CHUKWUDI APUGO & ANOR v. HON. BARR. CHIDIEBERE NWOKE & ORS. (2010)

CHUKWUDI APUGO & ANOR v. HON. BARR. CHIDIEBERE NWOKE & ORS.

(2010)LCN/4058(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of November, 2010

CA/PH/EPT/224/2008

RATIO

ESTOPPEL PER RES JUDICATA: CONDITIONS THAT MUST BE SATISFIED BEFORE ESTOPPEL PER RES JUDICATA CAN PLEADED AND RELIED UPON

It is trite that for estoppel per res judicata to be pleaded/raised and relied upon, the following conditions must be satisfied: (a) the parties or their privies in the previous and the present suits are the same; (b) the claim and the issue in both cases are the same; (c) the subject matter of litigation in the previous and present suits is identical; and (d) the issues in both suits were finally settled in the previous suit. See Intercity Bank Plc. vs. Faisal Travel Agency Ltd. (2006) 4 NWLR (Pt. 971) 504 at 525; Nwaneri vs. Oriuwa (1959) SCNLR 316; Oke vs. Atoloye (No. 2) (1986) 1 NWLR (Pt. 15) 241 and Martin Udechukwu & 2 Ors. vs. Sunday Ezemuo (2009) 14 NWLR (Pt. 1162) 525 at 544 – 545 (C. A.). PER MOJEED ADEKUNLE OWOADE, J.C.A.

RULE OF INTERPRETATION: PRINCIPLE TO BE FOLLOWED IN THE CONSTRUCTION OF DOCUMENTS

It is trite that in the construction of documents, including as in the instant case, a judgment of court, the cardinal principle is that the parties are presumed to intend what they have in fact said or written down. Accordingly, the words employed by them will be as construed and should be given their ordinary and plain meaning unless, of course, circumstance, such as trade usage or the like, dictate that particular construction ought to be applied in order to give effect to the particular intention envisaged by the parties. See Aouad & Anor. vs. Kessrawani (1956) 1 FSC 35, (1956) SCNLR 83, Nwangwu vs. Nzekwu & Anor. (1957) 3 FSC 36, (1957) SCNLR 61, A-G, Kaduna State & Ors. vs. Atta & 2 Ors. (1986) 4 NWLR (Pt. 38) 785. As a general rule therefore, words should be given their ordinary and plain meaning and additional words or clauses ought not to be imported into a written agreement or document unless it is impossible to understand the agreement or document in the absence of such additional words or clauses. See Solicitor General, Western Nigeria vs. Adebonojo (1971) 1 All NLR 178 and Union Bank of Nig. Ltd. vs. Prof. Albert Ozigi (1994) 3 NWLR (Pt. 333) 385. See also, Union Bank of Nig. Ltd. & Anor. vs. Nwaokolo (1995) 6 NWLR (Pt. 400) 127 and Chief S. O. Agbareh & 1 Or. vs. Dr. Anthony Mimra & 2 Ors. (2008) 2 NWLR (Pt. 1071) 378 at 414 – 415. PER MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

Between

1. CHUKWUDI APUGO
2. PEOPLES DEMOCRATIC PARTY Appellant(s)

AND

1. HON. BARR. CHIDIEBERE NWOKE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE RETURNING OFFICER, UMUAHIA EAST CONSTITUENCY
4. THE ELECTORAL OFFICER, UMUAHIA NORTH L. G. A.
5. THE PRESIDING OFFICER, UZZI OSSAH UNIT
6. THE PRESIDING OFFICER, EZIAMA MGBAJAH UNIT
7. THE PRESIDING OFFICER, ATTA CENTRAL SCHOOL
8. THE PRESIDING OFFICER, EMEDE PRIMARY SCHOOL
9. THE PRESIDING OFFICER, UMUEZE PRIMARY SCHOOL
10. THE PRESIDING OFFICER, UMUAGU PRIMARY SCHOOL
11. THE PRESIDING OFFICER, AVONKWU II UNIT
12. THE PRESIDING OFFICER, AJATA OKWURU II UNIT
13. THE PRESIDING OFFICER, AVONKWU II UNIT
14. THE PRESIDING OFFICER, AVONKWU I UNIT
15. THE PRESIDING OFFICER, UDIDE-UMUODUDU UNIT
16. THE PRESIDING OFFICER, AMUZUORO UNIT Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Lead Ruling): In the main appeal in this case, the petitioner/appellant – Chukwudi Apugo filed a Notice of Appeal dated 10/3/08 against the respondents, that is Chidiebere Nwoke and others.  The appeal is a complaint against the judgment of the Governorship/Legislative Houses Election Tribunal which sat at Umuahia in which the 1st respondent was affirmed as the winner of the Umuahia East Constituency House of Assembly election which held on 14th April, 2007.
The petitioner’s/appellant’s petition was dismissed by the lower tribunal on the ground of his failure to join the Electoral Collation Officers which was considered fatal to the petition.
In the process of exchange of briefs before this Honourable Court sitting at Port Harcourt, learned counsel for the appellant brought an application dated 31st October, 2008 and filed on 3/11/08 by way of Motion on Notice praying for an order of the court to wit:
“1.    An order granting leave to the appellants/applicants to amend the Notice and Grounds of Appeal dated and filed 10th March, 2008, by adding the new ground one of the amended notice and grounds of appeal annexed herewith as Exhibit ‘A’.
2.    An order deeming the amended notice and grounds of appeal as properly filed and served subject to payment of requisite filing fees.
3.    An order granting leave to appellants/applicants to amend the appellants’ briefs of argument dated 25th April, 2008, annexed herewith as Exhibit ‘B’ by incorporating thereto the arguments in support of the new ground one of the amended notice of appeal.
4.    An order deeming the amended appellants’ briefs of argument as properly filed and served subject to payment of the requisite filing fees.
5.    Such further order(s) as the court may deem expedient to make.”
The appellants’ application which was brought pursuant to Order 6 Rule 15, Order 7 Rule 1 of the Court of Appeal Rules, 2007 was predicated thus:
“Take Notice that the ground of this application is that the Honourable Tribunal altered the effect of its own ruling dated 14th September, 2007, dismissing the application to strike out the petition in limine for non-joinder of necessary parties by turning around in the same proceeding to dismiss the petition for non-joinder of parties.”
The said application was supported by a 13 paragraph affidavit deposed to by the 1st appellant/applicant, Mr. Chukwudi Apugo and also by a further affidavit deposed to by one William Ekeleme.  From the record of proceedings, the following documents were attached to the appellants’/applicants’ Motion on Notice:
(i)    Amended Notice of Appeal (Exhibit A)
(ii)    1st Appellant’s Amended Brief of Argument (Exhibit B)
(iii)    2nd Appellant’s Amended Brief of Argument (Exhibit C)
In the Court of Appeal (sitting at Port Harcourt) the appellants’ application was vehemently opposed by the 1st respondent (now applicant in this court).  Amongst the grounds of incompetence levied on the appellants’ application are:
“(i)    That the application is an abuse of court process.
(ii)    That the 2nd appellant, Peoples Democratic Party (PDP) did not file any appellants’ brief and thus is not a party to the pending appeal.
(iii)    That the 2nd appellant’s brief of argument was not proper before the court.
(iv)    That the further affidavit of one William Ekeleme dated and filed 9th January, 2009 to which 2nd appellant’s brief of argument was annexed is not proper before the court.
(v)    That the new ground of appeal sought to be introduced by the amendment did not flow from the judgment appealed against.
(vi)    That the affidavit in support of the motion for amendment predates the motion, having been used in an earlier motion which was struck out.”
In a considered Ruling, this Court sitting at Port Harcourt (per Tijani Abdullahi, JCA) on 23/4/09 granted the appellants’/respondents’ prayers as prayed and ordered as follows:
“(1)    Leave is granted the appellants/applicants to amend their notice and grounds of appeal dated and filed on 10th March, 2008 by adding the new ground one of the amended notice and grounds of appeal annexed herewith as Exhibit ‘A’.
(2)    An order deeming the amended notice and grounds of appeal as properly filed and served subject to payment of the requisite filing fees.
(3)    An order granting leave to appellants/applicants to amend the appellants’ briefs of argument dated 25th April, 2008, annexed herewith as Exhibit ‘B’ by incorporating thereto the arguments in support of the new ground one of the amended notice of appeal.
(4)    An order deeming the amended appellants’ briefs of argument as properly filed and served subject to payment of the requisite filing fees.”
Meanwhile, the appellants/respondents had filed two briefs of argument on 3/11/08.  They are:
(a)    2nd Appellant’s Amended Brief of Argument dated 31/10/08 and filed on 3/11/08.
(b)    2nd Appellant’s Brief of Argument dated 08/01/09 but also purportedly filed on 3/11/08.
Before us, at the Owerri Division of the Court of Appeal, the 1st respondent/applicant has now brought a motion dated 9th May, 2009 and filed on 20/5/09 praying this court for:
“(1)    An order dismissing or striking out this appeal on ground that it cannot be heard on Appellants’ Briefs of Argument which are abusive of court processes, spurious, vexatious and uncognizable by the court.
OR ALTERNATIVELY
(1) An order of court setting aside part of the Ruling/Decision of this Honourable Court made on 23/4/09, for having been made in error and without jurisdiction.
(2) An order of court striking out the following documents:
(a) 2nd Appellant’s Amended Brief of Argument dated 31/10/08 and filed on 3/11/08 for being irregular and legally uncognizable.
(b) 2nd Appellant’s Brief of Argument dated 08/01/09 but purportedly filed on 03/11/08 for being irregular and legally uncognizable.”
The specific parts of the Ruling sought to be set aside are as follows:
“(c) The “order granting leave to the Appellants/Applicants to amend the Appellants’ Briefs of Argument dated 25th April, 2008 annexed herewith as Exhibit ‘B’ by incorporating thereto the argument in support of the new ground one of the amended notice of appeal.”
(d) The “order deeming the amended Appellants’ Briefs of Argument as properly filed and served subject to payment of the requisite filing fees.”
The grounds for the said application are as follows:
“(1) No court has jurisdiction to amend a non existent document as only existing processes can be amended.
(2) The 2nd appellant, Peoples Democratic Party, did not file any original brief of argument that could be amended.
(3)What was attached as Exhibit ‘B’ to the application that resulted in the Ruling of 23-04-09, was 1st appellant’s Brief of Argument and not “Appellants Briefs” of Argument as ordered to be deemed by the Court.
(4) The 1st and 2nd appellants also did not file a joint Brief of Argument that could be amended in their joint names.
(5) The 2nd appellant was out of time by almost 12 months to file brief of argument, there was no motion or prayer for extension of time made by either of the appellants.
(6)    The orders bought to be set aside were obviously made in error and without jurisdiction.”
The 1st respondent’s/applicant’s motion is supported first by a 38 paragraph affidavit with sundry Exhibits sworn to on 20/5/09 by one Miss. Onyinyechi Nwoke and also by a further affidavit of 12 paragraphs sworn to by Hon. Barrister Chidiebere Nwoke, the 1st respondent in this appeal.
The appellants on the other hand filed a counter-affidavit dated 15/4/09 deposed to by Chukwudi Apugo the 1st appellant and respondent to this application.Parties to this application filed and exchanged written addresses.  The written address of the 1st respondent/cross-appellant/applicant dated 17/5/2010 was filed on 20/05/2010.
The Written Address of the appellants/respondents was filed on 21-6-10.  In arguing the case that the appeal cannot be heard with the 2nd appellant’s briefs as filed, learned counsel for the 1st respondent/applicant submitted that by the provisions of Order 13 Rule 2 of the Court of Appeal Rules, 2007, the appellants had 45 days only to file their briefs of argument after the appeal was entered in March, 2008.  That, pursuant to the relevant Rules of Court, only the 1st appellant filed 1st Appellant’s Brief of Argument on 28/4/08.  That, as at May, 2008 the time allowed by the Rules for the appellants to file briefs had expired.  And, any party wishing to file brief of argument in the appeal after June, 2008, must do so by way of motion for extension of time duly argued and granted.
Counsel submitted that as at November 2008, the 2nd appellant was out of time by 7 months to file brief of argument in the appeal.  That, the 2nd appellant did not file any original brief and did not file any motion for extension of time to file any brief.  That rather, what the 2nd appellant thrumped upon the court from the blues was “2nd Appellant’s Amended Brief of Argument filed on 3/11/2008.
Counsel submitted that from the wording of the 4th order made by the Port Harcourt Division of this Court, that is “An Order deeming the Amended appellants briefs of Argument as properly filed and served”.  It would appear that the 2nd appellant’s said Amended Brief of Argument which was filed 7 months late and without leave of court or Order for extension of time, was included in the briefs to be deemed as properly filed and served.
Counsel relied on the case of Adefemi  vs.  Abegunde (2004) 15 NWLR (Pt.895) 1 at 13 and submitted that a brief of argument filed out of time and without an Order for extension of time to do so is irregular, improper and must not be countenanced by the court.
Counsel submitted that upon discovering the blunder made in filing the 2nd Appellant’s Amended Brief in November 2008, the same counsel in January 2009 filed yet another document tagged “2nd Appellant’s Brief of Argument”.  That the said 2nd Appellant’s Brief of Argument which was preceded by the purported 2nd Appellant’s Amended Brief of Argument was dated 8/1/2009, and filed on 9/1/2009, without any court Order.
1st respondent’s/applicant’s counsel submitted further that the 2nd appellant’s briefs were obviously improperly filed and did not relate to the motion that gave rise to the Ruling complained of.  What was attached as Exhibit “B” to the affidavit in support of the Motion that gave rise to the Ruling, said counsel, was the 1st Appellant’s Amended Brief of Argument dated 31/10/2008 and not “1st Appellant’s Brief of Argument dated 25th April, 2008 as held by the court.
Counsel submitted that the court was in grave error when it ordered that “the amended appellants’ Briefs” be deemed as properly filed and served.
Counsel submitted that it will be an infringement on the 1st respondent’s fundamental right to fair hearing to allow the 2nd Appellant’s Brief of Argument filed on 3/11/2008 and Brief of Argument of 9/1/2009 to be used in the hearing of this appeal.  This according to counsel is because the constitutional principle of fair hearing predicated on audi alteram partem implies that a party in every proceeding must know the case he is coming to meet in court.  That, the case that resulted in the Ruling of 23/04/09 was the 1st appellant’s Motion dated 31/10/2008, for the amendment of the 1st appellant’s brief of argument and not 2nd appellant’s Motion for extension of time to file brief of argument or to amend a non existent brief of argument.
Counsel relied on the case of Zaria  vs.  Dange (2008) 9 NWLR (Pt. 1091) 127 at 150 and submitted that the rules of fair hearing are integral part of every court’s jurisdiction; they govern every procedure and proceedings of the court.  That, the 2nd appellant being late by 7 months as at November, 2008 to file a brief of argument, needed a motion for extension of time and an affidavit stating the reasons and the 1st respondent would have been heard on such motion.  That for the 2nd appellant to have used 1st appellant’s motion for amendment of 1st appellant’s brief of argument to smuggle in “2nd Appellant’s Amended Brief” and later “2nd Appellant’s Brief of Argument” was a clear breach of the rules of fair hearing.  The true test of fair hearing, said 1st respondent’s counsel has always been the impression and observation of a reasonable person present in court, as to whether justice has been done and seen to have been done.
Counsel relied on the authority of Ademola C.J.N in the case of Mohammed  vs.  Kano N. A.  (1968) All NLR 424 and added that there will be no justice if a party’s two documents most improperly and irregularly filed are allowed to be deemed properly filed and used to hear a case.
1st respondent’s counsel further submitted that the question whether or not a party has been denied his right to fair hearing is to be judged by the nature and circumstances of a particular case.  The crucial determinant is the necessity to afford the parties’ equal opportunity to put their cases to the court according to law before the court gives judgment.
Counsel relied on the case of Pam vs.  Mohammed (2008) 16 NWLR (Pt. 1112) 1 – 94 and prayed the court to strike out the appeal on the grounds that it cannot be heard on muddled-up and most irregularly filed Appellants’ Briefs of Argument, or alternatively (a) to set aside the aspect or limb of the Order made on 23/4/09 which deemed “Appellants’ Amended Briefs” as properly filed and served, and (b) to strike out 2nd Appellant’s Amended Brief of Argument filed on 3/11/2008 and 2nd Appellant’s Brief of Argument filed on 9/01/09 for being irregular, improper and unrecognizable by the court.
In opposition to the 1st Respondent’s Motion of 9/5/2009, the appellants/respondents relied on their 16 paragraph counter-affidavit dated and filed on 15/4/2010 and Exhibits S, T and U annexed to the counter-affidavit.
Learned counsel for the appellants then submitted that a proper appraisal of this application will reveal that it is merely a re-wind of the 25 paragraph counter-affidavit of the 1st respondent/applicant (Exhibit S hereto) before the court of appeal Port Harcourt Division.  He submitted that the motion seeking to dismiss the appeal is caught by the doctrine of res judicata.
Appellants’ counsel submitted that the fact directly in issue in the application for leave to amend the Notice/Grounds of Appeal (which application has been ruled upon by the Court of Appeal Port Harcourt Division) are also the facts directly in issue in the instant application for dismissal of the appeal.
Counsel submitted further that the subject matter of the two proceedings is election appeal.  That, in Oloriegbe  vs.  Omotosho (1993) LRCN 20 at 21, the Supreme Court held that for the doctrine of res judicata to apply, the parties, the issue and subject matter must be the same in the previous case as those in the action in which the plea of res judicata is raised.  This condition, said counsel is properly satisfied in this case.  Also, relying on the case of Akoma  vs.  Osenwoku (2004) 11 NWLR (Pt. 883) 98 at 113, appellants’ counsel added that the plea of res judicata prohibits the court from enquiring into matter already adjudicated upon.  It oust the jurisdiction of the court.  He urges us to dismiss the present application for want of jurisdiction.
In considering this application, it is pertinent to start by quickly dismissing the suggesting of the learned appellants’ counsel that this application is caught by the doctrine of res judicata.  The Ruling of the Court of Appeal (Port Harcourt Division) of 23rd April, 2009 was based on an application by the appellants/respondents seeking the court’s discretion by way of prayer for leave to amend Notice and Grounds of Appeal, and leave to amend the Appellants’ Briefs of Argument dated 25th April, 2008 annexed as Exhibit “B”.
The present application on the other hand by the 1st respondent/applicant is for an order dismissing or striking out this appeal on the ground that it cannot be heard on appellants’ briefs of argument which are abusive of court process and uncognizable by the court or in the alternative to strike out portions of the Ruling of this Honourable Court made on 23-04-09, for having been made in error and without jurisdiction.
As a matter of fact therefore, and contrary to the suggestion of the learned appellants’ counsel, neither the claims, the issues nor the subject matter of the previous application which led to the Ruling of this court made on 23-04-09 are the same with those of the present application.
It is also worthy of note that because the issues and the subject matter in the present application are not the same as in the previous application, and also because both applications are interlocutory, no issues were indeed finally determined or settled in the previous Ruling of this court.
It is trite that for estoppel per res judicata to be pleaded/raised and relied upon, the following conditions must be satisfied:
(a)    the parties or their privies in the previous and the present suits are the same;
(b)    the claim and the issue in both cases are the same;
(c)    the subject matter of litigation in the previous and present suits is identical; and
(d)    the issues in both suits were finally settled in the previous suit.
See Intercity Bank Plc.  vs.  Faisal Travel Agency Ltd. (2006) 4 NWLR (Pt. 971) 504 at 525; Nwaneri  vs.  Oriuwa (1959) SCNLR 316; Oke  vs.  Atoloye (No. 2) (1986) 1 NWLR (Pt. 15) 241 and Martin Udechukwu & 2 Ors.  vs.  Sunday Ezemuo (2009) 14 NWLR (Pt. 1162) 525 at 544 – 545 (C. A.)
In the instant case, except for condition (a) above, no other condition for the application of the doctrine of estoppel per res judicata has been satisfied.
In relation to the submission of the learned counsel for the 1st respondent/applicant, I think he overstressed the idea of setting aside the Ruling or portions of the Ruling of 23/4/09 when in fact there is nothing on record (including the Ruling of 23/4/09) which suggests that the court indeed gave leave to file the 2nd Appellant’s Amended Brief of Argument dated 31/10/08 and filed on 3/11/08 or the 2nd Appellant’s Brief of Argument dated 8/1/09 and also filed or purportedly filed on the same 03/11/08.
In the Ruling of this Honourable Court of 23/4/09, which is attached to this application as Exhibit ‘G’ referred to in the 1st respondent’s/applicant’s supporting affidavit, the court granted the prayers of the appellants/applicants (therein) as prayed and then itemised or particularised the nature of the order of court.  The first and second order of the court granted leave to the appellants/applicants to amend the Notice and Grounds of Appeal as shown in Exhibit ‘A’ and deemed the said notice and grounds of appeal as properly filed and served, subject to the payment of the requisite filing fees.
By the third and fourth orders, the court granted:
“(3)    An order granting leave to appellants/applicants to amend the appellants’ briefs of argument dated 25th April, 2008, annexed herewith as Exhibit ‘B’ by incorporating thereto the arguments in support of the new ground one of he (sic) the amended notice of appeal.
(4)    An order deeming the amended Appellants’ Briefs of Argument as properly filed and served subject to payment of the requisite filing fees.”
In relation to this Ruling, before subjecting these orders of the court to an interpretation on its face as in the case of documents, free from any interpolations, it must first be understood that there is nothing on record to show that the 1st and 2nd appellants filed any joint briefs of argument for the purpose of the application of 3/11/08.
Second, it is clear that the third order of the court relates to the amendment of the Appellants’ Brief dated 25th April, 2008 which said brief was annexed to the application of 3/11/08 as Exhibit ‘B’.
It is also the case, that the deeming order under (4) relates to the brief on which leave for amendment was granted under order (3) above.
It now turned out from the record of the court, even from page 3 of the Ruling of the court – Exhibit ‘G’ to this application, that what was attached as Exhibit ‘B’ to the appellants/applicants’ application of 3/11/08 was the 1st Appellant’s Amended Brief of Argument and not any documents or processes relating to the 2nd appellant.
In view of the above, I think the learned counsel for the 1st respondent/applicant fell into an error and perhaps laboured himself unnecessarily in imagining that the order of 23/4/09 covered any of the briefs filed by the 2nd appellant.  However, learned counsel for the 1st respondent/applicant was all the same right in his conclusion that we cannot in this court take cognisance of the two processes purportedly filed by the 2nd appellant.
It is trite that in the construction of documents, including as in the instant case, a judgment of court, the cardinal principle is that the parties are presumed to intend what they have in fact said or written down.  Accordingly, the words employed by them will be as construed and should be given their ordinary and plain meaning unless, of course, circumstance, such as trade usage or the like, dictate that particular construction ought to be applied in order to give effect to the particular intention envisaged by the parties.  See Aouad & Anor.  vs.  Kessrawani (1956) 1 FSC 35, (1956) SCNLR 83, Nwangwu  vs.  Nzekwu & Anor. (1957) 3 FSC 36, (1957) SCNLR 61, A-G, Kaduna State & Ors.  vs.  Atta & 2 Ors. (1986) 4 NWLR (Pt. 38) 785.
As a general rule therefore, words should be given their ordinary and plain meaning and additional words or clauses ought not to be imported into a written agreement or document unless it is impossible to understand the agreement or document in the absence of such additional words or clauses.  See Solicitor General, Western Nigeria  vs.  Adebonojo (1971) 1 All NLR 178 and Union Bank of Nig. Ltd.  vs.  Prof. Albert Ozigi (1994) 3 NWLR (Pt. 333) 385.  See also, Union Bank of Nig. Ltd. & Anor.  vs.  Nwaokolo (1995) 6 NWLR (Pt. 400) 127 and Chief S. O. Agbareh & 1 Or.  vs.  Dr. Anthony Mimra & 2 Ors. (2008) 2 NWLR (Pt. 1071) 378 at 414 – 415.
In the instant case, the Court of Appeal (Port Harcourt) Division which delivered the Ruling of 23/4/09 noted in the same Ruling (page 3) of Exhibit ‘G’ that the 2nd Appellant’s Brief of Argument was attached to the motion of 3/11/08 as Exhibit ‘C’ but chose not to make any reference to the said Exhibit ‘C’ in its order of 23/4/09.
It is therefore clear that the Ruling of the court more especially Orders 3 and 4 were directed only to the processes filed by the 1st appellant in the application of 3/11/08 which was dealt with by the court.
In the circumstance, the 2nd appellant/respondent has not indeed secured any leave of court to file her –
(a)    2nd Appellant’s Amended Brief of Argument dated 31/10/08 and purportedly filed on 03/11/08.
(b)    2nd Appellant’s Brief of Argument dated 08/01/09 and also purportedly filed on 03/11/08.
These two processes purportedly filed by the 2nd appellant are indeed irregular and legally uncognizable (to borrow the expression by the learned counsel to the 1st respondent/applicant).
The aforementioned processes are hereby struck out, having been filed without leave of court.
Accordingly, the prayer of the 1st respondent/applicant in the motion dated 9/5/09 and filed on 20/5/09 is granted in part.  That shall be the Ruling of the Court.  I make no order as to costs.