Suleiman Abdullateef Omokayode & Ors. V. Alhaji Wahab Bolakale Lawal (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOH IKYEGH, J.C.A, (Delivering the Lead Ruling)

The prayers in the motion paper are contained in paragraphs 1 – 6 thereof as follows:

1. AN ORDER of this Honorable Court allowing the appellants/applicants herein to serve as substitute or replacement for the formal lower Courts’ plaintiff/appellants, in prosecuting this appeal to its finality.
2. AN ORDER granting extension of time to seek leave of this court to appeal against the Judgment of the High Court of Kwara State sitting in its appellant session, delivered on 22nd January, 2010 by Hon. Justice A.O. Bamigboye.
3. AN ORDER of this Honourabte court granting leave to the Appellants/Applicants to appeal to the Court of Appeal, Ilorin against the said judgment of the High Court of Kwara State, sitting in its appellate session, delivered on 22nd January, 2010 on novel issue of jurisdiction, issues of fact simpliciter or mixed law and fact as contained in the herewith attached Notice of Appeal marked as Exhibit ‘A’.
4. AN ORDER extending the time within which the appellants can file their notice of appeal against the said judgment of the High Court of Kwara State.
5. AN ORDER deeming the notice of appeal herewith attached as properly filed and served; the necessary filing fees having been paid at the court’s Registry.
6. AN ORDER allowing the appellants’ appeal to this Honourable Court to be heard and determined on the bundle of documents assembled and/or compiled by the Registry of the court below.

And for such further order(s) as the court may deem fit to make in the circumstances.”

While the grounds upon which the prayers are sought are stated in the body of the motion paper as follows:

“GROUNDS FOR THE APPLICATION

1. The Appellants/Applicants need the leave of the Honourable Court to proceed on Appeal to the Court of Appeal pursuant to section 242 of the 1999 Nigeria Constitution.
2. The Appellants/Applicants seek to substitute or replace the Plaintiffs/Appellants, who prosecuted this case at the court below.
3. The Plaintiffs/Appellants had made similar application for leave of court to the court below which was never heard nor determined one way or the other.
4. The Appellants/Applicants are descendants of the land owning families of Sapati-Ile and Olokonla and are authorized to prosecute this appeal.
5. This application will ensure expeditious hearing and determination of the appeal.
6. It will be in interest of justice to grant this application.”

Two separate affidavits were deposed to in support of the motion. The first affidavit was sworn to on 7/10/2010 and filed on the same date accompanied the motion paper. Paragraphs 4 – 11 thereof deposed:

“4. That I was informed in chambers by my principal Barr. T.O.S. Gbadeyan mni on the 24h September, 2010 at 12.30p.m, and I verily believe him as follows:

(a) That the Plaintiffs/ Appellants at the Lower Court are no longer interested in prosecuting this appeal.

(b) That the Plaintiffs/Appellants at the Lower Court have been substituted or replaced by the Appellants/Applicants.

(c) That the Appellants/Applicants, being members of the land owning families Sapati-Ile and Olokonla herein, are now desirous of prosecuting this appeal having been authorized by the said land owning families.

5. That I know as a fact that the Plaintiffs/Appellants’ application for leave at the High Court, to proceed on appeal to the Court of Appeal, was filed on 24th day of March, 2010.
6. That I know as a fact that the Plaintiffs/Appellants’ application was neither heard nor determined by the High Court.
7. That I know by virtue of my position as a legal practitioner, that the Appellants/Applicants need the leave of this Honourable Court to come on appeal to this Honourable Court.
8. That we have prepared the Notice of Appeal in the chambers and a copy is herewith attached and marked as Exhibit ‘A’.
9. That copies of the said letters of Authority issued by the land owning families authorizing the Appellants/ Applicants to prosecute this appeal to its finality are herewith attached and marked as EXHIBIT ‘B’.
10. That the Record, of Appeal has been assembled and the said compiled Record is herewith attached and marked as EXHIBIT ‘C”
11. That granting this application will not prejudice the respondent in any way.”

The second affidavit deposed to on 11/11/2010 and filed on the same date made additional depositions in paragraphs 4 – 8 thereof as follows:

“4. That Isiaka Yahaya was not the person initially sued, for and on behalf of his land owning families of Sapati Oloko nla, but came into the matter at Omu Aran Upper Area court after the demise of one Alhaji Mustapha who was initially sued in a representative capacity as the defendant.

5. That I know as a fact arising from Supreme Court resolution of the dispute on Sapati Oloko nla in JIMOH GARUBA VS. ISIAKA YAHAYA (2007) 1 SC (PT.11) 262 AT 266 that Isiaka Yahaya, who was submitted, continue the matter in a representative capacity for and on behalf of land owning Families of Sapati Oloko Nla
6. That it was based upon the success of the land owning Families of Sapati Oloko Nla in JIMOH GARIJBA VS. ISIAKA YAHAYA (supra) that the land owning families mandated Him (Isiaka Yahaya) to continue his representation by Instituting this case against the trespassers represented by Alhaji Bolanke Lawal, the respondent herein.
7. That arising from the facts above, it is not surprising that Isiaka Yahaya or any other person from Sapati Oloko Nla Land owning families did not depose to any affidavit in Opposition to the grant of this application.
8. That it is rather surprising that it is the respondent, who knows nothing about the pre-action arrangement in Sapati Oloko Nla families that wrongfully deposed to such facts in his counter-affidavit. ”

In compliance with the order of the court allowing the parties to file written submissions upon their own request, the applicants through their learned counsel, Mr. Gbadeyan, filed a written address on 16/3/2011, followed by a reply written address on points of law. The applicants’ learned counsel adopted the written address and the reply on points of law at the hearing of the application on 15/11/2011. Two issues for determination were raised therein as follows:-

“1. Whether this Hohourable Court should exercise its discretion by granting leave to the Applicants herein to substitute the lower courts’ Plaintiffs/Appellants, and as such, prosecute this appeal to its finality upon the refusal of the said Plaintiffs/Appellants to so do; and in contravention of the wishes of the land owning families of Sapati-Ile Olokonla Community.