British American Tobacco (Invest) Ltd. V. The Attorney General Of Ogun State & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Lead Ruling)

This is an interlocutory application dated and filed on 19.10.010, seeking for:

“AN ORDER granting the Appellant/Applicant leave to file written address in support of its motion on Notice date

19th October, 2010.

And for such further or other orders as this Honourable Court may deem fit to make in the circumstance”.

The application was moved by Mrs. Adekoya, learned Senior Advocate of Nigeria (S.A.N.), on behalf of the applicant with stress on the 7 paragraphed supporting affidavit read together with the inherent powers of this court taken with section 15 of the Court of Appeal Act, 2004, (the Act) and Order 19 rules (2) and 3(1) of the Court of Appeal Rules, 2007, (the Rules of this Court) to submit that by order 7 rule 9 of the Rules of this Court the time frame of thirty (30) minutes allocated for oral submissions in respect of interlocutory applications would be inadequate or insufficient to exhaust and do justice to the extensive arguments intended to be made on the Motion on Notice as stated on the motion paper (supra), Therefore, an order granting a departure from order 7 rule 9 of the Rules of this Court should be made in order to accommodate and hear the said motion on written submissions. Learned senior counsel concluded by advocating for a grant of the application, as to do so, according to her, shall save the time of the Court.

The uncontradicted affidavit evidence supporting the application stated:

“1. I am a Legal Practitioner in the Law Firm of AELEX, solicitors to the Appellant/Applicant and by virtue of which I am conversant with the facts deposed herein.

2. I have the authority of my employer as well as the Appellant/Applicant to depose to this Affidavit and the facts deposed to herein are within my personal knowledge except where otherwise stated.
3. On 1st September, 2010, the Record of Appeal (in the appeal filed by the Appellant/Applicant against the ruling, dated 20th May 2010, of the Honourable Justice O. Olopade of the High Court of Ogun State (the “lower Court”) in Suit No.AB/6U2008) was transmitted to the Court of Appeal.
4. On 19th October 2010, the Appellant/Applicant filed an application of the same date seeking an order of this Honourable Court staying the proceedings in the lower Court pending the determination of this appeal. A copy of this application is attached herewith as Exhibit W1.
5. In the light of the extensive arguments which the Appellant/Applicant intends to proffer in support of the said application for stay of proceedings, it proposes to file a Written Address in lieu of oral submissions so as to save the time of this Honourable Court.
6. In the light of paragraph 5 above, the Appellant/Applicant seeks leave of this Honourable Court to file the said Written Address.
7. I make this solemn oath conscientiously , believing the same to be true and by virtue of the provisions of the Oath Act. Cap.01. Laws of the Federation of Nigeria. 2004.”

The above copied affidavit evidence establish per adventure that the time limit under order 7 rule 9 of the Rules of this Court for applicant to present full arguments on the said pending motion of “complexity”, to borrow learned senior counsel for applicant’s word, occasioned the filing of this application.

Since the present application and the arguments proffered on it by learned senior counsel for applicant are substantially on the same plane with the motion argued by Mr. Elias, learned senior counsel for applicant in appeal No.CA/I/254/2010, I crave indulgence, to follow my analysis of the application in the latter motion in respect of this motion.

Now, order 19 rules (2) and (3)(1) of the Rules of this Court state:

“(2) The court may direct a departure from these Rules in any way this is required in the interest of justice.

(3) The court may, in an exceptional, circumstance, and when it considers it in the , interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.”

A departure from the Rules of this court under order 19 rules (2) (supra) is usually made to avoid hardship on the parties in complying with the Rules of this court, or in some cases to save time and costs for the matter to be dealt with expeditiously in the interest of justice. Whilst waiver of noncompliance with the Rules of this court is granted in exceptional circumstances and in the interest of justice only.