Afolabi Fajebe & Anor V. Isaac Adebayo Opanuga (2019)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

On 16th January, 2008, the Court of Appeal, Lagos (coram: Ogunbiyi and Galinje JJCA as they were then) and Mshelia JCA heard a motion filed 11 January, 2003 by the appellants applicants seeking the following reliefs:-

1. Granting the applicants leave to amend the notice of Appeal dated the 26th day of March, 2001 in the terms of Exhibit HO1 attached.
2. Granting the applicants leave of this Honourable Court to raise a new issue in this appeal as formulated in Ground 2 of the Proposed Amended Notice of Appeal and issues 3 and 4 under the issues for determination of the Brief of Arguments filed and served.
3. Granting the applicants leave of this Honourable Court to file additional grounds of appeal.
4. Extending the time limited by the rules within which to file the Applicants Brief of Argument.
5. Deeming the Amended Notice of Appeal filed and served by the applicants as having been properly filed and served.
6. Deeming the additional ground of appeal filed as having been properly filed.

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Ruling on the application, the Court held:-

“It is apparent also to mention that the applicant in his submission admits that the record of this appeal was transmitted to this Court in the year 2004. To be precise, same was on the 12th May, 2004 as per the evidence available to the Court. The appeal was therefore deemed to have been entered on that date. The rules of Court make it mandatory on the appellant to file his brief of arguments within 60 days of entering the appeal. The motion at hand was filed on 11th January, 2008 and which is almost four years of entering the appeal. As rightly submitted and argued by the learned respondent’s counsel the application sought for in prayers 1- 4 with prayer 2 being incompetent while 1, 3 and 4 are hereby refused. The appeal under the inherent powers of this Court is also dismissed.” (See Vol. 2 pages 788-789 of the records).

Being aggrieved with the said ruling, the appellants appealed against same in their Notice of Appeal dated 23rd January, 2008 and formulated the following issues for determination in the appellant’s brief deemed filed on 17/10/2018:-

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“Whether considering all the facts and circumstances of this case, the learned Justice (sic) of the Court of Appeal were right to have dismissed the appeal of the appellants, for failure to file their brief of argument within time in the light of the unassailable and uncontroverted facts stated in the affidavit in support of the appellants’ motion prayer inter alia for an order extending the time to file the said brief and which delay was attributed to ill-health and inadvertence of counsel coupled with the untardiness of the Registry of the Court of Appeal in making available the necessary documents on demand”.

In the respondent’s brief which was also deemed filed on 17/10/2018, three issues were submitted for our consideration namely:-

1. Whether or not it is true that there was no application for the dismissal of the appellants’ appeal before the application for extension of time within which to file their brief of argument was dismissed.
2. Whether the appellants have succeeded in establishing that their counsel was bedridden or that his ill-health was responsible for the delay in filing their brief of argument for about 4 years after

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the appeal had been entered on 12th May, 2004.

3. Whether the appellants have substantiated

(a) The alleged inadvertence on the part of their counsel.

(b) The alleged untardiness of the Registry in making the necessary documents available.

(c) The alleged technicalities referred to.