CHIEF IYIOLA OLADITI & ANOR. v. MORIAMO ODE & ANOR
(2010)LCN/3590(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of February, 2010
CA/I/148/08
RATIO
INTERPRETATION: INTERPRETATION OF ORDER 8 RULE 20 IN RELATION WITH HOW A DISMISSED APPEAL UNDER THE RULE MAY BE RESTORED
Order 8 rule 20 of the Court of Appeal Rules 2007 says:
”Appellant whose appeal has been dismissed under this rule may apply by notice of motion that this appeal be restored and any such application may be made to the Court; who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”
By the provision of the order reproduced above, Appellant/Applicant must show good and substantial reason before the Court can exercise its discretion in favour of the Applicants. PER MODUPE FASANMI, J.C.A
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
(1) CHIEF IYIOLA OLADITI
(2) FATAI OLADITI Appellant(s)
AND
(1) MORIAMO ODE
(2) YEKINI KOLAWOLE Respondent(s)
MODUPE FASANMI, J.C.A (Delivering the Leading Judgment): The Appellants/Applicants moved this Court on 21st of January, 2010 for an Order of this Court granting the restoration of the appeal which was struck out from the Court list for want of diligent prosecution on 27th May, 2009 back to the Court list.
The application was filed on the 4th of Aug. 09. In support of the application is a nineteen paragraph affidavit deposed to by Chief Iyiola Oladiti the 1st Appellant/Applicant.
2nd Respondent, Yekini Kolawole Oladiti on behalf of the Respondents in opposing the application filed a counter affidavit of fourteen paragraphs. At the hearing of the application, learned Counsel for the Applicants submitted that she relied on all the paragraphs of the supporting affidavit. The appeal was struck out due to the absence of Counsel in Court and the reason for the Counsel’s absence had been stated in paragraphs 4, 5,7,8,9,10,11,17 and 18 of the supporting affidavit. Learned Counsel to the Appellant/Applicant urged the Court to exercise its discretion in favour of the Applicants and not to shut them out. She concluded that the sin of Counsel for failure to appear in Court on the 27th May, 2009 should not be visited on the litigant. Learned Counsel urged the Court to grant the application as prayed.
Learned Counsel to the Respondent in reply submitted that the discretion of the Court is not granted as a matter of course. He argued that Applicants have not shown good and substantial reason for the granting of the application. He urged the Court to refuse the application.
Order 8 rule 20 of the Court of Appeal Rules 2007 says:
”Appellant whose appeal has been dismissed under this rule may apply by notice of motion that this appeal be restored and any such application may be made to the Court; who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”
By the provision of the order reproduced above, Appellant/Applicant must show good and substantial reason before the Court can exercise its discretion in favour of the Applicants.
I have carefully examined the affidavit in support of the application and the counter affidavit. I observed that the Appellant/Applicants have filed their Appellant’s brief long time before the appeal was slated for dismissal. I refer to paragraphs 7,8,9,10,11 and 15 of the supporting affidavit to the application which say:
(7) That I was told by the registry that the said appeal was to be dismissed because of failure to file Appellant’s brief
(8) That I immediately told them that we have filed court Appellant’s brief and showed them a copy of it filed on 22nd day of July, 2008.
(9) That I hereby exhibit, the 1st page of the said Appellants brief as Exhibit A
(10) The Registry told me and I verily believed her that she would take out the said Appeal No.CA/I/148/08 from the list already compiled.
(11) That the said Registry told me and I verily believed her that it would be unnecessary for me to come to the Court on that day as my appeal would not be listed any more hence I did not come to Court on 27-5-08
(15) That the learned Counsel A. O. Jaiyeola Esq. was aware that Appellant’s brief had been filed and served on him and later returned it to the Court of Appeal Registry’
Also para 12 of the Counter-affidavit of the Respondent says:
(12) ”That with reference to paragraph 15 of the supporting affidavit, the Appellant’s brief of argument was served on Chief Ajadi when he was alive and not A. O. Jaiyeola Esq. and Jaiyeola Esq. only assisted Chief Ajadi to return the said brief to the. Registry of this Honourable Court.”
Form the available affidavit evidence, I am emboldened to hold that the Appellants/Applicants have shown good and substantial reasons why the appeal should be restored on the Court list. To hold otherwise will amount to visiting the lapses of the registry on the litigants. See the authority of OKOLO VS. UBN LTD (1998) 2 N.W.L.R Part 539 page 618 at 639 which supports the contention that the fault of the Court’s registry should not be visited on the litigant. Also, the Supreme Court per Bello C.J.N of blessed memory in ENGINEERING ENTERPRISE OF NIGER CONTRACTOR OF NIGERIA V. ATTORNEY GENERAL OF KADUNA STATE (1987) 2 N.W.L.R Part 57 page 381 at 475 had this to say:
‘Now, by virtue of Section 220 of the Constitution of the Federal Republic of Nigeria 1979, the Plaintiff has the right to prosecute his appeal in the Court of appeal and he also has the right to have his appeal determined on the merits by that Court. By inadvertence, carelessness or negligence through its judicial arm to wit, the high Court of the State the Kaduna State Government deprived the Plaintiff of his Constitutional right under the said Section by causing the loss of the Judgment. The Plaintiff could not prosecute his appeal and the Court of appeal could not determine his appeal on the merits. It seems to me that striking out the Plaintiff’s claim as the Court of Appeal did, was tantamount to the condonation by the Court of Appeal of the Constitutional wrong committed by the Kaduna State. That Court was therefore wrong in making the order striking out the claim. In my considered view, the only order that may be consistent with the Plaintiff’s Constitutional right of appeal is to give him another opportunity to start all over so that his right of appeal which he was deprived of may be restored if the result of the hearing de novo so warrants.’
The affidavit in support of this application and para 15 of the counter affidavit contain depositions which should entitle the Applicants to the Court/s discretion. As rightly submitted by the learned Appellants/Applicant’s Counsel, I also subscribe to the view that the failure of the Appellant’s Counsel on the 27th of May, 2009 should not be made an issue to be visited on the litigant. Refusing the application will also scuttle the Constitutional right of the Applicants to appeal.
In sum, this application has merit and it succeeds. The appeal No. CA/I/148/08 struck out from the Court list for want of diligent prosecution on 27th May, 2009 is hereby restored back on the Court list. No order as to cost.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the Ruling just delivered by my learned brother M. Fasanmi, JCA.
I agree that the application has merit for the reasons given in the supporting affidavit, and also order that the appeal struck out on 27/5/09 be restored to the cause list. I abide by the order awarding no costs.
SIDI DAUDA SAGE, J.C.A.: I had the privilege of reading in advance the Ruling delivered by my learned brother M. Fasanmi, J.C.A.
I agree with the reasonings and conclusions reached in holding that the application has merit and I also allow same. I abide by the order awarding no costs.
Appearances
Mrs. O. M. FadeyiFor Appellant
AND
Mr. A.O. Jaiyeola Esq.For Respondent
