Mr. Toyin Abdulkareem V. Alfa Buraimoh Ayinla (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment)

The application dated 1st day of July, 2010 but filed on the 10th August, 2010 by the Appellant/Applicant is by way of motion on Notice to the Respondent praying for an Order of this Court staying further proceeding in a case pending before the High Court of Kwara State, Omu-Aran Judicial Division pending the determination of the Applicant’s appeal dated and filed 1st July 2010 before this Court.

The grounds upon which the application is predicated are:

1. The Applicant being dissatisfied appealed against the ruling of the High Court of Kwara State sitting at Omu-Aran presided over by Hon. Justice M. Abdul Gafar delivered on the 18th June, 2010 via a Notice of appeal dated 1st July, 2010.
2. The Appellant/Applicant in the lower Court sought to call a subpoened witness on the order and command of the Court itself and same was eventually refused on the objection of the claimant counsel.
3. The Appellant/Applicant thereafter applied for a stay of further proceeding before the lower Court pending the determination of the interlocutory Appeal on ground two above.
4. The learned Justice of the lower Court in a ruling delivered on 27/07/2010 refused the application for stay of proceeding before the determination of the Appeal before this Court.
5. The Appellant/Applicant is dissatisfied with the ruling to stay further proceeding in the lower Court because a continuation of the case without the determination of the interlocutory appeal will render the appeal nugatory and frustrate the end of justice.

The application as can gathered from the records is supported by a supporting affidavit of seven paragraphs and two annextures; the ruling of the lower Court and the Notice of Appeal filed by the Appellant/Applicant, it is also supported by two distinct further affidavits, 1 and 2, consisting of 9 paragraphs, 1 annexure and 19 paragraphs respectively.

For their part, the Respondent also filed two distinct affidavits; the counter affidavit consisting of five paragraphs filed on 22nd September, 2010 and a further and better affidavit against the application filed on the 8th October, 2010. The counter-affidavit was deposed to by Abdul-Rasheed Ibrahim a clerk in the chambers of Respondents Counsel while the further and better affidavit was deposed to by shade Bhola, a litigation secretary working in the same chambers- This further affidavit has one annexure, a letter from the Respondent’s Counsel to Applicant’s counsel complaining of not being briefed by his client (Respondent’s Counsel) in respect of the motion in contention before this Court.

In view of the contentious nature of the application, the Court made an Order for written addresses. In compliance with the said Order, written addresses were submitted for our consideration. On the 9th of March, 2011 when the application came before us for hearing learned counsel for the Applicant, Mr. L. O. Abdulsalam, Esq. adopted his written address and reply on points of law dated and filed on 10/02/2011 and 8th March 2011 respectively.

It is instructive to note that the adoption of the two briefs which were slightly filed out of time was made possible by the Respondent’s Counsel Withdrawal of his objection as to the application for extension to file the said processes moved by the Applicant’s Counsel.

On the other hand, Counsel for the Respondent, Mr. Ariyoosu adopted his written address dated and filed on the 2nd of March, 2011. He urged us to refuse the application for lacking in merit.

It is pertinent to state at this stage before proceeding further that, both sides have adduced affidavit evidence in respect of the positions taken by each. Reference to the said evidence will be made in the Course of writing this ruling as and when it is appropriate.

The facts of the case leading to this application as can be gleaned from the records of the lower Court are that: In the lower Court, the applicant (as defendant) in this case, intended to call three witnesses and in compliance with the rules of that Court, the depositions of the three witnesses were made and filed before the Court.

The three witnesses testified and cross-examined on the 19th day of March, 2009 and 14th day of May, 2009 respectively. The applicant on that day, ought to close his case but his Counsel still applied for adjournment on the ground that the applicant intended to call one more witness who was not on the list of witnesses to be called as such his deposition was not filed along with the list of witness as should have been the case under the rules of the said Court.

Since the said 14th May, 2009, the applicant did not, up till now deem it fit to file the deposition on oath of the said witness. As can be seen from the records, there were several adjournments at the instance of the Applicant to call this supposed witness.

As can be gleaned from the records, on the 21st day of May, 2010 the applicant’s Counsel brought a witness and introduced him as the sub-phoned witness when his deposition was not before the Court. The Respondent’s Counsel opposed the procedure and issues were joined and argument canvassed thereon.

On the 18th June, 2010, in a considered ruling delivered by the learned trial judge, the objection raised by the Respondent’s Counsel was upheld. The learned trial judge held inter-alia that the witness sought to be called by the Applicant cannot be called without the leave of the Court and his deposition is a precondition to his testimony in line with the Rules of the trial Court.