CHIEF JIMOH YESUFU AGBESI KOGBIYELE & ANOR V. MILITARY ADMINISTRATIVE OF LAGOS STATE & ORS
(2011)LCN/4477(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of April, 2011
CA/L/436/08
RATIO
JURISDICTION OF THE COURT: WHETHER ONE OF THE GROUNDS UPON WHICH A COURT CAN ASSUME JURISDICTION IN ANY MATTER, IS WHEN THE PROPER PARTIES ARE BEFORE IT
It is trite that one of the Grounds upon which a Court can assume jurisdiction in any matter is when the proper parties are before it. This Court is a Court of Record. PER RITA NOSAKHARE PEMU, J.C.A
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 7 RULE 10(2) OF THE COURT OF RULES AS TO CONDITIONS THAT MUST BE SATISFIED BY AN APPLICANT SEEKING FOR AN ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL
Order 7 Rule 10(2) of the Court of Rules of this Honourable Court has this to say: “Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by Grounds of appeal which prima facie show good cause why the appeal should be heard. ..”(underlined for emphasis) There is nothing in the supporting affidavit to this application showing good and substantial reasons for failure to appeal within the prescribed period. Neither is any Grounds of Appeal exhibited. PER RITA NOSAKHARE PEMU, J.C.A
JUSTICE
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. CHIEF JIMOH YESUFU AGBESI KOGBIYELE
2. CHIEF MUIDI DAUDA
(For themselves and as representatives of Olumeke Chieftaincy Family of Ilashe)
1. MR. MUSILIU AKINDELE
2. MR. WAIDI HARUNA – APPLICANTS/
PARTIES SEEKING
TO BE SUBSTITUTED
FOR THE APPELLANTS Appellant(s)
AND
1. MILITARY ADMINISTRATIVE OF LAGOS STATE
2. FELFAN NIGERIA LIMITED
3. REGISTRAR OF LAND/TITLES OF LAGOS STATE Respondent(s)
RITA NOSAKHARE PEMU, J.C.A (Delivering the Lead Ruling): This Notice in a Motion dated 3rd March, 2010 but filed on the 9th of March, 2010 emanates from Suit No. ID/93/95 at the Ikeja Judicial Division of the High Court of Lagos State. It is a suit initiated by the Appellants in a representative capacity.
The Motion is brought by MR. MUSILIU AKINDELE and MR. WAIDI HARUNA (APPLICANTS/PARTIES seeking to be substituted for the Appellants). The initial deceased Appellants were CHIEF JIMOH YESUFU AGBESI KOGBIYELE and CHIEF MUIBI DAUDA (for themselves and as representatives of Olumeke Chieftaincy Family of Ilashe).
It is brought pursuant to Order 15 Rule 2, Order 6 Rules 1 and 15 and Order 7 Rule 10 (1) of the Court of Appeal Rules 2007 and under the inherent jurisdiction of this Honourable Court.
The Motion is for the following orders
(1) An ORDER substituting Musiliu Akindele (the Applicant) for Chief Jimoh Yesufu Agbesi Kogbiyele (deceased) the 1st Appellant.
(2) An ORDER substituting Waidi Haruna (the Applicant) for Chief Muibi Dauda (deceased) the 2nd Appellant.
(3) An ORDER granting leave of this Honourable Court to amend the Notice of Appeal.
(4) An ORDER deeming the Amended Notice of Appeal already filed and served as duly filed and served.
(5) An ORDER for extension of time to file the Appellants’ Brief of Argument.
And for such further or other Order(s) as this Honourable Court may deem fit to make in the circumstances.
AND TAKE NOTICE that the Grounds for the application is as follows:
1. To substitute new Appellants for the original Appellants who are both deceased.
2. To remove the mistaken insertion of a then pre-existing Appeal number in the Notice of Appeal that was filed by the Applicant.
3. To reflect the proper Status of this Appeal as a fresh Appeal against the final judgment of the lower Court.
4. To extend the time for the filing of the Appellants’ Brief of Argument.
Arguing the Motion on the 20th of January, 2010, learned Counsel for the Appellants/Applicants Ajose O.O. Esq. submits that the Application is supported by a ten (10) paragraphs affidavit and one Exhibit; Exhibit “MAI”. He relies on all the paragraphs as well as the Exhibit. He moves in terms. 0n the 20th of January, 2011, when this application came up for hearing, Adebayo Oyagbola Esq., learned Counsel for the Appellants sought to withdraw the motion filed on the 10th of February 2010, which motion was for leave to amend the Notice of Appeal and a deeming order.
Miss. R. Tanga, for the 2nd Respondent did not oppose and that motion was accordingly struck out having been withdrawn.
Again Adebayo Oyagbola Esq. sought on that day to withdraw the motion for extension of time to file Appellants brief of Argument filed on the 12th of February 2010, which application was granted after Miss Tanga did not oppose. Same was struck out accordingly having been withdrawn.
Learned Counsel abandoned prayer 4. He moves in terms of the motion paper.
Replying, Miss Tanga submits that she has filed a counter affidavit of five paragraphs on the 11th of May 2010 and submits that the prayers sought should not be granted. That the Notice of Appeal sought to be amended is defective and incompetent. She argues that the Notice of Appeal being the initiating process before this Honourable Court is so fundamental, that any defect in it would vitiate the proceedings and cannot be amended.
She submits that when a Notice of Appeal does not initiate Appeal No. 436/2008, it cannot be amended because on the face of it, it has an appeal number that is no longer before the Court i.e. CA/L/428/2002, citing NWAEGWU V. OKERE 2003, 9 MJSC. That the question is whether Appeal No. 428/2002 is still before this Court.
She submits that the grant of an application such as this, being discretionary, there must be facts before Court to look at before the Court can grant the application. She argues that there are no facts before Court to support the amendment sought. That there is no appeal before this Court and the application to substitute cannot stand. It is only when a brief exists that time to file becomes important.
He urges Court to dismiss the application.
In his reply on point of law, A. Oyagbola Esq. submits that it is not a fundamental error.
I have taken a cursory look at the facts deposed to in support of this application as well as the counter affidavit of the 2nd Respondent filed on the 16th of February 2010.
The motion is brought on behalf of the Applicants who are, on the face of the Record Applicants/Parties seeking to be substituted for the Appellants. This means that they are yet to be substituted. What is the locus of the Applicants in bringing this application in the circumstances?
They have none, because there is no existing order of Court substituting them for the deceased Appellants.
Again, I dare say that the proposed amended Notice of Appeal is incompetent. This is because the parties stated as Appellants/Applicants, who are deceased, having not been substituted, cannot be said to be parties in this matter. Neither are the parties sought to be substituted.
It is trite that one of the Grounds upon which a Court can assume jurisdiction in any matter is when the proper parties are before it. This Court is a Court of Record.
Assuming I hold that the proper parties are before this Court, the affidavit in support of the motion is bereft of facts that would have enabled this Honourable Court to exercise its discretion in favour of the Applicants.
This is because there are no facts stating why there is need to amend the Notice of Appeal, neither are there any facts to show why the Appellant did not file his Brief within time.
Order 7 Rule 10(2) of the Court of Rules of this Honourable Court has this to say:
“Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by Grounds of appeal which prima facie show good cause why the appeal should be heard. ..”(underlined for emphasis)
There is nothing in the supporting affidavit to this application showing good and substantial reasons for failure to appeal within the prescribed period. Neither is any Grounds of Appeal exhibited.
For the aforementioned reasons, prayers 3 and 5 in the application must fail and same is hereby refused and accordingly struck out.
Regarding Prayers 1 and 2 on the motion paper which I had earlier reproduced, I observe that in the Minutes of the Family Meeting of Okun Haruna Community (Ilashe Sea Beach) Lagos – Exhibit -MA1”, the 2nd Applicant (party seeking to be substituted is the first on the list of names of attendants at that meeting. Indeed, he is stated to be the Acting BAALE, while the 1st Applicant (party seeking to be substituted) is No. 6 on the list. Exhibit “MA1” is evidence that the Applicants (parties seeking to be substituted for the Appellants) were nominated and authorized to be substituted for the deceased Appellants in this representative suit. Therefore, it is true to say that there is authorization to them to be substituted as representing members of the Osu Olumeke or Olumeke Chieftaincy Family of Ilashe. This suffices for purpose of prayers 1 and 2 of this Application.
The result is that prayers 1 and 2 have merit and are granted as prayed, while prayers 3, 4 and 5 as earlier stated are hereby struck out for lacking in merit.
I hereby accordingly make the following order:
(1) That the names of Chief Jimoh Yesufu Agbesi Kogbiyele, the 1st Appellant who is now deceased be and is hereby struck out from the record while Mr. Musiliu Akindele (the 1st Applicant) be and is hereby substituted accordingly as the 1st Appellant.
(2) That the names of Chief Muibi Dauda (the 2nd Appellant) who is now deceased, be and is hereby struck out from the record while Mr. Waidi Haruna (the 2nd Appellant) be and is hereby substituted accordingly as the 2nd Appellant.
(3) Prayers 3, 4 and 5 are hereby struck out.
No order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A: I have read before now the ruling just delivered by PEMU, JCA. I regard the ruling as mine. I abide by all the orders made therein.
OLUKAYODE ARIWOOLA, J.C.A: I had the opportunity of reading the draft of the lead ruling of my learned brother, PEMU, JCA just delivered. I agree with the reasoning and conclusions contained in the said ruling and I abide by the consequential orders including the order on costs.
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Appearances
ADEBAYO OYAGBOLA with him O.M. GIWAHFor Appellant
AND
R. TANGA (MISS), P. ABAH (MISS) AND U. HERRINGTON (MRS)For Respondent
