Patrick Buko & Ors v. Wasiu Arubielu & Ors (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JCA (Delivering the leading judgment)

The appellants were the claimants in an action before the High Court of Ogun State in suit No. HCT/139/2006: Patrick Buko & Ors. v. Wasiu Arubielu & Ors. The appellants brought the action in a representative capacity claiming sundry declarations and orders of court in respect of land situate at Zebe Village, Zebe via Ado-Odo, Ogun State.

They sued the respondents in a representative capacity, for themselves and on behalf of the Arubielu Family. The action was being prosecuted and defended in the said respective representative capacities.

About ten years after the action was instituted, the appellants came up with an application for an order striking out the names of respondents as parties and substituting them with other members of the Arubielu Family.

The appellants expressly made the assertion that the 1st respondent was not a member of the Arubielu Family.

The 1st respondent filed a counter affidavit in opposition maintaining that he was a bona fide member of the Arubielu Family and that he had represented the family in several actions and had a Power of Attorney from the Arubielu Family appointing him as the Family Head and Family Attorney.

Several other affidavits were filed and exchanged including a counter affidavit filed by the persons sought to be brought in as parties, wherein they traced the family tree of the Arubielu Family and maintained that the 1st respondent was not a member of the Arubielu Family.

The lower court took argument on the application and in its ruling, it held that there were conflicts in the affidavit evidence as a result of which it would be improper to strike out the name of the 1st respondent without there first being a resolution of the status of the 1st respondent by the Arubielu Family as the court cannot pick and choose from the affidavit evidence.

It consequently held that the appellants application was incompetent as it dealt with the status of the 1st respondent as a member of the Arubielu Family. It therefore struck out the application.

The appellants were dissatisfied with the ruling of the lower court which was delivered on 5th July 2018, and they appealed against the same by notice of appeal filed on 18th July 2018. The ruling of the lower court is at pages 265 – 271 of the records of appeal, while the notice of appeal is at pages 272 – 276 of the records of appeal.

The records of appeal having been compiled and transmitted, brief of arguments were filed and exchanged by the parties. At the hearing of the appeal, the learned counsel for the parties urged the court to uphold their respective submissions in the determination of the appeal.

The briefs on which the appeal was argued are:

1. Appellants brief of argument filed on 27th September 2022 but deemed as properly filed on 29th November 2022.
2. Respondents brief of argument filed on 28th December 2022.
3. Appellants reply brief filed on 11th August 2023 but deemed as properly filed on 7th May 2024.

Let me post-haste state that the appellants reply brief was largely a re-argument of the submissions already made in the appellants brief. This is not the purpose of a reply brief as provided for in order 19 rule 5(1) of the Court of Appeal Rules, 2021. It is not proper to use a reply brief to extend the scope of argument and submissions in the appellants brief. See Abdullahi v. Military Administrator (2009) 36 WRN 1; (2009) LPELR (27) 1 at 13, FSB International Bank v. Imano Nigeria Ltd. (2000) 6 WRN 1; (2000) 7 SCNJ 65 at 70 and Magit v. University of Agriculture, Makurdi (2006) 4 WRN 86; (2005) LPELR (1916) 1 at 13.

However, I will not defenestrate the reply brief. I will treat the same in strict fidelity with the stipulations of order 19 rule 5(1) of the Court of Appeal Rules, 2021. Therefore, I will only refer to the submissions in the reply brief where it consists of a response to a new point, issue or argument raised in the respondents brief. See Vodacom Business (Nig) Ltd v. F.I.R.S. (2019) LPELR (47865) 1 at 2-3, Mopson Pharmaceutical Ltd v. Uduagha (2019) LPELR (49218) 1 at 5-6 and Project Vision Actualizers Ltd v. Ilushin Estates Ltd (2021) LPELR (55629) 1 at 26-27.