H.r.h Oba Samuel Adebayo Adegbola (Eleruwa) & Ors V. Mr. James Olatunde Idowu & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

By a motion on notice dated 22nd April, 2014 and filed on the 23rd April, 2014, the Appellants/Applicants herein sought for the following reliefs:

1. Extension of time to file the Appellant/Applicants’ Brief of Argument attached to the affidavit and marked Exhibit A.
2. Granting leave to the Appellants/Applicants to raise a new issue/a new point of law not raised either in the High Court or the Court of Appeal to wit:

“Whether or not the learned trial judge and the Court of Appeal have jurisdiction to entertain this action which was instituted in a non-judicial division to wit: “Eruwa Judicial Division.”

3. Granting leave to the Appellant/Applicants to incorporate argument on the new issue/fresh point of law in the Appellants’ Brief of argument (Exhibit A).
4. To deem as Properly filed and served the Appellants’ Brief of Argument (Marked Exhibit A) already filed and served.

This motion is predicated on seven grounds and supported by a four paragraphs affidavit sworn to by one Saheed Raji, a legal secretary in the law firm of R A Ogunwole SAN & Co.

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Solicitors to the Appellants/Applicants.

In opposition to this application, the 1st and 2nd Respondents filed a 28 Paragraphs counter affidavit on 24th May, 2016 and a further counter affidavit to the same motion on notice on the 3rd June, 2016.

In line with the relevant Rules of this Court, parties filed written addresses.

The Appellants/Applicants’ written address settled by Mr. R.A Ogunwole SAN is dated 22nd April, 2014. Learned senior counsel formulated one issue for determination of this application and it reads as follows-

“Whether or not the Court may exercise its discretion in favor of the Appellants/Applicants by granting the application.”

Mr. Kolapo Raji Esq of counsel to the 1st and 2nd Respondent submitted two issues for determination of the Application. These issues are reproduced hereunder as follows:-

(a) Whether the Appellants/Applicants have placed good substantial and exceptional, sufficient and cogent reasons before the Court to deserve granting of an extension of time to file the Appellants’ Brief of Argument

(b) Whether the order/relief 2, 3 and 4 of this application are supported by law or grantable by

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this Honourable Court in the circumstances of this application.

Motions are generally argued on the basis of the grounds upon which they are predicated, the supporting affidavits and counter affidavits. I am not aware of any provisions in the Rules of this Court that authorize formulation of issues upon which applications are argued. Applicants are not allowed to proffer arguments not deposed to in their affidavit. Issues in appeals arise from grounds of appeal, which in turn must be related to the decisions against which appeals lie. On cases of applications where do these issues arise Applicants certainly cannot formulate issues that are at variance with the contents of their affidavit and expect a favorable endorsement from the Courts.

The Applicant’s issue in the instant application does not seem to have covered the deposition in his supporting affidavit. The application will therefore be considered in relation to the supporting affidavit.

In arguing this application Mr. Ogunwole, learned senior counsel for the Appellants/Applicants relied on all the paragraphs of the affidavit, particularly paragraph 3 thereof and submitted that a Court of

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law would normally exercise its discretion in favor of an applicant where his being out of time is due to pardonable inadvertence and/or negligence caused by his counsel. ln aid, learned senior counsel cited lsiaka v Ogundimu (2005) 13 NWLR (Pt. 997) 401 at 414 paragraphs F-G.

On whether the Appellant can raise fresh issue or fresh point of law under Order 6 Rule 5(b) of the Supreme Court Rules, learned senior counsel submitted that the fresh issue that is sought to be raised in this application touches on the jurisdiction of the Court. According to the learned senior counsel the fresh issue is substantial and no fresh evidence will be called to establish it. In aid, learned senior counsel cited A.I.C Ltd v NNPC (2005) 5 SC (Pt. 11) 60 at page 68. Finally, learned senior counsel urged this Court to grant the application.

Mr. Kolapo Raji, learned counsel for the 1st and 2nd Respondents submitted that the Appellants/Applicants have not disclosed any fact as good, substantial, exceptional and for convincing reasons for late filing of the brief of argument to deserve extension of time to file their brief of argument. In a further argument, learned

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counsel submitted that the learned senior counsel was throughout the period he claimed to have eye problems, engaged in active practice in Courts and that apart from this, there were other counsel in the chambers of Ogunwole SAN, who were competent to file the Appellants’ brief of argument. Learned counsel urged the Court to refuse prayers one as the Appellants/applicants have failed to place sufficient materials before the Court.

On the appellants’ prayer to raise fresh issue or fresh point of law before this Court, learned counsel submitted that the appellants/applicants have not satisfied the conditions for doing so. In aid, learned counsel cited the decision of this Court in Udo v The Registered Trustees of the Brotherhood of the Cross and Star (2013) LPELR 19910 (SC). Learned counsel further submitted that the applicants have not placed all the relevant fact pertaining to the new point being sought to be raised before this Court. Learned counsel raised so many issues which are irrelevant at this stage. I do not need lo consider them as doing so will have the effect of determining the appeal at the interlocutory level.

l wish to state clearly

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that a grant or refusal of this application is within the discretionary powers of this Court. It is the law that this discretionary powers must not only be exercised judicially but must be exercised judiciously also. An application for extension of time to file a brief of argument is not granted as a matter of course. An applicant who desires that the Court’s discretion be exercised in his favor in an application for extension of time must give good reasons and place sufficient materials before the Court in order to earn the discretion of the Court in his favor.

In the instant application, learned senior counsel for the Applicant relies on all the paragraphs of the supporting affidavit, particularly paragraph 3 thereof which he says contains the reasons for delay in filing the Appellant’s brief of argument within the prescribed period. Paragraph 3 of the supporting affidavit is hereunder reproduced as follows-

“3. That Mr. R.A Ogunwole, SAN the lead counsel in this Appeal told me and I verily belief in our law office on Saturday 19th April, 2014 at about 4.00pm as follows-

i. That he was served with the Records of Appeal on the 23/10/2013.<br< p=””

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That he commenced work on the preparation of the Appellants’ Brief of Argument when he suddenly developed some problem in his eyes and his Doctor advised him to take some rest to avoid straining the eyes.

iii. That during the period he could not do much reading, the time for filing the brief of Argument has (sic) expired.

iv. That he has fully resumed his legal practice and he has completed the Appellants’ Brief of Argument which has been filed.

v. That the delay was caused by the Appellants’ counsel which is deeply regretted.

vi. That in the cause of reading the Records of Appeal, he discovered that the writ of summons, the statement of claim and all Court processes filed by the plaintiffs were titled ‘in the Eruwa Judicial Division’ which is non-existence in Oyo State.

vii. That all the facts in support of the new point of law are contained in the Records of Appeal before this Honorable Court.

viii. That no further evidence is required which could have affected the decision of this Honourable Court.

ix. That it is in the interest of justice to grant this application so as to prevent obvious miscarriage of

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justice.

x. That to avoid further delay new issue/new point of law has been incorporated in the Appellants’ Brief of Argument already filed and copy of which is herewith attached and marked Exhibit A.

xi. That the Respondents will not be prejudiced if the application is granted.

xii. That it is in the interest of justice to grant the application.”

Learned counsel for the 1st and 2nd Respondents contradicted the averments reproduced above at paragraphs 8 – 21 of their counter affidavit. These paragraphs of the counter affidavit are hereunder reproduced as follows:-

8. On 23/5/2016 at 2.00pm at No. 24 Adeoyo Hospital Road, Off Ring Road, Ibadan one Mr. Tunde Adegbola, a Journalist of Olorunsogo, Akanran Road, Ibadan informed me and I verily believed him as follows:

i. That Mr. R. A Ogunwole, SAN is counsel to the Defendants in a pending civil Suit No. l/192/2008 before Honorable Justice M. L Abimbola of High Court of Oyo State, Ibadan Judicial Division and that the suit is between Yekini Sanusi Ida & 2 Ors v Oladepo Fakunle & anor.

ii. That on 13/11/2013, 28/11/2013 and 6/2/2014, Mr. R. A Ogunwole, SAN personally

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attended the proceedings of the Court in the said suit and participated actively and strenuously in the proceedings which were hearing of interlocutory application hearing of the substantive suit.

iii. That Mr. R. A Ogunwole, SAN during the periods mentioned in the said suit strenuously conducted cross examinations of claimants’ witnesses in the said case.

9. Based on the fact deposed to in paragraphs 8i-iii above I verily believe that Mr. R. A Ogunwole, SAN had no problem in his eyes, he took no rest, he did much reading in preparation for his active and strenuous participation in the said proceedings and he was in his full legal practices during that time.
10. Mr. R.A Ogunwole, SAN during the periods from 23/10/2013 to 23/4/2014 had the following solicitors and advocates in his law firm as legal practitioners in his employment, namely; J.D Olaniyan Esq., Tope Olufokunbi esq., Oluwatosin Oni esq. R.U Ugwu esq., J.A Ikedieze esq., and many others.
11. A copy of letter written by the said J. D Olaniyan Esq of Mr. R.A Ogunwole, SAN’s law firm relative to this case/appeal and served on the 1st and 2nd respondents’ solicitor, Adebayo shittu is

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herewith attached and marked as Exhibit ROA and based on its content I verily believe that legal practitioners in the employment of Mr. R.A. Ogunwole, SAN in his firm that are mentioned above are competent and well conversant with the relevant laws that are involved in this case/appeal.

12. Based on the facts and circumstances deposed to in paragraphs 9, 10 and 11 above I believe that the said J.D Olaniyan Esq or any of the above mentioned legal practitioners in the employment of Mr. R.A. Ogunwole, SAN could within time required by the rules, prepare and file the appellant’s brief of argument in this appeal.
13. Also during the period from 23/10/2013 to 23/4/2014 more particularly on 10/1/2014, the 1st and 2nd respondents through their counsel (Abdul-Raheem Adebayo Shittu ESQ., pursuant to the judgment of the trial Court in this case/appeal filed an application by motion on notice dated 10/1/2014 before the trial Court. A reply of the said motion is herewith attached and marked as Exhibit ROA1
14. On 15/1/2014 the said J.D Olaniyan Esq of Mr. R.A Ogunwole, SAN’s law firm mentioned above prepared and filed a counter application by a

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motion on notice (dated and filed on 15/1/2014) to strike out the application in Exhibit ROA1 above. A copy of the counter-application/motion referred to in this paragraph is herewith attached and marked as Exhibit ROA2.

15. Upon filing and service of a counter-affidavit filed by the 1st and 2nd respondents to the counter application (i.e. Exhibit ROA2 above), the counter-affidavit which is herewith attached and marked as Exhibit ROA3; it was Mr. R.A Ogunwole, SAN himself that personally prepared and filed on 30/1/2014, a further affidavit and a written address in support of the Exhibit ROA2 mentioned above. A copy of the said further affidavit and written address so prepared by Mr. R.A Ogunwole, SAN himself is hereby with attached and marked as Exhibit ROA4.
16. On 10/10/2013 Appellants/Applicant, through their Counsel, Mr. R. A Ogunwole, SAN, pursuant to the judgment of the lower Court filed before the Court of Appeal, Ibadan an application by Motion on Notice dated 10/1/2014. A copy of the said motion is herewith attached and marked as Exhibit ROA5.
17. The said Motion i.e. Exhibit ROA5 of this affidavit was fixed by the Court of Appeal,

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Ibadan for hearing on 10/4/2014. A copy of the hearing notice of the application served on the 1st and 2nd Respondents is herewith attached and marked as Exhibit ROA6.

18. On 10/4/2014 Mr. R. A Ogunwole, SAN was present in the Court of Appeal and participated actively in the proceeding of the Court.
19. Based on the fact deposed to in paragraphs 8i- iii and 9 -18 above, I verily believed as follows:

i. That Mr. R. A Ogunwole, SAN did much reading to prepare and file the said Exhibit ROA1, ROA2 and ROA3 above as well as several relevant case laws to prepare and file Exhibit ROA4 attached to this affidavit.

ii. That Mr. R. A Ogunwole, SAN did much reading to prepare and file the said Exhibit ROA4.

iii. That Mr. R. A Ogunwole, SAN did not develop any problem in his eyes and he could do much readings with his eyes during the period from 23/10/2013 to 23/4/2014 to prepare and file within time, the Appellants Brief of Argument in this Appeal.

iv. That between the period of 23/10/2013 and 23/4/2014, Mr. R. A Ogunwole, SAN was healthy; he did not develop any problem in his eyes, his doctor did not advise him to take rest for any reason

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whatsoever and he did not take any rest from his full legal practices.

v. That during the period mentioned above, Mr. R. A Ogunwole, SAN could do much reading and he was in his full legal practices.

20. The Appellants themselves took no step to prompt Mr. R. A Ogunwole, SAN to instruct any of other legal practitioners in his employment in his law firm to prepare and file their Appellants’ brief of Argument within the time required under the rule.
21. The Appellants also took no steps to brief any other counsel who had no eye problems to handle their Appeal, and to prepare and filed their Brief within the time required under the rule.

Learned counsel contended that the averments contained in paragraph 3(i)-(xii) of the affidavit in support of the Appellants/Applicants’ motion on notice are most untrue and are complete fabrication that were concocted to mislead the Court. Learned counsel deposed at paragraph 8 of the counter affidavit that the information that led to his belief that the Appellant’s deposition at paragraph 3 of the affidavit in support were most untrue was given to him by one Tunde Adegbola, a journalist of Olorunsogo,

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Akanran Road lbadan. He set out the information from Tunde Adegbola at the paragraphs of the counter affidavit reproduced above. Learned counsel neither disclosed the relationship between Tunde Adegbola and Ogunwole SAN nor is there evidence that the counter affidavit was served on the said Tunde Adegbola. An affidavit in which a total stranger to a case is mentioned as an informant, that stranger must be put on notice. There is no address for service on Tunde Adegbola on the counter affidavit, as such it is very clear that he was not served. ln absence of address for service, this Court has no basis upon which the informant could be called to verify the depositions alluded to by the 1st and 2nd Respondents’ counter affidavit. I do therefore think the paragraphs of that counter affidavit reproduced above have countered nothing, since there is no way to verify the depositions aforesaid.

The law is very clear that where any notice or any other process is required to have an address for service endorsed on, it shall not be deemed to have been properly filed unless such address has been endorsed on it. See Order 2 Rule 1 (2) of the Supreme Court Rules 2014

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(as amended). Since the information supplied by the 1st and 2nd respondents are incapable of being verified, they therefore go to no issue.

The first prayer in the applicants’ application is for extension of time to file a brief of argument. The only viable reason advanced for failure to file the brief of argument within the prescribed period is that the learned senior counsel who is handling the case suddenly developed some problems in his eyes and his doctor advised him to take some rest to avoid straining the eyes. There is no medical report in support of this deposition and the doctor has also not been put on notice in respect of the allegation concerning him. In an application to appeal, this Court has held that it may not amount to sufficient reason merely to say that the counsel was ill or that there was dereliction of duty on the part of his junior or that the volume of chamber work made the counsel forget to file the appeal. See Omoregie v Emovon (1987) 6 SC 6; Benson v Nigerian Agip Oil Co. Ltd (1982) 5 SC 1. However, it is accepted as good reason where counsel commits error of judgment and fails to do what he is supposed to do.

In this

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respect counsel’s carelessness cannot be visited on the litigant where such carelessness is pardonable. See Doherty v Doherty (1964) 1 All NLR 299; Bowaje v Adediwura (1976) 6 SC 143.

In an appeal, the Court’s discretion should always be exercised torwards hearing the parties on the merit. This Court can therefore not shut out the Appellant when he has shown that the brief is available for deeming. I am therefore of the firm view that justice will be better served if this application for extension of time to file the Appellant’s brief of argument is granted as prayed.

The second prayer is for leave to the Appellants/Applicants to raise a new issue/a new point of law not raised either in the High Court or the Court of Appeal and to incorporate argument on the new issue/fresh point of law in the Appellant’s Brief of Argument. The new issue which the applicants wish to raise has been reproduced elsewhere in this ruling. Learned senior counsel submitted that the new issue touches on the jurisdiction of the Court and that no new evidence will be called. In aid, learned senior counsel cited A.I.C Ltd v NNPC (2005) 5 SC (Pt. 11) 60 at 68.

In

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opposition learned counsel for the 1st and 2nd Respondents deposed at paragraphs 22 and 23 of the counter affidavit as follows-

“22. Conventionally ‘the Eruwa Judicial Division’ is in existence in Oyo State.

23. In Oyo State, the litigants, the Bar and the Bench conventionally know, call, refer to and addressed lbarapa Judicial Division of Oyo State High Court as Eruwa Judicial Division because the official place of sitting of the Division is High Court of Oyo State at Eruwa, Oyo State.

Now the issues raised by learned counsel in the paragraphs of the counter affidavit are matters to be considered at the hearing of the appeal. Learned counsel has submitted that the new issues touch on the jurisdiction of the Court. At this point the Court cannot go into the determination of whether ‘Eruwa Judicial Division’ exist or not, as doing so will amount to a determination of the main appeal, at interlocutory stage, which this Court is not allowed to do. The law is settled that issue of jurisdiction, being the soul of litigation can be raised at any time even in this Court for the first time.

See Bronik Motors v Wema Bank Nig Ltd (1983) 1 SCNLR 296;

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Oredoyin v Arowolo (1989) 4 NWLR (Pt. 114) 172; Gen. Electric Motors v Akande (1999) 1 NWLR (Pt. 588) 532.

For this reason, I am also prepared to grant the Applicant’s second prayers. On the whole, I grant the application in the following terms:-

1. Applicants are hereby granted extension of time to today to file the Appellants brief of argument.
2. Leave is hereby granted to the Appellants/Applicants to raise new issue/a new point of law not raised either in the High Court or the Court of Appeal to wit:

“Whether or not the learned trial judge and the Court of Appeal have jurisdiction to entertain this action which was instituted in a non-judicial division to wit: “Eruwa Judicial Division.”

3. Leave is hereby granted to the Appellants/Applicants to incorporate argument on the new issue/fresh point of law in the Appellant’s Brief of Argument (Exhibit A)
4. Exhibit A, the Appellants’ Brief of Argument is deemed properly filed and served today.

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SC.584/2013(R)