Olufemi Adeniyi & Ors V. Herbert Adeyinka Adeolu Oyeleye & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Lead Ruling)

The applicants herein, sued the respondents at the Kwara State High Court of Justice, holden at Ilorin in Suit No. KWS/91/2009. 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 land.

While the suit was pending, the applicants,on 7/6/2010, through their Counsel applied to the trial Court for an order for: “LEAVE to Amend their originating process and the statement of claim, and to file another written statement on Oath”.

In stiff opposition to the application the 1st and the 3rd respondents each filed a counter affidavit. The application was duly argued and the trial Court, in a considered ruling, delivered on 27/10/2010 refused the application and dismissed it in its entirety.

The applicants being dissatisfied with the ruling, on 19/11/2010 filed a three grounds Notice of Appeal. The appeal was heard on 26/3/2013.

But before the hearing of the appeal, learned Counsel for the 1st and 2nd respondents raised and argued their preliminary objections respectively, and urged this Court to uphold their objection and strike out the appeal. Thereafter the appeal was then argued and in its considered judgment, this Court sustained the respondents’ two preliminary objections and consequently struck out the applicants’ appeal for lack of jurisdiction.

Not only that, this Court also considered the merits of the appeal in view of the current state of law. This Court also in the alternative stated its decision on the merits of the appeal in favour of the Appellants/applicants.

After all these, the applicants now filed this application praying for leave and extension of time within which to appeal against the said Ruling of Kwara State High Court in Suit No. KWS/91/2009 delivered on 27/10/2010. The application was supported by an affidavit of 20 paragraphs affidavit, and Exhibits A – H. The respondents did not file counter affidavit rather opposed the application on points of law. Both parties filed their respective written addresses on the order of this Court dated 19/2/2014.

The relevant paragraphs of the affidavit in support are paragraphs 1 – 20 as follows:-

1. That I am the 1st applicant in this application by virtue of which I am conversant with the facts of this case and the depositions herein contained except as otherwise stated.
2. That I have the consent, permission and authority of other applicants to depose to this affidavit.
3. That I know as a fact that the Kwara State High Court of Justice, holden at Ilorin (per H.O. Ajayi J.) I Suit No. KWS/91/2009 between the parties herein: OLUFEMI ADENIYI & 4 OTHERS V. HERBERT ADEYINKA ADEOLU OYELEYE & 2 OTHERS delivered a ruling on the 27th day of October, 2010 refusing the applicants’ application for amendment. A copy of the said Kwara State High Court’s ruling of 27th day of October,2010 is hereto attached as EXHIBIT “A”.
4. That we, the Applicants,were aggrieved by the said ruling of 27th day of October, 2010 and therefore timeously our counsel to appeal and we did appeal against same in order to prosecute the appeal diligently to this Honourable Court vide our Notice of Appeal dated and filed by our counsel on the 9th day of November, 2010 without the leave of court, regarding the grounds of appeal in the Notice of Appeal as grounds of law alone. A copy of the said Notice of Appeal is hereto attached and marked EXHIBIT “B”.
5. That the appeal against the said ruling of the Kwara State High Court of 27th October, 2010 was heard by this Honourable Court and judgment was delivered against us, the applicants herein in Appeal No. CA/IL/9/2011 on the 23rd day of May, 2013 on the ground of failure to obtain required leave to appeal since the grounds of appeal are of mixed law and fact and therefore, leave was required before commencing the appeal. A copy of the judgment of this Honourable Court of 23rd day of May, 2013 is hereto attached as EXHIBIT “C”.
6. That as a matter of fact, before this Honourable Court delivered the judgment of 23rd day of May, 2013 in Exhibit “C’, the time within which to appeal against the ruling of the lower court had long lapsed.
7. That as a matter of fact, shortly after the judgment of this court of 23rd day of May, 2013 in Appeal No.CA/IL/9/2011 striking out the appeal for being incompetent, I was very sick and admitted at Ajikobi Cottage Hospital, Okekere, Ilorin, Kwara State where I was treated for severe malaria for about 2 months, before I was discharged. A copy of Medical Report to this effect dated 06/12/2013 from the hospital where I was admitted confirming my sickness and admission is hereto attached as EXHIBIT “D”.
8. That when I was discharged around August, 2013, it took me about 2 months to recover fully and bounce back to my normal daily activities.
9. That during this period that I was sick and trying to recover, I could not meet with other applicants to agree on the next line of action in respect of the appeal, and because I could not meet and discuss the next line of action in respect of the appeal struck out with other applicants, I could not also get in touch with our legal representatives to discuss the next line of action in respect of the appeal as I was not medically fit to so discuss, (sic) moreso when parties were making moves to settle the matter amicably.
10. That it was sometime in October, 2013 that all other applicants were able to meet with me on the appeal where we agreed that the appeal has to be pursued and being the only male among the applicants and their spokes-person, I thereafter met with our legal representatives on the appeal.
11. That aside my sickness, prior to, and after the judgment in Exhibit “C” s the parties to this case, through their respective counsel, have made several moves to settle the case amicably out of Court.
12. That when the terms proposed for settlement was not agreeable to me and other applicants, I wrote a letter to our counsel dated 20th June 2013 informing him of the dissatisfaction of the applicants with the proposed term of settlement to enable our counsel bring it to the notice of the respondents and I was reliably informed by our counsel that it was brought to the attention of the respondents’ counsel. Copies of my said letter of 20th June 2013 and the response thereto of the counsel to the 1st respondent are hereto attached as EXHIBIT “E” and EXHIBIT “F” respectively.
13. That I know as a fact that efforts at seeking leave of court to regularize and follow proper procedure also proved abortive when a similar application for leave was struck out by the Honourable Court on the 16th January 201l3 for want of competence. A copy of the application dated 25th day of October, 2013 with its supporting affidavit, shorn of the attachments thereto, is hereto attached and marked EXHIBIT ”G”.
14. That the applicants are very much interested in pursuing this appeal to its logical conclusion, and as well ready to regularize the position by following the appropriate procedure by seeking the requisite leave of this Honourable Court. A copy of the proposed Notice of Appeal is hereto attached as EXHIBIT “H”.
15. That I was informed by O. W. Akanbi Esq. a counsel in the law firm of the applicants’ counsel on the 18th day of October, 2013 at about 2.00 pm in his office during briefing as follows:

i. That Exhibit “B” was filed on his belief that the grounds of appeal therein are of law alone upon which no leave of court was required before filing same.

ii. That upon the decision of the Honourable Court of 23rd May 2013 striking out our appeal for want of competence on ground of failure to seek leave of court, there is/was need to seek leave from his Honourable Court to appeal out of time.

iii. That the parties to this case, through their respective counsel, have made several moves to settle the case amicably out of court after the judgment in Exhibit “C”, and he observed that there was no point going back to court in order not to prejudice the efforts at settlement.

iv. That after Exhibit “F” was written, another meeting for the settlement was held by counsel to the parties but still the matter could not be settled.

v. That the inability of the applicants to file this application immediately after the judgment was not deliberate, but partly as a result counsel’s (sic) error of judgment, regarding the grounds of appeal in Exhibit “C” as grounds of law alone.