Isaiah Ojo Asore & Anor. V. Sule Ogundimu Lemomu & Ors (1994)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C. 

The plaintiffs who are appellants, in this appeal, instituted an action against the respondents at the Osogbo High Court, Oyo State. In the writ, the appellants claimed jointly and severally against the respondents for the following declaration and ancillary reliefs:

“(a) Declaration to a Statutory Right of Occupancy to piece or parcel of land situate, lying and being at Faji more particularly shown and delineated on Plan No. J.F.A. 1134 drawn by Chief Ososami Licensed Surveyor on the 20th day of January, 1980 and thereon edged Brown.

(b) The sum of Ten Thousand Naira (N10,000.00) being general damages suffered by the plaintiffs as a result of trespass committed by the defendants on the area verged Brown on Plan J.F.A. 1134.

(c) Injunction restraining the defendants, servants, privies, agents or anybody claiming through them from committing any further acts of trespass on the land in dispute.”

At the end of the trial, in a judgment delivered on 23rd August, 1983, the trial High Court declared that the appellants were entitled to a statutory right of occupancy to the land in dispute. It also granted an order of injunction as claimed and awarded the appellants N 1,000.00 as general damages against the respondents. Dissatisfied with the decision of the High Court, the respondents appealed to the Court of Appeal, Ibadan. The Court of Appeal, in a unanimous decision allowed the appeal and dismissed the claim of the appellants.

On appeal to this court, against the decision of the Court of Appeal, the appellants filed a motion on notice before the Court of Appeal seeking leave of the Court to appeal against their decision on five grounds, all on facts and mixed law and facts. The application was not argued until after three months had elapsed and the Court of Appeal wasted no time in striking it out.

The appellants thereafter came and sought leave of this Court to appeal against the judgment of the Court of Appeal. The motion was argued on 19th November. 1986 and after considering the application in chambers this court extended the time to 30 days within which the appellants could appeal against the judgment of the Court of Appeal. The appeal was not filed until on 23rd December, 1986. four days after the date extended for the appellants to file their appeal had elapsed.

Chief Makanjuola Esan, learned counsel for the respondent raised a preliminary objection that the appeal having been filed outside the period of three months is incompetent. His argument is that on 19th November, 1986, when the appellants’ prayers for leave to appeal were granted, they had been out of time to file the appeal. The order of court made on that day was to the effect that the application was granted as prayed. There was no prayer for extension of time to appeal in the application granted by this court in chambers on 19th November, 1986. On these facts the learned counsel submitted that the notice of appeal filed on 23rd December, 1986 is incompetent having been filed outside the period prescribed by section 16 of the Supreme Court Act. 1960. without any order for extension of time to do so. Counsel then referred to Bowaje v. Adediwura (1976) 7 S.C. 143 and Amudipe v. Arijodi (1978) 9/10 S.C. 27.

With due respect, the learned counsel may not be right on the wordings of the application which was considered in chambers on 19th November. 1986. It is unfortunate, because the motion paper is missing from the main file concerning this appeal. Nevertheless, the Drawn up Order of the court on the decision has thrown light on what was prayed for in the motion. In the Drawn up Order, the opening words are:

“Application for an order;

(I) for enlargement of time in which to apply for leave to appeal and

(2) for leave to appeal

After considering the application in chambers this court granted the application as prayed. What was granted has been translated in the ruling of Bello, J.S.C., (as he then was) who wrote the leading ruling. It is as follows: