Facts:

The appellants filed a motion on notice an order for extension of time within which to Cross Appeal. In support of the application there were two sets of affidavits counsel relied on both affidavits and an exhibit extract of the proceedings of the court where an earlier motion in similar terms had been refused

Counsel for the respondent had no objection to the granting of the prayers sought for. After hearing the earlier application, the court in refusing the application held that the application failed to explain the delay in not filing his appeal within time.

At the hearing of the second application the court had to consider whether or not it was functus officio and therefore whether the court could entertain the application to extend the time within which to Cross-Appeal after a similar application had been dismissed.