Dr. (Rev) Olapade Agoro V. Oba Adekunle Aromolaran & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOORE A.A. ADUMEIN, J.C.A. (Delivering the Lead Ruling)

The appellant/respondent was the plaintiff in Suit NO: HIL/47/90 between: DR. (REV.) OLAPADE AGORO (OWATAPA OF ITAPA) V. OBA ADEKUNLE AROMOLARAN (OWA OBOKUN OF IJESA LAND) and GHIEF SUNDAY TAIYE ADENIYI which was decided by the High Court of Osun State, sitting at Ilesa, on the 27th day of March, 1997. The appellant was not satisfied with the decision of the lower court and he appealed this court.

On the 3rd day of December 2010, Hon. Kanmi Ajibola, Salihu Aliyu Esq. and Sumbo Afolabi Esq. filed a motion in which they sought the following relief:

“An order of this Honorable Court striking out this Appeal, that is Appeal No: CA/I/223/2003, filed against the judgment of the Ilesa High Court, delivered on the 27th day of March, 1997 off the hearing list of the Court of Appeal.”

The respondents/applicants predicated their application upon the following 6 (six) grounds:-

“1. The 2nd Respondent who was a necessary party to this Appeal is dead.

2. The Appellant won all his claims against the 1st Respondent/Appellant at the Ilesa High Court Osun State in this case.
3. The Appellant lost all his claims against the 2nd Respondent at Ilesa High Court of Osun State in this case.
4. The Appellant filed this appeal to challenge the holdings of the Ilesa High Court in favour of the 2nd Respondent only.
5. The 1st Respondent did not Cross-Appeal against the holdings of the Ilesa High Court in favour of the Appellant.
6. The cause of action appealed against does not survive the 2nd Respondent in this Appeal.”

The motion was supported with an affidavit of 25 paragraphs deposed to by one Alaba Akinlami, a Litigation Manager in Summit Chambers, Ilesa, Osun State.

In moving the court, Olasumbo Afolabi, Esq; who appeared for the 1st respondent/applicant relied on the affidavit in support of the motion and urged the Court to grant the relief sought by the respondents/applicants.

The appellant/respondent handled his reply personally. He relied on his counter affidavit of 20 paragraphs titled “PROTEST/CONDITIONAL COUNTER-AFFIDAVIT TO TWO NUMBERS MOTION ON NOTICE DATED AND FILED 3RD DECEMBER, 2010 RESPECTIVELY BY KANMI AJIBOLA ESQ. SALIHU ALIY, SUMBO AFOLABI ESQ.” The appellant/respondent adopted and relied on his said counter affidavit and the exhibits tendered therewith and argued that the learned counsel who filed the motion had “no locus standi in the matter”. He contended that the fact of the death of the 2nd respondent had not been formally notified the Court as required by Order 15 rules 1 and 2 of the Court of Appeal Rules, 2011.

The appellant/respondent argued further that there was no proof that the learned counsel who filed the motions were briefed by the respondents/applicants. He urged the Court to dismiss the motion and to order that the learned counsel be investigated.

Mr. Olakanmi Ogunyemi sought leave of the Court to appear as an amicus curiae in the matter because of the limitation of the appellant. He (Olakanmi Ogunyemi, Esq;) referred to exhibit OAS tendered by the appellant/respondent to show that the 2nd respondent’s brief was settled by O.A. Bada, Esq; but the learned counsel for the applicants surprisingly included the 1st respondent as a party to that brief. He stated that the 1st respondent never wanted to contest the appeal by the appellant. Mr. Ogunyemi said that the learned counsel “have a duty to prove to the Court who briefed them in this matter.” He argued that the motion was not brought by due process and that it should be struck out as the court had no jurisdiction to entertain it. He asked the court to order an investigation into the matter and that “any one found wanting should be punished.”

Mr. Olasunbo Afolabi had no reply on point of law.

The relief and grounds upon which the motion was based have been fully reproduced earlier in this ruling. For a proper appreciation of the facts of this matter, I shall hereunder fully reproduce the affidavit in support of the motion:-

“I, Alaba Akinlami, Male, Nigeria, Christian, Employee of St. Sunnimicks Chambers of Ajanaku Estate, Isokun, Ilesa Osun, State do hereby make an oath, and state as follows that: