J.O. Ogunremi V. Dr. Adeola Olawale Molajo (2016)

LawGlobal-Hub Lead Judgment Report

UZO I. NDUKWE-ANYANWU, J.C.A.

By a motion on notice dated and filed on 4th August, 2011 brought pursuant to Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, Order 7 Rule 1 and Order 7 Rule 10 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of this Court, the Appellant/Applicant sought for the following orders:
?1. An order for an enlargement of time within which to appeal against the final Judgment of the High Court of Lagos State, Ikeja Judicial Division per O.A. Adefope Okojie, J which Judgment was delivered on 22nd March, 2011.
2. Such Further Order and/or other Orders as this Honourable Court may deem fit to make in the circumstances of the Application.”

The motion is supported by;
i) A 12 Paragraph affidavit deposed to by Deji Olabiwonnu, a Legal Practitioner in the firm of Messr. Layi Babatunde, SAN & Co., Solicitors to the Appellant, with Exhibits A and B attached;
ii) 6 Paragraph 1st Further Affidavit deposed to by Joseph Oluranti Ogunremi, the Appellant/Applicant in this case with Exhibit J attached;
iii) A

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4 Paragraph 2nd Further Affidavit deposed to by Lukman Opawoye, a Legal Practitioner in the firm of Messrs. Layi Babatunde, SAN & Co, Solicitors to the Appellant;
iv.) A written address in support of the motion; and
v.) A reply on points of law.

The Respondent filed;
i) A 17 Paragraph counter affidavit deposed to by Dr. Adeola Olawale Molajo, the Respondent in this case, with Exhibits AOM1 and AOM2;
ii) A 5 Paragraph further counter affidavit deposed to by Ogechukwu Enebeli, a Legal Practitioner in the firm of Messrs, E. A. Molajo & Co., solicitors to the Respondent.
iii) A written address.

At the hearing of the application, the learned counsel for the applicant adopted the applicant’s written address filed on 1st March, 2013 and written reply filed on 3rd May, 2013. However the written reply was filed out of time. It is hereby struck out. Learned counsel for the Respondent on his part adopted the Respondent’s written address filed on 3rd April, 2013.

In the Appellant/Applicant’s address one issue was raised for the Court’s determination. It is as follows:
“Whether having regards to the grounds upon

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which the Application is predicated, the Affidavit evidence placed before the Honourable Court and the proposed Notice and Grounds of Appeal, the interest of justice will be better served by the grant of the Applicant’s application for extension of time within which to appeal.”

In arguing the application, counsel for the applicant relied on all the paragraphs of the affidavit in support and the exhibits. He submitted that by the provision of Order 7 Rule 1 and 10 of the Court of Appeal Rules 2011, two pre-conditions must be met by an applicant for the exercise of the Court’s discretion in his favour. The first is that he has to depose to an affidavit in support of the application setting out good and substantial reasons for failing to appeal within the prescribed period. Secondly, the applicant has to file grounds of appeal which prima facie show good cause why the appeal should be heard. He referred to the case of Mobil Oil Ltd v. Aghadaigho (1988) 4 SC 273; Iyalabani Co Ltd v. Bank of Baroda (1995) 4 NWLR (Pt 387) 20; University of Lagos & Anor v. Aigoro (1985) 1 SC 182.

In respect of the conditions stipulated above, the learned counsel

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contended that the applicant has shown good and substantial reasons in his affidavit in support of the application to warrant the grant of this application. According to counsel, the main reason for the delay was due to the death of the Applicant’s wife and his subsequent ill health which had not been contradicted by the respondent. On the second condition, counsel contended that the proposed grounds of appeal are arguable as it raised the issue of jurisdiction, issue of wrongful evaluation of evidence; interpretation of Statute (Section 116 of the Land Instrument Registration Law of Lagos State). Counsel also relied on the case of Nigerian Deposit Insurance Corporation v. Steve Industry Company Nigeria Ltd with Appeal number CA/L/659/2008 delivered on 6th December, 2011, where the Court in granting the application held that an appeal which raised an issue of jurisdiction as in Ground 1 of the Notice of appeal in the instant case prima facie exhibited a good cause why the appeal should be heard. He therefore urged this Court to grant this application.
?
On the contention in the counter affidavit that the respondent has sold the land in dispute to a third