Mrs. Folake Olaleye V. The Governor Of Oyo State & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering The Leading Ruling)

On the 16th of March, 2010, when this matter was called up for the hearing of the Motion on Notice, learned Counsel to the Appellant/Applicant, Babatunde A. Aiku, Esquire, moved the Court on his motion dated 25th June, 2009, but filed on the 5th of August, 2009. The motion which was brought under Order 7 Rules 1 and 10; Order 8 Rule 20; Order 17 Rules 10 and 11; Order 19 Rule 3 of the Court of Appeal Rules 2007, and under the inherent jurisdiction of this Court.

The learned Counsel on behalf of the Appellant/Applicant had sought for the following orders:-

(i) An Order to restore appeal No.CA/1/43/2001 dismissed on 23rd June, 2009;

(ii) An Order extending the time within which to file and serve Appellant’s Brief of Argument; and

(iii) An Order to deem as properly filed and served the Appellant’s Brief of Argument already filed and served therein.

Learned Counsel to the Appellant/Applicant had sought reliance on the facts deposed to in Paragraphs 4, 5, 6, 7 and 8 of the Affidavit in support of the Motion on Notice. The said paragraphs relied upon are reproduced as follows:

Paragraph 4:-

On 23rd June, 2009 when this appeal came up before this Honourable Court for dismissal, pursuant to a notice of dismissal issued by the registry of this Honourable Court, my senior colleague in chambers, Babatunde A. Aiku Esquire, who appeared for the Appellant, informed me and I verily believe him that:-

(i) this appeal was dismissed on 23rd June, 2009, inspite of the fact that the Appellant’s Brief of Argument dated 18th May, 2009 but filed on 25th May, 2009 out of time was in the Court’s File;

(ii) the Respondent’s Counsel was served with a copy of the said Brief of Argument without protest;

(iii) the Respondents did not file an application praying for an order to dismiss this appeal for want of prosecution;

(iv) this Honourable Court dismissed the appeal for failure of the Appellant’s Counsel to file an application for extension of time within which to file the Appellant’s Brief of Argument inspite of the undertaking to file an application for extension of time to regularize the Appellant’s position by my senior in chambers;

(v) the appeal was not yet ripe for hearing; and