CORAM

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PARTIES

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MR. OLAREWAJU AYOOLA APPELLANTS

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1. MS. ANGELA ENAHORO (NEE AYOOLA)2. THE CHIEF JUDGE OF LAGOS STATE RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Applicant filed a motion before this court seeking the trinity prayers and supported same by a 17 paragraph affidavit. In reaction, the 1st Respondent filed a counter affidavit of 4 paragraphs and also a further counter-affidavit. The Applicant later filed a further and better affidavit in response to the 1st Respondent’s counter affidavits. While the 2nd Respondent filed a preliminary objection to the motion of the Applicant and in response the Applicant filed a counter affidavit. Among all the parties, it was only the Applicant that filed a written address. 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.

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HELD

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Appeal Allowed

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ISSUES

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Whether the Applicant has made out sufficient reason for the exercise of the discretion of the court in favour of granting the application.

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RATIONES DECIDENDI

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WRITTEN ADDRESS – CONSEQUENCES OF A PARTY’S FAILURE TO FILE A WRITTEN ADDRESS ON A PRELIMINARY OBJECTION

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“The counter affidavit of the 1st Respondent and the preliminary objection of the 2ndRespondent 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 pages5-7 held:
“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 (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 (1995) 2 NWLR (Pt.539) 618; Arewa Textile PLC vs. Abdullahi & Brothers Owsawa Ltd (1998)6 NWLR (Pt.554) 508; Ajide vs. Kelani (1985)3 NWLR (Pt.12)248.” –

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JURISDICTION OF COURT – EFFECT OF WHERE A SUPERIOR COURT HAS ASSUMED JURISDICTION OVER A MATTER THAT IS ALSO BEFORE A LOWER COURT

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“The main thrust of the counter affidavit in my view that could affect the application is the averment that this 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. –

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BURDEN OF PROOF – DUTY ON A PARTY THAT ALLEGES THE EXISTENCE OF CERTAIN FACTS TO PROVE SAME BY MATERIAL FACTS

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“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. Littlechid & Anor (2015) LPELR- 25199 (CA); UBN Plc vs. Astra Builders (W.A.) Ltd (2016) 5 NWLR (Pt. 1186)1”. –

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LEAVE TO APPEAL – CONDITIONS TO BE MET BEFORE AN APPLICATION FOR LEAVE TO APPEAL CAN BE GRANTED

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“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. 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.”
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MISTAKE OF COUNSEL – WHETHER A PARTY CAN BE PUNISHED FOR THE MISTAKE OF COUNSEL

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“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 within the exception. See: Jamari & Ors vs. Yaga (2012) LPELR-5188 (CA). In Voro vs. Votoh (2016) LPELR-40341 (CA), Hussani, JCA at pages 24-25 held:
“The fact that a case of inadvertence or mistake was established, the same not having been contradicted by counsel on the opposite side in his counter-affidavit is sufficient reason and good enough to sway the mind of the Court to grant the application was responsible for the blunder. The litigant (as in this case on appeal) ought not to be punished for the mistake of his counsel. As held by the Apex Court in Dangote Gen. Text. Production Ltd vs. Hascon Ass. (Nig.) Ltd (2013) 16 NWLR (Pt. 1379) 60, 90: “I concur with Lord Bowen where he said in his earlier view supra that the Court in deciding the right of parties is to do justice and not punish them for mistakes they make. The failure to abide by the rules is clearly a mistake of counsel and which should not be visited on the client as it will only occasion injustice. The failure to have come within time ought to be treated as mere irregularity.”This Court spoke in a similar fashion when in ACB V. Elosuiba (1991) 3 NWLR (Pt. 178 133, 134 it held that:”The Court is always disposed to exercising its discretion in favour of any litigant if is satisfied that the infracture is that of his counsel”
The Supreme Court was emphatic on this point in Caleh 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. That may well be the case. Even in such a situation the court cannot in the discharge of its sacred duty to do justice be inhibited by the ignorance or carelessness of counsel. The injustice resulting to the cause of the litigant from such demonstration of ignorance and carelessness does not adversely affect counsel whose fees remain undiminished. I think I am speaking the mind of all those engaged in the administration of justice, not only in this court but all courts in this country, that the day the courts allow the inarticulacy or ignorance of counsel to determine the result of an action before it, that day will herald the unobtrusive genesis of the unwitting enthronement of injustice aided by the court itself by default.”This principle should apply with equal force in this case. Rather than decide the case on the mistake of learned counsel to the appellant, the case should be decided on the merit based on the undisputed fact before the court. Before going to the conclusion, it is necessary to examine the role played by the 1st respondent, Alhaji Lawan Mognuno. He conceived and executed the unwholesome deal of selling the four properties and deprived the appellant of his properties for over 22 years. He has since abandoned the case for the 3rd, 4th and 7threspondents, ostensibly in the belief that he no longer has anything to lose in its outcome. The effect of a dismissal of the motion is that he takes full benefit of his fraudulent deal and forever denies the appellant of his title to the properties. That would be outright perpetration of injustice. 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) 2NWLR (Pt.58) 625; African Petroleum Ltd. vs. Owodunni (1991) 8 NWLR (Pt.210) 391; Ayinke vs.Lawal (1994) 7 NWLR (Pt.356) 263.”The averment was not really challenged by both Respondents. In the circumstance, I am of the view that the Applicant has satisfied the first condition. The mistake of counsel is, therefore, a good reason for the delay. I so hold. The second and most important condition that the Applicant needs to satisfy is that there must be prima facie proving of arguable grounds of appeal. This can be seen from the proposed grounds of appeal. Taking a look at the proposed ground of appeal, it is clearly on jurisdiction and this clearly is an arguable ground of appeal. 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. In the present application, the grounds of appeal contained in the notice of appeal in support of the application which clearly involves matters of constitutional and jurisprudential importance, in my view, have shown prima facie arguable appeal to justify granting this application.” –

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ISSUE OF JURISDICTION – FUNDAMENTAL NATURE OF THE ISSUE OF JURISDICTION

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“I must state emphatically in line with the law that once the appeal deals with the issue of jurisdiction, it does not really matter whether the above-stated conditions have been satisfied. In other words, once the proposed grounds of appeal deals with the issue of jurisdiction, it really does not matter whether the Applicants could explain the delay. The issue of jurisdiction supersedes and swallows the other conditions. Once the grounds of appeal deal with jurisdiction, a court will not concern itself with whether the Applicant was able to explain good and substantial reasons for the delay. See Jimoh vs. Minister FCT (2019)5 NWLR (Pt.1664)45 the apex court held:
“In granting an application for an extension of time to seek leave to appeal, leave to appeal and extension of time to appeal, if the ground of appeal complains of lack of jurisdiction and it appears so, the court would no longer inquire into the reasons for the delay.” –

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CASES CITED

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None

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STATUTES REFERRED TO

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Court of Appeal Act; cap C36 Laws of the Federation 2004|Court of Appeal Rules, 2016|

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