AJAYI V TOGUNDE

AJAYI V TOGUNDE


IIN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON WEDNESDAY, 12TH APRIL, 2017.


APPEAL NO: CA/IB/205/2012

CITATION: CA (2017) 4 LLIR 2

Before Their Lordships

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

MODUPE FASANMI, J.C.A.

CHINWE EUGENIA IYIZOBA, J.C.A.


BETWEEN

PROPHETESS FLORENCE A. AJAYI

(APPELLANTS)

AND

ALHAJI ALIMI TOGUNDE
(For and on behalf of Togunde family)

RESPONDENTS


PRONOUNCEMENTS

APPEAL
Notice of Appeal–Effect of filing notice of appeal outside the 90 days period required under Section 24 Subsection (2) (a) of the Court of Appeal Act 2004.

At the expiration of 90 days within which to appeal, an Appellant loses his right of appeal as of right and now has to depend on the discretion of the Court. This discretion is obtained by a motion on Notice filed with the grounds for the application endorsed and supported by an affidavit stating the facts which entitles the Applicant to the exercise of the discretion of the Court. In this appeal, the Notice of Appeal was filed out of time on the 6th August, 2012, while Judgment was delivered on the 2nd March 2012. Without a motion seeking the exercise of discretion of the Court to enlarge the time within which to file a Notice of Appeal, the notice is bad. In such circumstance, the process before the Court is incompetent, having been filed out of the statutory time for filing. Such a Notice must be struck out as incompetent. DONGBAN-MENSEM, J.C.A. (para. 10-11) READ IN CONTEXT.


LEAD JUDGEMENT DELIVERED BY FASANMI, J.C.A.


  1. This is an appeal against the judgment of the Oyo State High Court of Justice in Suit No. 1/46/2007 delivered on the 2nd of March 2012.
  2. The Respondent who was the Claimant in his amended statement of claim at page 36 of the record claimed as follows:1. N50,000 Damages for trespass committed by the defendant, her servants, agents and/or privies or otherwise howsoever by the wrongful entry, occupation and use of two blocks of classrooms and back house on a portion of the plaintiff’s land at Oke-Koto, Sawmill area, Old Ife Road, Ibadan.2. Damages for wrongful occupation and use of the two blocks of classrooms and back house on the land from 18 October 1994, until possession thereof is delivered.

    3. Injunction restraining the defendant, her servants, agents and/or privies or otherwise howsoever from continuing with the wrongful occupation and use of the two blocks of classrooms and back house on the plaintiff’s said land for any purpose or purposes whatsoever.

  3. Pleadings were filed and exchanged. By the ruling dated 5th day of June 2009, the trial Judge ruled that by virtue of the pleadings filed and served, the Appellant admitted that the Respondent’s family owned the land and in the result should begin to lead evidence preferably to justify her stay on the disputed land. Appellant called a witness while the Respondent testified on his behalf.
  4. The brief facts of the case as stated by the Appellant is that the land subject of this appeal forms part of a large piece of land at Oke-Koto Sawmill Area, Old-Ife Road, Ibadan. There was a modern school built on the land sometimes around 1950-1960. During the civil war in 70’s the Nigerian Army drove out both the students and the teachers. When the civil war ended, the whole land reverted to Oyo State Government who laid it out with plots for residential purposes. It was at this time that the Appellant was given a portion of the land and the buildings thereon which she used for church services.
  5. After an occupation of more than ten years, the Respondent approached the Appellant saying the land belongs to his family and that he had sued the Oyo State Government as a trespasser. While discussions were going on between the Appellant and the Respondent, Chief A.M. Akinloye surfaced claiming ownership of the land. Invariably the Appellant was caught between Oyo State Government, the Respondent and Chief A.M.A. Akinloye each claiming ownership of the land part of which is subject of the appeal. Later the Respondent showed to the Appellant separate judgments he had on the land. At this time the Appellant had been on the land for more than ten years.
  6. Upon seeing the judgments, the Appellant approached the Respondent to determine rents to be paid as tenant in possession. The Respondent told the Appellant that she should hold on pending determination of litigations on the property.
  7. However while the Appellant was awaiting response from the Respondent, the Respondent without consulting the Appellant sued her to Court. It is this suit that resulted in the judgment appealed against. In the judgment, the trial judge dismissed the 1st and 2nd reliefs dealing with trespass and damages but went on to grant perpetual injunction against the Appellant. The Appellant was dissatisfied with the grant of perpetual injunction when the substantive reliefs were dismissed.
  8. Appellant filed his notice of appeal at pages 71-72 of the record of appeal on the 6th of August 2012. Learned counsel for the Respondent in his brief submitted that the notice of appeal at pages 71-72 of the record is defective in form. Appellant in his reply brief did not respond to this allegation. I have examined the notice of appeal and I observe that judgment was delivered on the 2nd of March, 2012 and notice of appeal was filed on 6th Aug., 2012. The notice of appeal was filed out of time. It was filed outside three months as required under Section 24 Subsection (2) (a) of the Court of Appeal Act 2004. The notice of appeal is incompetent and should be struck out. The notice of appeal filed on the 6th of Aug. 2012 is hereby struck out for being incompetent under Order 7 Rule 6 of the Court of Appeal Rules 2016. Consequently Appeal No. CA/IB/205/2012 is hereby struck out for lack of jurisdiction to entertain it. The appeal No. CA/IB/205/2012 is to be deleted from the cause list. No order as to cost.
  9.  
    DONGBAN-MENSEM, J.C.A.:

  10. The Appellant acted like an unwilling horse by filing his Notice of Appeal outside the statutory period of three months after the Judgment.
  11. At the expiration of 90 days within which to appeal, an Appellant loses his right of appeal as of right and now has to depend on the discretion of the Court. This discretion is obtained by a motion on Notice filed with the grounds for the application endorsed and supported by an affidavit stating the facts which entitles the Applicant to the exercise of the discretion of the Court.

  12. In this appeal, the Notice of Appeal was filed out of time on the 6th August, 2012, while Judgment was delivered on the 2nd March 2012. Without a motion seeking the exercise of discretion of the Court to enlarge the time within which to file a Notice of Appeal, the notice is bad. In such circumstance, the process before the Court is incompetent, having been filed out of the statutory time for filing. Such a Notice must be struck out as incompetent.(back to top?)
  13. The said No. CA/IB/205/2012 is hereby struck out and the said process deleted from the pending list of appeals before this Court.
  14. My learned brother Fasanmi JCA who prepared the lead Judgment made no order as to cost. I too make no order as to cost.
  15.  
    IYIZOBA, J.C.A.:

  16. I read before now the judgment just delivered by my learned brother, MODUPE FASANMI JCA. I agree that the Notice of Appeal being incompetent, this Court lacked the jurisdiction to entertain the appeal.
  17. I also strike out the appeal.