MR. OLAREWAJU AYOOLA v. MS. ANGELA ENAHORO (NEE AYOOLA) & ANOR
(2019)LCN/13239(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/L/1033M/2016(R)
RATIO
APPLICATION: WHOSE DUTY IS IT TO PROVE MATERIAL FACTS IN THE AFFIDAVIT OF AN APPLICATION
The duty is on a party who alleges to provide material facts in the affidavit to support that fact just as evidence is provided to prove facts in a pleading. See Chairman EFCC & Anor vs. Littlechild & Anor (2015) LPELR- 25199 (CA); UBN Plc vs. Astra Builders (W.A.) Ltd (2010) 5 NWLR (Pt. 1186)1.PER TOBI EBIOWEI, J.C.A.
APPEAL: LEAVE TO APPEAL OR APPLICATION FOR LEAVE TO APPEAL IS NOT GRANTED AS A MATTER OF COURSE, IT IS BASED ON THE DISCRETION OF THE COURTS
Now to the application, in Amaechi vs. Omehia & Ors (2012) LPELR-20603 (SC), Ngwuta, JSC at page 14-15 held:
Leave to appeal or application for leave to appeal is not granted as a matter of course. The grant or denial of such application is subject to the judicious exercise of discretion by the Court. See Ojora vs. Odunsi (1964) 3 NSCL 34 at 48.PER TOBI EBIOWEI, J.C.A.
APPLICATION : APPLICATION FOR LEAVE TO APPEAL: WHAT MUST BE SHOWN
To succeed in this application, the applicant has to show, by his supporting affidavit, that he has good and substantial reasons for failure to appeal or apply for leave to appeal within the prescribed period. Further, the proposed notice of appeal must have grounds of appeal which show good cause why the appeal should be heard. See Adeojo vs. Awotorebo & Anor (1975) 1 NMLR 54 at 55. PER TOBI EBIOWEI, J.C.A.
WHETHER PARTIES CAN BE PUNISHED FOR THE IGNORANCE OR MISTAKE OF THEIR COUNSEL
The Supreme Court was emphatic on this point in Saleh vs. Monguno & Ors(2006) 7 SC (Pt. II) 97 when the court per Tabai, JSC held:
This Court has insisted in a long line of cases that parties should not be punished for the ignorance or mistake of their counsel. See: Ibodo vs. Enarofia (1980)5-7 SC42: Nneji vs. Chukwu (1988)3 NWLR (Pt. 81) 184; Obidiaru vs. Unique & Anor (1986)3SC 39; Afolabi vs. Adekunle (1983)8 SC 98; (1983)2 SCNLR 141. In Bello vs. AG Oyo State (supra) at 870-871 this Court, per Karibi-Whyte, again articulated this principle of justice in the following terms:- “The respondent has contended that counsel did not, in fact, advert his mind to the Torts Law because of his reliance on the maxim ubi jus ibi remedium (meaning where there is a right, there is a remedy), suggested that he knew there was a right but that there was no remedy; and is asking this Court to provide one.PER TOBI EBIOWEI, J.C.A.
A PARTY WHO HAS COMMITTED AN ILLEGALITY CANNOT BE ALLOWED TO BENEFIT FROM THEIR ILLEGALITY
A Court of justice cannot allow this. It has been settled that a party who has committed an illegality cannot be allowed to benefit from the same illegality.. See Oil field Supply Centre Ltd. vs. Johnson (1987) 2 NWLR (Pt.58) 625; African Petroleum Ltd. vs. Owodunni (1991) 8 NWLR (Pt.210) 391; Ayinke vs. Lawal (1994) 7 NWLR (Pt.356) 263.PER TOBI EBIOWEI, J.C.A.
JURISDICTION: THE POSITION AND IMPORTANCE OF JURISDICTION IN A MATTER, ONCE IT IS RAISED
The issue of jurisdiction is very important and once it is raised to show it is a very important ground, it is normally dealt with first. In CPC & Anor vs. Nyako & Ors (2011) LPELR 23009 (SC), Mohammed JSC held at pages 15-16 as follows: This Court in a plethora of cases had laid down principles for granting application for leave to appeal simplicita which is also included in the requirement under Section 233(5) of the Constitution for application for leave to appeal as a person having interest in the matter. The general rule is that an application for leave to appeal will be granted where the grounds of appeal raise issues of general importance or novel points of law or where the grounds of appeal show a prima facie arguable appeal. See Kigo (Nigeria) Ltd v. Holman Brothers (Nigeria) Ltd. (1980) 5-7 S.C. 52.PER TOBI EBIOWEI, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
MR. OLAREWAJU AYOOLA Appellant(s)
AND
1. MS. ANGELA ENAHORO
(NEE AYOOLA)
2. THE CHIEF JUDGE OF LAGOS STATE Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Lead Ruling): Before this Court is a motion filed on 15/9/16 by the Applicant seeking the trinity prayers. The motion is supported by a 17-paragraph affidavit. The motion was filed by Benjamin Obiora Esq., The 1st Respondent filed a counter affidavit of 4 paragraphs on 29/11/16 and further counter-affidavit of paragraphs on 2/3/17. The Applicant filed a further and better affidavit in response to the counter affidavits filed by the 1st Respondent. This was filed on 1/6/17. The 2nd Respondent filed a preliminary objection to the motion of the Applicant on 28/4/17. To this, the Applicant filed a counter affidavit. Among all the parties, it was only the Applicant that filed a written address which was adopted on the 28/2/19. The counter affidavit of the 1st Respondent and the preliminary objection of the 2nd Respondent have nothing to stand on as there is no address. In the absence of a written address on the preliminary objection, the objection is deemed abandoned. See Omoregbe vs. Eghaghe (2011) LPELR 8930. In Agboroh vs. WAEC (2016) LPELR-40974 per Mbaba, JCA at pages 5-7 held:
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The law and practice is that a party who files a preliminary objection must take the stage, first, at the time the appeal comes up for hearing, and argue the said preliminary, before the appeal is heard, and where he fails to do so, the preliminary objection is deemed abandoned and has to be struck out. See the case of Registered Trustees of the Airline Operators of Nigeria vs. Nigerian Airspace Management Agency (2014) LPELR 22372, where the Supreme Court said:
I think it is fair to say that the method of raising a preliminary objection, apart from giving the appellant three clear days? notice from the date of hearing, is now firmly settled. The respondent may file a separate, formal notice of preliminary objection. Alternatively, he may raise the objection in his brief of argument or he may employ both options. The decided authorities on the issue are to the effect that there is the need for the respondent or his Counsel to seek the leave of the Court to move the objection during the oral hearing of the appeal, the effect of the failure to move the objection during the oral hearing of the appeal is that it is deemed abandoned. See Tiza & Anor. vs. Begha
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(2005)15 NWLR (Pt.949) 616; (2005) 55C (Pt.11)1 at 7, where His Lordship Musdapher JSC stated, thus: By virtue of Order 5 Rule 15(1) of the Court of Appeal Rules, a respondent intending to reply upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before hearing, setting out the grounds of the objection. Notice of preliminary objection can also be given in the respondents brief but a party filing it in the brief must ask the Court for leave to move the objection (when) the oral hearing of the appeal commences. See: Nsirim vs. Nsirim (1990)3 NWLR (Pt.138) 285; Okolo vs. UBN (1998) 2 NWLR (Pt.539) 618; Arewa ile PLC vs. Abdullahi & Brothers Owsawa Ltd (1998)6 NWLR (Pt.554) 508; Ajide vs. Kelani (1985)3 NWLR (Pt.12)248.?
While the Preliminary objection cannot be considered and deemed abandoned, the same cannot be said of the counter affidavit of the 1st Respondent. This Court will consider the counter affidavit in spite of the fact that there is no address. In considering this motion, therefore, the processes to consider are those of the Applicant and the counter affidavit of the 1st Respondent.
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The learned counsel for the Applicant raised a single issue for determination. This is; whether the Applicant has made out sufficient reason for the exercise of the discretion of the Court in favour of granting the application. It was counsel submission that this Court has the power to grant such an application provided the Applicant discloses good and substantial reasons for failure to appeal within the time prescribed by law to file the application and that the grounds of appeal has disclosed good cause why the appeal should be heard. He referred to Section 24 (4) of the Court of Appeal Act; Cap C36 Laws of the Federation 2004, Order 6 Rule 9 (2), Court of Appeal Rules and the case ofObande Obeya vs. First Bank of Nigeria Plc (2012) ALL FWLR (Pt. 636) 544. The above precondition for granting this application, counsel submitted has been satisfied by the Applicant.
As earlier mentioned, the 1st Respondent did not file any address. I will, however, look at the counter affidavit to determine whether this application will succeed. The main thrust of the counter affidavit in my view that could affect the application is the averment that this
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matter is already in the Supreme Court. If this is correct. That is, if this is true, this Court will not assume jurisdiction as it is a trite principle of law that if a superior Court has assumed jurisdiction over a matter, the Court below will ensure it suspends all proceedings.
The burden is on the 1st Respondent who made such an averment to prove it as it is not enough just to avert that the matter is before the Supreme Court and nothing more. The duty is on a party who alleges to provide material facts in the affidavit to support that fact just as evidence is provided to prove facts in a pleading. See Chairman EFCC & Anor vs. Littlechild & Anor (2015) LPELR- 25199 (CA); UBN Plc vs. Astra Builders (W.A.) Ltd (2010) 5 NWLR (Pt. 1186)1.
There is nothing in the affidavit apart from the averment to support the averment that the matter is before the Supreme Court, in the absence of any such evidence I do not feel safe to refuse the application on that ground. See Iroegbu & Anor vs. Okwordu & Anor (1995) 4 NWLR (Pt.389) 270.
Now to the application, in Amaechi vs. Omehia & Ors (2012) LPELR-20603 (SC), Ngwuta, JSC at page 14-15 held:
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Leave to appeal or application for leave to appeal is not granted as a matter of course. The grant or denial of such application is subject to the judicious exercise of discretion by the Court. See Ojora vs. Odunsi (1964) 3 NSCL 34 at 48. To succeed in this application, the applicant has to show, by his supporting affidavit, that he has good and substantial reasons for failure to appeal or apply for leave to appeal within the prescribed period. Further, the proposed notice of appeal must have grounds of appeal which show good cause why the appeal should be heard. See Adeojo vs. Awotorebo & Anor (1975) 1 NMLR 54 at 55.
I shall now look at the affidavit in support whether it discloses any good and substantial reason for the delay. The point must be made that a Court is not under obligation to grant the trinity prayers if the affidavit evidence does not give good reasons. The good reason referred to here must be a proper explanation that covers the period of the delay which is the period the appeal within which the appeal should have been filed. The judgment sought to be appealed against was delivered by Hon. Justice L.A.M.
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Folami (Mrs.) on 6/3/13 shortly slightly more than 6 years ago. The ruling was based on the preliminary objection to suit no. ID/930/2010 on the ground that the suit was an abuse of the Court process as it is caught by the principle of res judicata. The lower Court in that ruling decided that the doctrine of res judicata does not apply to the case. The applicant appealed against the ruling which is Exhibit AA1. The Court of Appeal on 15/7/16 delivered judgment striking out the appeal on the ground that leave was not sought, the grounds of appeal been on mixed law and fact. The Court of appeal in that judgment which is Exhibit AA2 held that the Appellant?s appeal is struck out for failure to obtain leave of Court. This Court did not decide the appeal on the merit. This decision was made on 15/7/16. This motion before this Court was filed on 15/9/16. This was 2 months after the judgment was delivered.
The Applicant in the affidavit in support in paragraph 7 explained that the delay was a result of counsel misjudgment in filing the appeal without obtaining leave from either the lower Court or the Court of appeal. The delay is therefore blamed on
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the misjudgment of lead counsel. What readily comes to mind is the trite legal principle which is that litigant should not be held responsible for the mistake of counsel. This principle has exceptions but this case does not come withi
