Mrs. Linda Akiti V. Prince Oladimeji Oyekunle (2018)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

By way of a Motion on Notice filed on 8 March 2017 and brought under Order 8 Rule 8(4) and Order 2 Rule 31, of the Supreme Court Rules, and under the inherent jurisdiction of the Court, the appellant/applicant seeks the following orders:

1. An Order restoring this appeal which was dismissed on 13 July 2016.
2. An Order extending time within which the appellant/applicant may compile and transmit the Record of Appeal in this appeal against the judgment of the Court of Appeal handed down on 26 March 2015 by the Court of Appeal, Lagos Division.
3. An Order granting the appellant/applicant 30 days within which to compile and transmit the Record of Appeal in this appeal.

The application is supported by a 15 paragraph affidavit deposed to by Saheed Majiyagbe-Kosoko, a legal practitioner in Chambers of learned counsel for the appellant/applicant. Annexed to it are documents marked.

Exhibit A – Appellant’s Motion

Exhibit B – Respondent’s counter-affidavit.

Exhibit C – Order of Court given on 13 July 2016.

The grounds on which the application is brought

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are:

1. The appeal was fixed for 23 June, 2016 for the Respondent’s motion to dismiss same;
2. Prior to 23 June, 2016 this appellant brought a Motion for an order extending time within which it would compile and transmit the Record of Appeal from the lower Court. The appellant also filed a counter-affidavit to the Respondent’s motion giving reasons why she had not compiled and transmitted the Record of Appeal;
3. The Appeal came up in open Court on 23 June 2016 and both parties were represented by counsel;
4. Due to the fact that the Appellant’s motion seeking to save the appeal was not ripe for hearing the Honourable Court adjourned the appeal on that day in open Court to 6 March 2017 for the hearing of the pending applications and awarded N50,000 costs against the Appellant
5. On 6 March 2017 Respondent’s counsel informed the Honourable Court that the appeal had been dismissed in Chambers on 13 July, 2016 despite the fact that the Respondent filed a counter affidavit to the appellant’s motion to extend time to compile and transmit Records in 2017;
6. The appellant/applicant is diligent and desirous in the prosecution of this

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appeal but delayed in compiling and transmitting the Record of Appeal because she was intent of exploring the possibility of an amicable settlement; and

7. The appellant is desirous of prosecuting the appeal.

A written brief was filed in support of the Motion. Prince Oladimeji Oyekunle, the respondent and a retiree deposed to 7 paragraph counter-affidavit to which is attached exhibit 3A.

A written brief was filed urging the Court to dismiss the application.

At the hearing of the application on 14 November 2017 learned counsel for the appellant/applicant, O. Agbebi esq., urged the Court to grant the application as the Record of Appeal had been transmitted to this Court on 19 May 2017.

Opposing the application learned counsel urged this Court not to restore the appeal as the applicant has failed to show exceptional circumstances why the appeal should be relisted. I read the written submissions of counsel.

Both counsel agree that the issue for determination is:

Whether the Honourable Court ought not in the interest of justice to grant the prayer of the appellant/applicant as contained in her motion paper.

Learned counsel

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for the appellant observed that on 23 June, 2016 when this appeal was called in open Court there were two pending applications.

i. The respondent’s motion on Notice filed on 8 December, 2015; and

ii. The appellant’s motion on Notice filed on 22 June 2016.

He submitted that dismissing the appeal does not serve the interest of justice as the dismissal amounts to a denial of fair hearing of the appellant especially as the appellant was not aware that her appeal had been dismissed in chambers. Reliance was placed on Olumesan v. Ogundepo (1996) 2 NWLR (pt. 433) p. 628; Adeyemi v. Y.R.S. Ike-Oluwa & Sons Ltd (1993) 8 NWLR (pt. 309) p. 27

She urged the Court to declare the Ruling dismissing this appeal on 13 July 2016 a nullity.

Opposing the application learned counsel for the respondent observed that the applicant deliberately refused to compile and transmit the Record of Appeal to this Court and not as result of her desire to explore amicable settlement. He submitted that since learned counsel for the appellant has not shown exceptional circumstances why the appeal should be restored as required by law, the application should

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be dismissed. Reliance was placed on J.O.E Co. Ltd v. Skye Bank Plc (2009) 6 NWLR (pt. 1138) p. 518.

I shall reproduce relevant extracts from the affidavits in order that a clearer picture is seen.

Paragraphs 3 – 14 of the affidavit in support of the application states that:

3. The appeal was fixed for 23 June, 2016 for the respondent’s motion to dismiss same.
4. Prior to 23 June, 2016 the appellant brought a motion for an order extending time within which it would compile and transmit the Record of Appeal from the lower Court. The appellant also filed a counter-affidavit to the Respondent’s motion giving reasons why she had not compiled and transmitted the Record of Appeal. A copy of the appellant’s motion is hereto attached and marked exhibit A.
5. The Appeal came up in open Court on 23 June, 2016 and both parties were represented by counsel.
6. Due to the fact that the appellant’s motion seeking to save the appeal was not ripe for hearing, the Honourable Court adjourned the appeal on that day in open Court to 6 March, 2017 for the hearing of the pending applications and awarded N50,000 costs against the appellant.
7. On 6

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March, 2017 Respondent’s counsel informed the Honourable Court that the appeal had been dismissed in chambers on 13 July, 2016 despite the fact that the respondent filed a counter affidavit to the appellant’s motion to extend time to compile and transmit Records in 2017.

8. A copy of the Order of Court given on 13 July 2016 is hereto attached and marked exhibit C.
9. The Appellant/Applicant is diligent and desirous in the prosecution of this appeal but delayed in compiling and transmitting the Record of Appeal because she was intent of exploring the possibility of an amicable settlement.
10. The Appellant is desirous of prosecuting the appeal.
11. The failure of the Appellant/Applicant in compiling and transmitting the Record of Appeal within the time limited by the Rules of this Honourable Court was occasioned by the attempts towards settling the dispute out of Court by the Appellant/Applicant and Respondent when settlement was attempted.
12. The Appellant/Applicant herein is a widow and was substituted at the trial Court when her husband died.
13. The property which is the subject matter of the dispute is the only property

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left to the Appellant/Applicant by her late husband and also serves as her residence.

14. It will be in the interest of justice if this application is granted as the Respondent will not be prejudiced thereby.

Relevant extracts from the counter-affidavit is as follows:

3. That the averments in paragraphs 12 and 13 of the affidavit in support of Motion are sentimental; the applicant was aware from the beginning that she was building on disputed piece of land, the applicant ignored all available proof I showed to her late husband that the piece of land in dispute belonged to me.
4. That the averments in paragraphs 9, 10 and 11 of the affidavit in support of the motion do not represent the true position.

In further response to the facts in those paragraphs I state as follows:

(a) All the attempts said to have been made by the applicant to settle the dispute are mockery of the intention to settle.

All subsequent paragraphs of the counter-affidavit show futile attempts to settle the matter. I must state that depositions in affidavit on material facts resolve applications in Court. Where depositions on material facts in an

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affidavit in support of an application are not denied by the adverse party filing a counter-affidavit, such facts not denied in the affidavit in support remain the correct position and the Court acts on them except they are moonshine.

Material facts in a counter-affidavit not denied by a reply affidavit are the true position. It is only when the affidavits cannot resolve facts that parties are invited to lead evidence in proof of the facts they deposed to see

Akinsete v. Akindutire (1966) 4 NSCC p. 157 ; Eboh v. Oki (1974) 9 NSCC p. 29; National Bank (Nig) Ltd v. The Are Brothers Nig Ltd (1977) 11 NSCC p. 382; Alagbe v. Abimbola 1978 2SC p. 39.

Paragraphs 3, 4, 5 and 6 of the affidavit in support are not denied by the respondent. Depositions in these paragraphs are clear that when this Court dismissed the appeal on 13 July 2016 there was pending before this Court an application filed on 22 June 2016 for:

1. An Order extending time within which the Appellant/Applicant may compile and transmit the Record of Appeal in this appeal against the judgment of the Court of Appeal handed down on 26 March, 2015 by the Court of Appeal

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Lagos Division.

2. An Order granting the Appellant/Applicant 30 days within which to compile and transmit the Record of Appeal.

Where documentary evidence support depositions in an affidavit such depositions are the correct position of what it seeks to establish. Documentary evidence lends more credence to material facts deposed to in an affidavit. The applicant’s motion on Notice filed on 22 June, 2016 for extension of time to compile and transmit the Record of Appeal is exhibited by the applicant in this application. Documentary evidence, to wit motion on Notice filed on 22 June 2016 is conclusive proof that the said motion was pending before the appeal was dismissed on 13 July 2016.

I am satisfied that when this appeal was dismissed on 13 July 2016 there was pending before this Court a motion for extension of time to regularize the applicant’s processes, and it was filed on 22 June 2016.

Order 8 Rule 8(4) of the Supreme Court Rules states that:

(4). An appellant whose appeal has been dismissed under this Rule may apply by notice of motion that his appeal be restored. Any such application may be made to the Court and the Court may

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where exceptional circumstances have been shown, cause such appeal to be restored upon such terms as it may think fit.

What then are exceptional circumstances

Any fact which if known the judge would not have dismissed the appeal is an exceptional circumstance. For example if at the time of dismissal of the appeal there was before the Court an application for extension of time to file relevant processes. If all processes were properly before the Court but this was not brought to the attention of the judge due to inadvertence or carelessness of counsel.

In the affidavit in support of the application to restore the dismissed appeal, a detailed deposition of exceptional circumstances must be shown.

The appellant/applicant has deposed to the fact that when this appeal was dismissed on 13 July 2016, there was an application filed on 22 June 2016 for extension of time within which the appellant/applicant may compile and transmit Record of Appeal. It is well settled that if a Court makes an order dismissing an appeal when there is an application for extension of time to regularize the appeal, the Court should not hesitate to pronounce its order as

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null and void. This, the Court can do by invoking its inherent jurisdiction to correct the obvious mistake by stating that the appeal is pending, provided application is made to the Court as has been done in this case.

My lords, where there are two applications before the Court, one to dismiss the case for not taking necessary steps and the other (Motion filed on 22 June 2016 prior to Motion for dismissal) for extension of time, or and leave to take necessary steps to regularize the suit, the motion which would allow the Court to pursue substantial justice would be heard first. This procedure has its roots in common sense, prudence and equity, and if such a procedure is followed cases would be resolved on the merits rather than on technicalities. See Consortium M.C. v. NEPA (1992) 6 NWLR (PT. 246) P. 132

The Court should not have dismissed the appeal on 13 July 2016, rather it should have saved the appeal by hearing the application that would have saved the appeal, i.e. the motion filed earlier in time on 22 June 2016. The Court dismissed the appeal as a result of an administrative error from the Registry, when it sat in chambers and was

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informed by the Registry that the case should be dismissed oblivious of the pending motion filed on 22 June 2016. In such a situation the appeal should be restored to the cause list for hearing on the merits. There is merit in this application. It is hereby ordered that Appeal No.SC.932/2015 dismissed by this Court on 13 July 2016 is hereby restored to the cause list for hearing on the merits.

Time is extended by 30 days from today for the appellant/application to compile and transmit the Record of Appeal in this Appeal against the judgment of the Court of Appeal delivered on 26 March, 2015 in suit No. CA/L/1095/2011.

Application granted.

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SC.932/2015(R)