MUHAMMED MUSA V. C.O.P. JIGAWA STATE
March 15, 2025OBATERUN AKINRUTAN V. DR. ADEBANJO MAFIMISEBI
March 15, 2025Legalpedia Citation: (2023-06) Legalpedia 74595 (CA)
In the Court of Appeal
Holden at Akure
Thu Jun 15, 2023
Suit Number: CA/AK/146M/2022(R)
CORAM
OYEBISI FOLAYEMI OMOLEYE JUSTICE OF THE COURT OF APPEAL
CORDELIA IFEOMA JOMBO-OFO JUSTICE OF THE COURT OF APPEAL
YUSUF ALHAJI BASHIR JUSTICE OF THE COURT OF APPEAL
PARTIES
1. JOSEPH KOKUMO AGUN
2. NIYI AGUN APPELANT(S)
APPELLANTS
MR. MICHEAL OLU AGUN (For Himself And On Behalf Of The Family Of Late John Agun) RESPONDENT(S)
RESPONDENTS
AREA(S) OF LAW
APPEAL, EVIDENCE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Applicants were the Appellants in Appeal No.CA/AK/271/2018 struck out and deleted from the cause list on 25th day of November, 2021 for lack of diligent prosecution by reason of failure to transmit records within the stipulated time and absence of counsel in Court after being duly served. The appellants claim that the counsel handling the matter was battling with his health ad so they had to change counsel.
Desirous of bringing the appeal back to life, the Appellants made the instant appeal.
HELD
Appeal dismissed
ISSUES
Whether or not this Honourable Court can grant this instant application for relisting Appeal No. CA/AK/271/2018 deleted from the Court record, where there is no Appeal before the Court?
RATIONES DECIDENDI
DISCRETION – DUTY OF APPLICANT TO ADDUCE SATISFACTORY REASONS TO CONVINCE THE COURT TO EXERCISE DISCRETION IN HIS FAVOUR
To set aside the ruling or Order of Court as requested by the Applicant herein, the Applicant has an abiding duty to adduce satisfactory reasons to convince the Court to exercise its discretion in his favour.
The Applicant must show good cause why he or his counsel was absent in Court or defaulted in taking the necessary steps within the stipulated time leading to the striking out of his action or appeal. And more importantly in this case why the Application was filed outside the prescribed period. See Mohammed v. Husseini (1998) 14 NWLR (584) 108 Wobo Woke & Anor v. Ismael Ogoloma & Anor (2010) LPELR – 5104 (CA). Acholonu v. Ohiri (2016) LPELR – 40445 (CA). – Per Y. A. Bashir, JCA
APPEAL – CONDITIONS FOR STRIKING OUT OF AN APPEAL AND RELISTING AN APPEAL THAT HAS BEEN STRUCK OUT
Order 8 Rule 18 (1) Court of Appeal Rules, 2021, provide for the striking out of an appeal where records are not transmitted within the stipulated time. Whereas Order 8 Rule 18 (3) (4) of the Court of Appeal Rule require that an Application to relist an appeal struck out for non transmission of records must be made within 7 days, subject to good cause being shown. See A. G. Taraba State v. Selihin Consult (Nig) Ltd (2016) LPELR – 40817. – Per Y. A. Bashir, JCA
CASES CITED
STATUTES REFERRED TO
Court of Appeal Rules 2021
