Samuel Oyewunmi Oyinlola V. David Ojelabi & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the High Court of Justice, Oyo State sitting in Saki Judicial Division which was delivered on the 30th of November, 2006. Dissatisfied with this ruling, the Appellant appealed to this Court and filed a notice of appeal dated 11th December, 2006 but filed on the 13th of December, 2006 containing one ground of appeal.

Respondent on the 20th of March, 2006 before the High Court of Justice Saki, Oyo State filed an application for an order of prohibition, against the 2nd – 4th Respondents from further adjudicating and or determining the suit no. ICC/21/06 between Samuel Oyinlola Vs. David Ojelabi pending the final determination of the motion on notice.

The grounds of the application are:

(a) Lack of original jurisdiction

(b) Failure to comply with the rule of fair hearing and

(c) Likelihood of bias

The learned trial Judge considered the affidavits in support and the counter affidavit to the motion on notice, the submissions of Counsel and the authorities cited. The Court came to the conclusion that the application succeeds on ground three which is likelihood of bias. It is against this decision that the Appellant has appealed to this Court.

In accordance with the rules of this Court, Appellant filed his brief on the 13th of September, 2007. By a motion filed on 28/1/09, Appellant urged this Court for the appeal to be heard on Appellant’s brief only for failure of the Respondents to file their briefs of argument. The prayer was granted on the 24th of March, 2009 for the appeal to be heard on Appellant’s brief alone.

It is on record that the Respondent’s Counsel were served with the hearing notices of the appeal but they were absent at the hearing. Appellant adopted and relied on his brief of argument filed 13th September, 2007.

Appellant distilled a sole issue for determination thus:

Whether or not the trial Judge having found from pleadings of parties, evidence at trial and submission of Counsel that all the grounds of the 1st Respondent’s application failed, can subsequently found the success of the 1st Respondent’s case on an extraneous event not covered by evidence of parties or on evidence fished for and/or obtained by the Court.

Learned Counsel for the Appellant submitted that the motion on notice at the lower Court seeking for an order prohibiting the 2nd – 4th Respondents from further adjudicating in suit no. ICC/21/06 between the Appellant and the 1st Respondent is premised on three grounds namely:

(a) Lack of original jurisdiction