Olufemi Adeniyi & Ors V. Herbert Adeyinka Adeolu Oyeleye & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE F. OGBUINYA, J.C.A. (Delivering the Leading Judgment)

This appeal grew out from the decision of the High Court of Kwara State, Ilorin, presided over by H. O. Ajayi, J., in suit No. KWS/91/2009 and delivered on 27/10/2010.

Flowing from the available record and processes filed,the facts of the case,which metamorphosed into this appeal, are brief. The appellants and the respondents were the respective claimants and defendants before the lower court. On 14/05/2009, the appellants took out and filed a writ of summons, alongside a statement of claim, wherein they claimed, against the respondents, a declaration of title to and ownership of a parcel of land situated at Tanke Village, Ilorin, Kwara State, trespass on the land, damages and perpetual injunction over the said land. The writ of summons and statement of claim, initiating the action, were both franked by David Alabi, Esq. of No.10,Christ Avenue,off University Road,Tanke, Ilorin.

Subsequently, the appellants debriefed David Alabi, Esq.and briefed the legal firm of Dr. J. O. Olatoke & Co. to prosecute their suit. The change in counsel was,at the behest of the appellants, via a motion on notice, sanctioned by the lower court on 01/4/2010 as found on page 154 of the record. Sequel to that change, the appellants, on 07/06/2010, through their counsel, applied to the lower court for an order for: “LEAVE to amend the originating process and the statement of claim with the accompanying documents in this case by substituting the proposed amended writ of summons and statement of claim with other accompanying documents…. LEAVE to file another written statements on oath….” The application was supported by affidavits and further affidavits as shown on pages 39 – 41, 110 -111 and 116 -117 of the record. In stiff opposition to the application, the first and third respondents each filed a counter-affidavit as evidenced on pages 92-93 and 100-102 of the record respectively. The application was, duly,argued by counsel’s adoption of the written addresses for their respective parties on 19/07/2010. The lower court, in a considered ruling, delivered on 27/10/2010, refused the application and dismissed it in its entirety.

The appellants were dissatisfied with the ruling/decision of the lower court. Hence, on 19/11/2010,they filed a three-ground notice of appeal, occupying pages 189-193 of the record, wherein they prayed this court for: “(a) AN ORDER of this Honourable Court allowing the appeal in its entirety. (b) AN ORDER of this Honourable court setting aside the ruling of trial court delivered refusing the amendment and rather grant the amendment. (c) AND FOR SUCH FURTHER ORDER (S) as this Honourable court my (sic) deem fit to make in the circumstance of this case.” Thereupon, parties filed and exchanged their briefs of argument in line with the provisions of the Rules of this court.

Thereafter, the appeal was heard on 26/03/2013. Before the hearing of the appeal, learned counsel for the first respondent, Animashaun, Esq.,argued his preliminary objection,filed on 23/12/2011, with the arguments thereon incorporated in his brief of argument which was settled by Y. A. Dikko, Esq. In the same vein,learned counsel for the second respondent S. R. Ashaolu, Esq., argued his preliminary objection, filed on 17/02/2012, with the arguments thereon factored into his brief of argument. Learned counsel for both objectors urged the court to uphold their objections and strike out the appeal.

After that, learned counsel for the appellants, D. A. Ariyoosu, Esq., adopted the appellants, brief of argument, filed on 14/03/2011, the appellant’s reply briefs to the first respondent’s brief, filed on 19/12/2011, the appellant’s reply brief to the second respondent’s brief, filed on 30/01/2013, the appellants’ reply brief to the third respondent’s brief, filed on 07/09/2012, all deemed filed on 18/03/2013, as representing his arguments against the two preliminary objections and in support of the appeal. Learned counsel prayed the court to overrule the objections and allow the appeal.

Similarly, learned counsel for the first respondent adopted his brief of argument, filed on 25/11/2011, but deemed filed on 18/03/2013, as forming his arguments against the appeal which he prayed the court to dismiss. Also, the learned counsel for the second respondent adopted his brief of argument, filed on 06/02/2012, but deemed filed on 18/03/2013, as representing his submissions against the appeal. He urged the court to dismiss it.

Lastly, learned counsel for the third respondent, Kamaldeen Abdulquadri Esq., adopted his brief of argument, filed on 01/02/2012,but deemed filed on 18/03/2013, as representing his arguments against the appeal. Learned counsel prayed the court to dismiss it.

Consideration of the Preliminary objections:

The first respondent prayed the court to strike out the appeal on the ground that leave of the lower court was not sought and obtained pursuant to Section 242 of the 1999 Constitution, as amended, and thereby robbed this court of the vires to hear the appeal.

The second respondent urged the court to strike out grounds 1, 2 and 3 of the appellants’ notice of appeal and the sole issue formulated from them on grounds of incompetency for noncompliance with Section 242 of the Constitution, as amended. The grounds upon which the objection was predicated were that the decision of the lower court was interlocutory in nature, the appellants’ grounds of appeal were grounds of facts or, at best, mixed law and fact and they failed to obtain leave of the lower court or this court before filing the appeal. It is discernable from the two preliminary objections that they have one common target, to terminate the appeal without hearing it.

Learned counsel for first respondent submitted that the appellants’ appeal is an interlocutory appeal and that Section 241(1) of the Constitution, as amended, provides the circumstance whereby an appeal from the decision of the lower court will lie as of right to this court. He posited that the provision of Section 241(1) is not applicable to the appeal, being an interlocutory one.

He noted that the appellants’ grounds one, two and three of the appeal are grounds based on facts or mixed law and fact. He took the view that ground one bordered on issue of amendment which called for exercise of judicial discretion and as such leave of the court must be sought and obtained. He placed reliance on the cases of UBA Plc vs. Sogunro (2006) ALL FWLR (Pt. 337) 402; FBN Plc v. T. S. A. Industries Ltd. (2010) 25(sic) NWLR (Pt. 1216) 247 to support his contentions.