Dr. Adetokunbo Adeola & Anor V. Adegoke Adeusi & Ors (2012)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
CHINWE EUGENIA IYIZOBA, J.C.A (Delivering the Lead Ruling Judgment)
This is a motion on notice dated the 28th day of October, 2011 and filed on the 1st day of November 2011 on behalf of the appellants/applicants praying for an order granting leave to the applicants to amend the Notice of Appeal dated 23/10/02 by including additional grounds of appeal as contained in the schedule attached to the application; an order extending the time within which the appellants’ brief of argument may be filed and an order deeming as properly filed and served the appellants’ brief of argument, necessary fees having been paid. The application is brought pursuant to order 6 Rule 4 and 15 and order 4 Rule 1 of the court of Appeal Rules 2007. The grounds for the application as stated on the motion paper are as follows:
- The appellants filed their Notice of Appeal on 23/10/02 upon the judgment of the trial court delivered on 10/10/02.
- The court then sitting in Benin on 29/4/08 granted the appellant’s motion to file and argue Additional Grounds of Appeal in their Brief of Argument but the time within which to file the Brief of Argument had long elapsed.
- The Appellant requires the leave of the court to file their Brief of argument out of time and which has been filed.
- The Appellants also require the leave of the court to amend their Notice of Appeal to include the Additional Grounds which are argued in their Brief of Argument.
The application is supported by an affidavit of 15 paragraphs with two exhibits attached thereto marked Exhibits A and B. Exhibit A is the original Notice of appeal which the applicants seek to amend. Exhibit B is the proposed amended notice of appeal incorporating the additional grounds of appeal.
The 1st – 3rd Respondents in opposition to the application filed a counter-affidavit of 15 paragraphs on 24/11/11 with two exhibits FAC 1 and FAC 2.
The 4th-6th Respondents also in opposition to the application filed a counter-affidavit on 21/12/11.
At the hearing of the application, FUNMI ABITOYE (MRS.) for the applicants submitted that the motion is for an order granting them leave to amend the notice of appeal dated 23/10/02 Exhibit A by including additional grounds of appeal as contained in the proposed amended notice of appeal Exhibit B, extension of time to file appellants’ brief and a deeming order. She later applied to withdraw relief 2 in the motion paper, that is, an order extending the time within which the appellants’ brief of argument may be filed out of time.
PRINCE FATAI AJIBOYE for the 1st-3rd respondents in opposing the motion submitted that the application is unknown to the law and an abuse of the process of the court. Counsel submitted that Exhibit FAC 1 annexed to their counter affidavit is a notice of appeal dated 29/4/08 and filed by the applicants on 6/5/08 and that it is exactly the same as Exhibit B of the applicants’ affidavit in support of the application under consideration.
Further that Exhibit FAC 2 is the appellants’ brief of argument dated 27/5/08 and filed on 7/7/08 and that it is also exactly the same as the appellants’ brief dated 28/10/11 and filed on 1/11/11, the subject of the present application. Counsel argued that there cannot be two notices of appeal and two appellants’ briefs of argument in the appeal. Counsel relying on the case of Uwechie v. Onochie [1988] 1 NWLR (Pt. 70) 370 at 402 submitted that a brief of argument cannot be filed on a proposed notice of appeal as it has to be one step after the other. Counsel referred to the 2nd item in the grounds for the application as set out in the motion paper and paragraph 10 of the affidavit in support of the motion to buttress his contention that the application is an abuse of court process. He urged the court to dismiss the application.
J. ADESOLA ESQ. For the 4th-6th respondents relying on his counter-affidavit aligned himself with the submissions of learned counsel for the 1st-3rd respondents and also urged the court to refuse the application.
FUNMI ABITOYE (MRS.) in her reply on law submitted that the brief of argument referred to, that is Exhibit FAC2 had been withdrawn and struck out by the court on 26/9/11. Likewise the notice of appeal referred to as FAC 1. Learned counsel submits that there is only one notice of appeal. She urged the court to grant the application.
This appeal was one of the cases transferred from Benin to Akure on the creation of Akure Division in 2010. We had to delve into the archives to find the order made by Shoremi JCA in Benin on the 29th day of April, 2008. A study of the court order and all the processes and proceedings in the appeal revealed that the confusion that gave rise to the anomalies would not have arisen if learned counsel for the appellants/applicants had studied her file diligently and been able to give accurate account to this court of what transpired in the court in Benin. On the 29th day of April 2008, the appellants as applicants in Benin moved a motion dated 22/2/07 praying for an order of the court permitting the appellants to file and argue additional grounds of appeal and an extension of time within which to file appellants’ brief of argument. The motion did not include a relief to amend the notice of appeal. Shoremi JCA (Presiding) in granting the application ordered as follows:
- “Leave is hereby granted to file additional grounds of appeal as indicated in exhibit A1.
- The appellant/applicant shall file a fresh copy of the grounds of appeal incorporating the original and additional grounds in sequence costs.
- The grounds of appeal shall be filed within seven days.
- N5, 000.00 costs are awarded to the 1st-3rd respondents.”
By the above order, further application to amend the notice of appeal became unnecessary. All the applicants needed to do was to file the amended notice of appeal with the additional grounds of appeal within seven days. This they did as there is a notice of appeal in the court file dated 29/4/08 and filed on 6/5/08. The respondents are right that in view of this notice of appeal filed pursuant to the order of the court of appeal sitting in Benin on 29/4/08, there was no need for another application for leave to amend the notice of appeal. This Court had on 26/9/11 pointed out that the process filed on 6/5/08 is an amended notice of appeal whereas there was no such prayer on the motion dated 22/2/07. The attention of the Court was not drawn to the fact that the Court in Benin had ordered the applicant to file an amended notice of appeal incorporating the additional grounds of appeal even though not asked for in the motion paper. Although the applicants in their motion of 22/2/07 moved on 29/4/08 had prayed for extension of time to file their brief of argument, the order was not part of the reliefs granted by the court in Benin. To further complicate matters, the applicant in this application withdrew relief 2 praying for extension of time within which to file the appellants’ brief of argument out of time. In the circumstances and in order to save time and to get on with the appeal which has been unduly delayed by this confusion, based on the application dated 22/2/07 filed by Dr. Adetokunbo O. Adeola, the order of this court made in Benin on 29/4/08 by Shoremi JCA is hereby amended to include an order extending the time within which the appellants may file their brief of argument. The appellants’ brief of argument filed out of time is deemed properly filed and served on 7/7/08. The motion dated 28/10/11 being now un-necessary is hereby struck out. The appellants’ brief of argument dated 28/10/2011 is also struck out. There is no difference between this brief and the brief filed by the appellants on 7/7/08 on which the respondents based their own briefs. This explains why the respondents are vehemently opposed to this application. Granting the application would mean rendering otiose their respondents’ brief of argument already filed based on the appellants, brief of argument of 27/5/08. Incidentally, contrary to the contention of the applicant, the brief apparently took into consideration the additional grounds of appeal. For the avoidance of doubt, the relevant records of the appellant for the purposes of this appeal are the notice of appeal (amended) dated 29/4/08 and filed on 6/5/08 and the appellants’ brief of argument dated 27/5/08 and filed on 7/7/08.
Other Citation: (2012)LCN/5638(CA)
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