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Mobolaji v. Fabson Co. Ltd

ALHAJI ABASS OLASUKANMI MOBOLAJI

V

FABSON CO. LTD.

PRINCE FOLORUNSO BELLO

COURT OF APPEAL

( IBADAN DIVISION )

M. AREMU OKUNOLA JCA ( Presided and Read the Lead Ruling )

FRANCIS FEDODE TABAI JCA

OLUFUNLOLA OYELOLA ADEKEYE JCA

CA/I/M.249/2002

WEDNESDAY, 28TH MAY, 2003

APPEAL - Departure from the rules - Grant of by court - Discretionary nature of - Duty of court to ensure litigant is not granted the indulgence to depart from normal course of events which will result into an abuse of court process

APPEAL - Departure from the rules - Party who refused to comply with conditions of appeal applying for leave to depart from the rules to enable him compile the record of appeal on his own Impropriety of

APPEAL - Entering of an appeal - Mere giving of notice of appeal Insufficiency of to connote entering of appeal

APPEAL - Entering of an appeal - When appeal can be said to be entered -  Effect of the entering of an appeal

COURT - Departure from the rules - Grant of by court - Discretionary nature of - Duty of court to ensure litigant is not granted the indulgence to depart from normal course of events which will result into an abuse of court process

COURT - Interest on judgment sum - Award of pre-judgment and postjudgment interest - Discretionary power of court to grant

FUNDAMENTAL RIGHTS - Fair hearing - Counsel holding brief for his colleague - Where not prepared to conduct the case - Court’s refusal to grant adjournment at the instance of - Allegation of denial of fair hearing as a result of - Inappropriateness of

JUDGMENT AND ORDERS - Interest on judgment sum - Award of pre-judgment and post-judgment interest - Discretionary power of court to grant

LEGAL PRACTITIONERS - Counsel holding brief for his colleague Where not prepared to conduct the case - Court’s refusal to grant adjournment at the instance of - Allegation of denial of fair hearing as a result of -  Inappropriateness of

LEGAL PRACTITIONERS - Counsel who announced his appearance in court - Presumption of preparedness of to prosecute action

PRACTICE AND PROCEDURE - Departure from the rules - Party who refused to comply with conditions of appeal applying for leave to depart from the rules to enable him compile the record of appeal on his own - Impropriety of

PRACTICE AND PROCEDURE - Stay of execution - Application for What must show

PRACTICE AND PROCEDURE - Stay of execution - Arguable point of law in appeal - Insufficiency of to warrant grant of stay of execution

PRACTICE AND PROCEDURE - Stay of execution - General rule that special circumstances must relate to enforcement of judgment and not correctness of judgment - Exceptions thereto

PRACTICE AND PROCEDURE - Stay of execution - Grant of - Special circumstances to warrant

Issues:

1.              Whether the judgment given in suit No. 1 /481/2001 is manifestly wrong and illegal.

2.              Whether there are special circumstances in this case which warrant the grant of an order of stay of execution.

3.              Whether the ground of appeal raise vital issues of law.

Facts:

The respondents herein on 22nd of May, 2001, issued a writ of summons against the applicant concerning a parcel of land sold by the applicant to the 2nd respondent for the recovery of the money paid, and applied that same be placed on the undefended list. The appellant filed a notice of intention to defend and a counter-affidavit of 19 paragraphs denying not only the essential paragraphs of the affidavit in support, but also asserting that the 1st respondent was not a party to the transaction between him and the 2nd respondent. And furthermore, that the respondent was never disturbed by his vendors (Fola Lanlehin family) as distinct from the wife of Chief S. O. Lanlehin who had no connection whatever with the land.

The matter was assigned to Arasi, J. in High Court 5, who on sighting the applicant, decided to transfer the suit from his court because, as he said in open court, the applicant was his client when in practice. The matter came before Sanda, J. on Monday, 7th January, 2002 who insisted on hearing argument immediately, took argument, notwithstanding the applicant’s counsel’s appeal to the contrary, allowed the matter to stay on the undefended list and immediately gave judgment. In his judgment, the trial court awarded 10 % interest on the judgment sum from the date of judgment until the judgment debt is liquidated, as against the 5% claimed by the respondent.

Dissatisfied, the applicant filed a notice of appeal and on the same day, filed a motion for stay of execution. On the 5th day of February, 2002, without notice to the applicant or his counsel and without the matter being on court’s list the learned Judge dismissed the motion for lack of diligent prosecution.

The applicant by a motion dated 8th October, 2002 and filed on 14/ 10 /2002, brought an application for the following three reliefs :

(1)           Leave to apply for departure from the provisions of Order 3, rules 8, 9, 10, 11, 12 and 13 and any such rules as may facilitate the attainment of the objective of the application.

(2)           Order of departure from the rules to enable the applicant compile the record in suit No. 1/481/2001, in Oyo State High Court.

(3)           Stay of execution of the judgment in the suit referred to in 2 above.