DANIELLA AGHOGHO & ANOR v. BERNARD OBOATARHIEYEREN OKUMAGBA
(2014)LCN/7170(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of May, 2014
CA/L/757/12
RATIO
EVIDENCE: ADMISSIBILITY OF UNCONTROVERTED EVIDENCE
The law is elementary, that where evidence is uncontroverted, unchallenged and credible, the Court will be left with no option than to accept same.
INFEANYICHUKWU ESONDU CO LTD V. AKHIGBE (1999) 11 NWLR (PT. 625). 1 S.C. AND PHMB V. EDOSA (2001) 12. W.R.N. 183. Per RITA NOSAKHARE PEMU, J.C.A.
JUSTICES:
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. DANIELLA AGHOGHO
2. AJUSHEASHIBORITSHE OKUMAGBA – Appellant(s)
AND
BERNARD OBOATARHIEYEREN OKUMAGBA – Respondent(s)
RITA NOSAKHARE PEMU, J.C.A.(Delivering the Lead Ruling): By motion on Notice filed on the 11th of October 2012, the Applicant Daniella Aghogho Ajusheashiboritshe Okumagba, seek the following trinity orders of this Honourable Court viz:
1. AN ORDER extending the time within which the Applicant may seek leave of this Honourable Court to appeal against the Ruling of the High Court of Lagos State delivered, by Hon. Justice Femi-Adeniyi, on 24th August 2012 in Suit No: HD/216/2012: BERNARD OBOATARHIEYEREN OKUMAGBA V. DANIELLA AGHOGHO AJUSHEASHIBORITSHE OKUMAGBA.
2. AN ORDER granting the Applicant leave to appeal against the Ruling of the High Court of Lagos State delivered, by Hon. Justice Femi-Adeniyi, on 24th August 2012 in Suit No: HD/216/2012 BERNARD OBOATARHIEYEREN OKUMAGBA V. DANIELLA AGHOGHO AJUSHEASHIBORITSHE OKUMAGBA, on grounds other than of law alone.
3. AN ORDER extending the time within which the Applicant may appeal against the Ruling of the High Court of Lagos State delivered, by Hon. Justice Femi-Adeniyi, on 24th August 2012 in Suit No: HD/216/2012 BERNARD OBOATARHIEYEREN OKUMAGBA V. DANIELLA AGHOGHO AJUSHEASHIBORITSHE OKUMAGBA.
And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.
The Grounds upon which the application is predicated are:
1. The Applicant is out of time to file this appeal and the leave of this Honourbale Court is sine quo non to filing this appeal.
2. The delay in filing this application for leave to appeal was caused by the negligence and inadvertence of the Counsel initially assigned the conduct and preparation of this appeal.
In support of the application is an eleven (11) paragraphs affidavit deposed to by Isaac Ajala, a Litigation Assistant in the Law Firm of ANU ESO & CO, Counsel to the Applicant.
Suffice to say that in Paragraph 3 of the Supporting affidavit, it was deposed thus:
1. “That on the 24th day of August 2012, the High Court of Lagos State (Coram Femi Adeniyi) delivered a Ruling on the Applicants’ motion for maintenance pending the outcome of the substantive petition in Suit No. HD/216/2012 BERNARD OBOATARHIEYEREN OKUMAGBA V. DANIELLA AGHOGHO AJUSHEASHIBORITSHE OKUMAGBA. A Certified True Copy of the Ruling is herewith attached as Exhibit “A”
Therefore the application is in respect of an interlocutory order of Court made on the 24th of August 2012.
A certified true copy of the said Ruling is attached to this application and same is marked Exhibit A.
The Applicant, being dissatisfied with the said Ruling filed a Notice of Appeal, which is attached to the application as Exhibit “B”
The Respondent filed a Counter affidavit to the motion of ten (10) paragraphs; deposed to by Ogechukwu Enebeli, on the 29th of October 2012.
The Applicant filed a reply affidavit in response to Counter Affidavit deposed to on the 29th of October 2012, on the 12th of April 2013.
There is a further Counter affidavit in opposition to the motion filed on the 24th of April 2013.
The Applicant filed a 2nd Reply affidavit in answer to the Respondents’ further Counter-affidavit deposed to on the 24th of April 2013, on the 31st of May 2013.
Parties filed written addresses in support of their respective processes.
The Applicant filed her written address on the 22nd of April 2013.
The Respondent filed his written address on the 2nd of May 2013.
Put succinctly, the Applicant seeks an order for extension of time to seek leave to appeal against the Ruling of the lower Court; leave to appeal, and extension of time within which to appeal against the said Ruling.
Perhaps a look at some paragraphs in the supporting affidavit to his application is apt. They are Paragraphs 5, 6, 7, 8, 9, 10 and 11 thereof:
5) That my employer, Mr. Anu Eso, assigned to Mrs. Ebele Topman of the law Firm of ANU ESO & CO (Applicant’s Counsel), the conduct and preparation of the appeal against the said Ruling delivered in Suit No: HD/216/2012: Bernard Oboatarhieyeren Okumagba v. Daniella Aghogho Ajusheashiboritshe Okumagba, in pursuance of the Applicant’s instructions.
6) That Mrs. Ebele Topman, of Applicant’s counsel, who was specifically assigned and seised with the conduct of the appeal, suddenly proceeded on three (3) months maternity leave on 7th September 2012 without formally handing over the office file for this appeal and other matters assigned to her back to the office.
7. That consequent upon Mrs. Ebele Topman proceeding on maternity leave, the conduct and preparation of this appeal was reassigned to Olusegun Olaiya, another counsel in the Law firm of ANU ESO & CO. (Applicant’s counsel).
8. That I was informed by Olusegun Olaiya, Esq., of Applicant’s counsel, on 24th September 2012 at 1pm at the address set out above, of the following facts which I verily believe him, to wit:
a. the endorsements on the office file for this appeal was not up to date necessitating an enquiry on the true state of affairs from the Appeal Registry of the lower Court (High Court of Lagos State);
b. the enquiry made by Olusegun Olaiya at the Appeal Registry of the High Court of Lagos State, on 14th September 2012, revealed that no appeal was filed against the ruling of the High Court of Lagos State delivered in Suit No: HD/216/2012: Bernard Oboatarhieyeren Okumagba v. Daniella Aghogho Ajusheashiboritshe Okumagba;
c. the time stipulated by law for filing a notice of appeal against the said ruling expired on 7th September 2012;
d) the unfortunate expiry of the time within which to appeal was entirely outside the control of the Applicant who timeously gave instruction for the filing of a notice of appeal;
e. immediately it was discovered that a notice of appeal had not been filed at the Registry of the High Court of Lagos State, he (Olusegun Olaiya) prepared a notice of appeal and the instant application;
f. the proposed Notice of Appeal is now ready and the grounds therein raises substantial and recondite issues of law worthy of consideration by this Honourable Court. The proposed Notice of appeal raises and contains grounds other than grounds of law alone. The proposed Notice of Appeal is herewith attached as Exhibit “B”;
g) the delay in filing a notice of appeal was occasioned by the negligence and inadvertence of counsel initially seised with the conduct of appeal;
h) leave of this Honourable Court is a sine qua non to filing an interlocutory appeal that raises and involves grounds and questions of facts and of mixed law and facts.
i) this Honourable Court is permitted by the Rules of Court to enlarge time within which the Applicant may seek leave to appeal and filed an appeal against the ruling of the High Court of Lagos State in Suit No: HD/216/2012: Bernard Oboatarhieyeren Okumagba v. Daniella Aghogho Ajusheashiboritshe Okumagba, on grounds other than of law.
9) That it would be in the interest of justice to grant this application as the circumstances leading to the delay in bringing this application was due to the negligence and inadvertence of the counsel initially conducting the appeal.
10) That the Respondent will not be prejudiced by the grant of this application by this Honourable Court and the granting of the prayers sought herein will meet the ends of justice.
11) That I swear to this affidavit in good faith, conscientiously believing its contents to be true, correct and in accordance with the oaths Act.
The Applicant had deposed to the fact that the delay in filing the notice of Appeal was due to the negligence and inadvertence of Counsel, one Mrs. Ebele Topman, who was initially seised with the conduct of the appeal.
Moreso he deposed to the fact that leave of this Honourable Court is required to be filed, in respect of interlocutory appeal that raises and involves grounds and questions of facts, and of mixed law and facts. The Respondent in Paragraph 4 of his Counter-affidavit filed on the 29th of October 2012, denied Paragraphs 5, 6, 7, 8, 9, 10 and 11 of the affidavit in support of the motion.
And apart from the issue of Mrs. Ebele Topman, legal Practitioner referred to in Paragraphs 5, 6 & 7 of the affidavit, the Respondent has not specifically denied the facts in Paragraphs 8, 9, 10 and 11 of the affidavit in support of the motion on Notice. The facts therein are therefore deemed admitted by the Respondent.
ALAGBE V. ABIMBOLA (1978) 2 S.C. 39; BUHARI V. OBASANJO (2003) 17 NWLR PT. (850) 587; ATT. GENERAL ONDO STATE V. A.G. EKITI STATE (2001) 17 NWLR (PT. 743) 706 – 709.
The law is elementary, that where evidence is uncontroverted, unchallenged and credible, the Court will be left with no option than to accept same.
INFEANYICHUKWU ESONDU CO LTD V. AKHIGBE (1999) 11 NWLR (PT. 625). 1 S.C. AND PHMB V. EDOSA (2001) 12. W.R.N. 183.
Indeed, nowhere in Paragraph 9 of the affidavit in support of the motion, that the Application referred to Mrs. Ebele Topman. Therefore when the Applicant referred to Paragraph 9 as pertaining to Mrs. Ebele Topman, he was misconceived.
In my view, and as a matter of law, it is not sufficient that the Respondent just denies the facts in an affidavit, by way of a general traverse, as such is not sufficient in law. There has to be specific traverse. General traverse is no traverse in Law.
Paragraph 9 of the supporting affidavit to the application simply says:
“That it would be in the interest of justice to grant this application as the circumstances leading to the delay in bringing this application was due to the negligence and inadvertence of the Counsel initially conducting the appeal”.
We do not know the “counsel initially conducting the appeal”. The names were not provided.
The Applicants’ reply affidavit in response to counter affidavit denied Paragraphs 4, 5, 6, 7, 8, 9, 10 & 11 of the Counter affidavit and in paragraph 5 thereof, he specifically avers that Mrs. Ebele Topman did not resign from nor leave the employment of Messrs Anu Eso & Co, the Applicants’ Counsels’ law firm in January 2012.
In Paragraph 5 of the Applicants’ 2nd Reply Affidavit in answer to Respondents’ further counter affidavit deposed on 24th April 2013, he deposed thus:
“That after the receipt of the said further counter affidavit referred to above, our Lawrence Owube called and spoke with Mrs. Ebele Topman on speaker phone, on Friday 3rd May 2013 at noon, in my presence and she categorically denied speaking to Ogechukwu Enebeli and/or making any of the allegations contained in Paragraphs 3 & 4 of the Respondents’ further counter affidavit contrary to the facts deposed to by Ogechukwu Enebeli”
It seems to me that the gravamen of the Applicants’ case is that failure to file their notice of appeal out of time was due to lack of diligence, and inadvertence of one Mrs. Ebele Topman, a legal practitioner.
Assuming this is so, in Paragraph 8 of the affidavit in support of the motion, the Applicant deposed to facts that another Counsel quickly took over the matter i.e. Olusegun Olaiya Esq.,
In Paragraph 8 (e) and (f), of the supporting affidavit, the Applicant had deposed to the facts that the proposed Notice of appeal is ready, and indeed attached as Exhibit “B” to the affidavit in support of the motion, a fact which has not been specifically denied by the Respondent.
I am of the view that, having taken this step, to remedy his lapses, it is only proper to allow the applicant do this, in the interest of justice.
In Paragraph 8 (h) of the affidavit in support of the motion, the Applicant had deposed to the fact, that leave of this Honourable Court is a sine qua non to filing an interlocutory appeal that raises and involves grounds and questions of facts, and of mixed law and facts.
Again the Respondent had not denied the depositions in Paragraph 8, except by a general traverse which is no traverse in law. The facts therein are hereby deemed admitted by the Respondent.
The result is that the application succeeds and I hereby make the following orders:
1. Time is extended up to and inclusive of today 7/5/2014 within which the Applicant may seek leave of this Honouroble Court to appeal against the Ruling of the High Court of Lagos State delivered by Hon. Justice Femi-Adeniyi, on 24th August 2012 in Suit No. HD/216/2012; BERNARD OBOATARHIEYEREN OKUMAGBA V. DANIELLA AGHOGHO AJUSHEASHIBORITSHE OKUMAGBA.
2. Leave is hereby granted the Applicant to appeal against the Ruling of the High Court of Lagos State delivered by Hon. Justice Femi-Adeniyi, on 24th August 2012 in Suit NO. HD/216/2012; BERNARD OBOATARHIEYEREN OKUMAGBA V. DANIELLA AGHOGHO AJUSHEASHIBORITSHE OKUMAGBA, on grounds other than of law alone.
3. Time is extended up to and inclusive of today 7/5/2011 within which the Applicant may appeal against the Ruling of the High Court of Lagos State delivered by Hon. Justice Femi-Adeniyi, on 24th August 2012 in Suit No. HD/216/2012; BERNARD OBOATARHIEYEREN OKUMAGBA V. DANIELLA AGHOGHO AJUSHEASHIBORITSHE OKUMAGBA.
Costs assessed at N10, 000.00 in favour of the Respondent.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the benefit of reading in advance the well considered Ruling prepared by my learned brother, Rita Nosakhare Pemu, J.C.A., with which I agree and adopt as my Ruling in the matter. See in addition the cases of Nwadike V. Nwadike (1987) 4 NWLR (pt. 65) 394, Ahmadu V. Salawu (1974) 1 ALL N.L.R. (pt.2) 318, Bowaje V. Adediwura (1976) 6 S.C. 143 for the proposition that negligence or inadvertence of counsel is a good and substantial reason to allow an applicant leave to appeal out of time and an extension of time to appeal.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now the lead Ruling just delivered by my learned brother R.N. Pemu JCA.
I am in total agreement with my Lord’s reasoning, and conclusion to the effect that the application be granted as prayed.
I therefore hold that the application succeeds and it is hereby granted.
I abide by the consequential orders made in the lead Ruling including that of costs.
Appearances
OLUSEGUN OLAIYA ESQ, with him was P.C. AHUNWA ESQ, For Appellant
AND
NOT REPRESENTED For Respondent
