Lasisi Oloje V. Joseph Ayantuyi & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT M. O. KEKERE-EKUN,J.C.A. (Delivering the Leading Ruling)

This is a motion on notice dated and filed on 21st October 2011 on behalf of the appellant/applicant seeking an order setting aside the order of this court made on 30th June 2009 dismissing Appeal No. CA/B/30/2004: JOSEPH AYANTUYI & ORS V. GOVT. OF ONDO STATE & ORS pursuant to a Notice of Discontinuance filed on 23/6/09 on behalf of the appellants and a motion on notice dated 25/6/09 filed on behalf of the 4th respondent (6th respondent in this application).

The applicant also seeks an order relisting the appeal and an order of injunction restraining the respondents by themselves, their servants, agents or privies from ejecting, disturbing, harassing, embarrassing and/or threatening the applicant over the land in dispute pending the hearing and determination of the appeal on its merits.

The application is brought pursuant to Sections 36 (1), 241 (1) and 243 (a) of the 1999 Constitution; Section 15 of the Court of Appeal Act 2004; Order 4 Rule 6 and Order 11 Rule 4 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of the Court. The grounds for the application, as stated on the face of the motion paper are that the ruling of this court dismissing the appeal was based on fraudulent misrepresentation of facts contained in a letter (attached to the supporting affidavit as Exhibit B) written to the Chief Registrar of this court by the 1st and 8th appellants (now 1st and 2nd respondents) indicating that the appeal was withdrawn with the consent of all the appellants.

It is the present applicant’s contention that neither his consent nor the consent of the entire Temitope Oniserere Community of Odigbo Local Government Area of Ondo State was sought or obtained before the letter was written. It is the applicant’s contention that although the 2nd, 3rd, 4th, 6th, 7th and 9th appellants in the dismissed appeal are deceased, the sections of the community whose interests they represented are desirous of pursuing the appeal. The application is also supported by a 36-paragraph affidavit deposed to by the applicant himself with exhibits attached thereto marked A to D respectively.

In opposition to the application the 6th respondent filed an 8 paragraph counter affidavit with an exhibit attached thereto and marked Exhibit OA1. There is a further affidavit dated 1/12/12 filed on behalf of Kola Olawoye Esq., learned counsel for the applicant to the effect that the applicant did not instruct the said counsel to discontinue the appeal on his behalf.

Although the 1st, 2nd, 3rd, 4th and 5th respondents did not file counter affidavits they opposed the application on points of law.

At the hearing of the application on 18/9/2012, Mr. Kola Olawoye Esq. relied particularly on paragraphs 12, 13, 14, 17, 18, 19, 21 and 23 – 31 of the supporting affidavit. He enumerated the circumstances in which a court has inherent jurisdiction to set aside its own judgment or order. In the circumstances of this case he contended that the court was misled into dismissing the appeal under the mistaken belief that all the parties consented to its withdrawal. He relied particularly on Exhibit B, which is reproduced below better grasp of his argument:

15th April 2009

The Registrar,

Court of Appeal,

Benin

RE; APPEAL NO, CA/B/30/2004

JOSEPH AYANTUYI & OTHERS V. GOVERNOR OF ONDO STATE