Mr. Tunde Bucknor V. Arc. (Chief) David Olaleye Kehinde & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

GALINJE, J.C.A.

The applicant herein brought this application by way of motion on notice dated 27th day of September, 2005 and filed the same day. The application aforesaid is brought pursuant to section 241 of the Constitution of the Federal Republic of Nigeria, 1999, section 25(2)(4) of the Court of Appeal Act and Order 3 rules 3 and 4 of the Court of Appeal Rules 2002.

The applicant’s sole prayer as set out in the motion paper reads as follows:

“1. Extension of time within which to appeal against the judgment of Hon. Justice J. A. Oduneye of the High Court of Lagos State in suit No. LD/478/95 delivered on 14th February, 2003.

AND for such further Order(s) as this Honourable Court may deem fit to make in the circumstances.”

In support of this motion, the applicant filed a twenty paragraph affidavit deposed to by the applicant himself. Annexed to the affidavit are exhibits BA, BB, BC, BD, BE, BF, BG, BH, BI, BJ, BK, BL, & BM. It is important to set out clearly what these exhibits are in the order in which they were marked, because in the course of this ruling, I may have cause to make reference to them. The exhibits are:

1. Exhibit BA – A copy of the petition to the Hon. Chief Judge of Lagos State for the transfer of suit No. ID/478/95 by Ade Awobiyi counsel to the applicant then.
2. Exhibit BB – A copy of a letter written to the Chief Judge of Lagos State by the applicant in which he withdrew the services of his counsel from the suit No. ID/478.95.
3. Exhibit BC – A copy of the reply to the petition for transfer.
4. Exhibit BD – A copy of the proposed notice of appeal.
5. Exhibit BE – A copy of the judgment against which the appeal is sought.
6. Exhibit BF – A copy of the proposed notice of appeal.
7. Exhibit BG – A copy of Originating summons dated 25th March, 2003.
8. Exhibit BH – An enrolment of Order of the court below dated 26th May, 2003.
9. Exhibit BI – Ex-parte motion for possession.
10. Exhibit BJ – Written submission in support of exhibit BI.
11. Exhibit BK – Enrolment order for possession.
12. Exhibit BL – A copy of the application which was filed in October 2003 wrongly.
13. Exhibit BM – A copy of the respondents’ solicitor’s letter in which he refused service.

The respondent filed a five paragraphs counter affidavit which is sworn to by one Mathias Okafor, a litigation officer in the law firm of Kofo Coker and Co., counsel to the respondents. Annexed to the counter affidavit are exhibits M01 – M08. Exhibits M01 – M03 are some letters which were written to the learned counsel for the applicant at the lower court in which the latter was always informed about the transaction in court and new dates of adjournment concerning suit No. ID/478/95. Exhibit M04 is also a letter addressed to the applicant intimating him of the commencement of trial at the lower court. Exhibit M05 is a counter affidavit filed by counsel to the applicant. Exhibits M06 and M07 are copies of a letter informing counsel for the applicant a new hearing date and a motion dated October 16th, 2003. Finally Exhibit M08 is a memo from the lower court which showed that the applicant neither filed appeal nor any application indicating his intention to appeal at the time the respondent sought to execute the judgment against which appeal is sought.

A further affidavit of eight paragraphs in support of the motion for leave to appeal was filed by the applicant. Annexed to this further affidavit are various court processes that concerned the originating summons for possession which was granted by Obadina J., and these are marked exhibits FA, FA1, FA2, FA3 and FA4.

The transactions that gave rise to this application are simple and straight forward. The respondents herein filed a suit No. ID/478/95 at the Lagos State High Court against the applicant. The suit initially was filed against the applicant only, however by leave of the lower court two other defendants were joined in the suit. The precise claim of the respondents at the lower court is not clearly set out in this application. However from the judgment of the lower court which is exhibited as exhibit BE, the respondent’s claim was for trespass to land and an order for injunction to restrain the applicant from further trespass. The suit was pending before Oduneye J., when the applicant caused a petition dated 14th February, 2000 which is exhibit BA to be written by his counsel, Mr. Ade Awobiyi to the Lagos State Chief Judge in which he sought for the transfer of the suit to another Judge. His reason for such application was that he was at a party where he saw the 1st respondent in company with Justice Oduneye and that the 1st respondent pointed at him for the learned trial Judge. This action, he said embarrassed him and he immediately felt that there was no way the trial would be free.

In a letter dated 7th February, 2000 one Mr. Y. A Oyeneye, Assistant Chief Registrar (litigation) wrote to Ade Awobiyi and Co. and informed him that his client’s petition could not be granted because the allegation contained therein was false.

The contents of the letter which is exhibit BB reads thus:

“I am directed by the Hon. Chief Judge of Lagos State to refer to your letter dated 31st January, 2000 on the above subject matter and to inform you that the Hon. Chief Judge had investigated your petition and could not find any truth in it. Consequently his Lordship regrets that he cannot transfer the case to another court please.”

In another application dated 2nd March, 2000 which is exhibit BC, and addressed to the Chief Judge of Lagos State, the applicant acknowledged the receipt of the Assistant Chief Registrar’s letter dated 7th February, 2000 and went on to state his position as follows:

“Sir, I want to reiterate my earlier stand that I have lost total confidence in the Court of Justice Oduneye and I believe that fairness of my matter can no longer be guaranteed in this court …. My Lord I have decided to drop my lawyer Mr. Ade Awobiyi and to ask him to withdraw from my case if your Lordship insist not to concede to my humble request. To me, that would amount to violation of my constitutional right which guaranteed (sic) fair hearing under an impartial judicial administration ….. ”