Lamidi Sanni & Ors V. Chief Salami Oruku (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA, J.C.A. (Delivering the Lead Ruling)

The Applicants by motion on notice dated 28/9/12 and filed on 26/9/12 brought pursuant to order 7 Rule 10 Court of Appeal Rules 2011 and under the inherent jurisdiction of the Court prayed for the following:

1. “An Order of this Honourable Court for extension of time within which the Applicants/Appellants may seek the leave of the Court to appeal against the decision delivered by Honourable Justice S. A. Adebajo of the Lagos state High Court Ikeja Division delivered on 27th July, 2001 in the suit no: ID/2595/92 between the above parties.
2. An order of this Honourable court granting the Applicants/Appellants the leave of the Court to appeal against the decision delivered by Honourable Justice S.A. Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit no: ID/2595/92 between the above parties.
3. An Order of this Honourable Court for extension of time within which the Applicants/Appellants may appear against the decision delivered by Honourabre Justice S. A. Adebajo of the Lagos state High court Ikeja Division delivered on 27th July, 2001 in the suit no: ID/2595/92 between the above parties.
4. An order granting leave of this Honourable court to the Applicants/Appellants to raise a fresh ground of appeal in the Notice of Appeal.

The application is supported by four grounds of appeal and an affidavit of 25 paragraphs deposed to by prince Adetunde Ogunsanya the 58th Appellant/Applicant.

In opposition to the application the Respondents filed a 31 paragraph counter affidavit deposed to by Olusegun Ayeni, counsel in the chambers of Shina Adedeji & Co.

At the hearing of the application on 15/10/14, learned counsel for the applicant informed the court that by the order of the court both learned counsel filed and exchanged written addresses. The addresses were then duly adopted. The facts that led to this application as distilled from the affidavits are as follows:

The Applicants were the Defendants in suit No ID/2595/92 before Adebajo J of the High court of Lagos state Ikeja. The learned judge delivered his judgment on 27th of July 2001 against the applicants. The Applicants immediately filed Notice of Appeal on 9th August 2001 (thirteen days after judgment was entered against them). The Appeal was assigned the number CA/L/37/02. The applicants also filed application for stay of execution of the judgment pending appeal.

The motion was dismissed by the trial judge as the applicants were adjudged trespassers who were still selling the land of the respondents after judgment was entered against them. Notwithstanding the Lower Courts ruling, the Applicants filed a similar application for stay of execution before this court presided over by Justice Oguntade JCA (as he then was) and the Respondents opposed it vehemently on the ground that the Applicants were still selling the land despite the judgment of the trial court and were asking their prospective buyers to disregard the judgment of the Lower Court.

Oguntade JCA however granted the application for stay of execution conditionally for one year on 28th October, 2002. But because the Respondents complained to the court that the Applicants were selling the land despite the judgment of the court, the grant was made conditional as Honourable Justice Oguntade JCA (as he then was) warned the applicants to pursue their appeal with speed and that if they sell any portion of the land or do anything thereon inconsistent with the rights of the Respondents, the stay granted them will be lifted.

Despite the fact that the grant was made conditional for one year to enable the Applicants prosecute the appeal expeditiously, throughout the one year conditional stay; the applicants did nothing about the appeal they had filed. After the expiration of the one year, the applicants brought another motion for extension of the stay of execution. Again the Respondents opposed it vehemently. The court in refusing the application held:

“This is a motion seeking an order extending stay of execution made against the Respondents on the 28th October, 2012 by this court for one year. The grant of stay has lapsed and the Applicants seek extension thereof. The Applicants have not shown seriousness to prosecute this appeal and it is not in the interest of Justice to extend the earlier grant. The motion is hereby dismissed.”

The Applicants were then left with only the substantive appeal No CA/L/37/2002. Instead of getting on with the appeal, the applicants busied themselves filing all kinds of applications to stall the hearing of the appeal. The Respondent alleged that the Applicants filed over twenty such applications while they kept on selling the respondents land. On the 25th day of February, 2008, on the application of the Respondent, the substantive appeal was dismissed for lack of diligent prosecution. Despite the dismissal of the substantive appeal, the applicants continued to file all kinds of applications. One of such applications is a motion for extension of time to appeal (the 2nd time). The Appellants discovered on the day their counsel went to move this application that the notice of Appeal they filed on 27th July, 2001 was defective. They withdrew it and now filed the present motion for extension of time to Appeal; after twelve and half years.

The story told by the applicants in their affidavit differed. They claimed that after the Notice of Appeal was struck out, they filed a trinity application praying for extension of time for leave, leave and extension of time to appeal against the judgment of Adebajo J of 27th July 2001 via the motion on notice dated the 22nd of February 2010 with appeal no.CA/L/162m/2010 barely a month after the notice of appeal was struck out. They claimed that this court saw that the application was defective the prayer not having included the name of the judge at the trial court and same was withdrawn and struck out on the 9th of June 2010. Another trinity application dated 11th of June 2010 was filed in accordance with the courts directive and same was also held to be defective having not contained the suit number at the trial court and the parties involved in the prayer. The Applicants also withdrew the said application and same was struck out on the 6th of March 2011. They claimed that being desirous to see the end of this Appeal on the merit, they filed another application dated the 25th of March 2011 which was also withdrawn and struck out on the 24th of September 2012 for not containing the grounds on which the application was brought. They finally filed the present application on the 26th of September 2012.

Learned counsel for the applicant in his written address formulated the following issue for determination:

Whether this Honourable Court is imbued with the power to grant this Application of the Appellant/Applicants in the circumstances of the Appeal?