Sunday Olorunfemi & Anor V. Chief Isaac Taye Aderogba (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Lead Ruling)

By a motion on notice dated 20/3/2013 and filed on 22/3/2013, the Applicants prayed this Honourable Court for:

1. An extension of time within which to apply for an order restoring this suit on the cause list.
2. An order restoring this suit on the cause list which was struck out on 29/4/2010.

The grounds on which the application was brought are:

1. That the appeal was struck out on 29/4/2010
2. The Counsel formerly handling the matter did not attend to the matter diligently despite being paid his professional fee.
3. The Counsel did not inform the applicants that the matter had been struck out since 2010 yet collected fee from the applicants up till 2012.
4. The applicants were unaware of the position of their case until a notice of preliminary objection to which was attached the order of 29/4/2010 was served on them by the respondent.

The Application was supported by a 16 paragraph affidavit with two (2) Annexures Exhibits A and B. Also, a further and Better affidavit of seven (7) paragraphs with two other annexures sworn to by one Aransiola Samuel Adebayo on 6/11/13 and filed on the same day was relied upon by the Applicants.

The Respondent on the other hand filed a counter – Affidavit sworn to by one Damilola Titilola on 21/10/13.

Written addresses were ordered, filed and adopted by the respective Counsel to the parties. In his written address filed on 6/11/13, Learned Counsel for the Appellants submitted two issues for determination. They are:

a. Whether or not the application of the appellants/applicants can be entertained and granted by this Honourable Court.

b. Whether the sin of Counsel can be visited on the appellants/applicants.

He submitted that the appellants/applicants application for re-listing their appeal back to the cause list is predicated on four grounds as contained on the motion paper dated 20/3/2013 and filed on 22/3/2013. Learned Counsel submitted that the right of appeal is a constitutional right as guaranteed by sections 242 to 243 of the 1999 constitution (as amended) and that the provision of that constitution supersedes any rules of court.

He submitted that it is the constitution that empowers the court to have rules of procedure of court in order to have smooth administration of justice and that it is not for rules of court to be a cloy in the wheel of justice.

He referred to the case of Famfa Oil Limited V. A.G. Federation (2003) 112 LRCN 2127 at 2137.

Learned Counsel argued that by virtue of order 8, rule 20 of the Court of Appeal Rules 2011, the court is empowered to re-list the appeal of the appellants/applicants back to the court cause list.

That the appeal of the appellants/applicants was struck out on the 29th day of April 2010 without the Counsel informing the appellants/applications of their position before the court. He submitted further that exhibit “B” and “B6” in support of the appellants/applicants application clearly shows that Mr. J. I. Adeyanju of Counsel collected professional fees up till 30th day of July 2012 without taking any legal step in respect of his professional duties owed to his client.

He submitted that the notice of preliminary objection dated 10th day of September, 2012 and filed on the 16th day of October, 2012 clearly shows that the respondent’s Counsel is fully aware that this appeal had been struck out from the cause list of this honourable Court on 29th day of April, 2010.