John Olawole Olaosebikan V. Chief Solomon Ajiboye & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Lead Ruling)

The applicant’s application was on Notice, brought pursuant to Order 6 Rule 15 of the Court of Appeal Rules, 2011 and under the Inherent Jurisdiction of the Honourable Court. The Applicant prayed for the following orders:

1. “AN ORDER of this Honourable Court to amend the Notice of Appeal dated 4th August, 2014 and filed on the same date by striking out and/or exclude the name of Attorney General of Kwara State (whose name has been struck out by the trial Court before judgment) in the notice of appeal.
2. AN ORDER/LEAVE of the Honourable Court allowing the appellant/applicant to amend the notice of appeal to reflect the proper names of the parties as in the judgment and to incorporate additional interlocutory grounds of appeal in the manner as appears in the proposed amended notice of appeal hereto attached.
3. AN ORDER/LEAVE of this Honourable Court substituting the records of appeal transmitted on 31st October, 2014 with the one transmitted to this Court on 25th January, 2016.
4. AN ORDER/LEAVE to amend the record of Appeal transmitted on 25th January, 2016 to reflect proper

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names of the parties to the appeal as in the – amended notice of appeal.

5. FOR SUCH FURTHER ORDER(S) as the Honourable Court may deem fit to make in the circumstance of this application.”

The application was brought upon the following grounds:

1. “The appellant/applicant had earlier transmitted record of appeal compiled by the registry of the trial Court on 31st October, 2014.
2. Upon the record being served on the 1st-3rd and 7th respondent counsel, they raised observation to same that some of the Court’s processes have jottings and other complaints which are not on the original documents vide their letter dated 17th February, 2015.
3. The appellant/applicant in order to make the record of the Court straight and neater went back to the registry of the Lower Court to recompile a neater record which was done and transmitted to this Honourable Court on 25th January 2016.
4. Majority complaint of the 1st ? 3rd and 7th respondents’ counsel have been taken care of in the record of 25th January, 2016.
5. The appellant/applicant had earlier filed an interlocutory appeal in respect of the matter that led to this appeal on

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30th October, 2013.

6. Shortly after the record was transmitted, the trial Court delivered its judgment in respect of the substantive matter.
7. This Honourable Court has always enjoined parties to argue interlocutory decision together with substantive appeal.
8. The record transmitted on 25th January 2016 herein sought to replace the earlier records transmitted on 31st October, 2014 contains the record of the interlocutory appeal and also that of the main/substantive/present appeal for this appeal.
9. That it is neater and convenient for both this Honourable Court and parties herein that the interlocutory decision be heard together with the substantive appeal once and for all.
10. That pursuant to the above it is necessary that the notice of appeal in this appeal be amended to reflect the proper names of the parties to the parties to the appeal and grounds of appeal in the interlocutory decision, the appropriate leave having been sought and obtained at the Lower Court.
11. The name of the Attorney General of Kwara State has been struck out by the trial Court before the judgment appealed against hence not affected by this

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appeal.

12. In order to have single notice of appeal for the interlocutory decision and the present appeal on the final decision, the appellant/applicant has earlier filed a notice of withdrawal on 8th January, 2016 for the withdrawal of the interlocutory appeal.
13. That it is in furtherance of the above stated and convenience of the Court that this application is bought.
14. That this Honourable Court has unfettered power to grant this application.
15. It is in the interest of justice that this application be granted.”

The applicant also filed a five paragraph affidavit in support of the application deposed to by one Salman Muritala, a litigation Clerk in the law firm of Messrs Kayode Olatoke, SAN & Co., the firm representing the applicant. In the affidavit in support of the application, Paragraph 4 (c), reference was made to Exhibit OJ 1 (the Notice of withdrawal of the Interlocutory appeal) filed on 8/1/16, and in Paragraph 4 (m) Exhibit OJ 2, a copy of the proposed Notice of Appeal.

?The learned senior counsel for the applicant, Dr. J. O. Olatoke (SAN) in moving the application submitted that the interlocutory appeal

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had been withdrawn and referred to the case of KAKIH v. PDP (2014) 6 – 7 SC (Pt. 1) PAGE 99 at 110, LINES 3 – 9 to the effect that the Apex Court encourages the merging of the interlocutory appeal with the main appeal. He observed that there was no counter affidavit in opposition to the motion papers.

Mr. Akin Akintoye II (appearing for the 1st – 4th and 7th Respondents) opposed the application and submitted that the grant of the reliefs should not be granted based on the reasons given by the learned senior counsel, reference was made to Paragraph 4K of the affidavit in support of the application. It was argued further that in respect of relief one, that no reason was given for the inclusion of the 6th Respondent whose name had been struck out in the lower Court.