JOHN OLAWOLE OLAOSEBIKAN v. CHIEF SOLOMON AJIBOYE & ORS (2016)

JOHN OLAWOLE OLAOSEBIKAN v. CHIEF SOLOMON AJIBOYE & ORS

(2016)LCN/8359(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 22nd day of March, 2016

CA/IL/129/2014

RATIO

APPEAL: WHETHER A CASE ON APPEAL IS A CONTINUATION OF THE CASE FROM THE LOWER COURT
In Ogundiani v. Araba (1978) 11 N.S.C.C. 334 at 347, His Lordship then of the Apex Court, Idigbe, J.S.C. made clear the position of the law to the effect that a case on appeal is a continuation of the case from the Lower Court he said:
“An appeal is in law a continuation of the prosecution of the original cause or matter which is the subject of appeal. See: KINSMAN v. KINSMAN (1831) 1 RUSS & M.617; also 39 E.R. 236.” PER. CHIDI NWAOMA UWA, J.C.A.

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

JOHN OLAWOLE OLAOSEBIKAN Appellant(s)

AND

1. CHIEF SOLOMON AJIBOYE
2. CHIEF ABEL JAWUMOFA
3. CHIEF PHILIP ADENIYI
(For themselves and on behalf of the High Chiefs of Idera Town/Community)
4. IGBOMINA EKITI IFELODUN TRADITIONAL COUNCIL
5. IFELODUN LOCAL GOVERNMENT
6. ATTORNEY-GENERAL, KWARA STATE
7. JAMES OLADIPO BUREMOH Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Lead Ruling): The applicant’s application was on Notice, brought pursuant to Order 6 Rule 15 of the Court of Appeal Rules, 2011 and under the Inherent Jurisdiction of the Honourable Court. The Applicant prayed for the following orders:
1. “AN ORDER of this Honourable Court to amend the Notice of Appeal dated 4th August, 2014 and filed on the same date by striking out and/or exclude the name of Attorney General of Kwara State (whose name has been struck out by the trial Court before judgment) in the notice of appeal.
2. AN ORDER/LEAVE of the Honourable Court allowing the appellant/applicant to amend the notice of appeal to reflect the proper names of the parties as in the judgment and to incorporate additional interlocutory grounds of appeal in the manner as appears in the proposed amended notice of appeal hereto attached.
3. AN ORDER/LEAVE of this Honourable Court substituting the records of appeal transmitted on 31st October, 2014 with the one transmitted to this Court on 25th January, 2016.
4. AN ORDER/LEAVE to amend the record of Appeal transmitted on 25th January, 2016 to reflect proper

names of the parties to the appeal as in the – amended notice of appeal.
5. FOR SUCH FURTHER ORDER(S) as the Honourable Court may deem fit to make in the circumstance of this application.”

The application was brought upon the following grounds:
1. “The appellant/applicant had earlier transmitted record of appeal compiled by the registry of the trial Court on 31st October, 2014.
2. Upon the record being served on the 1st-3rd and 7th respondent counsel, they raised observation to same that some of the Court’s processes have jottings and other complaints which are not on the original documents vide their letter dated 17th February, 2015.
3. The appellant/applicant in order to make the record of the Court straight and neater went back to the registry of the Lower Court to recompile a neater record which was done and transmitted to this Honourable Court on 25th January 2016.
4. Majority complaint of the 1st ? 3rd and 7th respondents’ counsel have been taken care of in the record of 25th January, 2016.
5. The appellant/applicant had earlier filed an interlocutory appeal in respect of the matter that led to this appeal on

30th October, 2013.
6. Shortly after the record was transmitted, the trial Court delivered its judgment in respect of the substantive matter.
7. This Honourable Court has always enjoined parties to argue interlocutory decision together with substantive appeal.
8. The record transmitted on 25th January 2016 herein sought to replace the earlier records transmitted on 31st October, 2014 contains the record of the interlocutory appeal and also that of the main/substantive/present appeal for this appeal.
9. That it is neater and convenient for both this Honourable Court and parties herein that the interlocutory decision be heard together with the substantive appeal once and for all.
10. That pursuant to the above it is necessary that the notice of appeal in this appeal be amended to reflect the proper names of the parties to the parties to the appeal and grounds of appeal in the interlocutory decision, the appropriate leave having been sought and obtained at the Lower Court.
11. The name of the Attorney General of Kwara State has been struck out by the trial Court before the judgment appealed against hence not affected by this

appeal.
12. In order to have single notice of appeal for the interlocutory decision and the present appeal on the final decision, the appellant/applicant has earlier filed a notice of withdrawal on 8th January, 2016 for the withdrawal of the interlocutory appeal.
13. That it is in furtherance of the above stated and convenience of the Court that this application is bought.
14. That this Honourable Court has unfettered power to grant this application.
15. It is in the interest of justice that this application be granted.”

The applicant also filed a five paragraph affidavit in support of the application deposed to by one Salman Muritala, a litigation Clerk in the law firm of Messrs Kayode Olatoke, SAN & Co., the firm representing the applicant. In the affidavit in support of the application, Paragraph 4 (c), reference was made to Exhibit OJ 1 (the Notice of withdrawal of the Interlocutory appeal) filed on 8/1/16, and in Paragraph 4 (m) Exhibit OJ 2, a copy of the proposed Notice of Appeal.

?The learned senior counsel for the applicant, Dr. J. O. Olatoke (SAN) in moving the application submitted that the interlocutory appeal

had been withdrawn and referred to the case of KAKIH v. PDP (2014) 6 – 7 SC (Pt. 1) PAGE 99 at 110, LINES 3 – 9 to the effect that the Apex Court encourages the merging of the interlocutory appeal with the main appeal. He observed that there was no counter affidavit in opposition to the motion papers.

Mr. Akin Akintoye II (appearing for the 1st – 4th and 7th Respondents) opposed the application and submitted that the grant of the reliefs should not be granted based on the reasons given by the learned senior counsel, reference was made to Paragraph 4K of the affidavit in support of the application. It was argued further that in respect of relief one, that no reason was given for the inclusion of the 6th Respondent whose name had been struck out in the lower Court.

Learned Counsel’s argument in respect of prayer one was adopted in respect of relief two. It was argued that Kakih’s case relied upon is not applicable and that the interlocutory appeal having been withdrawn is deemed dismissed and cannot be revived.

On relief three, it was submitted that the Court cannot amend or substitute the records previously filed within

time. Prayer four was argued not to be grantable as it is fundamental. It was submitted that the record of 25/1/16 is not properly before the Court. We were urged to dismiss the application with costs.

In reply, the learned senior counsel submitted that it is only a party in the judgment that could be a party on appeal, that the 6th Respondent was not a party in the case in the trial Court and cannot be a party on appeal. Further, that the Court can suo motu, strike out the name of the 6th Appellant. Reference was made to Paragraphs 4(b) and (c) in support of prayers 1 and 2 Paragraph 4(L) in respect of prayer 3.

It was argued that if prayers 1 and 2 are granted, prayer 4 is ancillary that is, to allow the record of 25/1/16 so as to bring the proper parties before this Court.

The learned counsel to the 5th and 6th Respondents did not oppose the application.

I have gone through the motion papers, the grounds under which the reliefs are sought, the affidavit in support and the submissions of learned Counsel.

?Relief one (1) is a harmless prayer, seeking to amend the Notice of Appeal filed on 4/8/14 by deleting the

name of the 6th Respondent (Attorney General of Kwara State) as appears on the Notice of appeal, pages 612-619 of the printed records of appeal. The 11th ground for the application has given the reason why this relief has been sought, that is: the name of the Attorney General Kwara State had been struck out by the trial Court before the judgment appealed against, hence not affected by this appeal.

The learned counsel to the Respondents in this application has not refuted the fact that the 6th Respondent’s name had been struck out by the trial Court before the judgment that gave rise to this appeal. The 6th Respondent not being a party to the judgment of the trial Court, obviously cannot be a party to this appeal even though his name was included in error having been earlier struck out, which is the reason for relief one being sought; this is contrary to the argument of the learned counsel to the Respondents to the effect that no reason was given for seeking relief one.

In Ogundiani v. Araba (1978) 11 N.S.C.C. 334 at 347, His Lordship then of the Apex Court, Idigbe, J.S.C. made clear the position of the law to the effect that a case on appeal is

a continuation of the case from the Lower Court he said:
“An appeal is in law a continuation of the prosecution of the original cause or matter which is the subject of appeal. See: KINSMAN v. KINSMAN (1831) 1 RUSS & M.617; also 39 E.R. 236.”

For this reason, the 6th Respondent on the Notice of Appeal sought to be amended by deleting his name, is in order, not having been part of the case before the lower Court till judgment.

Relief two (2) seeks to allow the applicant amend the Notice of Appeal to reflect the proper names of the parties as in the judgment of the lower Court being appealed against and to incorporate additional grounds of appeal in the manner as appears in the proposed amended Notice of appeal, Exhibit OJ 2.

?With my view in respect of relief one (1), the grant of relief two (2) flows from grant of same or a natural consequence having held that a matter on appeal is a continuation of the matter being appealed against and that the proper parties in the judgment should be the same on appeal. The learned counsel to the Respondents has not argued that the names as appear in the proposed Notice of Appeal, Exhibit

‘J2’ were not parties in the trial Court up till the judgment stage, the prayer is grantable.

Incorporation of the additional (previously interlocutory) grounds of appeal as appears in the proposed amended Notice of appeal is also grantable. The interlocutory appeal had been rightly withdrawn to avoid multiple appeals, the substantive matter having been concluded. The Courts frown at multiple appeals over the same matter especially when the substantive matter has been concluded.

In respect of relief 3, the original records of appeal were transmitted on 31st October, 2014. The learned senior counsel in his grounds for the application and affidavit in support of the application has given detailed reasons why he has sought to substitute the records. No harm would be caused the respondents if the relief is granted the learned Counsel to the Respondents has not contended that there would be or that it would prejudice their case.

?The Courts are more concerned with substantial justice and not technical disposal of matters. The Applicant would be allowed to substitute the records of appear of 25/1/2016 for the records transmitted on

31/10/14.

Relief four (4) is to amend the record of appeal transmitted on 25/1/16 to reflect proper names of the parties to the appeal as appears in the amended Notice of appeal. With the grant of reliefs one and two, the grant of relief four would follow. The parties in the proposed Notice of appeal would then tally with the names as appears on the records of 25/1/16. It is grantable. Under the inherent powers of this Court and the prayers sought in relief 5 thus: “FOR SUCH FURTHER ORDER(s) as the Honourable Court may deem fit to make in the circumstance of this application”, we would grant the reliefs sought in the interest of Justice.

In sum the reliefs sought are granted as prayed in the following terms:
1. The Applicant is hereby allowed to amend his Notice of Appeal of 4th August, 2014 by striking out the name of the Attorney General of Kwara State in the Notice of Appeal.
?2. The Applicant is hereby allowed to amend the Notice of appeal to reflect the proper names of the parties as in the judgment and to incorporate additional interlocutory grounds of appeal in the manner as appears in the proposed amended Notice of Appeal, Exhibit

‘J2’.
3. The Applicant is granted leave to substitute the records of appeal transmitted on 31st October, 2014 with the one transmitted to this Court on 25th January, 2016.
4. The Applicant is allowed to amend the record of Appeal transmitted on 25th January, 2016 to reflect the names of the parties to the appeal as in the amended Notice of Appeal.

Parties to bear their respective costs.

HUSSEIN MUKHTAR, J.C.A.: I have read in draft the ruling just delivered by my learned brother Chidi Nwaoma Uwa, JCA. I agree that the application is grantable in the interest of justice. I adopt the ruling as mine.

I also subscribe to all the consequential orders made in the ruling inclusive of the one as to costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the draft of the Ruling just delivered by my learned brother, CHIDI NWAOMA UWA, JCA. I agree with the reasons adduced therein in granting the reliefs sought by the Applicant.

I abide by the orders as to costs.

Appearances

Dr J. O. Olatoke, SAN with him, T. O. Adeboye, O.T, Adewara (Miss) and T. O. Ogundipe (Miss)For Appellant

AND

Akin Akintoye II with him, Ololade Sonaike and Gerald Okereke for 1st – 4th and 7th Respondents
Kamaldeen Gambari for 5th Respondent

Ayoola Idowu Akande, (ACSC, Kwara State Ministry of Justice) with him, Morisola Alaba (Miss) for 6th RespondentFor Respondent