Idada I. Odiase & Ors V. Apostle Patrick Edoghogho (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Lead Ruling)

By a motion on notice filed on the 31st day of January, 2018, the Appellants/Applicants herein prayed this Court for the following orders:
?(1) An order to substitute MESSR UGIAGBE JONATHAN and OSAROSE ADELABU EDEBIRI the eldest surviving sons of the 2nd and 3rd Appellants for Samuel Ugiagbe and Adelebu Agharese Edebiri (Deceased).
(2) AN ORDER granting leave to the Appellants/Applicants to amend the Appellants? Notice and Grounds of Appeal to reflect the substitution.
(3) AND for such FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.?

The grounds for which the prayers are sought are as follows:
(i) That the 2nd and 3rd Appellants in this case died in the course of prosecuting the Appeal to the knowledge of the surviving parties.
(ii) That the above information came to my knowledge recently.
(iii) That under the Bini Native Law and Custom, it is after the full burial had been completed that the estate of deceased Bini man could be shared amongst his children.
?(iv) That the burial rights of the

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deceased 2nd and 3rd Appellants have been completed and the above names submitted to counsel for substitution.
(v) That MESSR UGIAGBE and OSAROSE ADELABU EDEBIRI the eldest surviving sons of the 2nd and 3rd Appellants inherited the IGIOGBE and this Appeal (CA/B/322/2016).
(vi) That the cause of action in this appeal survived the 2nd and 3rd Appellants (deceased).

The said motion on notice is supported by a five paragraph affidavit. The affidavit is hereby reproduced as follows:
1. That I am a litigation clerk in the law firm of Osayomwanbor Law Chambers, a firm of Solicitors retained by the Appellants/Applicants.
2. That I have the consent and authority of the Appellants/Applicants to depose to this affidavit.
3. That by virtue of my position in law firm I am conversant with the facts and circumstances of this appeal.
4. That during the pendency of this appeal the 2nd and 3rd Appellants, Samuel Ugiagbe and Adelabu Agharese Edebiri died and were buried under Benin Customary Law.
5. That I was informed by the 4th Appellant/Applicant and I verily believed him that:
?a. That Messrs ugiagbe Jonathan and Osarose Adelabu

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Edebiri the parties sought to be substituted are the surviving eldest sons of the Messrs Samuel Ugiagbe and Adelabu Agharese Edebiri 2nd and 3rd Appelant (deceased).
b. That the burial rights of the 2nd and 3rd Appellants in accordance with Bini Native Law and Custom have long been completed.
c. That the said Messrs Ugiagbe Jonathan and Osarose Adelabu Edebiri were nominated by their respective families to be substituted as 2nd and 3rd Appellants being the eldest son of their Late father respectively.
d. That this application will not prejudice the case of the Respondent.
e. That I conscientiously deposed to this Affidavit in good faith believing the same to be true and in accordance with the provisions of the Oaths Act.

The Respondent in opposing the said application for substitution filed a counter affidavit of eleven paragraphs sworn to by one Mr. Apostle Patrick Edoghogho on the 28th day of September, 2017. The counter affidavit is hereby reproduced thus:
1. That I am the Respondent/Applicant in this application.
2. That I was informed by Mrs. E.E.O. Uloho, one of my lawyers in the law firm of Olayiwola Afolabi &

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Co., at No. 2, Urubi Street, Benin City on the 26th day of September, 2017 at about 2.p.m. at No. 2, Urubi Street, Benin City which I verily believe to be true and I state as follows:
3. That the Appellants/Respondent motion dated 2nd May, 2017 was granted on the 4th day of May, 2017.
4. That the Appellants were given forty five (45) days within which to file their Appellants Brief of Argument.
5. That the Appellants have failed and refused to obey the order of this Honourable Court.
6. That the forty five days given to the Appellants to file their Appellants Brief of Argument since the 4th day of May, has since expired.
7. That the Appellants/Respondents delay in filing their Appellants Brief of Argument is to further deprive the Respondent/Applicant from enjoying the fruit of his judgment.
8. That this appeal is against the judgment of a case which was instituted in 1982 over 34 years ago.
9. That it is in the interest of justice that my application be given a favourable consideration.
10. That the respondent will not be prejudiced in any way if this application is granted.
11. That I make this oath in good faith,

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conscientiously believing its content to be true and correct and in accordance with the oath law currently applicable to Edo State.

Counsel for the Respondent opposed the application and relied on the counter affidavit especially paragraphs 3 ? 8. He argued that the application is a ploy to delay the matter and that the said motion is also defective because paragraph five offends Section 115 of the Evidence Act. Counsel further submitted that, the 4th appellant who volunteered information is neither related to the deceased nor to the deponent of the affidavit and that the 2nd Appellant had died long before the institution of this appeal. He further argued that there is no medical certificate to prove their death. Learned counsel for the Respondent further contended that paragraph 4 of the said motion is incorrect. He therefore urged the Court to dismiss it.