Prince James Adeleke Osayomi & Ors V. Government Of Ekiti State & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Lead Ruling)

The Appellants/Applicants brought a motion on notice pursuant to: Order 7 Rules (1) and (10) of the Court of Appeal Rules 2011 and under the inherent jurisdiction of the court. The application dated and filed 6th March, 2013 seeks the following reliefs:

1. “LEAVE of the Honourable Court for extension of time within which the Applicants shall seek leave to appeal against the ruling of the Ekiti State High Court sitting at Ado Ekiti, Coram Honourable Justice Akintayo, delivered on 4th day of August, 2011 in Suit No: HIJ/20/93 between Prince James Adeleke Osayomi & 2 Ors. V. Government of Ekiti State & 5 Ors.
2. AN ORDER of the Honourable Court granting leave to the applicants to appeal against the ruling of Ekiti State High Court sitting at Ado-Ekiti Coram Honourable Justice Akintayo, delivered on 4th day of August, 2011 in Suit No: HIJ/20/93 between Prince James Adeleke Osayomi & 2 Ors. V. Government of Ekiti State & 5 Ors.
3. AN ORDER of the Honourable Court extending the time within which the Applicants shall appeal against the ruling of Ekiti State High Court sitting at Ado-Ekiti Coram Honourable Justice Akintayo, delivered on 4th day of August, 2011 in Suit No: HIJ/20/93 between Prince James Adeleke Osayomi & 2 Ors. V. Government of Ekiti State & 5 Ors.
4. AND for such further order or other orders as the Honourable Court may deem fit to make in the circumstance of this case.

The two sets of Respondents severally opposed the application by filling relevant processes. When the motion came up for hearing on 17th April, 2013, the court ordered learned counsel for the parties to file written addresses.

Following the court’s directive, the Applicants filed their written address prepared by Mr. Ajibola Aruleba on 30th April, 2013. In response Mrs. Bolanle Wale Awe Director Civil Litigation, Ministry of Justice, Ekiti State for the 1st to 3rd Respondents filed their written address on 24th May, 2013. On their own the 4th to 6th Respondents represented by Mr. Akintayo Aluko filed their written address on 17th April, 2013. Thereafter, Mr. Aruleba filed a reply on point of law to 4th to 6th Respondents’ written address on 24th May, 2013.

The motion was finally heard on 11th June 2013. Mr. Aruleba in moving the motion said the motion is dated and filed on 6th March, 2013. He referred to the Grounds for the application, the affidavit in support with 13 paragraphs and the attached exhibits marked Exhibits 1, 2 and 3. He equally identified and referred to their further and better affidavit dated and filed on 30th April, 2013. The learned counsel stated that upon the directive of the court, the Appellants/Applicants filed a written address.

Then again upon the receipt of the 4th to 6th Respondents’ written address, learned counsel said the Appellants filed a reply on 24th May, 2013. He adopted all the processes herein above referred to and relied on them as their argument on this motion. He finally moved in terms of the motion paper and urged the court to grant the application.

Mrs. Wale Awe said in response, the 1st to 3rd Respondents filed a written address on 24th May, 2013 but deemed property filed and served on 11th June, 2013. She adopted and relied on same as their argument on the motion.

Mr. Akintayo Aluko for the 4th to 6th Respondents said in opposition they filed a counter affidavit of 12 paragraphs on 2nd April, 2013. They also filed a written address on 13th May, 2013. He adopted and relied on the written address as their argument while urging the court to dismiss the application.

From the affidavit and counter affidavit evidence before the court, the brief facts of the case can be stated thus.

Consequent upon the ruling of the High court of Ekiti State, sitting at Ado Ekiti, delivered on 4th August, 2011, in Motion No: HIJ/29/1993 wherein the learned trial Judge struck out the Appellants/Applicants suit on the ground that the action was incompetent. The Appellants/Applicants being dissatisfied filed a Notice of Appeal on 19th August, 2011. On becoming aware of the Notice of Appeal of the Applicants, the 4th to 6th Respondents filed a Respondents’ Notice contending that the decision of the trial court be affirmed on grounds other than those relied upon by the trial court.

While the record of appeal was yet to be compiled, on 14th February, 2013 the Applicants filed an application seeking the grant of their trinity prayers for the purpose of filing another Notice of Appeal. The ground for the application being that the amount paid at the Registry of the lower court for filing the earlier Notice of Appeal was not the appropriate fees for filing a Notice of Appeal. This application was withdrawn and struck out on 4th March, 2013 with a cost of N20,000.00 awarded in favour of the 4th to 6th Respondents.

Then again on 6th March, 2013 the Appellants/Applicants filed this present application for the reliefs as already set out above.

Both the Applicants and the 1st to 3rd Respondents did not formulate any issue in their written addresses but simply argued the motion straight. The 4th to 6th Respondents formulated two issues for determination. The issues are:

i. “Whether the application dated 6th March, 2013 does not amount to abuse of the process of this honourable Court in view of the subsisting Notice of Appeal filed by the applicants on the 19th August, 2011.