Mufutau Salami & Ors V. Alhaji Usman Alabi (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Lead Ruling)

In the application filed on 9th February, 2016, the learned Counsel to the Applicant J. S. Muhammad prayed for the following orders before this Court:

“1. AN ORDER extending the time within (sic) the Respondent/Applicant can Cross-Appeal against the judgment of the Kwara State High Court, Appellate Session, Ilorin Division in Suit No: KWS/3A/20l3 delivered by Honourable Justices A. O. Bamigbola, C.J. (As he then was), S. D. Kawu J. (As he then was) and M. A. Folayan J. on 24h day of September, 2014.

2. AN ORDER deeming the Notice of Cross-Appeal of the Respondent filed contemporaneously with this application as properly filed and served.
3. AN ORDER allowing the Respondent/applicant to rely on the existing Record of Appeal in the main Appeal to prosecute the Cross-Appeal.

AND for such further orders(s) as this Honourable Court may deem fit to make in the circumstances.”

The grounds for the Application were as follows:

“1. The Respondent/Applicant was the Appellant at the lower Court while the Appellants/Respondents were the respective Respondents.

?2. After the

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hearing of the Appeal, the lower Court gave judgment in part in favour of the Respondent/Applicant on the ground that he did not tender documents already appraised and pronounced upon by all courts including the Supreme Court.

3. The Appellant, dissatisfied with the judgment, appealed to this Honourable Court vide their Notice of Appeal filed with the leave of Court on 19/2/15.
4. The Respondent/Applicant since October, 2014 has been bedridden and was taken to his home town Osi, Kwara State consequent on which he was unable to brief his counsel on the appeal.
5. On Thursday, 3rd February, 2016, the Respondent/Applicant through his vendor, Yekeen Kolawole of Oluganna family came to our office and briefed us of this pending Appeal.
6. Upon the perusal of the judgment subject of this Appeal, the Respondent/Applicant’s Counsel found that there is the need for the Respondent/Applicant to Cross-Appeal so that all issues in this Appeal can be properly dealt with and ventilated hence, the Notice of Cross-Appeal contemporaneously filed with this application.
7. It is in the interest of justice to grant this Application as theCourts & Judiciary

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Appellants/Respondents will not be prejudiced if same is granted.”

The application was supported by a six paragraph affidavit deposed to by one Comfort Stephen. The application was brought pursuant to Section 24 of the Court of Appeal Act, Laws of the Federation of Nigeria, 2014, Order 7 Rules 1, 2 and 10 of the Court of Appeal Rules, 2011 and under the Inherent Jurisdiction of the Court.

When the application was moved, the Learned Counsel to the applicant J. S. Muhammad, Esq. withdrew prayer three (3) in the motion paper, same was struck out.

The proposed Notice of Cross-Appeal (labeled Notice of Cross-Appeal) was referred to in paragraph 3(A) of the Affidavit in support of the application while the judgment is Exhibit ‘A’ referred to in paragraph 3 (B) of the same affidavit above. While relying on Section 241 (1) (b) of the 1999 Constitution of the Federal Republic of Nigeria (hereafter referred to as the Constitution), we were urged to exercise our discretion in favour of the applicant and grant the application.