OGEDENGBE & ANOR v. ILABOYA & ORS (2020)

OGEDENGBE & ANOR v. ILABOYA & ORS

(2020)LCN/15309(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/B/180/2014(R)

Before Our Lordships:

Helen Moronkeji Ogunwumiju Justice of the Court of Appeal

Samuel Chukwudumebi Oseji Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Between

1. MATTHEW M. OGEDENGBE 2. OVBIGEGE IMONIKHE APPELANT(S)

And

CHIEF OLORUNTOBA ILABOYA (Substituted For Deceased 1st Respondent By Order Of Court Dated The 7th Day Of June 2017) 2. CHIEF JONATHAN FRIDAY EMODE 3. CHIEF MONDAY AIDI (For Themselves And For And On Behalf Of The Ejerenokhua Of The Component Villages Of Emai Clan) 4. GOVERNOR OF EDO STATE 5. ATTORNEY GENERAL OF EDO STATE 6. COMMISSIONER FOR LOCAL GOVT. AND CHIEFTAINCY AFFAIRS 7. CHAIRMAN OWAN EAST LOCAL GOVT. COUNCIL, AFUZE RESPONDENT(S)

RATIO

WHETHER OR NOT ANY MEMBER OF THE FAMILY CAN BE LISTED AS A NOMINATED LITIGANT ON RECORD IN A SUIT

Clearly, by law any member of the family could be listed as a nominated litigant on record in the suit or on appeal so long as family members are agreed on the nominees. See ELF PETROLEUM V. UMAH & ORS (2018) LPELR – 43600 (SC) (2018) 10 NWLR Pt. 1628 Pg. 428 where the Supreme Court held:
“That since the Respondents on record claim the right to the reliefs sought for themselves and in a representative capacity and that since the group or class of persons they sought to represent are easily identifiable and have common interest and purpose they could sue in that capacity. The challenge by the Applicants in this case as to who would represent the Respondents does not lie in their mouth”. PER OGUNWUMIJU, J.C.A.

THE PENALTY FOR FAILURE TO FILE THE APPELLANT’S BRIEF WITHIN TIME

The penalty for failure to file Appellant’s brief within time is dismissal of the appeal. See Order 19 Rule 10(2). See CONSORTIUM M.C. (NIG.) V. NEPA (1992) 6 NWLR Pt. 246 Pg. 132, LPELR- 893 (SC); EKE V. OGBONDA (2006) LPELR – 107 (SC); (2006) 18 NWLR Pt. 102 Pg. 506. The decision law on this is that once dismissed for failure to file brief within time, an appeal cannot be restored. PER OGUNWUMIJU, J.C.A.

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an application file by the Appellants/Applicants on 13th July, 2018 brought pursuant to Order 6 Rule 12 and Order 15 Rule 2 of the Court of Appeal Rules 2016 and under the inherent powers of this Court.

The motion prays for the following orders:
1) For Enlargement of time within which the Appellants/Applicants may apply to set aside the ruling (Exhibit AA) delivered by this Honourable Court on 7th day of June, 2017 in the application filed on 31st day of March, 2017 by 2nd and 3rd Respondents/Respondents herein as Respondents/Applicants therein time allowed by the rules of Court having elapsed.
2) An order setting aside the ruling delivered by this Honourable Court on the 7th day of June, 2017 upon the application of the 2nd and 3rd Respondents’ dated the 31st day of March, 2017 and filed same date, which ruling is attached to the affidavit in support of this application as Exhibit “AA”.
ALTERNATIVELY
An order striking out the name of the 1st Respondent who, by order of Court dated the 7th day of June, 2017, was substituted for deceased original 1st Respondent who died on the 30th day of December, 2015 and substituting therefor the name of CHIEF EDEKIN OGEDENGBE.
3) In consequence of prayers 1 and 2 above an order substituting CHIEF EDEKIN OGEDENGBE for the original 1st Respondent CHIEF MICHAEL ILESO IMONDE (deceased) who died on the 30th day of December, 2015).

The grounds for this application are as stated below:
a) The Appellants/Applicants herein who are the Respondents to the Respondents’ motion dated the 31st day of March, 2017 and filed same date were not served with a hearing notice and were consequently absent from Court on the 7th day of June, 2017 the date the said ruling in Exhibit “GG” was delivered.
b) That the Appellants as Appellants/Respondents to the aforesaid application filed on the 31st day of March, 2017 filed a counter affidavit answer to the said motion and accompanied same with a written address which were served on the Respondents’ counsel but which 1st – 3rd Respondent’s counsel failed to bring to the attention of the Court as he was duly bound to do as a minister in the temple of justice when unknown to the Appellants the said motion came up for hearing on 7th June 2017.
c) The hearing and determination of the said motion without considering the counter affidavit and written address of the Appellants/Applicants herein who as Appellants/Respondents to the said motion filed on 31st day of March, 2017 were not served with a Hearing Notice and were absent at the hearing is an infringement of the Appellants/Applicants’ right to fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended)
d) That in spite of the absence of the Appellants/Applicants from Court on June 7, 2017 owing to non-service of hearing notice on the Appellants/Applicants the Appellants/Applicants were not served with the ruling nor informed of same.
e) The Appellants became aware that the Respondents had moved the said Application and a ruling delivered when counsel for 1st-3rd Respondents, Mike Enagbonamuna Esq served A.I. Michael Esq. Counsel to the Appellants/Applicants in open Court with Respondent’s motion dated 20th March, 2018 and filed 21st day of March, 2018 when our A.I. Michael was in this Honourable Court on the 22nd day of March, 2018.
f) On the 8th day of May, 2018 when this Honourable Court sat, Appellants application filed on the 18th day of April, 2018 to set aside the aforesaid ruling was not taken as this Honourable Court ruled that parties should regularize their processes by complying with the order of Court made on the 7th day of June, 2017 substituting Chief Oloruntoba Ilaboya for Chief Michael Ileso Imonde (the deceased original 1st Respondent) as 1st Respondent, and the order of Court made same day (8th May, 2018) striking out the names of deceased 2nd, 3rd and 4th Appellants so as to have competent parties before the Court.
g) CHIEF MICHAEL ILESO IMONDE (the 1st Respondent) in this appeal died on the 30th day of December, 2015.
h) The subject matter of this appeal is a chieftaincy dispute that survives parties at their death.
i) The deceased 1st Respondent claimed at the trial Court to have sued in his capacity as the most senior Ohobo title holder in Emai Clan whom he alleged by Emai custom automatically succeeds to the traditional ruler title of Oleije of Emai in the event of a vacancy occurring.
j) The issue of seniority among Ohobo title holder was settled by the pleadings of the parties at the trial Court, and the judgment now on appeal.
k) The paragraphs in the said pleadings are particularly paragraphs 1 and 11 of AMENDED STATEMENT OF CLAIM (Exhibit “EE”) and paragraph 29 of AMENDED REPLY TO STATEMENT OF DEFENCE AND DEFENCE TO 1ST-5TH DEFENDENTS’ COUNTER-CLAIM attached hereto as Exhibit “FF”.
l) Parties are bound by their pleadings.
m) A party must be consistent in the case he puts forward at every stage of the litigation process.
n) By the death of the 1st Respondent the most Senior Ohobo title holder is now Chief Edekin Ogedengbe of Afuze Emai
o) That there is the need to substitute the said CHIEF EDEKIN OGEDENGBE for the deceased CHIEF MICHAEL ILESO IMONDE (THE 1ST Respondent) in this appeal so that all necessary parties will be before this Honourable Court.

The application is supported by a fifty-nine (59) paragraph affidavit and seven (7) Exhibits. Also filed is a written address of 26 pages in support. A further affidavit was also filed on the 6th of May, 2019.

The crux of the Applicants’ application is that the Respondents/Respondents sought and obtained an order on the 7th of June, 2017 upon the death of Chief Michael Ileso Imonde (the 1st Respondent herein) to substitute him with Chief Oloruntoba Ilaboya instead of Chief Edekin Ogedengbe who the Appellants’ claim is the most Senior Ohobo title holder in the camp of the Respondents. The Appellants’ claimed that they had objected by counter affidavit to the motion for substitution filed by the Respondents on 31st day of March, 2017.

The basis of this complaint is that the Respondents cannot change their case on appeal since by their showing at trial (where Respondents won) the most Senior Chief in their clan would assume title of the disputed chieftaincy, and it was wrong for them to put forward someone who was not the most senior at this point in time. The other complaint which is fundamental is that the Applicants were denied fair hearing on the day the motion to substitute filed by the Respondents was moved and granted as they did not receive Hearing Notice for the hearing of that day. The Respondents opposed the application and filed a 27 paragraph counter affidavit dated 12th day of March, 2019 and written address to oppose the application.

The converse argument of the learned Respondents’ counsel is that this Court had ruled over this same application twice namely on 7th of June, 2017 and 18th of May, 2018 which rulings were attached to the counter affidavit. Counsel also complained that the Applicants have not stated specifically how they would be prejudiced by the order of this Court in relation to parties on the Respondents’ side wherein a dead party was substituted. Nobody had complained from the side of the Respondents. Counsel also urged the Court to dismiss this appeal wherein record had been transmitted to this Court since 18th of March, 2014 as no brief had been filed. It is apt to note that the Applicants’ Counsel had nothing to say to that issue of failure to file brief both in the address or when the application was argued in Court.

Counsel urged the Court to discountenance the argument that the Applicants did not receive Hearing Notice. Counsel argued that this division of the Court of Appeal had been sending Hearing Notices through texts and all other Counsel in the matter received their own texts to appear in Court on the said 7th of June, 2017 when the contested order was sought and obtained.

OPINION
I will start with the most fundamental issue in this application. That is whether the Appellants/Applicants were not given fair hearing before the motion was considered and granted. If indeed there was no fair hearing, and thus lack of jurisdiction, whether or not in my humble view the Applicants applied for the order to set aside within the time stipulated by the Court of Appeal Rules, I would grant the application in the overall interest of justice considering the uncontroverted assertion that the Applicants were not immediately aware of the ruling.

Now, let us look at the facts on ground in relation to whether the Applicants were given fair hearing. By the counter affidavit sworn to by Hauwa Saliu on 6th of May, 2019 filed on same date to the effect that the Chambers of A.A. Imuzai & Co. of No 38 Warrake Road, Auchi was not served with an electronic hearing notice before the hearing in the matter on 7th of June, 2017, there is attached the affidavit of service sworn to by a staff of the Communication Unit (front Desk) of this Division of the Court of Appeal. The affidavit was sworn to by one ISMAIL BADAMOSI on 1st of June, 2017 to the effect that on 1st of June, 2017, he served by text the GSM No. 08035045490 Hearing Notice at 9:09a.m and said service was effected on A.A. Imuzai Esq. In paragraphs 11-14 of their affidavit, the Applicants’ Counsel conceded that indeed that same GSM Number is the active Number for contact with the Chambers but that no message was received from the Court of Appeal on said date. I cannot countenance or give any credibility to the call log or text log if you will, attached to the affidavit. It did not pretend to emanate from the service provider. The deciding fact is that the Officer of this Court sent electronic hearing notice to 3 different Counsel on same date i.e. Appellants’ Counsel, 1st-3rd Respondents’ Counsel and 4th-7th Respondents’ Counsel. Only the Appellants/Applicants’ Counsel claimed not to have seen the text. Be that as it may, I am persuaded on reading the two affidavit that indeed Hearing Notice was sent to the Appellants/Applicants. My conclusion would have been different if Counsel had claimed that the phone number on the affidavit of the Officer of the Court is quite different from the phone number used by his Chambers. My humble finding is that indeed the Chambers of A.A. Imuzai Esq was served with hearing Notice on 1st of June, 2019.

Having received same, Counsel had appeared unable or willing to actually come to Court to oppose the motion to which they had filed a counter affidavit. Thus this Court had jurisdiction to consider the application and to grant same on 7th of June, 2017. The 2nd complaint which seems to me to be the main complaint of Applicants’ Counsel is that the Respondents should have put forward the name of Chief Edekin Ogedengbe instead of Chief Michael Ileso as the proper Respondent to be joined in this appeal. I agree with the learned Respondents’ Counsel, that the Applicants have not indicated how their appeal may be compromised by the person put forward by the Respondents’ family in an action fought on representative capacity. In paragraph 1 of page 1 of the judgment of the trial Court (which favoured the Respondents) the Court stated as follows:
“The claimants brought this suit in a representative capacity for themselves and on behalf of the Ejerenokhua of the component villages of Emai Clan against the defendants by the Writ of Summons filed on 18th of October, 2010”.

The Respondents raised the issue both in their counter affidavit, paragraph 11 and in Court when this motion came up for hearing that there is no proper appeal before this Court, the Appellants having failed to file brief of argument.

Let us again look at the facts here. The judgment in this case was delivered by the trial Court on 19th December, 2013. Notice of Appeal was filed on 5th of March, 2014 within time. Thereafter, there has been one motion after another by both parties. Most of the original parties have died and have been substituted. The different motions have been adjourned several times. However, till date six (6) years on, the Appellants/Applicants are yet to file an Appellants’ brief in respect of the appeal. Order 19 Rule 10 (1) & (2) of the Court of Appeal Rules states as follows:
10- (1) When an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the Respondent fails to file his brief, he will not be heard in oral argument. Where an Appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the Respondent’s brief.
(2) Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Court may suo motu dismiss the appeal for want of prosecution.
It is settled that rules of Court must be obeyed. It is very common to see Counsel neglecting to file Appellant’s or Respondent’s brief within time on the excuse that they want to amend the names of parties on record or that there is need to amend the notice of appeal. Every process, whether Appellant’s or Respondent’s brief MUST be filed within the time stipulated by the rules. That is why when this is not done, extension of time is sought. That is why also there is room for amendment of the brief when the need arises and other parties may also effect consequential amendments to briefs they had hitherto filed. For example, the Court of Appeal Rules Order 7 Rule 8 does not give a time limit to when an application to amend the Notice of Appeal can be sought and obtained. That is why an amendment to the notice of appeal can be sought and obtained after hearing of the appeal but before judgment is delivered. If the time to file process is left to the whims and caprice of parties, would the Respondent have to wait on the convenience of an Appellant who is unwilling or unable to expeditiously file time bound processes? I will answer emphatically in the negative. Since there can be an amendment, there is absolutely no excuse for the original process not be filed in time. The penalty for failure to file Appellant’s brief within time is dismissal of the appeal. See Order 19 Rule 10(2). See CONSORTIUM M.C. (NIG.) V. NEPA (1992) 6 NWLR Pt. 246 Pg. 132, LPELR- 893 (SC); EKE V. OGBONDA (2006) LPELR – 107 (SC); (2006) 18 NWLR Pt. 102 Pg. 506. The decision law on this is that once dismissed for failure to file brief within time, an appeal cannot be restored
However, the Respondents did not bring a formal application to dismiss the appeal for want of diligent prosecution. In arguing that application, formal arguments would have been taken on that point. Be that as it may, that failure does not prejudice this Court from dismissing the appeal suo motu for failure to file brief. Thus, in the peculiar circumstances of this chieftaincy matter where parties are heavily emotionally invested, I do not with the greatest respect think it will serve the overall interest of justice for the appeal to be dismissed at this point. The motion filed on 13th of July, 2018 for this Court to set aside its ruling of 7th June, 2017 is misconceived in fact and law and is hereby dismissed. An order of accelerated hearing is made in this 6 (six) year old appeal. The Appellants have 20 days to file brief of argument. The Respondents have 14 days to respond. Appellants have ten days to file reply brief if need be. Appellants to pay costs of N50.000.00 to the Respondents. Appeal adjourned to 22nd of September, 2020 for hearing. Motion Dismissed.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: The lead Ruling just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA, was made available to me in draft.

My Lord adequately and exhaustively dealt with the issues in contention and I am in complete agreement with the reasoning and conclusion reached therein to the effect that the Appellant’s motion on notice filed on 13-7-2018 is misconceived and should be dismissed.

I also dismiss the said application for lacking in merit. I abide by the consequential order made in the lead Ruling including the order as to cost.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I agree with the decision of my learned brother, Helen Moronkeji Ogunwumiju, JCA; as contained in the ruling just rendered.

Appearances:

Michael Okoghie For Appellant(s)

Michael Enagbonamuna, with him, I.O. Eboreme Esq. for 1st, 2nd & 3rd Respondent
M.E. Obayuwana for 4th – 7th Respondent For Respondent(s)