AKINTOLA & ANOR v. AKINTOLA & ANOR
(2022)LCN/16154(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Tuesday, April 05, 2022
CA/IB/362/2018(R)
Before Our Lordships:
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
1. CHIEF ABAYOMI AKINTOLA 2. DR. ABIMBOLA AKINTOLA APPELANT(S)
And
HON. JUSTICE LADIRAN AKINTOLA & ANOR RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE DISCRETIONARY POWERS OF A JUDGE
It is a privilege accorded the judge to decide and act in accordance with what is fair and equitable under the peculiar circumstances guided by the spirit and principles of law. See NDUKWE VS. UNION BANK OF NIGERIA PLC (2021) 4 NWLR (PT. 1765)165, FRANCIS VS. FEDERAL REPUBLIC OF NIGERIA (2021) 5 NWLR (PT. 1769)398, NZEKWE VS. ANAEKWENEGBU (2019) 8 NWLR (PT. 1674)235 AND IN RE: ALASE (2002) 10 NWLR (PT. 776)553.
In the exercise of this discretionary power, a Judge must act on facts before him. This is why the Applicant must place sufficient facts before the Court. The instant Applicants who seek leave of Court and extension of time within which to appeal shall place before the Court facts which show:
(a) Good and substantial reasons for failure to appeal within the prescribed time: and
(b) Grounds of Appeal which prima facie show good cause why the appeal should be heard.
The two conditions must co-exist. See ORDER 6 RULE 9 (1) AND (2) OF THE COURT OF APPEAL RULES, 2021, AMADI VS. WOPARA (2022) 1 NWLR (PT. 1811)359, JIMOH VS. MINISTER, FEDERAL CAPITAL TERRITORY (2019) 5 NWLR (PT. 1664)45, BRAITHWAITE VS. DALHATU (2016) 13 NWLR (PT. 1528)32 AND ANACHEBE VS. IJEOMA (2014) 14 NWLR (PT. 1426)168.
In IKENTA BEST (NIG.) LTD VS. A-G RIVERS STATE (2008)6 NWLR (PT. 1084) 612 AT 642 PARAS G-H, his Lordship NIKI TOBI JSC of blessed memory while describing what constitute “good reason” said:
“The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reason must not be bad in the sense that they are unacceptable. Substantial reasons are essential, material and important reasons. Reasons which are peripheral or dance around the periphery strangely cannot suffice. The pendulum should weigh in favour of granting the application and not just enough to balance the weight or on an even keel.” PER OJO, J.C.A.
WHETHER OR NOT EVERY PERSON IN NIGERIA HAS A RIGHT TO BRIEF ANY LEGAL PRACTITIONER OF HIS CHOICE TO DEFEND HIM BEFORE ANY COURT
It is settled law that every person in Nigeria has a right to instruct or brief any legal practitioner of his choice to defend him before any Court and can also change him at any state of the proceedings without giving any reason for so doing. This right is guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which guarantees every citizen of this country a right to fair hearing. A person who is entitled to legal representation is also entitled to the benefit of his counsel’s legal advise and I so hold. See ATAKE VS. AFEJUKU (1994) 9 NWLR (PT. 368) 379. PER OJO, J.C.A.
WHETHER OR NOT A LITIGANT CAN BE PUNISHED FOR THE INADVERTENCE OF HIS COUNSEL
The general rule is that a litigant should not be punished for the inadvertence of his counsel. There are however exceptions to this general rule but it is important to state clearly that the rule shall not be applied to foist injustice on a litigant.
See AGUMADU VS. AGUMADU (2022) 2 NWLR (PT. 1813)127, MALARI VS. LEIGH (2019) 3 NWLR (PT. 1659)332, NIGERIAN NATIONAL PETROLEUM CORPORATION VS. SAMFADEK & SONS LIMITED (2018) 7 NWLR (PT. 1617)1 AND AKANBI VS. ALAO (1989) 3 NWLR (PT. 108)118. PER OJO, J.C.A.
WHETHER OR NOT AN APPEAL AGAINST AN INTERLOCUTORY RULING MAY BE INCLUDED IN THE APPEAL AGAINST THE FINAL DECISION OF THE COURT
It is further a well settled position of law that an appeal against an interlocutory ruling may be included in the appeal against the final decision of the Court. This would reduce unnecessary delay and ensure that all matters in controversy are dealt with in one fell swoop.
See ONWE VS. OKE (2001) 3 NWLR (PT. 700)406, INTERNATIONAL AGRICULTURAL INDUSTRIES NIGERIA LIMITED VS. CHIKA BROTHERS LIMITED (1990) 1 NWLR (PT. 124)70, IKYERNUM VS. IORKUMBUR (2002) 11 NWLR (PT. 777)52 AND NGIGE VS. ACHUKWU (2004) 8 NWLR (PT. 875)383.PER OJO, J.C.A.
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgement): This ruling is sequel to a Motion on Notice filed by the Appellants on the 25th of October, 2018 wherein they seek the following reliefs:-
(i) AN ORDER extending time within which the Applicants may seek leave to appeal against the interlocutory rulings of the High Court of Oyo State, sitting at Ibadan (the lower Court) delivered by Honourable Justice A. A. Aderemi in Suit No. I/451/13 delivered on 9th December, 2016, 19th December 2016, 27th February 2017 and 29th September, 2017 (collectively referred to as the Interlocutory rulings) respectively.
(ii) AN ORDER granting the Applicants leave to appeal against the interlocutory rulings of the lower Court in Suit No. I/451/13.
(iii) AN ORDER extending time within which the Applicants may appeal against the interlocutory rulings of the lower Court in Suit No. I/451/13.
(iv) AN ORDER granting leave to the Applicants to raise fresh issues on appeal.
(v) AN ORDER granting the Applicants leave to generally amend their Notice of Appeal dated 31st May, 2018 (exhibited to this application as Exhibit 5) filed against the final judgment of the lower Court delivered on 31st May, 2018, in the terms of Exhibits 6 & 7 (i.e the proposed amended notice of appeal and the schedule of amendment) attached to the affidavit in support of the instant application, which Exhibit 6 has incorporated the grounds of appeal challenging the interlocutory rulings of the lower Court and the grounds of appeal containing the fresh issues.
(vi) AN ORDER extending the time within which the Applicants may file and serve their Appellants’ brief of argument.
The grounds for the application as contained on the face of the motion paper are as follows:
1. The Honourable Justice A.A. Aderemi of the lower Court delivered several interlocutory rulings on 9th December, 2016, 19th December, 2016, 27th February, 2017 and 29th September, 2017 in Suit No. I/451/13 including:
a. The ruling of 9th December, 2016 granting leave to the Applicants to recall the 1st Respondent’s witness for cross-examination question in the trial Court on the condition that the cross-examination questions were to be filed and served on the 1st Respondent.
b. The ruling of 19th December, 2016 dismissing the Applicants’ application to remit the case file to the Chief Judge of Oyo State for re-assignment to another Judge of the lower Court for continuation of trial.
c. The ruling of 27th February, 2017 dismissing the Applicant’s application seeking leave to file Further Statement of Defence and Witness Statement on Oath to the Amended Reply filed by the 1st Respondent in the lower Court.
d. The ruling of 29th February, 2017 dismissing the Applicants’ application to amend their Statement of Defence at the trial Court.
2. For expeditious determination of the substantive suit, appellate Courts have always enjoined parties to subsume any interlocutory appeal in a final appeal. The Applicants have appealed against the final judgment and intend through the grant of this application to challenge the several interlocutory decisions.
3. The time prescribed by the rules of this Honourable Court within which the Applicants can appeal against the interlocutory rulings of the lower Court has lapsed.
4. The Applicants are also out of time within which to file their Appellants’ Brief of Argument.
5. Section 24(4) of the Court of Appeal Act and Order 6 Rule 9 of the Court of Appeal Rules 2016 empowers this Honourable Court to enlarge the time provided by the rules for doing anything to which the rules apply.
6. Order 7 Rule 8 also permits an appellant to amend its Notice of Appeal with leave of Court at any time.
7. The Applicants’ failure to seek leave to appeal, to file the Notice of Appeal in respect of the interlocutory rulings and the Brief of Argument, within the period stipulated by the rules of this Honourable Court, is neither deliberate nor out of any disrespect to this Honourable Court.
8. It is in the interest of justice to grant this application.
In support of this application is a 14 Paragraphed Affidavit sworn to by one Taiwo Olutunfese. Attached to the Affidavit are the rulings of the lower Court delivered on 9th December, 2016, 19th December, 2016, 27th of February, 2017 and 29th of September, 2017, Notice of Appeal filed on 31st May, 2018, Proposed Amended Notice of Appeal, Schedule of Amendments marked as Exhibits 1, 2, 3, 4, 5, 6 and 7 respectively. A Written Address was filed in support of the application.
The 1st Respondent who is opposed to the application filed a 5 Paragraphed Counter-Affidavit on the 6th of December, 2018 deposed to by one Bidemi Fatusin with a Written Address filed on 18th October, 2021. The Appellants filed a reply on Points of Law on 4th November, 2021 which was deemed duly filed on the 9th of November, 2021.
I find it necessary to give the background facts that led to the filing of the motion under consideration. The 1st Respondent as Claimant instituted an action at the lower Court against the Appellants and the 2nd Respondent as the 1st, 2nd and 3rd Defendants. In the course of hearing the cause, several motions were filed and several rulings were delivered by the lower Court. The Appellants did not appeal against some of the rulings. At the conclusion of hearing, the learned trial judge entered judgment in favour of the 1st Respondent in the following terms:
1) A Declaration is hereby made that the Letters of Administration (without will) of the estate of Chief Samuel Ladoke Akintola issued in favour of Chief (Mrs) Faderera A. Akintola (deceased) and the 1st Defendant on the 4th day of January, 1968 by the Western Nigeria High Court of Justice is null and void same having been obtained by fraud and concealment of the interest of Claimant.
2) A Declaration is hereby made that the amended Letters of Administration (without will) of the estate of Chief Samuel Ladoke Akintola issued in favour of Defendants on 24th day of October, 2007 by the Oyo State High Court of Justice and under the hand of the 3rd Defendants is null and void same having been obtained by fraud and concealment of the interest of the Claimant; and without authority.
3) A Declaration is hereby made that the Claimant is entitled to a share of the estate of Chief Samuel Ladoke Akintola being his biological child.
4) A Declaration is hereby made that the way and manner Chief (Mrs) Faderera A. Akintola (Deceased) and the 1st Defendant (vide the grant dated 4th day of January, 1968) and lately the 1st and 2nd Defendants (vide the grant dated 24th day of October, 2007) are carrying on the administration of the estate of Chief Samuel Ladoke Akintola are inimical to and a breach of the oaths taken by them and conditions precedent and attached to the grant of letters of administration.
5) AN Order is hereby granted revoking the grant of the Letter of Administration of the estate of Chief Samuel Ladoke Akintola issued in favour of Chief (Mrs) Faderera Akintola (deceased) and the 1st and 2nd Defendants on the 4th day of January, 1968 by the Western High Court of Justice.
6) AN Order is hereby made revoking the Letters of Administration of the estate of Chief Samuel Ladoke Akintola issued in favour of 1st and 2nd Defendants on 24th day of October, 2007 by the Oyo State High Court of Justice and under the hand of the 3rd Defendant.
7) AN Order is hereby made mandating the Defendants to render on oath and within a month of the judgment of this Honourable Court detailed account of their administration of the estate of Chief Samuel Ladoke Akintola.
8) AN Order of perpetual injunction is hereby granted restraining the 1st and 2nd Defendants, by themselves, their agents or assigns from administering or further administering or taking any step whatsoever on the strength of administering the estate of Chief Samuel Ladoke Akintola vide the grants of Letters of Administration dated 14th day of January, 1968 and/or 24th day of October, 2007.
9) AN Order is hereby made directing the Administrator General of Oyo State to take over the administration of the estate of Chief Samuel Ladoke Akintola pending fresh grant of letters of administration by the 3rd Defendant.
The Appellants who are dissatisfied with the judgment filed a Notice of Appeal on the 31st of May, 2018. They later briefed the law firm of Messrs Babalakin & Co to prosecute the appeal. The Solicitors in the law firm of Messrs Babalakin & Co., who were of the view that appeals should have been filed against some interlocutory rulings delivered in the course of the hearing filed the present application.
When the application came up for hearing on 19th of January, 2022, O. Oshobi SAN who appeared for the Appellants/Applicants identified the processes filed on their behalf, adopted the Written Address and reply on Points of Law as his arguments in support of the application and urged us to grant same.
He further relied on the provisions of Paragraph 10 of the Court of Appeal Practice Direction 2013.
Ife Olamiju Counsel to the 1st Respondent identified the Counter-Affidavit and Written Address of the 1st Respondent and relied on them. He adopted the arguments in the Written Address as his oral arguments in opposition and urged us to refuse the application.
The 2nd Respondent was not in Court and was not represented by Counsel at the hearing. The Court satisfied that he was duly served invoked the provision of Order 8 Rule 2 of the Court of Appeal Rules, 2021 and deemed the Motion as having been duly argued.
In the Written Address filed in support of the motion, learned senior Counsel to the Appellants/Applicants submitted a sole issue for determination to wit:
“Whether it is in the interest of justice to grant this application.”
On his own part, learned Counsel to the 1st Respondent also formulated the following sole issue for determination:
“Whether the application ought to succeed.”
I shall adopt the sole issue of the Appellants as the issue for determination in this appeal.
Learned Senior Counsel to the Appellants relying on the cases of UBA PLC VS. MODE NIGERIA LIMITED (2001) 1 NWLR (PT. 693)141, WILLOUGHBY VS. INTERNATIONAL MERCHANT BANK (NIG.) LTD (1987) 1 NWLR (PT. 48)10 AND AJOMALE VS. YADUAT NO. 2 (1991) 5 NWLR (PT. 191)266 and the provisions of Order 6 Rule 9 Court of Appeal Rules submitted there is no limit to the power vested in this Court to extend the time within which a procedural step may be taken. He submitted that an application for extension of time is an invitation for the exercise of the Court’s discretion. He craved in aid of his submission of the cases of ODUTOLA VS. LAWAL (2002) 1 NWLR (PT. 749) 633, JOHN VS. BLAKK (1988) 1 NWLR (PT. 72) 648 AND JOHN VS. BLAKK (1988) 1 NWLR (PT. 72) 648. He contended that this application if granted will save the time of the Court and assist in the effective determination of the Appeal.
He submitted further that the appeal against the interlocutory rulings contain fresh issues on substantial questions of law and relied on the cases of OSAKWE VS. GOV. IMO STATE (1991) 5 NWLR (PT. 191)318 AND FADIORA VS. GBADEBO (1978) 3 S.C. 219 to urge us to grant the application.
It is further the argument of learned senior Counsel that a Notice of Appeal may be amended at any time with leave of Court once it is established the amendment will not cause injustice to the Respondents and not brought malafide. He cited Order 7 Rule 7 Court of Appeal Rules and the cases of GTB VS. INNOSON (NIG.) LTD & ORS (2018) LPELR – 48686 (CA), OGUNDOYIN & ORS. VS. ADEYEMI (2001) LPELR-2335(SC) in support of his submission.
He conceded the Applicant must disclose special circumstances why such application should be granted. He referred us to Paragraphs 8, 9, and 10 of the Affidavit in support of the motion to submit that the reason given for the amendment sought is a special circumstance.
He finally urged us to grant the application.
In response, learned counsel to the 1st Respondent reiterated the settled position of the law that in an application of this nature the Applicant must show that exceptional circumstances exist and set forth good and substantial reasons for failure to appeal or apply for leave within the prescribed period. He relied on the case of SIMON EZEONWUKA & 4 ORS VS. DENNIS EZEONONUJU & 4 ORS (2018) 15 NWLR (PT. 1642)347 to support his argument.
He referred us to the affidavit evidence presented by the Appellants particularly paragraph 4 (e) thereof to submit that failure of the Appellants to seek leave to appeal the interlocutory rulings within the prescribed time is a deliberate and wilful act. According to him the rule that a litigant should not be punished for the sin of his counsel is not applicable and urged us to hold that the conditions for granting leave to appeal provided for under Order 6 Rules (1) and (2) Court of Appeal Rules were not met by the Appellants.
On the application to raise fresh issues on appeal, he argued that the Appellants who failed to state the fresh issues they intend to raise have also not shown the existence of any special circumstances to justify their application. He finally urged us to dismiss the application in its entirety.
I have noted the arguments contained in the Reply on Points of Law and would take them into consideration in determining the application.
This application revolves around the desire of the Appellants to appeal against some rulings delivered in the course of hearing the substantive cause albeit out of time. The particulars of the rulings are contained in Paragraph 3 of the Affidavit in Support of the motion which for ease of reference is reproduced hereunder:
“3. I am aware that Honourable Justice A. A. Aderemi of the lower Court delivered several interlocutory rulings on 9th December, 2016, 19th December, 2016, 27th February, 2017 and 29th September, 2017 in Suit No. I/451/13 including:
a. The ruling of 9th December, 2016 granting leave to the Applicants to recall the 1st Respondent’s witness for cross-examination in the trial Court on the condition that the cross-examination questions were to be filed and served on the 1st Respondent.
b. The ruling of 19th December, 2016 dismissing the Applicants’ application to remit the case file to the Chief Judge of Oyo State for re-assignment to another Judge of the lower Court for continuation of trial.
c. The ruling of 27th February, 2017 dismissing the Applicants’ application seeking leave to file Further Statement of Defence and Witness Statement on Oath to the amended reply filed by the 1st Respondent in the lower Court.
d. The ruling of 29th February, 2017 dismissing the Applicants’ application to amend their Statement of Defence at the trial Court.”
The 1st Respondent at Paragraph 4 (c)(1) of the Counter-Affidavit deposed to on his behalf drew our attention to the fact that the ruling delivered on 9th December, 2016 was in favour of the Appellants. The ruling is attached as Exhibit I to the Affidavit in support.
The ruling is sequel to an application filed on 21st October, 2016 wherein the Appellants as 1st and 2nd Defendants sought the following reliefs:
1) AN ORDER of this Honourable Court granting leave to the Defendants/Applicant to recall the Claimant/Respondent’s witnesses: CW1 (Honourable Justice Ladiran Akintola); CW2 (Mr. Rufus Abiodun Obaleke); CW3 (Dr. Salako Adegbite Balogun); CW4 (Mrs. Olufunmilayo Oyelade) and CW5 (Dr. Olayiwola Akintola) in this suit in order to afford the Defendants/Applicants’ Counsel the opportunity to cross-examine them on the evidence/testimonies respectively rendered before this Honourable Court.
2) AN ORDER of this Honourable Court mandating the Claimant’s witnesses CW1 (Honourable Justice Ladiran Akintola); CW2 (Mr. Rufus Abiodun Obaleke); CW3 (Dr. Salako Adegbite Balogun); CW4 (Mrs. Olufunmilayo Oyelade) and CW5 (Dr. Olayiwola Akintola) in this suit to attend this Honourable Court on dates fixed for trial in order to afford the Defendants/Appellants’ Counsel the opportunity to cross-examine them on the evidence/testimonies respectively render before the Honourable Court.
The learned trial Judge in his ruling on the application held as follows:
“The Applicant I hold has failed to place before this Court all that the Supreme Court stated must be placed before the Court before such an application as this should be granted. The main question being “the questions he intends to put to the witnesses.”
It must be recollected that our rules of Court has not made provision for the issue at hand. It is only the case laws that have over the years evolved the procedure to be followed in such an application.
This Court however in determining this issue notes the age of this case. Further notes when the Claimant opened his case. It is now well over 6 months since the Claimant opened his case without the matter being able to proceed. This year 2016 makes it 3 years since the filing of the suit.
Since the Rule of Court were created for the just, efficient and speedy dispensation of justice. I therefore choose to use my discretionary powers in the conditional grant of the application.
The Applicant must within 7 days from today comply with the decision of the Supreme Court in the case WILLOUGHBY VS. I.M.B. (supra) by filing and serving the questions he intend to put across to each of the witnesses whom he wishes to be re-called.
I believe that with the grant of this application, we shall be able to make progress in this case.”
See pages 730 to 731 Volume II of the Printed Record.
It is clear from the above that the application was granted in favour of the Appellant. The general rule is that a party cannot challenge the judgment or ruling of a Court given in his favour. His role is to defend such judgment/ruling. Where he is dissatisfied with some aspects of it he may in his capacity as Respondent file a Cross-Appeal against the part of the ruling he is dissatisfied with. Where he desires that the judgment be varied or affirmed on other grounds he shall file a Respondent’s notice and not a Notice of Appeal. See NATIONAL EAR CARE CENTRE VS. NNADI (2021) 17 NWLR (PT. 1805)365, IMONIYAME HOLDINGS LIMITED VS. SONEB ENTERPRISES LIMITED (2010) 4 NWLR (PT. 1185)561, ORGAN VS. NIGERIA LIQUIFIED NATURAL GAS LIMITED (2013) 16 NWLR (PT. 1381)506 AND OGUMA VS. I.B.W.A. (1988) 1 NWLR (PT. 73) 658.
It follows therefore that the Appellants who were adjudged victorious in the ruling of 9th December, 2016 cannot appeal against it. If they want the ruling varied or affirmed on other grounds they must file a Respondent’s notice and not an appeal.
The reliefs endorsed ex facie the motion as it relates to the ruling of 9th December, 2016 are hereby refused.
I now come to the trinity prayers sought as Reliefs Nos. 1-3 in the motion paper.
It is trite that the grant of these prayers is at the discretion of the Court which must be exercised judicially and judiciously. It is not subject to the whims and caprices of the judge. It is a privilege accorded the judge to decide and act in accordance with what is fair and equitable under the peculiar circumstances guided by the spirit and principles of law. See NDUKWE VS. UNION BANK OF NIGERIA PLC (2021) 4 NWLR (PT. 1765)165, FRANCIS VS. FEDERAL REPUBLIC OF NIGERIA (2021) 5 NWLR (PT. 1769)398, NZEKWE VS. ANAEKWENEGBU (2019) 8 NWLR (PT. 1674)235 AND IN RE: ALASE (2002) 10 NWLR (PT. 776)553.
In the exercise of this discretionary power, a Judge must act on facts before him. This is why the Applicant must place sufficient facts before the Court. The instant Applicants who seek leave of Court and extension of time within which to appeal shall place before the Court facts which show:
(a) Good and substantial reasons for failure to appeal within the prescribed time: and
(b) Grounds of Appeal which prima facie show good cause why the appeal should be heard.
The two conditions must co-exist. See ORDER 6 RULE 9 (1) AND (2) OF THE COURT OF APPEAL RULES, 2021, AMADI VS. WOPARA (2022) 1 NWLR (PT. 1811)359, JIMOH VS. MINISTER, FEDERAL CAPITAL TERRITORY (2019) 5 NWLR (PT. 1664)45, BRAITHWAITE VS. DALHATU (2016) 13 NWLR (PT. 1528)32 AND ANACHEBE VS. IJEOMA (2014) 14 NWLR (PT. 1426)168.
In IKENTA BEST (NIG.) LTD VS. A-G RIVERS STATE (2008)6 NWLR (PT. 1084) 612 AT 642 PARAS G-H, his Lordship NIKI TOBI JSC of blessed memory while describing what constitute “good reason” said:
“The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reason must not be bad in the sense that they are unacceptable. Substantial reasons are essential, material and important reasons. Reasons which are peripheral or dance around the periphery strangely cannot suffice. The pendulum should weigh in favour of granting the application and not just enough to balance the weight or on an even keel.”
The question now is whether the instant Appellants have given good and substantial reasons to warrant the grant of their application for leave to Appeal. The Appellants in the affidavit in support of the Motion filed on their behalf attributed the delay to the engagement of a new team of legal practitioners briefed to prosecute their appeal. It is significant to note that the said legal practitioners did not take part in the proceedings at the lower Court.
It is settled law that every person in Nigeria has a right to instruct or brief any legal practitioner of his choice to defend him before any Court and can also change him at any state of the proceedings without giving any reason for so doing. This right is guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which guarantees every citizen of this country a right to fair hearing. A person who is entitled to legal representation is also entitled to the benefit of his counsel’s legal advise and I so hold. See ATAKE VS. AFEJUKU (1994) 9 NWLR (PT. 368) 379.
The instant Appellants are entitled to change their counsel on appeal as they have done and are also entitled to the benefits of the law practice of their new counsel.
In any event, to grant the application extending the time within which the Appellants may file an appeal against the interlocutory rulings will ensure that all issues in controversy in the appeal are resolved. To do otherwise would amount to giving undue consideration to technicalities and I so hold. The decision of a new counsel to appeal against an interlocutory decision which the previous counsel did not appeal against constitutes a good and sufficient reason for the Court to exercise its discretion to extend time to file appeal.
1st Respondent has argued that the reason given by Appellants’ counsel that they intend to subsume the interlocutory appeal in the substantive appeal is willful, deliberate and not due to inadvertence of counsel.
The general rule is that a litigant should not be punished for the inadvertence of his counsel. There are however exceptions to this general rule but it is important to state clearly that the rule shall not be applied to foist injustice on a litigant.
See AGUMADU VS. AGUMADU (2022) 2 NWLR (PT. 1813)127, MALARI VS. LEIGH (2019) 3 NWLR (PT. 1659)332, NIGERIAN NATIONAL PETROLEUM CORPORATION VS. SAMFADEK & SONS LIMITED (2018) 7 NWLR (PT. 1617)1 AND AKANBI VS. ALAO (1989) 3 NWLR (PT. 108)118.
It is further a well settled position of law that an appeal against an interlocutory ruling may be included in the appeal against the final decision of the Court. This would reduce unnecessary delay and ensure that all matters in controversy are dealt with in one fell swoop.
See ONWE VS. OKE (2001) 3 NWLR (PT. 700)406, INTERNATIONAL AGRICULTURAL INDUSTRIES NIGERIA LIMITED VS. CHIKA BROTHERS LIMITED (1990) 1 NWLR (PT. 124)70, IKYERNUM VS. IORKUMBUR (2002) 11 NWLR (PT. 777)52 AND NGIGE VS. ACHUKWU (2004) 8 NWLR (PT. 875)383.
The decision taken by Appellants’ Counsel to subsume the appeal against the interlocutory rulings in the final appeal constitutes good and substantial reason to grant the prayers for extension of time to appeal and I so hold.
By this application, the Appellants also pray for an order granting them leave to raise fresh issues on appeal. An Appellant who wishes to raise any fresh issue or issues for the first time on appeal must seek for and obtain leave to so do. Leave would however be refused where the issues sought to be raised were not raised or considered by the lower Court. See ACHONU VS. OKUWOBI (2017) 14 NWLR (PT. 1584)142, MBANEFO VS. AGBU (2014) 6 NWLR (PT. 1403)23, BULET INTERNATIONAL NIGERIA LIMITED VS. OLANIYI (2016) 10 NWLR (PT. 1521)580 AND ADEOSUN VS. GOVERNOR OF EKITI STATE (2012) 4 NWLR (PT. 1291)581.
I have carefully examined the proposed Amended Notice of Appeal which contains twenty-one grounds and I am of the view that it contains arguable grounds of appeal. It is not frivolous. The fresh issues sought to be raised are contained therein. The fresh issues were agitated and pronounced upon by the lower Court.
On the whole, I am of the firm belief that in the present circumstances, the Appellants/Applicants are entitled to a favourable exercise of the Court’s discretion in their favour allowing them raise the new issue on appeal. This discretion is however not extended to issues arising from the ruling of the lower Court delivered on 9th December, 2016.
On the prayer to amend the Notice of Appeal, Order 4 Rule 1 of the Court of Appeal Rules, 2021 empowers this Court to amend all processes before it. Furthermore, Order 7 Rule 8 thereof specifically provides as follows:
“A Notice of Appeal may be amended by or with the leave of the Court at any time.”
It is trite that amendment of processes is not limited to mere correction of errors. It includes changing the contents of the process by adding to its contents. An amendment will be granted where necessary for the determination of the real controversy between the parties. Courts have always leaned towards the grant of an application made to amend processes. This accords with interest of justice and fair play.
See DICK VS. OUR AND OIL COMPANY LIMITED (2018) 14 NWLR (PT. 1638)1, FIRST BANK OF NIGERIA PLC VS. MAY MEDICAL CLINICS & DIAGNOSTIC CENTRE LIMITED (2001) 9 NWLR (PT. 717)28, OGIDI VS. EGBA (1999) 10 NWLR (PT. 621)42 AND APUGO VS. NWOKE (2010) 1 NWLR (PT. 1176)600.
In the instant appeal, the purpose of amending the Notice of Appeal is to enable this Court determine all issues in controversy between the parties. It would therefore be in the interest of justice to allow it. I note that ground 17 of the proposed Amended Notice of Appeal relates to the ruling of the lower Court delivered on 9th of December, 2016 which was in favour of the Appellants. I have earlier on held that the Appellant is barred from filing a Notice of Appeal against it because it was in his favour. Ground 17 of the Notice of Appeal is hereby struck out.
There is also a prayer for an order extending time to file and serve the Appellants Brief of Argument.
Order 19 Rule 2 of the Court of Appeal Rules 2021 provides that the Appellant shall within forty-five days of the service on him of the record of appeal from the lower Court file in this Court a Written Brief being a succinct statement of his argument in the appeal.
The Appellants who are out of time to file their Brief of Argument have applied for an order extending the time for them to file.
The reason given by the Appellants for the delay in filing which is contained in Paragraph 12 of the affidavit in support of the application is to enable them incorporate all the arguments in respect of the fresh issues and the appeal against the interlocutory rulings in their Brief of Argument. To my mind this makes sense and it constitutes a good and substantial reason sufficient to justify the exercise of the Court’s discretion in their favour. I have however noted from the assessment of fees paid on the motion paper that the Appellants have not paid the penalty for late filing as required by the rules. We are concerned with doing substantial justice and our aim is to always ensure that parties before us are given adequate opportunity to ventilate their grievances. The application to extend time within which the Appellants may file and serve their Appellants’ Brief of Argument is therefore granted with an order that the appropriate penalty fees be paid.
My conclusion is that the sole issue for determination in this application should be and is hereby resolved in favour of the Appellants. Accordingly, I find merit in this motion filed by the Appellants on 25th of October, 2018 and it is hereby granted in the following terms:
1. Time is extended till today for the Appellants to seek leave to appeal against the interlocutory rulings of the High Court of Oyo State sitting in Ibadan delivered by A.A. Aderemi, J. in Suit No. I/451/2013 on 19th December, 2016; 27th February, 2017 and 29th September, 2017 respectively.
2. Leave is hereby granted to the Appellants to appeal against the interlocutory rulings of the High Court of Oyo State sitting in Ibadan delivered by A.A. Aderemi, J. in Suit No. I/451/2013 on 19th December, 2016; 27th February, 2017 and 29th September, 2017 respectively.
3. Time is hereby extended for the Appellants to appeal against the interlocutory rulings of the High Court of Oyo State sitting in Ibadan delivered by A.A. Aderemi, J. in Suit No. I/451/2013 on 19th December, 2016; 27th February, 2017 and 29th September, 2017 respectively.
4. Leave is hereby granted to the Appellants to raise fresh issues in this appeal with the exception of any fresh issue arising from and/or related to the interlocutory ruling of the lower Court delivered by A. A. Aderemi, J. in Suit No. I/451/2013 on 9th of December, 2016.
5. Leave is granted to the Appellants to amend their Notice of Appeal in the terms of the Proposed Amended Notice of Appeal attached to this application as Exhibit 6 excluding ground 17 contained therein.
6. Time is extended for the Appellants to file their Brief of Argument subject to payment of the requisite filing and penalty fees.
7. The Amended Notice of Appeal shall be filed within 14 days from today.
8. The Appellant’s Brief of Argument shall be filed within 14 days from today.
Application granted.
YARGATA BYENCHIT NIMRAR, J.C.A.: I was afforded the privilege of reading in advance the ruling prepared and delivered by my learned brother, FOLASADE AYODEJI OJO, JCA and I am in complete agreement with the lucid reasoning and conclusion arrived at in the lead ruling.
The ruling identified settled principles that guide an application for extension of time to appeal and leave to appeal have been circumscribed by two conditions, and these are:
i. Good and substantial reasons for the failure to appeal within the time prescribed by the law and rules of Court;
ii. Grounds of Appeal which prima facie show good cause why the appeal should be heard.
These conditions are like Siamese twins and must be established together and not in the alternative.
The lead ruling captured all that is necessary for an application of this nature, I have nothing useful to add but to adopt the ruling as mine. I too grant the application as per the orders made in the lead Ruling and abide by all other orders made therein.
ABBA BELLO MOHAMMED, J.C.A.: My learned brother, FOLASADE AYODEJI OJO, JCA, has availed me a draft of the lead ruling just delivered, which, in my view, has exhaustively considered the affidavit evidence of the parties and the submissions of learned Counsel. I fully agree with and adopt the reasoning and conclusion reached therein, that the Appellant/Applicant has shown good and substantial reason for the grant of the application. With nothing useful to add, I concur in granting the application in the same terms as stated in the lead ruling.
Appearances:
OSHOBI SAN with him S. I. ONUEGBU and M. Y. ABDULMUMIN For Appellant(s)
IFE OLAMIJU with him, AYODEJI BABAJIDE ILORI – for 1st Respondent
2nd Respondent Absent. For Respondent(s)
