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  • Crown Estate Ltd v. Adewunmi
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  • 2004-11-08
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Crown Estate Ltd v. Adewunmi

CROWN ESTATE LIMITED

V

ADERINOLA ADEWUNMI

COURT OF APPEAL

( LAGOS DIVISION )

JAMES OGENYI OGEBE, JCA ( Presided )

DALHATU ADAMU, JCA

SULEIMAN GALADIMA, JCA ( Read the Lead Ruling )

CA/L/80M/2001

WEDNESDAY, 30TH JUNE, 2004

APPEAL - Injunction or stay of execution pending appeal - Application for - Existence of an appeal as a prerequisite for

APPEAL - Interlocutory application refused or struck out by lower court -

Time limit for filing similar application in the Court of Appeal Order 3, rule 3(3) and (4) Court of Appeal Rules, 2002 considered

APPEAL - Stay of execution of judgment pending appeal and injunction pending appeal - Principles guiding grant of - Similarity of

INJUNCTION - Completed act - Injunction in respect of - Impropriety of

INJUNCTION - Injunction or stay of execution pending appeal Application for - Existence of an appeal as a prerequisite for

INJUNCTION - Injunction pending appeal and stay of execution of judgment pending appeal - Principles guiding grant of - Similarity of


JUDGMENT AND ORDERS - Stay of execution of judgment pending appeal and injunction pending appeal - Principles guiding grant of - Similarity of

PRACTICE AND PROCEDURE - Interlocutory application which has been refused or struck out by the lower court - Time limit for filing similar application in the Court of Appeal - Order 3, rule 3(3) and (4) Court of Appeal Rules, 2002 considered

Issues:

1.              Whether this application filed 21/2 years after a similar application was refused by the court below is competent.

2.              Whether the applicant is entitled to an order of injunction and stay of execution of the judgment of the lower court pending the determination of this appeal.

3.              Whether the applicant is entitled to an order allowing it to file further grounds of appeal.

Facts:

The present applicant was the defendant in the lower court. It is his case that the respondent as plaintiff did not serve him with the originating court processes, and this led to judgment being entered against him in his absence. When the applicant became aware of the judgment, he filed two applications to have it set aside. The first application dated 15/2/96 which was to set aside the judgment was dismissed by the trial court. The second application which was for extension of time to file the first was granted.

The applicant filed a notice of appeal and brought another motion for stay of judgment before the lower court. That motion was dated 3/2/99 but owing to failure of counsel to move that application on 17/11/2000, it was struck out.

The applicant has now brought before the Court of Appeal a similar application to that struck out on 17/11/2000, after a period of 21/2 years. The court has to consider whether the application is competent, regard being had to the provision of Order 3, rule 3(3) and (4) of the Court of Appeal Rules, 2000.