MR. Jamiu Alawode V. Prince Ganiyu Abolaji & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Lead Ruling)

The present applicant was the defendant in Suit No.KWS/OM/11/2005 in the Kwara State High Court of Justice, Ilorin, where the learned trial Judge delivered judgment against the applicant on 12/12/2011.

Being dissatisfied with the said judgment, the applicant filed Notice of Appeal on 18/4/2013 against the said decision. On 26/2/2014 the appeal was dismissed by this Court on the application of the respondents, for want of prosecution under Order 18, Rule 10 of the Court of Appeal Rules 2011.

The applicant has now brought this application praying for the following:-

1. For an order setting aside the order of 26/2/2014 dismissing Appeal No.CA/IL/57/2013 for want of diligent prosecution.
2. For an order restoring and/or re-listing the said appeal dismissed on 26/2/2014.

The 10 paragraphs grounds of the application are:-

i. The Applicant’s counsel in person of Chief S. R. Ashaolu has been very sick for some time.

ii. While still recuperating, he managed to settle the Applicant’s Brief of Argument.

iii. That on the 26th day of February, 2014, on getting to the Court Registry of this Honourable Court to file application for extension of time within which to file the Appellant’s Brief of Argument it was discovered that the appeal has been dismissed for want of diligent prosecution.

iv. That he went to the Registry of the Court of this Honourable Court to find out what happened, and he discovered that he was alleged to have been served with hearing notice to the effect.

v. That on the 27th day of February, 2014, he formally applied for the certified True copy of the hearing notice, only to discover that wrong chambers was served.

vi. That Ashaolu & Co. is located at Offa Road, G.R.A. Ilorin, Kwara State and that has been where previous hearing notices in respect of this appeal were served.

vii. That the hearing notice in respect of which the appeal was dismissed was served on the office of Olugbenga OgidiOlu & Co., No. 38, Taiwo Road, Ilorin.

viii. The error in service is that of Registry and the registry itself admitted this.

ix. The Applicant is desirous of prosecuting this Appeal.