KAFARU AROWOLO & ORS. v. NAVY CAPTAIN ABIMBOLA ADESINA (RTD)
(2010)LCN/3654(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of March, 2010
CA/L/508/08
RATIO
APPEAL: WHERE SHOULD ISSUES FOR DETERMINATION BE DISTILLED FROM
In the case of Nwankwo v. E. D. C. S. U. A. 2007 5 NWLR (Pt.1027) 377 for instance, Mukhtar J.S.C. at pages 395-396 had this to say:-
“An issue formulated for determination must be distilled from a ground of appeal and where it has no ground of appeal to relate to them it has no part to the determination of appeal. Then the appellate court would have no option other than to disregard the issue”.
Consequently, the issue relating to the ground had no ground to support it and therefore became incompetent. PER CLARA BATA OGUNBIYI, J.C.A.
APPEAL: WHETHER A RESPONDENT WHO NEITHER FILED A RESPONDENT’S NOTICE NOR A CROSS APPEAL BE ALLOWED TO RAISE ISSUES FOR DETERMINATION
It is also pertinent to state that the Respondent neither filed a respondents notice nor a cross appeal and cannot therefore in law be allowed to depart from the ground of appeal herein and set up an issue not flowing from the said ground therefore. Relevant is the case of Ibator v Barakuro (2007) 9 NWLR (Pt.1040) 475 wherein Mohammed J.S.C. at page 487 made the following clear pronouncement and said:-
“A respondent who did not file a cross appeal or a Respondent’s notice to affirm the judgment of the lower court on grounds other than the grounds argued by an appellant does not have the unbridled right or freedom of raising issues or further issues for determination, which do not arise from the ground of appeal filed by the appellant. PER CLARA BATA OGUNBIYI, J.C.A.
JURISDICTION: IMPORTANCE OF JURISDICTION
It is trite law and well established that, the concept of jurisdiction is very fundamental and which forecloses all matters completely and without more where it is lacking. PER CLARA BATA OGUNBIYI, J.C.A.
JURISDICTION: EFFECT OF A PROCEEDING OF COURT DONE WITHOUT JURISDICTION
It is trite law and very elementary that where a court lacks jurisdiction, a proceeding, no matter how well conducted, would not have the blessing of the law or be allowed to stand. The principles laid down in the well celebrated case of Madukolu v Nnkemdilim (1962) 1 All NLR (Pt.11) 581 have always been the locus classical authority in point.
At pages 595 of the report for instance their Lordships of the Supreme Court per Brett, F.J. had this to say:-
“a court is competent when –
(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”
It is trite law therefore and from all deductions that the defect is extrinsic to the adjudication. PER CLARA BATA OGUNBIYI, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
1. KAFARU AROWOLO
2. MUMUNI IBIKUNLE
3. LT. COL. T. A. OGUNNIYI Appellant(s)
AND
NAVY CAPTAIN ABIMBOLA ADESINA (RTD) Respondent(s)
CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): The Respondent herein instituted an action in Suit NO.ID/2348/2001 at the lower court on the 29th day of November, 2001 vide a writ of summons dated the 28th day of November, 2001. The Respondent later filed an Amended Statement of Claim dated February 24th, 2002 claiming inter alia, a declaration of title to a plot of land at NO.2, Dele Ojo Street, Oko Oba Agege, Lagos.
The appellants in response thereto filed a 23 paragraph statement of defence dated 7th day of March, 2002. On the 20th day of October, 2006 the lower court struck out the suit for want of diligent prosecution. Forty-two day after the suit was struck out the Respondent filed an application dated 8th day of December, 2006 in which he sought an order relisting same. The application and the affidavit in support are contained at pages 13-16 of the record of appeal. In its ruling contained at pages 18 and 19 of the record and delivered on the 25th April, 2007, the said lower court granted the Respondent’s application dated 8th day of December, 2006 and relisted the suit No.ID/2348/2001 which was said to have been struck out.
The reproduction of the reliefs sought by the application filed 8th December, 2006 is very simple and state as follows:-
‘(a) An order relisting this suit that was struck out on the 20th of October, 2006.
(b) And for such further or other orders as this Honourable Court may deem fit to make in the circumstance’.
In support of the application is an affidavit of three paragraphs. It will be pertinent to reproduce paragraph 2 sub(a-i) which was very relevant occasioning the reasoning giving rise to the exercise of the learned trial court’s discretion:- The sub paragraphs which are therefore as follows:-
‘(a) That when this matter came up for Pre-Trial conference on the 19th of September, 2006 at 10 a.m. parties were present and respective counsels were also present and the case was further adjourned to the 24th of October, 2006 which both counsels agreed to.
(b) That on the 24th of October, 2006 when this matter was supposed to come up, parties were present in court and their respective counsel were also present but court did not sit and the Court Registrar informed all parties and counsels to come back to know the date for next adjournment.
(c) That since the said 24th of October, 2006 the said Lawrence Adepoju Esq. has been visiting this Court’s Registrar’s Office to know the next adjourned date but on all occasions he was always asked to come back as the case file could not easily be located.
(d) That this situation continued without positive development until the 1st December, 2006 when he again visited the Registra’s Office and the Registrar informed him that this matter had come upon 20th of October, and when nobody appeared the Court struck it out for lack of diligent prosecution,
(e) That he protested to the Registrar and expressed his disappointment, on further enquiry, the Registrar was made to produce the cause lists for the 19th of September, and 20th of October, 2006 and it was discovered that on the face of the cause list the matter was adjourned to the 24th of October, 2006 and not the 20th of October, also on that 20th of October, 2006 that the case came up, this suit was not listed for that date but was later written on it with pen.
(f) That although we are bound by the court’s record which reads that the matter was adjourned to the 20th of October, 2006 but it is clear from the surrounding facts of this case that what really happened was a mutual mistake, because the parties and their respective counsel as well as the Court Registrar heard and recorded the 24th of October, 2006 and not 20th of October, 2006.
(g) That from inception of this case, claimant’s counsel has never been absent for once and has displayed the diligence and seriousness needed for the prosecution of this case.
(h) That the Claimant’s Counsel’s absence in Court on that 20th of October, 2006 was not deliberate but due to the fact that he did not hear the date correctly on the date the matter was adjourned.
(i) That it will be in the interest of justice to relist this suit for it to be prosecuted on its merit and that the defendants will not be prejudiced if the order is granted’.
The appellants were grossly dissatisfied with the decision of the lower court and hence the filing of a notice of appeal against same dated 7th day of May, 2007 at pages 20 – 21 containing a lone ground of appeal. The said ground and consisting of three particulars are at pages 20-21 of the record of appeal and state as follows:-
‘The learned trial judge erred in law and acted without jurisdiction when he made an order relisting Suit No.ID/2348/01 based on claimant’s incompetent application dated the 8th day of December, 2006.
PARTICULARS OF ERROR
(i) The claimant’s application dated the 8th day of December, 2006 prayed the court for an order relisting the suit which was struck out on the 20th day of October, 2006.
(ii) The claimant’s application to relist the suit was filed well after the period of 6 days stipulated in the mandatory provision of ORDER 30 Rule 4(3) of the High Court of Lagos State (Civil Procedure) Rules 2004.
(iii) The learned trial judge lacks jurisdiction to entertain the claimant’s application dated the 8th day of December, 2006 due to non-compliance with the rules of the court’.
The two reliefs sought consequent to the ground of appeal are:-
‘(i) An order setting aside the order made by CANDIDE-JOHNSON J. on the 25th day of April, 2007.
(ii) An order striking out Suit NO.ID/2348/01′.
In accordance with the rules of court and by an order of this court sought and obtained, on the 14th January, 2009, the record of appeal marked Exhibit B was properly admitted and consequent upon which the appellants learned counsel Mr. Okechukwu Tagboo Dike filed a brief of argument within time on the 19th January, 2009 and which was dated the same day. The respondent, Abimbola Adesina also on his own behalf filed a respondent’s brief of argument within time on the 6th February, 2009. This was further followed by the appellants’ reply brief dated and filed on the 26th February, 2009. On the 11th February, 2010, when the appeal was called up for hearing, one Mr. Olatunde Adejuyigbe leading Messrs O. A. Adejuyigbe (Mrs.) and U. F. Nnwaoko represented the appellants while the respondent was represented in person. In adopting and relying on the appellants briefs of arguments their counsel restated that the provision of Order 30 High Court Lagos Civil Procedure Rules does not limit the power of court to strike out a suit only during trials. Specific reference was drawn to rule 19 of the said order wherein it is provided that a judge may suo motu strike out or on an application, any proceeding not being prosecuted diligently. That the power of the court to now relist is also circumscribed within order 30 and not outside it. That is to say, that an application be entertained within six days. Counsel submitted that the application that was entertained was neither made within six days nor, was it made pursuant to an extension of time sought and obtained. In the circumstance therefore he urged the court to allow the appeal and set aside the order of the lower court relisting the case.
The respondent, Mr. Adesina, also adopted and relied on his brief of argument reference supra and stressed that by allowing the appeal, it would tantamount to shutting out the respondent from being heard completely. The counsel urged us to dismiss the appeal as it is only a ploy to waste the time of the court.
While the appellants formulated one Issue from the said lone ground of appeal, the respondent formulated two. I would therefore consider it necessary to reproduce the said issues on behalf of the parties respectively and starting with the appellants on one hand wherein it says:-
“Whether the lower court was right in granting the Respondent’s application for an order relisting Suit No.ID/2348/2001 having regard to the mandatory provision of order 30 Rule 4(3) of the High Court of Lagos State (Civil Procedure) Rules, 2004”.
That of the respondent on the other hand also read as follows:-
‘(a) Whether or not a defendant who was served a motion on notice and who did not file a counter affidavit or oppose same in court on point of law can turn round to appeal against such a motion.
(b) Whether the lower court was right in granting the respondent’s application brought pursuant To the court’s inherent jurisdiction for an order to Relist Suit NO.ID/2348/2001 which was struck out More than 6 days after such ruling was delivered’.
Submitting to substantiate their contention, the learned appellants counsel sacrosanctly relied on the provision of order 30 Rule 4(3) of the High Court of Lagos State (Civil Procedure) Rules 2004. The counsel in summary urged that the appeal be allowed and the reliefs sought should be granted for the graphical and analytical reasons so advanced.
He garnered further from all deductions that the application of the respondent dated the 18th day of December, 2006 is incompetent for not complying with the mandatory provision of order 30 Rule 4(3) of High Court of Lagos State (Civil Procedure) Rules, 2004. Furthermore that there is no jurisdiction inherent or otherwise on the lower court to entertain and grant an order based on an incompetent application.
Finally, that the order made by the lower court on the 25th day of April, 2007 relisting Suit NO.ID/2348/2001 which was struck out by the court on the 20th day of October, 2006 is a nullity. The learned counsel also in support cited plethora of decided authorities to ground his submissions.
Submitting in response to the appellant’s counsel, the respondent, Mr. Adesina related to the role and concept of Equity in this particular appeal. In other words that with this court standing on the brink of law and equity, the latter tends to look at the attitudes and intentions of the litigants. That it is apparent from the record of appeal that by the attitude of the appellants’ counsel and conduct during the proceedings of the matter, a clear indication can be seen that the said counsel was, and is economical with the truth. In other words, that he takes delight in misrepresenting facts to mislead this court which, in the interest of justice should dismiss this appeal. He contends affirmatively that the appellants’ counsel should in the circumstance be denied the opportunity to run away with mere technicality but that Suit NO.ID.2348/2001 should rather be allowed to be heard on its merits once and for all.
The cumulative deduction of the case at hand clearly relates to the jurisdiction of the lower court to have entertained the matter of controversy before it. While the issue as presented by the appellants’ counsel bordered on law, the respondent’s 1st issue in particular is factual and alien to the appellants only ground of appeal.
In the case of Nwankwo v. E. D. C. S. U. A. 2007 5 NWLR (Pt.1027) 377 for instance, Mukhtar J.S.C. at pages 395-396 had this to say:-
“An issue formulated for determination must be distilled from a ground of appeal and where it has no ground of appeal to relate to them it has no part to the determination of appeal. Then the appellate court would have no option other than to disregard the issue”.
Consequently, the issue relating to the ground had no ground to support it and therefore became incompetent.
It is also pertinent to state that the Respondent neither filed a respondents notice nor a cross appeal and cannot therefore in law be allowed to depart from the ground of appeal herein and set up an issue not flowing from the said ground therefore. Relevant is the case of Ibator v Barakuro (2007) 9 NWLR (Pt.1040) 475 wherein Mohammed J.S.C. at page 487 made the following clear pronouncement and said:-
“A respondent who did not file a cross appeal or a Respondent’s notice to affirm the judgment of the lower court on grounds other than the grounds argued by an appellant does not have the unbridled right or freedom of raising issues or further issues for determination, which do not arise from the ground of appeal filed by the appellant.
In the instant case, 1st – 4th respondents did not file a cross appeal or a respondent’s notice, and the additional issues for determination which they formulated did not arise from the appellant’s ground of appeal. In the circumstance, those additional issues for determination were incompetent”.
The cases of Eliochim (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt.14) 47 and Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.104) 393 are also relevant on the same principle. Based on the foregoing deductions I hold therefore that the respondent’s submission under issue one of his brief are of no moment.
I would also wish to point out here that by the respondent formulating two issues from the appellants’ lone ground of appeal it grossly amount to proliferation of issues and which is greatly frowned at in law as could be deduced from the case of Okoro v State 2007 2 NWLR (Pt.1019) 530 at 541 wherein this court said:-
“Proliferation of issues from a ground of appeal is not acceptable, and the multiplicity of issues more than the grounds of appeal are discountenanced”.
A further authority in support of the same point was also arrived at in the case of Ibikunle v Lawani (2007) 3 NWLR (Pt.10022) 580 at 590- 591. In summary therefore it is not permissible to formulate more issues than the grounds of appeal.
It is trite law and well established that, the concept of jurisdiction is very fundamental and which forecloses all matters completely and without more where it is lacking. From the facts deposed to on the affidavit in support of the motion to relist and which were all reproduced supra, the facts of the subject matter of the appeal are not in issue but straight forward. It is apparent therefore that the issue appropriate as the subject of determination is that formulated by the learned appellants counsel. In other words, the issue relates to the propriety or not of the relisting of Suit NO.ID/2348/2001 which was struck out in the light of order 30 Rule 4(3) of the High Court of Lagos State (Civil Procedure) Rules 2004. It would appear to me that from the respondents perspective on his submissions, he did not seem to have accorded proper consideration to the governing provision of order 30 rule 4(3) of the High Court rules in question. From all deductions, the paramount consideration in this case is whether the application was competent and thus activating the lower court’s jurisdiction. It is trite law and very elementary that where a court lacks jurisdiction, a proceeding, no matter how well conducted, would not have the blessing of the law or be allowed to stand. The principles laid down in the well celebrated case of Madukolu v Nnkemdilim (1962) 1 All NLR (Pt.11) 581 have always been the locus classical authority in point.
At pages 595 of the report for instance their Lordships of the Supreme Court per Brett, F.J. had this to say:-
“a court is competent when –
(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”
It is trite law therefore and from all deductions that the defect is extrinsic to the adjudication.
The rules of court are the guiding watch dogs of proceedings and there cannot be any entrance there-into the arena either indirectly, subtly or surreptitiously that will expect acceptable recognition or a legal approval. To put it another way, the entry must be direct and straight diving there into in accordance with the laid down rules and procedure of the court. In the case at hand, the relevant applicable legislation is order 30 rule 4(3) under reference supra and which reproduction states as follows:-
“An application to relist a case struck out or to set aside a judgment shall be made within 6 days after the order or judgment or such other larger period as the judge may allow”.
Two expectations arising from the foregoing provision are eminent and explicit:-
Firstly, That the application for the relisting must be made within 6 days after the making of the order. This, I say in view of the use of the word shall which is mandatory in nature. Secondly, in the absence of making such an application within the obligatory period stipulated, it must be on such other time to be extended or allowed at the discretion of the judge or court. The only evidence on record of appeal and as reproduced on the affidavit supra, was the application filed 8th December, 2006 and seeking the relisting of the suit struck out on 20th October, 2006. The affidavit in support at pages 14-15 is also explicit and confirming that the days are well outside the provision allowed by order 30 rule 4(3) supra. There is also no evidence of any application covering the alternative leg for the extension of time which could have saved the situation and bringing within the doctrine of covering the field. In other words, with the respondent not coming within 6 days of the striking out of the suit, it is outside the umbrella of coverage.
As rightly submitted by the learned appellants’ counsel therefore, the lower court can only exercise its powers to relist a suit in accordance with the provisions of order 30 rule 4(3) of High Court of Lagos State (Civil Procedure) Rules 2004 and not otherwise. The authorities in the cases of Re: Madaki (1996) 7 NWLR (Pt.459) 153 and Universal Oil Ltd. vs N.D.L.C. (2008) 6 NWLR (Pt.1083) 254 are in support of the principle of adjudication that where the exercise of power is endowed by a statutory provision such jurisdiction can only be exercised by the court within the limits prescribed by the statute, as stipulated.
Available legal authorities also grounding and substantiating the said position are numerous. For instance one of such is the case of Orakul Resources Ltd. v. N.C.L. (2007) 16 NWLR (Pt.1060) 270 where this thus court at page 303 had this to say:-
“where the law prescribes the doing of a thing as a condition for the performance of another, the non-doing of such thing renders the subsequent act void”.
In other words the doing of the latter is dependent upon the former which can activate or give effect to the latter. The said principle was again reiterated by this court per Muhammed J.C.A. in the case of Ajuta II v. Ngene (2002) 1 NWLR (Pt.748) 278 wherein at page 300 his Lordship said:-
“It has become trite that where a statute provides for the manner of doing a particular act, only that manner as provided by the enabling legislation would be acceptable. The doing of the act by vehicle other than that provided by law for its attainment would be declared void”
See also the case of Sanusi v Ayoola (1992) 9 NWLR (Pt.268) 275 at 393.
In the situation at hand and as rightly submitted by the learned appellants’ counsel, the effect of the application made outside the provision of the rules of court governing same rendered it incompetent and thereby rightly divested the lower court of the jurisdiction to entertain same.
The case of Re: Madaki (supra). at pages 168-169 is straight jacketly focused on the exercise of right where time stipulated within which to exercise such right lapses. This again was explained very vividly wherein it was held and said:-
“where there is a statutory provision creating a right and setting out the time within which the right can be exercised, any party that wishes to exercise the right must do so within the stipulated time except where a further provision is made for the extension of the stipulated time. Even where provision is made for the extension of the stipulated time, a party must seek for and obtain an order extending the stipulated time before exercising the right. This is because the extension of the stipulated time is a condition precedent to the exercise of the right without seeking for extension of time, will not be properly before the court because the condition precedent to the filing of it (i.e. extension of time) has not been complied with. Consequently, the court will not have jurisdiction to entertain it”.
Relevant further to also buttress the position is another decision of this court per Mukhtar J.C.A. in the case of Universal Oil Ltd. v N.D.I.C. supra wherein at page 267 his Lordship said:-
“The jurisdiction of the court below is only exercisable in accordance with the procedure/aid by the rules of court. The invocation of a self manufactured procedure by way of relistment renders the application before the lower court as improperly constituted and therefore incompetent”.
The court below acted without jurisdiction when it granted an order relisting the suit. The application to relist and the entire proceedings conducted by the court below including the order relisting the suit are void in law since the initiating motion is incompetent.
Without having to belabor or over flogging the issue, in the absence of compliance with the enabling law i.e. order 30 rule 4(3) being the governing statute, there cannot be a valid order relisting the suit in the absence of a competent existing motion. It is the motion that served the initiating process and the absence of competence would amount to building a castle in the air which certainly cannot stand but crumble.
I would also briefly consider the submission by the learned respondent’s counsel wherein he copiously sought to garnish his submission by relying on the relief relating to the inherent powers of the lower court which he argued is open for it to exercise and relist. The learned counsel in support relied on the case of Evans v. Bartlam (1977) AC 473. Counsel argued therein that the inherent power of the court is highlighted with great authority to set aside the exercise of its coercive power when the exercise of such power arose from a failure by a party to follow any rules of procedure. Counsel also submitted that the time constraint will not affect the competency of the lower court, or the motion to relist or even the order granted. This, learned counsel argued especially in view of order 5 rule 1(2) of the High Court of Lagos State (Civil Procedure) Rules 2004 wherein the lower court has unfettered powers to give direction as it thinks fit to regularize whatever the claimant may have left undone. Counsel submitted the ground of appeal as frivolous and that it should be dismissed with heavy costs.
I would see it necessary to state at this point, that often times and it seems an accustomed practice that reliefs are sought from the court seeking its exercise of an inherent jurisdiction in a given situation. It is our law certainly that the courts are endowed with such inherent powers in the exercise of their jurisdiction. However, I would also hasten to state further that the exercise of such powers available and open as it , is subject and also appropriate only and, emphatically so emphasized, in situations where the subject matter lies within the jurisdiction of the said court. In other words, where there is absence of jurisdiction there can be no exercise of judicious and judicial discretion of any inherent powers. The nature of such powers to be invoked or exercised must be dependant upon existence of jurisdiction.
This, I hold especially with the case at hand where there is a subsisting law or statute, which stipulates and lays down the condition precedent as prerequisite and giving rise to the exercise of jurisdiction. Relevant and, to enforce a backing to this contention is again the case of Universal Oil Ltd. vs N.D.I.C. (supra) wherein at page 269 this court held and said thus:-
“An inherent jurisdiction of a court is exercisable Where no enabling law or rule of court is applicable in the circumstance, but cannot be exercised on the face of clear statutory provision”.
The court should venture to do all it can to stay within its limit of the law so as not to veer into an adventurous exercise a mounting to a prolific frolic to be interpreted as judicial activism. An exercise of inherent jurisdiction sought for in the matter at hand is rendered an absolute exercise in futility. Where the application is incompetent as it is in the case at hand, it is not open to the lower court to grant the Respondents application under the guise of its inherent power. This is as rightly submitted by the learned appellants’ counsel. The power to relist a suit that was struck out by the court did not fall within the inherent jurisdiction of the court because it is guided and regulated by express rules as provided by order 30 rule 4(3) under reference supra. The apex court in the case of Onwuka v Maduka (2002) 18 NWLR (Pt.799) 586 at 601 is also relevant in point.
In the result the appeal has merit and is allowed. I therefore make an order setting aside the order made by Candide-Johnson J. on the 25th day of April, 2007. A further order is also made striking out the application dated 8th December, 2006.
From the foregoing deductions, it is obvious from all the circumstances that the lower trial court was in dire lack of jurisdiction to make an order relisting the suit which was struck out on the 20th day of October, 2006. The issue raised is therefore resolved in favour of the appellants.
With costs following events, the respondent is condemned to costs of N30,000 in favour of the appellants.
Appeal succeeds with N30,000 costs.
PAUL ADAMU GALINJE, J.C.A.: I have read in advance the judgment just delivered by my learned brother, Ogunbiyi, J.C.A., and I entirely agree with the, reasoning contained therein and the conclusion arrived thereat.
Clearly the order relisting suit No. 10/2348/2001 forty-two days after same was struck out offends order 30 Rule 4(3) of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides that an application to re-list a cause struck out or to set aside a judgment shall be made within 6 days after the order of judgment or such other larger period as the Judge may allow. There is no evidence that the Respondent sought for and was granted extension of time to apply for the suit to be relisted.
For this and the well articulated reasons in the lead judgment which I adopt as mine, I allow this appeal. The order re-listing the suit is hereby set aside and quashed. The application of 8th December, 2006 is hereby dismissed.
The Respondent shall pay to the Appellant N30,000:00 being cost of prosecuting this appeal.
ADAMU JAURO, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother, Ogunbiyi, J.C.A. I have considered the reasoning and conclusion reached, and I am in full agreement that the appeal is meritorious.
The appeal herein squarely falls within the interpretation and application of Order 30 Rule 4 (3) of the High Court of Lagos State (Civil Procedure) Rules 2004, which provides thus:
‘An application to relist a case struck out or to set aside a judgment shall be made within 6 days after the order or judgment or such other larger period as the judge may allow’.
The relisting of suit No.ID/2348/2001 made 42 days after striking out same, without an application for extension of time to file the application to relist, contravenes the aforementioned provision.
For the above and the fuller reasons contained in the lead judgment, I also allow the appeal. I abide by the consequential orders made in the lead judgment, including that of costs.
Appearances
Mr. Olatunde Adejuyigbe with O. A. Adejuyigbe (Mrs.) and U. F. NwaokoroFor Appellant
AND
Respondent in Court and appears in person.For Respondent
