Nurudeen Oniwaya V. Omolere Ikuomola & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

R. C. AGBO, J.C.A.

The applicant is the third defendant in suit No. ID/611/05 pending at the High Court of Lagos State, Lagos Division. The 1st respondent is the claimant in that suit while the 2nd, 3rd, 4th and 5th respondents are the applicant’s co-defendants. On service on them of the plaintiffs originating processes, the defendants by application dated 25th August 2005 prayed the High Court to strike out the statement of claim as frivolous and vexatious. They also sought for the action to be dismissed as it constituted an abuse of process as the parties had disputed the subject matter of the suit up to the Supreme Court where the defendants were successful and execution levied. In a considered ruling the Lagos State High Court on 10/02/06 dismissed the application as lacking in merit.

Not being satisfied with the ruling of the court, the applicant filed a Notice of Appeal dated 20th February 2006 but filed on 21 st February 2006 – He thereafter on 17/5/06 filed this motion seeking the following prayers:-

1. An Order extending the time within which to apply for Leave to appeal on grounds other then that of law alone contained in the Notice of Appeal dated 20th February 2006 filed against the decision of Honourable Justice D.T. Okuwobi of Ikeja Judicial Division of the High Court of Lagos State dated 10th March 2006.
2. An Order granting leave to appeal on grounds other than that of law alone contained in the notice of Appeal dated 20th February, 2006 filed against the said decision of Honourable Justice D.T. Okuwobi.
3. An Order granting extension of time within which to file Notice of Appeal.
4. Such further Order or other Orders as the Honourable Court may deem fit to make in the circumstances.

The affidavit in support of the application is short and bears full reproduction:-

“I, Babatunde Ajagbe, Male, Christian, Nigeria Citizen and Litigation Officer of No. 21 Oritse Street, Ikeja, Lagos State do hereby make oath and state as follows that:

I. I am the litigation officer in the law firm of Messrs P.O. Jimoh-Lasisi acting for the Appellant/Applicant herein and by virtue of my position I am familiar with the facts of this case.

2. I have the consent of my employers to depose to this Affidavit.
3. On 10th day of February 2006 the High Court of Lagos State, Coram Honourable Justice D.T. Okuwobi delivered a ruling in respect of an interlocutory application filed in this suit.
4. The ruling was not immediately available until 20th day of March when the Appellant/Applicant succeeded in obtaining a copy of the ruling.
5. Shown to me and Exhibited hereto as Exhibit TA a copy of the Certified copy of the ruling.
6. On 21stday of February Mr. P. O. Jimoh-Lasisi SAN settled the Notice of Appeal against the ruling and filed same.
7. Shown to me and Exhibited hereto as Exhibit TA1 is the Notice of Appeal.
8. MR. JIMOH-LASISI SAN informed me and I verily believe that the grounds of Appeal contained in the said notice are arguable and substantial points of law.
9. Mr. Jimoh-Lasisi SAN informed me and I verily believe that some of the grounds of appeal involve questions of mixed law and fact and as such it is necessary to obtain leave of court to argue those grounds.
10. On 21/2/2006 the Appellant/Applicant filed in the lower court a motion seeking the leave of court to appeal on grounds other than that of law alone contained in the Notice of Appeal dated 21/2/2006.
11. The said motion was accompanied with an affidavit of urgency so that it can be heard within the time limited by law.
12. Shown to me and exhibited hereto as Exhibit TA2 is the said motion paper.
13. The said motion has not been fixed for hearing till present.
14. Mr. Jimoh-Lasisi SAN informed me and I verily believe that the non-fixture of the said motion for hearing has necessitated this application to this Honourable Court.
15. Mr. Jimoh-Lasisi SAN informed me and I verily believe that it is in the interest of justice to grant this application.
16. I depose to this affidavit in good faith.

The respondents filed a counter affidavit and averred as follows:-

I, MARTINS ADEYEMI, Male, Adult, Christian, Litigation Officer and Nigerian Citizen of No. 22, Allen Avenue, Ikeja, Lagos State of Nigeria do hereby make oath and declare as follows:-

1. That I am the Litigation Officer in the Law Firm of Dele Awoniyi & Co., Solicitors to the Respondents herein and by virtue of this position, I am conversant with the facts and circumstances herein deposed to.
2. That I have the consent and authority of both the Respondents and my Employers to depose to this Affidavit.
3. That I was informed by Chief Dele Awoniyi,Counsel to the Respondents and I verily believe his information to be true and correct as follows:-

a. That paragraphs 3 and 5 are true

b. That paragraphs 4, 8, 9, 11, 13, 14 and 15 are not true

c. That the Junior Counsel from the Law of Jimoh Lasisi SAN withdrew the said motion to argue the motion seeking leave of Court to appeal on Grounds other than Law alone on March, 14, 2006 and it was struck out pursuant to the withdrawal of the said motion.

d. That there was no valid application at the Lower Court pursuant to which the Appellant! Applicant cannot apply directly to this Honourable Court.

e. That the Appellant knew that an interlocutory Appeal must be filed within 14 days from the date of the ruling and leave must be obtained within 14 days of the date of the Ruling. AND yet even though the said Ruling was delivered on the 10th day of February, 2006 the Applicant did not file any Motion for leave until the 21st day of February, 2006 which is 11 clear days after the delivery of the said Ruling.

f. That the Appellant! Applicant should know that he has frustrated t he Application by filing it eleven days after the delivery of the Ruling when the Motion must be heard and the Ruling delivered within 14 days.