Joseph Adeyinka & Ors V. Lydia Mojirola Abidoye (1997)

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IGE, J.C.A.

This is an appeal against the Judgment of Omu-Aran High Court delivered on 28th day of October, 1993 in suit No. KWS/OM/4A/93. It was an appeal to Omu-Aran High Court on the decision of the Upper Area Court of Kwara State sitting at Omu-Aran. As a matter of fact this case originated from Upper Area Court Omu-Aran where the respondent as plaintiff applied to the court for an order of interim preservation of the properties of her Late Husband carted away by the appellants. The Upper Area Court granted the application and by common consent of the parties, custody of the properties was given to Mr. J.O. Ijaodola. Later the respondent began to come across the vehicles on the road hence they brought another application before the Upper Area Court praying the court to order the properties subject of the dispute to be kept in the custody of the registry of the High Court Omu-Aran. This second application was filed on 1/12/92 and fixed for hearing on 10/12/92. On 10/12/92 the counsel for the appellants then defendants sought an adjournment to file a counter affidavit.

The case was then adjourned to 2/2/93. From 2/2/93 the case was further adjourned to 29/4/93. On 29/4/93 counsel for the appellants still sought for an adjournment to file a counter affidavit. The adjournment was refused by the Upper Area Court and the application for custody of the properties in the High Court Registry was heard and granted with a variation that the properties should be deposited at the Upper Area Court.

The appellants were dissatisfied with the order of the Upper Area Court and they appealed to the High Court presided over by two judges of the Omu-Aran High Court. It is pertinent to mention that before the application for adjournment was refused, the counsel for the appellants had filed a series of preliminary objections which were over-ruled by the Upper Area Court. The appellants were dissatisfied with the rulings of the Upper Area Court delivered on 29/4/93 and therefore appealed to Omu-Aran High Court presided over by two Judges. Before the Omu-Aran High Court the appellants filed two grounds of appeal. The following are the two grounds of appeal-

“1. The Upper Area Court erred in law in over-ruling the defendants’ preliminary objection to the effect that the Upper Area Court had no supervisory and no appellate jurisdiction over the High Court.

2. The Upper Area Court erred in law in not granting an adjournment to the appellants herein when they had not filed a counter affidavit because of the preliminary objection.”

After the arguments before the High Court and the review of counsels’ addresses presented before the Judges, Adeniyi J. delivered the judgment of the court by dismissing the appeal as lacking in merit. In a final analysis, the Judges held thus-

“Taking the above view together with the comments of trial court in its ruling at page 7 that it granted counsel for the defendants/appellants adjournment on 10/12/92 to file its counter affidavit and then adjourned the hearing of the motion for him to 24/9/93, we agree with the lower court that the defendants/appellants had been given sufficient time to file the counter affidavit. While there is glaring evidence of delay we are unable to find denial of justice, more so when the properties were then with the defendants/appellants.

The circumstances appear to me to have been duly considered before the application for adjournment was refused.

In Ceekay Traders Case (supra) holdings 2 and 3 support the refusal in the circumstances of this case.

We therefore endorse its decision to refuse further adjournment to enable counsel to file the counter affidavit which ought to have been filed. That refusal did not deprive the defendants/applicants the opportunity of a fair hearing which had already been given and abused. It can be inferred that the delay was being caused to prevent the custody of the properties from leaving the defendants/appellants. We find no substance in this ground which also fails.

As the appeal lacks merit, it is dismissed.

(sgd) (sgd)

D.I. Adeniyi J.F. Gbadeyan

Judge Judge