Olanrewaju Olowu (Deceased) V. Ezekiel Alaba Ajayi (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M.B DONGBAN MENSEM, J.C.A. (Delivering the Leading Judgment)

By a motion on notice dated and filed on the 27th March, 2008, the applicant sought the following reliefs:-

1. An order substituting the applicant for Olanrewaju Olowu(Deceased).
2. An order for extension of time within which to appeal against the judgment of the High Court of Lagos State dated the 13th day of May, 2005.
3. An order of interlocutory injunction restraining the Respondent by himself, his servants agents and privies from trespassing on the land in dispute situate, lying and being along Iju Road, Agege, Lagos State and shown in survey Plan No FF/1074/A/L/84 dated 8/10/84 pending the determination of the appeal.

In support of the motion on notice is a 24 paragraphs affidavit deposed to by the applicant. Several documents which I will refer to in course of this ruling as the circumstances permit are exhibited to the supporting affidavit.

On the 26th of April 2010, this application came up for hearing. Mr. S. O. Oyewo, learned Counsel for the applicant in his submission, relied on all the paragraphs of the supporting affidavit particularly paragraphs 2, 4, 10 – 19 and 16 thereof.

In addition, learned Counsel placed reliance on exhibit B, the death certificate of the appellant, and exhibit H which is the notice of appeal, learned Counsel urged this court to grant the application on the ground that the family of the appellant had mandated him to substitute the deceased appellant and that by the averment in the supporting affidavit, the twine requirement under Order 7 Rule 10(7) have been met.

Finally learned Counsel withdraws prayer three and same was accordingly struck out. In reply, Mr. Victor Opara, learned Counsel for the Respondent relied on all the paragraphs of the counter affidavit, particularly paragraphs 7, 12, 13, 14 and 17 and urged this court to dismiss the application. According to the learned Counsel, apart from the fact that the applicant has failed to give good and substantial reasons why the appeal was not filed within the prescribed period, the grounds of appeal do not attack the ratio decidendi in the judgment. In a further argument, learned Counsel submitted that the proposed grounds of appeal are directed against the conclusion of the judgment which he referred to as obiter dictum and contends that such conclusion are not appellable. In aid Learned counsel cited Bello V Udoye (2004) FWLR (pt 225) 63 at 84.

The rules of this court allow substitution of parties to appeal who are dead. Order 15 Rule 2 of the Court of Appeal Rules 2007 provides as follows:-

” Where it is necessary to add or substitute a new party for the deceased, an application shall subject to the provisions of Order 4 Rule 10, be made in that behalf to the Count below or to the court either by an existing party to the appeal or by any person who wishes to be added or substituted”

Order 4 Rules 10 of the Rules of this Court provides as follows:

“An appeal shall be deemed to have been entered in the court which the record of proceedings in the Court below has been received in the Registry of the Court.”

A combined reading of the two rules reproduced above shows clearly that substitution of parties can only be effected on an existing appeal which has been duly entered in this court. In the instant application, there is no appeal pending before this Court. The application for substitution therefore is premature.

On the application for extension of time to appeal, the reasons given by the applicant are set out at paragraph 17 of the supporting affidavit which I reproduce as follows:-

“17. The delay in appealing within time was due to the following reasons namely:-

(a) The prolonged illness and subsequent death of my father.