of the said court which dismissed the appeal of the respondents for want of diligent prosecution.

Expectedly, the appellants, stridently, contested the said application. However, by a ruling of December 3, 2002, the lower Court overruled the appellants’ objection to the application for extension of time to file the respondents’ [then appellants’] brief on the ground that it was premature. According to the court:

He [counsel for the appellants/objectors] is at liberty to raise his objection at a later stage. The appellants/applicants’ motion filed on 28/6/2002 is therefore granted as prayed; time is extended by seven days from today [December 3, 2002] within which the applicants are to file the appellants’ brief; leave is also granted to the applicants to file and argue the four additional Grounds of Appeal attached to the motion in addition to the three original Grounds…

[Page 50 of the record]

Aggrieved by the above ruling of the lower Court, the appellants [respondents to the motion] appealed to this court, urging it to resolve their two issues set out for the determination of this appeal, namely:

1. Whether the Court of Appeal was right to extend the time to file brief and to argue additional Grounds of Appeal in respect of an appeal which had been dismissed
2. When is the appropriate time to oppose an application for extension of time to file appellants’ brief and for leave to argue additional Grounds of Appeal in respect of an appeal that has been dismissed

On their part, the respondents formulated a sole issue which, in their view, would be adequate to dispose of this appeal. They framed it thus:

Whether the Court of Appeal was in error in granting the respondents’ application for leave to argue additional Grounds of Appeal and an order extending the time within which they may file a Brief of argument in these proceedings