Mrs. Folashade Omolara & Ors V. Mr. Ayinde Oladele & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Lead Ruling)

By a motion on notice dated 11.3.2010, and filed on the same date, the applicants prayed for:

“An order setting aside the order dismissing this appeal and restoring on the Appeal List, Appeal No: CA/I/158/2008, Mrs. Folashade Omolara and Ors. v. Mr. Ayinde Oladele and Ors which was dismissed on the 4th day of June, 2009 for want of diligent prosecution.

And for such further or other orders as Honourable court may deem fit to make in circumstances of this case.”

Mr. Emehin of learned counsel for the applicants relied on an affidavit of 21 paragraphs deposed to by one Gbemisola Agbaje, a litigation clerk in his law office, to submit in support of the application that his ill-health disclosed in Exhibit ‘A’, the medical certificate, attached to the motion paper caused his absence in court which resulted to the dismissal of the appeal for want of diligent prosecution by this court on 4.6.2009. He placed particular emphasis on paragraphs 8, 9, 13 to 19 of the affidavit to contend that the failure of the applicants to file their brief of argument was occasioned by the demise of their father which put the polygamous family into disarray; that the applicants have overcome the family disunity and are now prepared to prosecute the appeal, if relisted.

Learned counsel for the applicants also submitted that the appellants had a pending motion to file additional grounds of appeal at the time the appeal was dismissed without formal application from the respondents; and that the respondents would lose nothing if the appeal is relisted. He urged for the application to be granted.

The respondents resisted the application with a counter affidavit of 14 paragraphs deposed to by the 3rd respondent on 25.5.2010. Their learned counsel, Mrs. Aiyedun, relied on the contents of the counter affidavit with stress on paragraphs 4 to 11 thereof to contend that the applicants have not shown interest in the prosecution of the appeal since its dismissal on 4.6.2009, as they did not compile and serve the record of appeal on the respondents, nor did the applicants file their brief of argument alongside the present motion to demonstrate their seriousness towards the prosecution of the appeal.

The respondents’ learned counsel also contended that this court lacks the powers to relist an appeal dismissed for want of diligent prosecution placing reliance on the case of Ali v. Ayinde (2010) All FWLR (Pt.540) 136.

Respondents’ learned counsel contended further that there is no proper application before the court as the case number of the dismissed appeal was retained on the present motion, therefore the motion should be dismissed.

It is pertinent to reproduce the salient paragraphs of the affidavit relied upon by the applicants in this application:

“8. That on that day he was hospitalized and the medical report of his state of health is herein as Exhibit ‘A’

9. That the appeal was struck out for want of diligent prosecution. The enrolment of order is attached herein as Exhibit ‘B’
10. That the Folashade estate which is now the land in dispute in this case/Appeal belong to their father who had built up the estate and took in tenants.
11. That the late husband/father of the Appellants had developed the estate with infrastructures and obtained a certificate of occupancy over the land since 1987.
12. That the Respondents herein want to take over the estate which the father of the Appellants had labored and toiled all his life to build.
13. That the delay in filing the appellants brief of argument is due to the death of the Appellants’ father i.e. the original first defendant in this case which threw the entire family into disarray under a polygamous family arrangement leaving the family with no discernible leader.
14. That an earlier application dated 20th October, 2009 but filed on the 21st day of October, 2009 was struck out because the order striking out the appeal was not exhibited.
15. That the Appellants/Applicants intend to prosecute the appeal to its logical conclusion.”

The respondents, on the other hand, stressed paragraphs 4 – 11 of their counter affidavit in their bid to oppose the application. For ease of reference, the said paragraphs of the counter affidavit deposed:

“4. That the appeal sought to be re-listed was dismissed on the 4th of June, 2009.

5 That the Appellants/Applicants are not ready to prosecute this appeal if relisted.