AMINU OYEJOBI v. BAALE SAKA OKESOLA OKEGBEMI
(2013)LCN/5940(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of February, 2013
CA/I/M176/09
RATIO
“It is the law that where facts are deposed to in an affidavit, the adversary party has a duty to controvert those facts in a counter affidavit if he disputes them otherwise those facts may be regarded as duly established. See Long John v. Blakk (1998) 6 NWLR part 555 page 524 also reported in (1998) 5 SC 83. I think that merely stating dismissively that the facts stated in paragraphs 10 and 11 of the affidavit in support are not true is not sufficient. It is trite law that when in a situation in which facts are provable by affidavit one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. See Ajomale v. Yaduat No.2 (1991) 5 NWLR part 191 page 257 at 270. Which facts have the respondent deposed to that controvert the facts in paragraph 10 and 11 of the affidavit in support? None. In the case of Edet v. Chief of Air Staff (1994) 2 NWLR part 324 page 41 at page 63-64 the court stated the position of the law thus: “An affidavit evidence of the like relied on by the respondent which is in opposition in relation to certain point made by the appellant, but which is vague, uncertain and wears a hallmark of improbability will not dispel an inference as a matter of law when opposed by evidence which is clear and positive”. Per DANIEL-KALIO, J.C.A.
“A party that suffers inconvenience or delay to his displeasure may be compensated by an award of costs. See National Inland Waterways Authority v. The Shell Petroleum Development Company of Nigeria Limited (2008) 6 SCNJ 20.” Per DANIEL-KALIO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
AMINU OYEJOBI
(For Himself and on Behalf of Olukanye Family) Appellant(s)
AND
BAALE SAKA OKESOLA OKEGBEMI
(For Okegbemi Family) Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Lead Ruling): This ruling is in respect of a motion on notice filed on 15/6/2010 seeking the following orders from this court –
(a) Granting leave to substitute the applicant for Alfa Muritala Olukanye (deceased) for the purpose of filing an appeal against the ruling of the High Court of Oyo State Coram Hon. Justice R.B. Akintola of High Court Ibadan in Suit No.M/91/2007 (Alfa Muritala Olukanye v. Baale Saka Okesola Okegbemi) delivered on 21st November, 2008.
(b) Granting leave to the applicant to file an appeal against the ruling of the High Court of Oyo State Coram Hon. Justice R. B. Akintola of High Court Ibadan in suit No. M/91/2007 (Alfa Muritala Olukanye v. Baale Saka Okesola Okegbemi) delivered on 21st November, 2008 in representative capacity.
(c) Extending time within which the applicant is to file an appeal against the ruling of the High Court of Oyo State Coram Hon. Justice R. B. Akintola of High Court Ibadan in Suit No. M/91/2007 (Alfa Muritala Olukanye v. Baale Saka Okesola Okegbemi) delivered on 21st November, 2008 in representative capacity to wit, for himself and on behalf of Olukanye Family in terms of the proposed Notice of Appeal hereto attached as Exhibit D.
(d) Extending time within which to apply for an order of injunction restraining the respondent by himself or through his agents and or assigns from taking any step towards enforcing the ruling of Hon. Justice R. B. Akintola in suit No. M/91/2007 Alfa Muritala Olukanye v. Baale Saka Okesola Okegbemi delivered on 21st November, 2008 pending the hearing and determination of the appeal to be filed before this honourable court.
(e) An order of injunction restraining the respondent by himself or through his agents and or assigns from taking any steps towards enforcing the ruling of Hon. Justice R. B. Akintola in Suit No. M/91/2007 (Alfa Muritala Olukanye v. Baale Saka Okesola Okegbemi) delivered on 21st November, 2008 pending the hearing and determination of the appeal to be filed before this honourable court.
(f) And for such further order or other orders as this honourable court may deem fit to make in the circumstances.
The grounds on which the above prayers were predicated were:
(i) That One-Ara Grade “C” Customary Court delivered judgment in suit No. 9/2005 on 12th February, 2007 against Alfa Muritala Olukanye as representative of Olukanye Family wherein he filed an appeal to High Court Ibadan on 23/2/2007.
(ii) That Grade “C” Customary Court dismissed his application for injunction on 2/3/07 where upon he filed another application for injunction before the High Court of Oyo State which application was equally dismissed on 21/11/08 Coram Hon. Justice R. B. Akintola of High Court 13 Ibadan.
(iii) That he (Alfa Muritala Olukanye) further filed a fresh application inter alia for injunction before this Honourable Court in Appeal No. CA/I/M8/09 on 19th January, 2009 Pending the hearing and determination of the appeal before High Court, Ibadan.
(iv) That the application before this court was dismissed on 27th May, 2009 on the ground that there was no pending appeal before this Honourable Court.
(v) That the said Muritala Olukanye died on the 5th of January, 2010 hence the need to withdraw his application in this court in Appeal No. CA/I/M.176/2009 on 18th day of February, 2010.
(vi) That members of Olukanye Family have unanimously appointed the applicant to contest the ruling of the lower court vide this Process.
(vii) That the Proposed appeal raises substantial and recondite issues of law warranting the need to grant extension of time to appeal thereto.
(viii) That the proposed appeal is against the ruling of the lower court refusing an application for injunction.
(ix) That unless the Respondent is restrained he would frustrate the essence of this appeal.
(x) That the Respondent would not be prejudiced by the grant of this application.
The Motion on Notice was supported by an affidavit of 26 paragraphs with exhibits attached. The respondent filed a counter affidavit on 27/1/11 with two exhibits attached. The applicant filed a further affidavit on 15/6/11.
When the motion came up before this court for hearing on 27/11/12, applicant’s Counsel Biodun Abdul-Raheem Esq. informed the court that he would be withdrawing payers (d) and (e) in the motion paper. Kayode Ajayi Esq. for the respondent did not object to the withdrawal of the said prayers but indicated that he was opposing the remaining prayers. As a result, this court on the said date struck out payers (d) and (e) in the motion paper and reserved its ruling in respect of the remaining prayers (a) (b) and (c).
In his submission in support of the motion, applicant’s counsel submitted that the fact that the party sought to be substituted is dead does not mean that the appeal must abate. He cited the case of Awomolo v. Akapo (2006) 52 WRN part 1 at page 14; Ajadi v. A.G. Ogun State (2009) 7 NWLR part 1141 page 443 at 462.
With regard to prayer (c) in the motion paper, he referred to paragraphs 8-13 of the affidavit in support of the motion which he contended, explains the reasons for the delay in bringing the application. The said paragraphs he argued were not controverted.
Learned Counsel referred to Exhibit ‘D’ in support of the motion which is the proposed Notice of Appeal and contended that the Notice raises substantial issues of law. He urged the court to allow the application in the interest of justice.
In his response, respondent’s counsel submitted that the application is incompetent ab inito because the applicant has granted himself the relief sought in prayer (a) of the motion paper by indicating the applicant who is being sought to be substituted as a party in this case contrary to Order 15 rule 1(2) of the Court of Appeal Rules, 2011. He submitted that the reasons adduced in the affidavit in support of the application are not substantial enough to entitle the applicant to the relief sought.
Learned counsel contended that the intended appeal is in respect of an interlocutory ruling and that applicant has not explained his inability to come within the time allowed for appeal by the constitution. He referred to paragraph 4 of the counter affidavit and Exhibit KF1 and KF2 attached to it. He urged the court to dismiss the application.
Applicant’s counsel replied on points of law.
I have looked at the parties as indicated at the head of the motion paper and it is quite clear that the applicant is described there as Appellant/Applicant. That is obviously wrong since the whole purpose of the present application is to have him in the case as the Appellant in substitution of Alfa Muritala Olukanye who is dead. The respondent’s counsel is therefore correct in his submission that the applicant granted himself prayer (a) in the motion paper. I have also looked at the respondent’s counter affidavit and I find that the respondent in his counter affidavit also described the applicant Aminu Oyejobi as the Appellant/Applicant thereby committing the same error he was complaining about. The respondent cannot blow hot and cold at the same time. What the respondent has done by also describing the applicant as appellant in his counter affidavit amounts to a waiver of the irregularity. See generally Ogbaegbe v. FBN Plc. (2005) 18 NWLR part 957 page 357. In the circumstances, the respondent cannot be heard to complain.
Respondent’s Counsel also submitted that the applicant did not explain why the appeal was not brought within the prescribed period. I do not agree with this submission. The applicant offered a good explanation in paragraphs 10 and 11 of the affidavit in support of the motion. Respondent’s response to the applicant’s explanation was to merely say, rather dismissively in paragraph 4 (viii) of the counter affidavit, that paragraphs 10 and 11 among other paragraphs in the affidavit in support, are not true. It is the law that where facts are deposed to in an affidavit, the adversary party has a duty to controvert those facts in a counter affidavit if he disputes them otherwise those facts may be regarded as duly established. See Long John v. Blakk (1998) 6 NWLR part 555 page 524 also reported in (1998) 5 SC 83.
I think that merely stating dismissively that the facts stated in paragraphs 10 and 11 of the affidavit in support are not true is not sufficient. It is trite law that when in a situation in which facts are provable by affidavit one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. See Ajomale v. Yaduat No.2 (1991) 5 NWLR part 191 page 257 at 270. Which facts have the respondent deposed to that controvert the facts in paragraph 10 and 11 of the affidavit in support? None. In the case of Edet v. Chief of Air Staff (1994) 2 NWLR part 324 page 41 at page 63-64 the court stated the position of the law thus:
“An affidavit evidence of the like relied on by the respondent which is in opposition in relation to certain point made by the appellant, but which is vague, uncertain and wears a hallmark of improbability will not dispel an inference as a matter of law when opposed by evidence which is clear and positive”.
It is my view that the facts stated in paragraphs 10 and 11 of the affidavit in support are clear and positive while paragraph 4 (viii) of the counter affidavit bears the hallmark of improbability and thus is incapable of disturbing an inference that can be drawn from paragraphs 10 and 11 of the affidavit in support which is that the reason for the delay in filing the appeal is one that is made out. I therefore find that the applicant has given sufficient facts to explain the delay in filing the appeal against the ruling of the High Court.
In any case the court has a duty to protect a right to appeal unless there is compelling reason to do otherwise.
A party that suffers inconvenience or delay to his displeasure may be compensated by an award of costs. See National Inland Waterways Authority v. The Shell Petroleum Development Company of Nigeria Limited (2008) 6 SCNJ 20.
Let me say in closing that where there is an endorsement as to capacity, a court of law is entitled to assume that the representation is valid in the absence of any specific denial or challenge of the veracity of the claim of representation. See Afisi v. Lawal (1992) 1 NWLR part 217 page 350 at 355. There is no protest from Olukanye Family that the applicant who seeks to substitute Alfa Muritala Olukanye (deceased) in a representative capacity on behalf of Olukanye Family is not a representative of that family. Besides, the case file shows that the subject matter is not something that dies with the deceased party. It is a land matter. The cause of action therefore survives and the substitution of a deceased party is consequently quite in order.
There is no reason in my view, to refuse prayers (a) (b) (c) above. Same are hereby granted. It is therefore ordered as follows:-
(1) Leave is hereby granted to substitute the applicant Aminu Oyejobi for Alfa Muritala Olukanye (deceased) for the purpose of filing an appeal against the ruling of the High Court of Oyo State presided over by Hon. Justice R. B. Akintola of the High Court Ibadan in Suit No. M/91/2007 Alfa Muritala Olukanye v. Baale Saka Okesola Okegbemi delivered on 21st November, 2008.
(2) Leave is hereby granted the applicant Aminu Oyejobi to file an appeal against the ruling of the said Justice R. B. Akintola in the said High Court in the said suit number, delivered on 21st November, 2008.
(3) Time is hereby extended by 7 days from today, within which the applicant is to file an appeal against the ruling of the Honourable Justice R. B. Akintola of the High Court of Oyo State in suit No. m/91/2007 (Alfa Muritala Olukanye v. Baale Saka Okesola Okegbemi) delivered on 21st November, 2008 in a representative capacity, to wit for himself and on behalf of Olukanye Family in terms of the proposed Notice of Appeal attached to the Motion on Notice filed on 15/6/10.
There is no order as to costs.
CHIDI NWAOMA UWA, J.C.A.: I read before now the draft of the Ruling delivered by my learned brother O. DANIEL KALIO, JCA. In granting prayers (a), (b) and (c) of the application, these are, granting leave for the substitution of the Applicant for the deceased Alfa Muritala Olukanye, leave to appeal and extension of time to appeal, I abide by the order awarding no costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.
Appearances
B. Abdu-Raheem with I.K. UjahFor Appellant
AND
Kayode AjayiFor Respondent
