The State of Ekiti V. Adebayo Aderiye & Ors (2016)

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AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

The motion before the Court dated 25/4/2016 and filed on same date has been brought by the Appellant/Applicant pursuant to Order 7 Rules 1 and 2; Order 17 Rule 3 of the Court of Appeal Rules 2011; and under the inherent jurisdiction of the Court. The Applicant seeks for the following: –
?1. LEAVE AND AN ORDER of this honourable Court enlarging the time within which the applicant can seek leave to appeal against the ruling delivered by the Lower Court in Suit No: HAD/12C/2014 presided over by HON. JUSTICE A.L. OGUNMOYE between THE STATE OF EKITI V. ADEBAYO ADERIYE & 6 ORS on the 15th day of December 2015.
2. AN ORDER of this honourable Court granting leave to the applicant to appeal against the ruling delivered by the Lower Court in Suit No: HAD/12C/2014 presided (sic) by HON. JUSTICE A.L. OGUNMOYE between THE STATE OF EKITI V. ADEBAYO ADERIYE & 6 ORS on the 15th day of December 2015.
3. AN ORDER extending the time within which to file the Notice of Appeal against the ruling of the Lower Court delivered on 15th December, 2015.
4. AN

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ORDER of this Honourable Court deeming the already filed Notice of Appeal as properly filed and served on the Respondents.
5. AN ORDER deeming the record of appeal already transmitted to the Registry of this Court as properly transmitted and served on the parties.
6. AN ORDER of this Court for Leave to argue the grounds of appeal contained in the Notice of Appeal as grounds of mixed law and facts.
7. And for such other order or further orders as this Honourable Court may deem fit to make in the circumstances.?

The grounds of the application as set out therein are: –
?1. The Trial Court delivered its ruling in Suit No: HAD/12C/2014 culminating into this appeal on 15th December, 2015.
2. The Appellant/applicant diligently appealed against the ruling within the time allowed under the rules.
3. The time within which to seek leave to appeal before the trial Court has elapsed.
4. The appellant/applicant did not seek or obtain/leave of your Lordships at the time of filing the notice of appeal.
5. The record of appeal has been compiled, transmitted and duly served on parties.
6. The leave of your lordship

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is a prerequisite to the appellant regularizing the Notice of Appeal.
7. Failure to obtain leave was not deliberate but due to erroneous impression that the grounds of appeal contains (sic) issues of law alone.?

The motion has a 15 Paragraph supporting affidavit to which two Exhibits are attached. They are Exhibit ?A? which is a certified copy of the ruling of the Lower Court delivered on 15/12/2015 and Exhibit ?B? which is a copy of the notice of appeal lodged on 21/12/2015 at the registry of the Lower Court by the Applicant against the ruling in Exhibit ?A? and the position of which the Applicant seeks to regularise by the instant motion. The notice of appeal is dated 21/12/2015.

The Court entertained the instant motion on 25/5/2016. Ahmed Tafa of counsel for the Applicant in moving the motion relied on the supporting affidavit and the two Exhibits annexed thereto. He urged the Court to grant the prayers being sought by the Applicant. He also adopted and relied on the written address attached to the motion in urging the Court to grant the application before it.
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C. Omokhafe of counsel for the 1st,

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3rd and 4th Respondents did not oppose the motion.

B. Fasakin learned lead counsel for the 2nd Respondent; O. Olatawura of counsel for the 5th and 7th Respondents; and A. Oso learned lead counsel for the 6th Respondent; respectively, all opposed the motion on grounds/points of law. Learned lead counsel for the 2nd Respondent stated that his opposition to the motion is based on Paragraphs 6(b) and 10(b) of the Court of Appeal Practice Direction, 2013 (hereafter to be simply referred to as ?the Practice Direction?). He urged the Court to refuse prayer 5 as it is his position that the record was transmitted outside the time stipulated by the Practice Direction. Learned lead counsel also submitted that this Court pursuant to Paragraph 10(b) (supra) will not grant a motion to appeal in matters such as the one that the instant motion is about save the appeal raises point(s) of law only. It is his stance that the instant appeal is not on point(s) of law only. That the Court therefore cannot properly grant an extension of time in respect of an appeal that does not raise point(s) of law only. That is to say that the Court cannot properly grant a

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motion for extension of time to do that which the Court cannot grant in the first instance.