Joseph A. Akinnawo V. Kayode Kuteyi (2016)
LawGlobal-Hub Lead Judgment Report
JAMES SHEHU ABIRIYI, J.C.A.
In the High Court of Ondo State sitting at Ondo, the Appellant/Applicant claimed against the Respondent a declaration that he is entitled to statutory right of occupancy, damages for trespass and injunction in respect of the land in dispute.
On 30th March, 1995 the lower Court dismissed the Appellant’s/Applicant’s claim in its entirety.
The Appellant/Applicant appealed to this Court by an initial notice of appeal dated 29th May 1995 but filed on 30th May 1995.
On the 11th April, 2014, the Appellant/Applicant filed an application seeking leave to file and argue additional grounds of appeal, leave to amend the notice of appeal by incorporating grounds 6 and 7 and amending ground 2 particular C, enlargement of time to file appellant’s brief of argument and an order deeming as properly filed the amended notice of appeal and appellant’s brief.
The application is brought on the ground of change of counsel and the time it took to retrieve the record of appeal served on former counsel
ii) Failure to forward to the registry of this Division, the record of appeal
1
and other documents related to the appeal from the Benin Division of this Court in good time. See particularly paragraph 12 of the affidavit in support of the application which reads thus:
?12 That the delay in filing the Appellant’s Brief of Argument timeously is occasioned by difficulties encountered by the registry of this Court in retrieving the records of appeal and all necessary documents pertaining to this appeal from the registry of the Court of Appeal, Benin.”
Annexed to the affidavit in support of the application are exhibits
A Notice of Appeal dated 29th May 1995 and filed 30th May 1995, Exhibit B Schedule of Additional Grounds of Appeal and Exhibit C Proposed Amended Notice of Appeal.
In the counter affidavit in opposition to the application the Respondent deposed to the fact that a similar application was filed on 1st March 2005 in the Benin Division of this Court but was struck out on 4th October 2007.
That as a result of the failure to prosecute the appeal diligently the land involved in this matter has been sold to third parties and partitioned among members of the respondent’s family.
?
Attached to the counter
2
affidavit are Exhibit A, a similar motion struck out on 4th October 2007 and Exhibit B a motion for stay of execution of the judgment of the lower Court.
The motion was contested on the following briefs of argument:
1. Appellant’s/Applicant’s Brief of Argument dated and filed 28th September 2015.
2. Respondent’s Written Reply Address dated and filed on 6th October 2015
The Appellant presented the following issue for determination:
l. Whether the Applicant made out a sufficient case for the grant of amendment of Notice of Appeal and extension of time to file Brief of Argument.
The Respondent on his own part also submitted the following lone issue for determination:
1. Whether considering the peculiar nature of this matter, the Honourable Court can exercise its discretionary power in favour of the applicant that would result in granting the application.
I prefer the issue formulated by the Appellant/Applicant.
Arguing the motion learned counsel for the appellant/applicant submitted that in an application of this nature, the Court is guided by consideration to do justice between the parties and to ensure, ultimately
3
that the dispute between the parties is decided on the merits.
It was submitted that the amendment sought is neither overreaching nor can it result to any injury to the respondent which cannot be remedied by costs as respondent’s brief is yet to be filed. The respondent can therefore react appropriately to any issue or complaint the amendment made may cause.
The notice of appeal sought to be amended, it was pointed out, is valid and subsisting. Therefore the Court can grant the amendment sought.
The Appellant/Applicant, it was pointed out, had filed his amended notice of appeal, brief of argument and paid a staggering penalty and has therefore shown good cause why the application should be granted. Therefore the Court cannot close its eyes to the Appellant/Applicant’s brief of argument already before it and it will not be judicious to chase the applicant away from the Court at this stage by dismissing the application. We were referred to Alsthom S. A. V. Saraki (2000) 14 NWLR (Pt 687) 415.
?
It was submitted that the fact that such an application had earlier been struck out will not preclude the applicant from re-filing the application all
4
over again and it should not be a ground for refusing to grant the application.
It was submitted that the application having not been shown to be defective in any manner, the prayers are grantable.
It was submitted that the injury deposed to by the respondent cannot be a ground for the refusal of the application as the injury and embarrassment envisaged by the law is quite different from the one declared by the respondent.
Learned counsel for the Respondent submitted that an application to amend at any stage made in bad faith would not be granted by a Court to avoid injustice to the opposing party. We were referred FBN PLC v. Kanu and Sons And Co Ltd (1999) 9 NWLR (Pt 619) 484 at 499.
It was submitted that the Appellant/Applicant failed to disclose that there was a similar application before the Court of Appeal, Benin and this shows bad faith
It was submitted that no proper disclosure was made of the difficulties encountered in retrieving the records and other documents from the Benin Division of this Court.
It is not the practice of the Court to lightly drive away a litigant from the temple of justice.
?
The
5
Appellant/Applicant has a valid notice of appeal before the Court as the notice of appeal sought to be amended was filed within time.
On the affidavit evidence before the Court there is no doubt that the Appellant/Applicant has been dilatory in pursuing the appeal. This by itself is not an excuse for not granting the application. This is moreso that the Appellant/Applicant has paid a penalty of N267,700 (two hundred and sixty seven thousand, seven hundred Naira) as shown on the face of the Appellant’s Brief of Argument.
I agree entirely with learned counsel for the Appellant/Applicant that the fact that the applicant earlier filed a similar application at the Benin Division of this Court which was struck out is not an excuse for dismissing this application particularly when the Appellant/Applicant has filed the amended notice of appeal and appellant’s brief.
As learned counsel for the Appellant/Applicant pointed out, the Respondent has not yet filed his respondent’s brief. Therefore if the application is granted the respondent will have the opportunity to react to the appellant’s brief.
?
The lone issue for determination is resolved in favour
6
of the Appellant/Applicant.
The application should therefore be granted.
The application is granted as prayed.
1. Appellant/Applicant is granted leave to file and argue additional grounds 6 and 7 of appeal
2. He is further granted leave to amend the notice of appeal and the grounds of appeal by:
(i) Incorporating the additional grounds 6 and 7 of appeal therein
(ii) Amending ground 2 particular C to read. “(c) The onus in this case is therefore on the Defendant who traced his title to the plaintiff to show that the plaintiff had divested himself of the interest in the land in dispute.”
3. An order is hereby made enlarging the time within which the Applicant may file the Appellant’s Brief of Argument.
4. The amended notice of appeal already filed on 11th April 2014 and the Appellant?s Brief of Argument dated 10th April 2014 and filed on 11th April, 2014 are deemed properly filed and served today.
Respondent is awarded N10,000 costs to be paid by the Appellant/Applicant.
Other Citations: (2016)LCN/8955(CA)
