Alhaji Rasaq Abiodun Abijoh V. Chief Ganiyu Olayiwola Fagbohun & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A, (Delivering the Leading Ruling)

This is a Motion on Notice dated and filed on 17/12/09 on behalf of the Appellant/Applicant for the following order:

“Relisting this Appeal/Notice of Appeal struck out on 25th November 2009 on the ground that the Appellant’s counsel was not present in Court to convince the Court that the Notice of Appeal was signed by Appellant’s counsel and or that the Notice of Appeal was not signed.

And such further Order or Orders as the Court may deem fit to make in the circumstances.”

It is brought pursuant to Order 7 Rules 1 and 20 of the Court of Appeal Rules 2007 and supported by a 14-paragraph affidavit deposed to by one Adebayo Babatunde, Law Clerk in the chambers of J.O.A. Ajakaiye Esq. learned Counsel for the Applicant. Attached to the application are two exhibits: applicant’s counsel’s office copy of the original Notice of Appeal marked Exhibit A and a certified true copy of the record of proceedings of this court for 25/11/09 marked Exhibit B’.

In reaction to, the application one Babatunde Akintola, litigation clerk in the chambers of Messrs Adeniyi Akintola, SAN & Co, deposed to a 10-paragraph counter-affidavit on behalf of the 1st respondent.

The facts that gave rise to this application as can be gathered from the supporting affidavit are that on 20th October 2009 this court drew the Applicant’s counsel’s attention to the fact that the Notice of Appeal contained in the record of appeal was unsigned. The court was consequently of the view that there was no Appeal before it. Learned counsel for the Appellant sought to convince the court that the original Notice of Appeal filed at the registry of the Oyo State High Court, copies of which were forwarded to this court, was duly signed.

The Appeal was adjourned to 25/11/09 to enable learned counsel satisfy the court that the Notice of Appeal was signed.

It is averred in paragraphs 4 – 14 thus:

4. “That counsel to the appellant pleaded with the Court that the Notice of Appeal he filed at the Lower Court and of which copies were sent to the Court of Appeal were duly signed and the Appeal was adjourned to 26th November 2009 to enable him satisfy the Court that the Notice of Appeal was signed.
5. That because the date of adjournment was erroneously recorded as being 26th November, 2009, counsel did not attend Court on 25th November, 2009 when the Appeal was struck out for him to show the Court the signed Notice of Appeal.
6. That it was Chief Oye Esan, that phoned our office on 25th November, 2009 to inform counsel to the Applicant that the appeal was struck out on the ground that the Notice of Appeal was not signed.
7. That counsel to the Applicant informed me and I verily believe that the Notice of Appeal will not have been accepted for filing by the Lower Court if it was not signed.
8. That counsel to the Appellant/Applicant also informed me and I verily believe that after the adjournment of 20th October, 2009 he approached the Court Registrars to provide the Court with a copy of Notice of Appeal sent to the Court of Appeal before Records were complied for verification.
9. That counsel to the Appellant/Applicant also informed me and I verily believe that he also approached the Lower Court for a Certified True Copy of the Notice of Appeal but that he was informed that the case file for the Appeal from which the Record of Appeal was made out was forwarded to the Court of Appeal for verification of documents in the Record of Appeal including the original Notice of Appeal filed.
10. The Appellant (sic) counsel informed me and I verily believe that he expected the counsel to the Respondents to informed (sic) the Court that the Notice of Appeal served on them were duly signed.
11. That it is unfortunate that registrars did not make available to Court the said signed copy.
12. That our office copy of the Notice of Appeal is attached hereto and marked Exhibit A.
13. That a certified true copy of the proceedings of 25th November 2009 on the appeal is attached hereto marked Exhibit B.
14. That it is in the interest of justice that the Appeal be listed for hearing and for it to be decided on merit and not on technicalities. ”

In paragraphs 7 (v), (vi), (vii), (viii), (ix), (x), (xi) and (xii) of the counter affidavit, it was averred on behalf of the respondent as follows:

7(v) That contrary to the deposition contained in paragraph 4 of the supporting Affidavit, the court adjourned the Appeal to 25th November 2009 to enable the appellant address it on the competence of an unsigned Notice of Appeal.

(vi) That on 25th November 2009 when the Appeal came up neither the appellant nor his counsel were in court. (vii) That contrary to the deposition contained in paragraph 10 of the supporting Affidavit, our F.A. Aofalaju of counsel who was in court on the said 25th November 2009, in the interest of justice drew the attention of the court to the fact that the copy of the Notice of Appeal dated 8th June 2005 served on the 1st respondent was duly signed by counsel to the Appellant.

(vii) That this Honourable Court presided over then by Ogunbiyi, JCA was of the opinion, and rightly too that the processes in the court’s file are what the court will work with and not the processes served on parties and/or counsel.

(ix) That thereafter, counsel to the 1st respondent was called upon by this honourable court to address it on the competence or otherwise of an unsigned Notice of Appeal.