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:-
- Granting the applicants leave to amend the notice of Appeal dated the 26th day of March, 2001 in the terms of Exhibit HO1 attached.
- 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.
- Granting the applicants leave of this Honourable Court to file additional grounds of appeal.
- Extending the time limited by the rules within which to file the Applicants Brief of Argument.
- Deeming the Amended Notice of Appeal filed and served by the applicants as having been properly filed and served.
- Deeming the additional ground of appeal filed as having been properly filed.
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:-
“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:-
- 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.
- 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
the appeal had been entered on 12th May, 2004.
- 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.
In this appeal. the respondent neither filed a cross-appeal nor a respondent’s notice. It is therefore not permissible for him to raise an issue not predicated on the ground of appeal filed by the appellants. See: Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373; Adhekegba v. Minister of Defence (2013) 17 NWLR (Pt. 1382) 126. Any issues which are not connected or related to the grounds of appeal are irrelevant, go to no issue and the arguments thereon should be discountenanced by this Court. See: Shitta-Bey v. A-G Federation (1998) 10 NWLR (Pt. 570) 392; Amadi v. N.N.P.C (2000)10 NWLR (Pt. 674) 76; Ibator v. Barakuro (2007) 9 NWLR (Pt. 1040) 475.
The ground of appeal from which the issue was formulated read thus:-
The learned Justices of the Court of Appeal erred in law when they dismissed the appeal of the appellant.<br< p=””
PARTICULARS OF ERROR
(a) The decision to dismiss the appeal of the appellant was based on issues of technicality
(b) The Court of Appeal did not appraise itself properly with the suit and therefore arrived at a wrong decision to dismiss the appellant’s appeal
(c) The exercise of the Court of Appeal of its inherent jurisdiction was not carried out justiciably.
(d) There was no proper application before the Court of Appeal on which the decision to dismiss could have been premised.
It is the first issue in the respondent’s brief that bears relevance to the complaint laid out in the ground of appeal. The other two issues cannot be said to relate to the ground and so the arguments in those issues have to be discountenanced.
Learned counsel in arguing the appeal referred to the affidavit in support of the motion seeking leave to amend the Notice of Appeal which was supported with an affidavit. In the said motion the appellants prayed for an order extending the time within which to file the appellants’ brief. In the supporting affidavit to the application, the deponent explained the cause of the delay in filing the brief within the
time allowed by the rules. Apart from the ill health of the counsel the delay was also attributed to inadvertence of counsel coupled with the untardiness at the Court’s Registry in making available the documents needed for the appeal. Despite these averments no counter-affidavit was filed by the respondents but the Court below proceeded to dismiss the appeal on the ground that the appellants failed to file their brief of argument within time. Learned counsel submitted that the Courts are not in the habit of visiting the fault of counsel on an innocent litigant relying onOkafor v. Bendel Newspaper Corporation (1991) 7 NWLR (Pt. 206) 651 at 666 where Nnaemeka-Agu JSC stated :-
”But it has been recognized by our system of administration of justice that mistakes or even blunder of counsel may occur from time to time; but it is wrong to deny a litigant the right to have his case decided on the merits because of the blunder, mistake or negligence of his counsel. See: Collins v. Vestry of Paddington (1880) 5 Q.B.D 380 at 381; Adeleke v. Awoliyi & Ors (1962) 1 SCNLR 401″.
He further contended that since the matter was not
determined on its merits but on technicalities and the Courts now lean towards doing substantial justice, the appeal should be allowed to enable the lower Court decide the appeal on the merits.
Learned counsel for the respondent referred to Order 17 Rule 2 of the Court of Appeal Rules which allows the appellant 45 days to file his brief of argument upon the receipt of the record of Appeal. He argued that despite the notice (Exhibit A) served on them by the Registrar of the lower Court wherein it was stated that the Record of Appeal was transmitted to the Court of Appeal on 12 May, 2004 which required them to file the appellant’s brief within 60 days or 45 days whichever was applicable to them, the appellants failed to file the brief of argument. This led the respondent to file an application on 8 June, 2006 praying for an order to strike out the appeal dated 26 March, 2001. This application which was served on the appellants preceded the appellants’ motion seeking for extension of time to file the appellant’s brief. When learned counsel for the respondent was replying to the submissions of appellants’ counsel for extension of time to file the appellants’ brief he drew the attention
of the court to learned counsel’s admission that the appeal was entered in 2004 and it was based on this that he urged the Court to dismiss the appeal; so the appellants are estopped from denying the existence of those facts. He therefore urged this Court to dismiss the appeal for lack of merit.
The proceedings leading to this appeal are to be found on pages 788-789 Vol. II of the Record of Appeal. They were held on 16 January, 2008 and I reproduce them as follows:-
“IN THE COURT OF APPEAL
HOLDEN AT LAGOS
ON WEDNESDAY, THE 16TH DAY OF JANUARY, 2008
HON. JUSTICE C. B. OGUNBIYI JUSTICE, COURT OF APPEAL
HON. JUSTICE P. A. GALINJE JUSTICE, COURT OF APPEAL
HON. JUSTICE A. G. MSHELIA JUSTICE, COURT OF APPEAL
ALFRED OLAIYA FAJEBE & OTHERS
ISAAC ADEBAYO OPANUGA
Appearance:- Olayinka Sunmola for the Appellant/Applicant
Chief Akin Ojo for the Respondent.
Mr. Sunmola: I agree that the appeal was entered in this
Court on 12th May, 2004. We were unable to file our brief because the Counsel handling the matter had been bed ridden on and off since 2004. I am urging the Court to allow the motion for leave to amend the notice of appeal. We have filed our brief though out of time and is (sic) urging the Court to extend the time to file. I will apply to withdraw the motion filed 13th November, 2006. The motion is dated 11th January, 2008 and filed the same day. It is supported by an eight paragraphs affidavit. We rely on all. We are asking for seven prayers. I will limit my prayers to 1-4 and withdrawing 5-7 of same. The grounds for the application are limited to that stated in the affidavit. The application is not sought to overreach the respondent. It is pertinent to note that there is no counter affidavit to this application. I urge the Court to grant the prayers I sought.
Chief Ojo:- If the appeal was entered 2004, I would urge the Court to dismiss the entire appeal which had not been filed. There is no question of amending the Notice of Appeal which bear no useful purpose. The appellant’s counsel himself had alluded to this fact of entering the
appeal in 2004. I would urge that the appeal be dismissed so also should the application.
Court:- The learned applicants’ counsel applied to withdraw the motion filed 13th November, 2006. Same is according struck out. On the merit of the application on Notice dated 11th January, 2008 and filed the same day, the application is seeking for a number of prayers inclusive of leave to amend the Notice of Appeal dated 26th March, 2004. 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 11th January, 2008 and which is almost four years of entering the appeal. As rightly submitted and argued by learned respondent’s counsel the application sought for in respect of 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 with costs awarded in favour of the respondents in the sum of N30, 000. 00. Prayers 5-7 are withdrawn and struck out. Appeal is dismissed with N30,000.00 costs to the Respondent.
I agree Signed I agree
Signed C. B. Ogunbiyi Signed
P. A. Galinje JCA A. G. Mshelia
Granted that the respondent had filed a motion dated 8th June, 2006 praying the lower Court to strike out the appeal which preceded the appellants’ motion of 11th January, 2008, the normal practice of the Court of Appeal is to hear the application which seeks to preserve the appeal rather than take the motion to strike out the appeal. And in considering the application to amend the Notice of Appeal, the Court should examine the original grounds of appeal to see if there is a ground that would sustain the appeal. Once a notice of appeal is valid, it can be amended at any time before the appeal is heard. Such amendment should not be made to overreach the respondent, but only to serve the ends of justice and ensure that the complaints of the appellant against the judgement appealed against are laid and ventilated before the Court. See: Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208; Adelaja v. Alade (1994) 7 NWLR (Pt.358) 537; Pharmatek Ind. Projects Ltd v. Ojo (1996) 1
NWLR (Pt. 424) 332 and F.B.N Plc v. May Medical Clinics & Diagnostic Centre Ltd (2001) 9 NWLR (Pt. 717) 28.
No reason whatsoever was given by the lower Court in its refusal to allow the appellants to amend the notice appeal. The reason for the refusal to grant the application was as to the filing of the appellants’ brief which was not filed for a period of four years after the appeal had been entered. The refusal should affect only prayer 4 in the motion. Even if the appellants had filed their brief of argument, they were entitled to amend the brief to accommodate the ground for which the notice of appeal was being amended and since they had not filed the appellants’ brief they were entitled to an extension of time to file the appellants’ brief after filing the amended notice of appeal. There was no justifiable reason for refusing the application in its entirety and further dismissing the appeal.
The appeal has merit and it is hereby allowed. The decision delivered by the Court of Appeal, Lagos on 16th January, 2008 in Appeal No. CA/L/210/2004 and dismissing the appeal are hereby set aside. Because of the age of the case, the said motion is granted in terms of prayers 1,2, 3
and 4 of the motion filed on 11 January, 2008.
- Leave to amend the Notice of Appeal dated the 26th of March, 2001 in the terms of Exhibit ‘HO1′ attached is granted.
- Leave is granted the appellants to raise a new issue in the appeal as formulated in ground 2 of the Proposed Notice of Appeal.
- Leave is granted the appellants to file additional grounds of appeal
- The appellants are granted 30 days from today to file the Amended Notice of Appeal together with the appellants’ brief.
No order on-costs-is-made.