H.R.H OBA SAMUEL ADEBAYO ADEGBOLA vs. MR. JAMES OLATUNDE IDOWU
In the Supreme Court of Nigeria
Thursday, April 13, 2017
Case Number: SC/584/2013
CLARA BATA OGUNBIYI
PAUL ADAMU GALINJE
1. H.R.H OBA SAMUEL ADEBAYO ADEGBOLA (ELERUWA)2. CHIEF JACOB SALAKO ADEWUSI (THE ODOFIN ERUWA) (DECEASED)3. CHIEF FEMI ATANDA – JAGUN OF ERUWA4. CHIEF I. O OLA BODE – OLUKOTUN OF ERUWA5.CHIEFIDOWU OKEOWO – ASIPA OF ERUWA6. CHIEF E. OJEBISI – BALE AG BE OF ERUWA7. MR. KASALI SANGOTIKUN
1. MR. JAMES OLATUNDE IDOWU (For himself and on behalf of Laribikusi Ruling House excepting Lasubu family or Section of Laribikusi Ruling House/Quarters)2. ALHAJI RASHEED OYEDEPO AJAO3. THE GOVERNOR OF OYO STATE4. THE ATTORNEY GENERAL OF OYO STATE5. IBARAPA EAST LOCAL GOVERNMENT
(Delivered By Paul Adamu Galinje, JSC)
By a motion on notion dated 22nd April, 2014 and filed on the 23rd April, 2014, the Appellants/Applicants herein sought for the following reliefs:-
1. Extension of time to file the Appellants/Applicants’ Brief of Argument attached to the affidavit and marked Exhibit A.
2. Granting leave to the Appellants/Applicants to raise a new issue/a new point of law not raised either in the High Court or the Court of Appeal to wit:
“Whether or not the learned trial judge and the Court of Appeal have jurisdiction to entertain this action which was instituted in a non-judicial division to wit: “Eruwa Judicial Division.”
3. Granting leave to the Appellants/Applicants to incorporate argument on the new issue/fresh point of law in the Appellants’ Brief of argument (Exhibit A).
4. To deem as properly filed and served the Appellants’ Brief of Argument (Marked Exhibit A) already filed and served.
This motion is predicated on seven grounds and supported by a four paragraphs affidavit sworn to by one Saheed Raji, a legal secretary in the law firm of R. A Ogunwole SAN &. Co. Solicitors to the Appellants/Applicants.
In opposition to this application, the 1st and 2nd Respondents filed a 28 paragraphs counter affidavit on 24th May, 2016 and a further counter affidavit to the same motion on notice on the 3rd June, 201 6. .
In line with the relevant rules of this court parties filed written addresses.
The Appellants/Applicants written address settled by Mr. R. A Ogunwole SAN is dated 22nd April, 2014. Learned senior counsel formulated one issue for determination of this application and it reads as follows.-
“Whether or not the court may exercise its discretion in favour of the Appellants/Applicants by granting the application.”
Mr. Kolapo Raji Esq of counsel to the 1st and 2nd Respondent submitted two issues for determination of the Application. These issues are reproduced hereunder as follows:-
(a) Whether the Appallants/Applicants have placed good substantial and exceptional, sufficient and cogent reasons before the court to deserve granting of an extension of time to file the Appellants’ Brief of Argument.
(b) Whether the order/reliefs 2, 3 and 4 of this application are supported by law or grantable by this Honourable Court in the circumstances of this application.
Motions are generally argued on the basis of the grounds upon which they are predicated, the supporting affidavits and counter affidavits. I am not aware of any provisions in the rules of this court that authorize formulation of issues upon which applications are argued. Applicants are not allowed to proffer arguments not deposed to in their affidavit. Issues in appeals arise from grounds of appeal, which in turn must be related to the decisions against which appeals lie. On cases of applications where do these issues arise? Applicants certainly cannot formulate issues that are at variance with the contents of their affidavit and expect a favourable endorsement from the courts.
The Applicant’s issue in the instant application does not seem to have covered the deposition in his supporting affidavit. The application will therefore be considered in relation to the supporting affidavit.
In arguing this application Mr. Ogunwole, learned senior counsel for the Appellants/Applicants relied on all the paragraphs of the affidavit, particularly paragraph 3 thereof and submitted that a court of law would normally exercise its discretion in favour of an applicant where his being out of time is due to pardonable inadvertence and/or negligence caused by his counsel, in aid, learned senior counsel cited Isiaka v Ogundimu (2006) 13 NWLR (Ft. 997) 401 at 414 paragraphs F-G.
On whether the Appellant can raise fresh issue or fresh point of law under Order 6 Rule 5(b) of the Supreme Court Rules, learned senior counsel submitted that the fresh issue that is sought to be raised in this application touches on the jurisdiction of the court. According to the learned senior counsel the fresh issue is substantial and no fresh evidence will be called to establish it. In aid, learned senior counsel cited A.I.C Ltd v NNPC (2005) 5 SC (Pt. 11) 60 at page 68. Finally, learned senior counsel urged this court to grant the application.
Mr. Kolapo Raji, learned counsel for the 1st and 2nd Respondents submitted that the Appellants/Applicants have not disclosed any fact as good, substantial, exceptional and for convincing reasons for late filing of the brief of argument to deserve extension of time to file their brief of argument. In a further argument, learned counsel submitted that the learned senior counsel was throughout the period he claimed to have eye problems, engaged in active practice in courts and that apart from this, there were other counsel in the chambers of Ogunwole SAN, who were competent to file the Appellants brief of argument. Learned counsel urged the court to refuse prayers one as the Appellants/applicants have failed to place sufficient materials before the court
On the appellants’ prayer to raise fresh issue or fresh point of law before this court, learned counsel submitted that the appellants/applicants have not satisfied the conditions for doing so. In aid, learned counsel cited the decision of this court in Udo v The Registered Trustees of the Brotherhood of the Cross and Star (2013) LPELR 19910 (SC). Learned counsel further submitted that the applicants have not placed all the relevant facts pertaining to the new point being sought to be raised before this court. Learned counsel raised so many issues which are irrelevant at this stage. I do not need to consider them as doing so will have the effect of determining the appeal at the interlocutory level.
I wish to state clearly that a grant or refusal of this application is within the discretionary powers of this court, it is the law that this discretionary powers must not only be exercised judicially but must be exercised judiciously also. An application for extension of time to file c brief of argument is not granted as a matter of course. An applicant who desires that the courts discretion be exercised in his favour in an application for extension of time must give good reasons and place sufficient materials before the court in order to earn the discretion of the court in his favour.
In the instant application, learned senior counsel for the Applicant relies on all the paragraphs of the supporting affidavit, particularly paragraph 3 thereof which he says contains the reasons for delay in filing the Appellant’s brief of argument within the prescribed period. Paragraph 3 of the supporting affidavit is hereunder reproduced as follows:-
“3. That Mr. R.A Ogunwole, SAN the lead counsel in this Appeal told me and I verily belief in our law office on Saturday 19th April, 2014 at about 4.00 pm as follows:-
i. That he was served with the Records of Appeal on the 23/10//2013.
ii. That he commenced work on the preparation of the Appellants’ Brief of Argument when he suddenly developed some problem in his eyes and his Doctor advised him to take some rest to avoid straining the eyes.
iii. That during the period, he could not do much reading, the time for filing the Brier of Argument has (sic) expired.
iv. That he has fully resumed his legal practice and he has completed the Appellants’ Brief of Argument which has been filed.
v. That the delay was caused by the Appellants’ counsel which is deeply regretted.
vi. That in the cause of reading the Records of Appeal, he discovered that the writ of summons, the statement of claim and ail court processes filed by the plaintiffs were titled ‘in the Eruwa Judicial Division’ which is non-existence in Oyo State.
vii. That all the facts in support of the new point of law are contained in the Records of Appeal before this Honourable Court.
viii. That no further evidence is required which could have affected the decision of this Honourable Court.
ix. That it is in the interest of justice to grant this application so as to prevent obvious miscarriage of justice.
x. That to avoid further delay, new issue/new point of law has been incorporated in the Appellants’ Brief of Argument already filed and copy of which is herewith attached and marked Exhibit A.
xi. That the Respondents will not be prejudiced if the application is granted.
xii. That it is in the interest of justice to grant the application.”
Learned counsel for the 1st and 2nd Respondents contradicted the averments reproduced above at paragraphs 8-21 of their counter. These paragraphs of the counter affidavit are hereunder reproduced as follows:-
8. On 23/5/2026 at 2.00pm at NO. 24 Adeoyo Hospital Road, Off Ring Road, Ibadan one Mr. Tunde Adegbola, a Journalist of Olorunsogo, Akanran Road, Ibadan informed me and I verily believed him as follows:
i. That Mr. R. A Ogunwole, SAN is counsel to the Defendants in a pending Civil Suit No. 1/192/2008 before Honourable Justice M. L Abimbola of High Court of Oyo State, Ibadan Judical Division and that the suit is between Yekini Sanusi Ida & 2 Ors v Oladepo Fakunle & Anor.
ii. That on 13/11/2013, 28/11/2013 and 6/2/2014, Mr. R. A Ogunwole, SAN personally attended the proceedings of the court in the said suit and participated actively and strenuously in the proceedings which were hearing of interlocutory application hearing of the substantive suit.
iii. That Mr. R. A Ogunwole, SAN during the periods mentioned in the said suit strenuously conducted cross examinations of claimants” witnesses in the said case.
9. Based on the facts deposed to in paragraphs 8i-iii above I verily believe that Mr. R. A Ogunwole, SAN had no problem in his eyes, he took no rest, he did much reading in preparation for his active and strenuous participation in the said proceedings and he was in his full legal practices during that time.
10. Mr. R. A Ogunwole, SAN during the periods from 23/10/2013 to 23/4/2014 had the following Solicitors and Advocates In his law firm as legal practitioners in his employment, namely; J. D Olaniyan Esq., Joy Z. Joseph Esq., Tope Olufokunbi Esq., Oluwatosin Oni Esq., R. U Ugwu Esq., J. A Ikedieze Esq., and many others.
11. A copy of a letter written by the said J. D Olaniyan Esq of Mr. R. A Ogunwole, SAN’s taw firm relative to this case/appeal and served on the 1st and 2nd Respondents’ Solicitor, Adebayo Shittu is herewith attached and marked as Exhibit ROA and based on its content S verily believe that legal practitioners in the employment of Mr. R. A Ogunwole, SAN in his firm that are mentioned above are competent and well conversant with the facts of this appeal as well as conversant with the relevant laws that are involved in this case/Appeal.
12. Based on the facts and circumstances deposed to in paragraphs 9, 10 and 11 above i believe that the said J.D Olaniyan Esq or any of the above mentioned legal practitioners in the employment of Mr. R. A Ogunwole, SAN could within time required by the rules, prepare and file the Appellants’ Brief of Argument in this Appeal.
13. Also, during the period from 23/10/2013 to 23/4/2014 more particularly on 10/1/2014, the 1st and 2nd Respondents through their counsel (Abdur-Raheem Adebayo Shittu Esq), pursuant to the judgment of the trial court in this case/Appeal filed an application by Motion of Notice dated 10/1/2014 before the trial court. A copy of the said motion is herewith attached and marked as Exhibit ROA1
14. On 15/1/2014 the said J.D Olaniyan Esq of Mr. R. A Ogunwole, SAN’s law firm mentioned above prepared and filed a counter-application by a Motion on Notice (dated and filed on 15/1/2014) to strike cut the application in Exhibit ROAI above. A copy of the counter-application/motion referred to in this paragraph is herewith attached and marked as Exhibit ROA2.
15. Upon filing and service of a counter-affidavit filed by the 1sf and 2nd Respondents to the counter-application (i.e. Exhibit ROA2 above), the counter-affidavit which is herewith attached and marked as Exhibit ROA3; it was Mr. R. A Ogunwole, SAN himself that personally prepared and filed on 30/1/2014, a further affidavit and a written address in support of the Exhibit ROA2 mentioned above. A copy of the said further affidavit and written address so prepared by Mr. R. A Ogunwole, SAN himself is hereby with attached and marked as Exhibit ROA4.
16. On 10/10/2013 Appellants/Applicants through their counsel, Mr. R. A Ogunwole, SAN, pursuant to the judgment of the lower court filed before the Court of Appeal, ibadan an application by Motion on Notice dated 10/1/2014. A copy of the said Motion is herewith attached and marked as Exhibit ROA5.
17. The said Motion i.e. Exhibit ROA5 of this affidavit was fixed by the Court of Appeal, Ibadan for hearing 10/4/2014. A copy of the hearing notice of the application served on the 1st and 2nd Respondents is herewith attached and marked as Exhibit ROA6.
I8. On 10/4/2014 Mr. R. A Ogunwole, SAN was present in t the Court of Appeal and participated actively in the proceeding of the court.
19. Based on the facts deposed to in paragraphs 8i- iii and 9 – 1 S above, I verily believed as follows:
i. That Mr. R. A Ogunwole, SAN did much reading to prepare and file the said Exhibit ROA1, ROA2 and ROA3 above as well as several relevant case laws to prepare and file Exhibit ROA4 attached to this affidavit.
ii. That Mr. R. A Ogunwole, SAN did much reading to prepare and file the said Exhibit ROA4.
iii. That Mr. R. A Ogunwole, SAN did not develop any problem in his eyes and he could do much reading with his eyes during the period from 23/10/2013 to 23/4/2014 to prepare and file within time, the Appellants Brief of Argument in this Appeal.
iv. That between the period of 23/10/2013 and 23/4/2014, Mr. R. A Ogunwole, SAN was healthy; he did not develop any problem in his eyes, his doctor did not advise him to take rest for any reason whatsoever and he did not take any rest from his full legal practices.
v. That during the period mentioned above, Mr. R. A Ogunwole, SAN could do much reading and he was in his full legal practices.
20. The Appellants themselves took no steps to prompt Mr. R. A Ogunwole, SAN to instruct any of other legal practitioners in his employment in his law firm to prepare and file their Appellants’ Brief of Argument within the time required under the rule.
21. The Appellants also took no steps to brief any other counsel who had no eyes problems to handle their Appeal, and to prepare and filed their Brief within the time retired under the rule.
Learned counsel contended that the averments contained in paragraph 3(i)—(xii) of the affidavit in support of the Appellants/Applicants’ motion on notice are most untrue and are complete fabrication that were concocted to mislead the court. Learned counsel deposed at paragraph 8 of the counter affidavit that the information that led to his belief that the Appellant’s deposition at paragraph 3 of the affidavit in support were most untrue was given to him by one Tunde Adegbola, a journalist of Olorunsogo, Akanran Road Ibadan. He set out the information from Tunde Adegbola at the paragraphs of the counter affidavit reproduced above. Learned counsel neither disclosed the relationship between Tunde Adegbola and Ogunwoie SAN nor is 4-here evidence that the counter affidavit was served on the said is Tunde Adegbola. An affidavit in which a total stranger to a case is mentioned as an informant, that stranger must be put on notice. There is no address for service on Tunde Adegbola on the counter affidavit, as such it is very clear that he was not served. In absence of address for service, this court has no basis upon which the informant could be called to verify the depositions alluded to by the 1st and 2nd Respondents’ counter affidavit. I do therefore think the paragraphs of that counter affidavit reproduced above have countered nothing, since there is no way to verify the depositions aforesaid.
The law is very clear that where any notice or any other process is required to have an address for service endorsed on, It shall not be deemed to have been properly filed unless such address has been endorsed on it. See Order 2 Rule 1 (2) of the Supreme Court Rules 2014 (as amended). Since the information supplied by the 1st and 2nd respondents are incapable of being verified, they therefore go to no issue.
The first prayer in the applicants’ application is for extension of time to file a brief of argument. The only viable reason advanced for failure to file the brief of argument within the prescribed period is that the learned senior counsel who is handling the case suddenly developed some problems in his eyes and his doctor advised him to take some rest to avoid straining the eyes. There is no medical report in support of this deposition and the doctor has also not been put on notice in respect of the allegation concerning him. in an application to appeal, this court has held that it may not amount to sufficient reason merely to say that the counsel was ill or that there was dereliction of duty on the part of his junior or that the volume of chamber work made the counsel forget to file the appeal. See Omoregie v Emovon (1987) 6 SC 6; Benson v Nigerian Agip Oil Co. Ltd (1982) 5 SC 1. However, it is accepted as good reason where counsel commits error of judgment and fails to do what he is supposed to do.
In this respect counsel’s carelessness cannot be visited on the litigant where such carelessness is pardonable. See Doherty v Doherty (1964) 1 ALL NLR 299; Bowaje v Adediwura (1976) 6 SC 143.
In an appeal, the court’s discretion should always be exercised towards hearing the parties on the merit. This court can therefore not shut out the Appellant when he has shown that the brief is available for deeming. I am therefore of the firm view that justice will be better served if this application for extension of time to file the Appellant’s brief of argument is granted as prayed.
The second prayer is for leave to the Appellants/Applicants to raise a new issue/a new point of law not raised either in the High Court or the Court of Appeal and to incorporate argument on the new issue/fresh point of law in the Appellant’s Brief of Argument. The new issue which the applicants wish to raise has been reproduced elsewhere in this ruling. Learned senior counsel submitted that the new Issue touches on the jurisdiction of the court and that no new evidence will be called. In aid, learned senior counsel cited A.I.C Ltd v NNPC (2005) 5SC (Pt. 11) 60 at 68.
In opposition learned counsel for the 1st and 2nd Respondents deposed at paragraphs 22 and 23 of the counter affidavit as follows-
“22. Conventionally ‘the Eruwa Judicial Division’ is in existence in Oyo State.
23. In Oyo State, the litigants, the Bar and the Bench conventionally know, call, refer to and addressed Ibarapa Judicial Division of Oyo State High Court as Eruwa Judicial Division because the official place of sitting of the Division is High Court of Oyo State at Eruwa, Oyo State.
Now the Issues raised by learned counsel in the paragraphs of the counter affidavit are matters to be considered at the hearing of the appeal. Learned counsel has submitted that the new Issues touch on the jurisdiction of the court. At this point the court cannot go into the determination of whether ‘Eruwa judicial Division’ exist or not, as doing so will amount to a determination of the main appeal, at interlocutory stage, which this court is not allowed to do. The law is settled that issue of jurisdiction, being the soul of litigation can be raised at any time even in this court for the first time. See Brortik Motors v Wema Bank Nig Ltd (1983) 1 SCNLR 296; Oredoyin v Arowolo (1989) 4 NWLR (Pt. 114) 172; Gen. Electric Motors v Akande (1999) 1 NWLR (Pt. 588) 532.
For this reason, I am also prepared to grant the Applicant’s second prayers. On the whole, I grant the application in the following terms:-
1. Applicants are hereby granted extension of time to today to file the Appellants brief of argument.
2. Leave is hereby granted to the Appellants/Applicants to raise new issue/a new point of law not raised either in the High Court or the Court of Appeal to wit:
“Whether or not the learned trial judge and the Court of Appeal have jurisdiction to entertain this action which was instituted in a non-Judicial Division to wit: “Eruwa Judicial Division.”
3. Leave is hereby granted to the Appellants/Applicants to incorporate argument on the new issue/fresh point of law in the Appellant’s Brief of Argument (Exhibit A).
4. Exhibit A, the Appellants’ Brief of Argument is deemed properly filed and served today.
[Delivered by EJEMBI EKO, JSC]
On 23rd April, 2014 the Appellant/Applicants filed a motion wherein they are seeking:
1. Extension of time to file Appellants/Applicants’ Brief of Argument attached to the affidavit and Marked Exhibit A.
2. Granting leave to the Appellants/Applicants to raise a new issue/ a new point of law not raised either in the High Court or the Court of Appeal to wit:
Whether or not the learned trial Judge and the Court of Appeal have jurisdiction to entertain this action which was instituted in a non-judicial to wit: Eruwa judicial Division.
3. Granting leave to the Appellants/Applicants to incorporate argument on the new issue/fresh point of law in the Appellants’ Brief of Argument [Exhibit A]
4. To deem as properly fled and served the Appellants’ Brief of Argument [marked Exhibit A] already filed and sewed.
There are two main segments of the application, that is: Extension of time within which to file Appellants’ Brief of Argument – Exhibit A, and leave to raise a fresh or new point or issue that was not raised at the trial court and the Court of Appeal. The two are within the discretion of this Court to grant
The Appellant in every appeal has 10 weeks of the receipt of the Record of Appeal within which to prepare, files and serve his brief of argument. The period is big enough for any serious minded appellant or his counsel to prepare, file and serve his brief of argument. It is trite that Rules of court are not made for fun. They are made to be complied with.
Where the purpose of the Rules is to provide time-table for conduct of litigation there must be strict compliance with the Rules; because to do otherwise will defeat the purpose of the Rules. See RATNAM v. CUMARASAMY (1964) 3 ALL E.R. 933 at 935.
The obligation of the litigant and/or his counsel to comply with the Rules of court has been re-state by this Court in a number of cases including EZEIGBO v, F.A.T.B. LTD, (1992) 1 NWLR [pt.216) 197; IROEGBU v. OKWQRDU (1990) 6 NWLR (pt.159) 648; CC.B. (NIG.) PLC v. A.G. ANAMBRA STATE (1992) 8 NWLR (pt261) 326; DINGYAD I v. INEC No. 2 (2010) 18 NWLR (PT.1224) 154. The point in all these cases is that it must be appreciated that where the exercise of a right is circumscribed or limited by a rule of practice, except where it is satisfactorily shown that compliance with such a rule has been raised, then the rule must be complied with, and that the Rules are meant to be obeyed.
The Rules of this Court made pursuant to Section 236 of the 1999 Constitution, as amended, not only do they partake of the nature of subsidiary Legislation by virtue of Section 18 (1) of the Interpretation Act (per Ogbuagu, JSC in MV ARABELLA v. NAIC (2009) 4 – 5 SC. (pt.2) 189 at (205 – 206); they are accordingly entitled to be given purposive interpretation. Whereby effect is given to the true purpose of the legislation. See NAFIU RABIU v. THE STATE (1980] 8-11 SC 130; ONYE MA v. OPUTA (1987) 6 SC 362 at 371; F.B.N. PLC v. MAIWADA (2012) LPELR-9713 (SC).
One of the causes of the baneful situation or the quagmire of the congestion we have found ourselves in this Court presently is tardy or sloppy attitude of lawyers and litigants to rules providing; time table for conduct of litigation. We are in dire situation. As Shakespeare would put it desperate malady deserves desperate remedy. The panacea appears to what this court stated in SOLANKE v. SOMEFUN (1974) 1 ALL NLR 386 at 592; F.B.N. PLC. v. ABRAHAM (2008) 36.2 NSCQR 1058 at 1076. That is, strict compliance with the Rules of court makes administration quicker. The extant Rules of this Court provides in the proviso to Order 2 Rule 31 that when time within which anything provided by the said Rules shall be done enlargement of time for doing such a thing may be granted only in exceptional circumstances. That is that such indulgence may only be granted in very unusual circumstances. The adjective: exceptional means “very unusual”. See Oxford Advanced Learner’s Dictionary. The proviso to Order 2 Rule 31 therefore demands that the appellant who has failed, neglected or refused to file his brief of argument within 10 weeks provided by Order 6 Rule 5, then it is only upon his showing exceptional or very unusual circumstances that he may be allowed extension of time within which to file the said brief of argument.
For the Appellant the reason given in the affidavit for the 24 week delay in filing the Appellant’s Brief is that his counsel, Mr. Ogunwole, SAN developed serious eye problems just at the time he had commenced working on the brief. I grudgingly accept this reason. The counter-affidavit which seeks to Drove a lie of the reason for delay as proffered by Mr. Ogunwole, SAN, suggest that Mr. Ogunwole SAN, inspite of the alleged eye problems was actively in courts in other cases. My learned brother, PAUL A. GALINJE, JSC, in the Lead Ruling, has dismissed the counter-affidavit and given reasons for not acting on it. I agree with him.
The learned Senior Counsel, however, may not be that lucky some other time. As a Senior Advocate he is expected to have other counsel in his Chambers. If for any reason any counsel in the Chambers, including himself, is unable to do a thing; within the statutory time or period prescribed any other counsel within the Chambers should be above to take over and to the needful. See A.J. ADEKA v. M.A. VAATIA (1987) 1 NWLR (pt.487) 134. In a firm of legal practitioners when one legal practitioner is unable to perform an assigned responsibility for any reason, including sickness; in an application for extension of time within which to do that thing prescribed by the Rules of Court proper account of not only the counsel assigned but also of other counsel in the chambers should be given.
The application also seeks leave to raise the issue of jurisdiction for the first time in this Court. I would not require adducing fresh evidence on the evidence or facts available in the printed record that issue can be determined without necessity for fresh evidence. I agree with the Appellant that the new issue touches on the jurisdiction of the trial to entertain the suit. It is a threshold issue, and it is prima facie substantial. Counsel for the Respondents seems to suggest that it is a non-issue. His submission, backed by paragraphs 22 and 23 of the counter-affidavit, is that it is a notorious fact that Eruwa Judicial Division is also known and called Ibarapa Judicial Division in Oyo State. As I am satisfied that my agreeing with the 1 -2nd Respondent’s counsel would prematurely lead only to dabbling in the issues in the substantive appeal. I hereby impose self restraint.
I am, like my learned brother PAUL A, GALINJE, JSC, ready grant Appellant leave to raise and argue the fresh point or issue in the Appellant’s Brief. I also grant Appellant extension of time within which to file his brief of argument as in Exhibit A. The Appellant’s Brief of Argument filed and served on the Respondents is hereby deemed properly filed and served today.
(Delivered by Olabode Rhodes-Vivour, JSC)
I have had the benefit of reading in draft the leading Ruling delivered by my learned brother, Galinje JSC. I agree with his lordship that the application should be granted. The applicants’ seek the following reliefs:
1. Extension of time to file the appellants’/applicants’ brief of argument attached to the affidavit and marked exhibit A.
2. Granting leave to the appellants’/applicants’ to raise a new issue/a new point of law not raised either in the High Court or the Court of Appeal to wit; “Whether or not the learned trial judge and the Court of Appeal have jurisdiction to entertain this action which was instituted in a non-judicial division to wit.”Eruwa Judicial Division’’
3. Granting leave to the appellants’/applicants’ to Incorporate argument on the new issue/fresh point of law in the appellants’ brief of argument (exhibit A).
4. To deem as properly filed and served the appellants’ brief of argument (marked exhibit A) already filed and served.
Hon. Justice Galinje examined the affidavit in support of the application and the counter¬
affidavit filed in opposition and came to a conclusion which I gratefully accept. I shall have cause in this Ruling to refer to his lordships conclusions. Reliefs 3 and 4 can only be granted if reliefs 1 and 2 succeed.
Order 6 Rule 5 (1) (a) of the Supreme
Court Rules state that:
5(1) (a) The appellant shall within ten weeks of the receipt of the Record of Appeal…….file in the court and serve on the respondent a written brief being a succinct statement of his argument in the appeal.
Where, as in this case the applicants’ were unable to file their brief within 10 weeks as prescribed by Order 6 Rule 5 (1) (a) of the Supreme Court Rules, they can still file their brief if they file an application under Order 2 Rule 31 of the Supreme Court seeking extension or enlargement of time to file appellants’ brief.
For an application for extension of time to file brief to succeed the applicant must by affidavit evidence show good and substantial reasons for failure to file brief within the prescribed period. This is premised on the law that when no credible excuse is given no indulgence can be granted. Affidavit evidence must show something which entitles the applicants’ to the courts discretion e.g. mistake, inadvertence or error of judgment of counsel.
Under Order 2 Rule 31 of the Supreme Court Rules this court may extend the period prescribed under Order 6 Rule 5(1) (c) for filling brief. This is a discretion which must be exercised judicially and judiciously. That is with correct and convincing reasons and not arbitrarily or at the whim and fancies of the judge.
Affidavit evidence accepted by this court reveals that learned counsel for the applicants’ was careless while taking steps to perfect the applicants’ appeal. Such carelessness is pardonable since no delay is envisaged as the applicants’ have already filed their brief and it would be wrong to punish the applicants’ for lapses by their counsel. Relief No.1 is granted.
The well laid down position of the law is that leave must be obtained from the Supreme Court before a fresh issue not canvassed In the lower courts can be argued, but where the fresh issue relates to the issue of jurisdiction it must be brought to the notice of the adverse party and can be argued with or without the leave of this court even if it is coming before this court for the first time. See Obiakor v State (2002) 6SC (Pt. II) p. 33.
Jurisdiction is a substantial question of law. It can only be ousted by clear provisions of the Constitution or statute. It is a threshold matter, so once raised, even for the first time in the too court it must be determined quickly as it is the life wire of the court. See Madukolu v Nkemdilim (1962) 2NSCC p. 374 Obiuweubi v CBN (2011) 2-3 SC (Pt.I) p.46
The respondents’ have been given good notice of the applicants’ intention to raise the issue of jurisdiction and have gone the extra mile to seek leave from this court which is graciously granted.
It is for these brief reasons as well as those more fully given by my learned brother Galinje, JSC that I too grant the application.
(Delivered by CLARA BATA OGUNBYI, JSC)
I have had the privilege of reading in draft the lead Ruling just delivered by my learned brother Galinje, JSC. I agree that the application at hand has merit and should be obliged.
The application, has been spelt out clearly in the lead Ruling of my learned brother. The reliefs are also within the jurisdiction of this court and hence the reference made to order 2 Rule 5(B); Order 2 Rule 31 of the Rules of this court and also under its inherent jurisdiction. However, I seek to restate the position of the law, that the granting of the application is not as a matter of course. It must be based on the governing principles of good and substantial reasons.
In other words, it is pertinent to emphasize that the grant of such application, although it is at the discretion of the court, such must be exercised judicially and judiciously. When a court is called upon to make an order of extension of time within which to do certain things, prescribed by the rules of court for taking certain procedural steps, the court ought always to bear in mind that the rules of court must, prima facie, be obeyed.
It therefore follows, that in order to justify the exercise of the court’s discretion in extending the time, there must be some material upon which to base the exercise of that discretion. See Williams v. Hope Rising voluntary Funds Society (1982) 2 SC 145; Elobisi v. Onyeonwu(1989) 5NWLR (Pt. 120) 224; Doherty v. Doherty (1964) 1 All NLR 299; Ogar v. James (2001) 10 NWLR (Pt.722) 621 and Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275.
In further emphasis, the grounds predicating the application as well as the affidavit deposing to the facts thereon must be convincing so as to warrant the exercise of discretion in favour thereof. See also Nwora v. Nwabueze (2011)15 NWLR (Pt. 1271) See page 467.
On the totality of the application, it is obvious that the delay sought to be remedied was caused by the act of the counsel and same should not be visited on the client.
The law is also well settled that the best of adjudication which should earn the justice of a case is that which is decided on the participation by all parties in a proceeding. Section 36(1) of 1999 Constitution, on the concept of fair hearing, is very well enshrined into our constitution and hence judicial system. In the case at hand, it is not out of place therefore for the court to bend backwards for the sake of doing justice.
This is more so especially where there is no evidence that the other party, is either, or will be prejudiced If the application is granted.
On the question of the new issue/ a new point sought to be raised, same relates to a question of jurisdiction which the law says, it can be raised at any stage of a proceeding, even before judgment. This is because jurisdiction is known to be the bed rock or hall mark of adjudication, without which, there can be no valid proceeding. The issue in question is substantive and not procedural. It is very fundamental and cannot be trivialised.
For all intents and purposes, paragraph 3 sub paragraphs (viii), (ix),(xi) and (xii) of the affidavit in support of the application are specific and relevant to this application and the facts are as follows:
“(viii). That no further evidence is required which could have affected the decision of this Honourable court.
(ix). That it is in the interest of justice to grant this application so as to prevent obvious miscarriage of justice.
(xi) That the respondents will not be prejudiced if the application is granted.
(xii) That it is in the interest of justice to grant the application.’’
With the foregoing few words of mine and more particularly and relying on the fuller reasonings by my learned brother Galinje, JSC, I hereby also grant the application in terms of the lead ruling.
(Delivered by Amiru Sanusi JSC)
The appellants/applicants filed a motion on notice seeking four reliefs, namely:-
a. Extension of time to file Appellants/Applicants’ Brief of Argument attached to the affidavit and marked Exhibit A
b. Granting leave to the Appellants/Applicants to raise a new issue, a new point of law not raised either in the High court or the Court of Appeal to wit:
‘’whether or not the learned trial judge and the Court of Appeal have jurisdiction to entertain this action which was instituted in a non-judicial division to wit: Eruwce Judicial Division”
c. Granting leave to the Appellants/Applicants to incorporate argument on the new issue/fresh point of law in the Appellants’ Brief of argument (Exhibit A).
d. To deem as properly filed and served the Appellants’ Brief of Argument (marked Exhibit A) already filed and served.
The appellants/applicant supported their application with four paragraph affidavit and a further affidavit and also filed written Address on the application. When served with the applicants’ application, the respondents opposed the applicants motion by filing a counter affidavit, a further counter affidavit and a written Address.
In arguing the application before us, the applicants in their written address raised lone issue for the determination of their application as follows:-
“Whether or not the court may exercise its discretion in favour of the applicants by granting same.”
As for the respondents, two issues were proposed for the determination of the application to wit:-
(i) Whether the Appellants/Applicants have placed substantial and exceptional sufficient and cogent reasons before the court to deserve granting of an extension of time to file the Appellants’ Brief of Argument.
(ii) Whether order/reliefs 2, 3 and 4 of this application are supported by law or grantable by this Honourable Court in the circumstances of this application.
In his oral argument, the learned senior for the applicants’ referred to Paragraph 3 of the supporting
affidavit to the effect that the delay in filing their brief of argument was caused by the negligence and inadvertence of the counsel and he argued that in such situation court can exercise its discretion to grant the application especially in a situation where non-filing of brief within time was due to pardonable inadvertence caused by counsel. He cited the case of Isiaka v Ogundimu (2006) 13 NWLR [pt.997] No.1.at 44. Regarding the relief that has to do with raising fresh or new issue, be referred to the case of AIC Ltd vs. NNPC (2005)5 SC (pt. II) 60 at 68.
On their part, the respondents as I stated supra, opposed the grant of this application vehemently. Their learned counsel argued that the applicants failed to disclose any facts as good, substantial, exceptional and convincing reason for late filing of their Brief of argument to deserve being granted the relief sought. He argued that in their counter affidavit, they showed and established that the learned counsel to the applicants/Appellants Mr. R.A Ogunwole SAN, was during the period stated, had eye problem and was advised to take some rest. The same learned senior counsel for the applicants had been appearing in courts conducting his cases. He stated that all the facts or reasons deposed to were mere fabrication and most untrue as they stated to in the counter affidavits of 1st and 2nd respondents. He said even if what he said about his eye problem was true, the learned SAN for the applicants had other able learned counsel on employment in his chambers who could timeously prepare “the appellants’ brief of argument. He then urged this court to hold that the applicants did not show cogent and substantial reason for the delay in filing the appellants’ brief of argument.
With regard to the prayer for leave to raise fresh or new issue, the respondents’ counsel submitted that such relief was also not grantable because the three conditions for grant of such relief were not satisfied. He mentions those conditions to include the followings:-
(a) That the court had all relevant facts relating to the new/fresh point.
(b) That if the points were raised at the lower court it would have remained unsatisfactorily determined, and
(c) That the point being sought to be raised is substantial point of law, be it procedural or substantial
Learned counsel for the respondents went ahead to delve into some facts in his argument which if considered will be prejudicial or pre-emptory to the determination of the fresh or new issue sought to be raised. The learned respondents’ counsel finally urged this court to refuse and dismiss the applicants’ application.
In the first prayer, the applicant herein is seeking the indulgence of this court to extend time for them to file their brief out of time. For this court and indeed any appellate court to grant such prayer the applicant must establish good, substantial or exceptional reasons or circumstances explaining satisfactorily, the delay in filing his brief as would justify the grant of such extension of time applied for. Of course this court always has the discretion to grant or refuse such application but such discretion must be exercised judicially and judiciously. That is to say, before granting such relief, the court must ascertain that there are some concrete material upon which to base such exercise of discretion. In actual fact, the bottom line is that in granting such extension of time, the court must have in its mind the aim doing substantial justice to the parties, because that is the cardinal determining factor. See Chief T.O.S Benson vs. Nigeria Agip Oil Co Ltd (1982) 5 SC 1.
In this instant application, the learned applicants’ counsel gave his reasons for the delay in filing the appellant’s brief in Paragraph 3 of the affidavit supporting his motion, which he gave as principally because of his eye problem to the extent that during the period he was supposed to work on the brief of argument and prepare it he had eye problem and was advised to rest. Conversely, in Paragraph 8 of the counter affidavit filed by first and second respondents, the learned counsel for the two respondents tried to debunk such reasons given by the learned senior counsel for the applicants by deposing that during the period of the supposed rest by the learned silk, he was seen personally conducting other cases in various courts despite the alleged eye problem. It seems to me that the averments in the counter affidavit trying to debunk the applicant counsel’s averment in the supporting affidavit, appear to be erroneous because the affidavit appeared not to have been served on the learned senior counsel for the applicants and also the deponent of the averments in the counter affidavit Mr. Tunde Adegbola, had no connection whatsoever in the case and appeared to be a total stranger in the case or at least, can be regarded as a “busy-body”. There is also no any disclosure in the averments of Tunde Adegbola, of any connection or relationship whatsoever between him and Mr, Ogunwole SAN. Also, there was no identifiable address of service of Tunde Adegbola in the said counter affidavit.
it must however be stated here, that the reason given by the learned senior advocate for the applicants as cause of his in ability to file the Brief timeously are not very sound. Even if it was true that he was sick he is expected to show medical evidence to support his averments. Reason of ill-health or fault of junior counsel in the chambers is not enough. However, there is no dispute whatsoever that the applicants’ counsel was careless and negligent.
At any rate, this court in multiplicity of decided authorities held that negligence or carelessness of counsel can still serve as acceptable explanation for delay to apply for extension of time to appeal. See the cases of Shanu v Afribank Nigeria Plc  18 WRN1 or 13 NWLR (pt.684)392 at 403; Alasbe v His Highness S. Abinbola & Ors [1978)NSCC 84 or (1978)2 SC 139, Dokoly v Dokoly (1976)1 All NLR 399; Bowaje vs Adediwura (1976)6 SC 143; Akinyede vs The Appraiser (1971)1 All NLR 162.
As I said above, the exercise of discretion must be judicially and judiciously done. The cardinal principle is always that the discretion to be exercised must be geared towards doing substantial justice in the surrounding circumstances of the case. The justice of the case is to avoid the appellants or party making them to suffer from the negligence, inadvertence or mistake of their counsel due to no fault of theirs. To put it in another words, they should not be visited with the lapse, negligence or mistake of their counsel, The justice of this application is that the extension of time sought should be granted to enable them file their Brief of argument, rather than to hinder them as that tantamount to shutting them out and preventing them from ventilating their grievances on the judgment they are desirous of appealing against.
This prayer therefore ought to be and is hereby accordingly granted by me.
The second prayer has to do with the grant of leave to raise fresh or new issue not raised or canvassed at the two lower courts. It appears to me that the issue sought to be freshly or newly raised relates to point of jurisdiction. The law is trite, that issue that relates to jurisdiction before being raised, the adverse party must as of necessity be put on notice and such notification can only be effectively done by obtaining the leave of this court, since it is sought to be raised for the first time in this court. It is also settled law that, though question of law and jurisdiction can be raised at any time in the proceedings, however in view of the importance and fundamental nature of the topical issue of jurisdiction which is the life wire or spinal cord of any case or matter, the law requires that parties must be given opportunity to address it on that in order not to breach the time-honoured principle or rules of fair hearing. It is basically in Anew of that principle of law, that where a party to an appeal is desirous of raising new or fresh issue on jurisdiction which was never raised in an}’ of the two courts below, should and indeed must seek and obtain leave of court where he intends to raise it. It is sequel to that that, I find it appropriate to grant this prayer.
Thus, in the light of these few remarks and for the fuller and more detailed reasons contained in the
lead Ruling of my learned brother Paul Adamu Galinje JSC which I entirely agree, with that I too see merit in this application. It is accordingly granted by me. I abide by all the consequential orders made in the lead Ruling.
APPEARANCES OF COUNSEL:
MR. R.A OGUNWOLE, SAN and Ahmed Raji, SAN with the rest of counsel on as per the attached lists for the Appellants/Applicants.
MR. M. K RAJI for the 1st and 2nd Respondents.
MR. O. A OGUNIRAN for the 3rd and 4th Respondents. He is Director of legal Services Oyo State
5th Respondent not represented.