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DEKIT CONSTRUCTION LIMITED & ORS v. ASSET MANAGEMENT CORPORATION OF NIGERIA

(2018) LPELR-43737(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 21st day of February, 2018

CA/IB/M393/2017(R)


Before Their Lordships

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria


Between

1. DEKIT CONSTRUCTION LIMITED
2. MRS. DEBORAH BOSEDE OLAGUNJU
3. MR. TOLU OLAGUNJU - Appellant(s)

AND

ASSET MANAGEMENT CORPORATION OF NIGERIA - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This is a ruling on an application to relist an appeal dismissed for want of diligent prosecution.
FACTS:
This is an application by motion on notice brought by the Appellants/Applicants praying for the following orders:

"1. Setting aside the Ruling of this Honourable Court delivered on 29th September, 2017 dismissing Appeal No. CA/IB/255/17 between Dekit Constructions Limited & 2 Ors vs. Asset Management Corporation of Nigeria.

2. Restoring to the Cause List the Notice of Appeal filed on 5th June, 2017 against the Judgment of the Federal High Court Coram Honourable Justice N. Ayo-Emmanuel in Suit No. FHC/IB/CS/58/2016 between Asset Management Corporation of Nigeria Vs. Dekit Constructions Limited & 2 Ors.

3. Extending the time within which to properly file the Appellants' Brief of Argument."

The application was supported by (1) the 1st Affidavit of 26 Paragraphs sworn to by FRANCIS DARE OLORUNTOBA (2) the 2nd Affidavit of 11 Paragraphs sworn to by EZEKIEL ATAT, with one Exhibit, a copy of the Appellants' Brief of Argument prepared for filing. (3) a 13 Paragraph Further and Better Affidavit deposed to by FRANCIS DARE OLORUNTOBA on 20th October, 2017 with copies of several documents attached as Exhibits 2, 3, 4, 5 and 6. (4) a 9 Paragraph 2nd Further and Better Affidavit with the Certified True Copy of the Ruling of this Honourable Court attached as Exhibit 7. 

Learned Counsel for the Respondent filed a Notice of Preliminary objection dated 17th October, 2017. The objection challenged the Jurisdiction of the Court of Appeal to restore the Appeal dismissed for want of diligent prosecution. The contention of the Respondent is that the Ruling dismissing the appeal is a final judgment; that the Court was functus officio; and that the only option open to the Applicants was an appeal to the Supreme Court.

The parties were ordered to file written addresses.  The Applicants' written address was dated 22/11/17 and filed same day. The Respondent's written address in support of his notice of preliminary objection is dated 4/12/17 and filed 5/12/17. The Applicants' response to it is dated 12/12/17.

ISSUES:
The Court determined the application on the Respondent's preliminary objection to the competence of the application on the ground that the Court of Appeal has no jurisdiction to restore the Appeal dismissed for want of diligent prosecution. The contention of the Respondent was that the Ruling dismissing the appeal was a final judgment; that the Court was functus officio; and that the only option open to the Applicants was an appeal to the Supreme Court.
DECISION/HELD:
On the whole, the Court found merit in the Respondent's preliminary objection and accordingly upheld same. The application was therefore dismissed.


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