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2019) Lpelr-46348(Sc

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2019) Lpelr-46348(Sc FAJEBE & ANOR v. OPANUGA CITATION: (2019) LPELR-46348(SC) In the Supreme Court of Nigeria ON FRIDAY, 11TH JANUARY, 2019 Suit No: SC.130/2010 Before Their Lordships: OLABODE RHODES-VIVOUR Justice of the Supreme Court MARY UKAEGO PETER-ODILI Justice of the Supreme Court KUMAI BAYANG AKA'AHS Justice of the Supreme Court JOHN INYANG OKORO Justice of the Supreme Court AMIRU SANUSI Justice of the Supreme Court Between 1. AFOLABI FAJEBE (Substituted for his father, Alfred Olaiya Fajebe (deceased) by Order of Court dated 28/1/2013) - Appellant(s) 2. MOPELOLA FAJEBE (Substituted(2019) for her mother, LPELR-46348(SC) Madam Ade Oyegunle (deceased) by Order of Court dated 28/1/2013 And ISAAC ADEBAYO OPANUGA (Substituted for his father Michael Opanuga - Respondent(s) (deceased) by Order of Court dated 4/2/2003 RATIO DECIDENDI 1. APPEAL - ISSUE(S) FOR DETERMINATION: Effect of an issue for determination not arising or relating to any ground of appeal "In this appeal. the respondent neither filed a cross-appeal nor a respondent's notice. It is therefore not permissible for him to raise an issue not predicated on the ground of appeal filed by the appellants. See: Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373; Adhekegba v. Minister of Defence (2013) 17 NWLR (Pt. 1382) 126. Any issues which are not connected or related to the grounds of appeal are irrelevant, go to no issue and the arguments thereon should be discountenanced by this Court. See: Shitta-Bey v. A-G Federation (1998) 10 NWLR (Pt. 570) 392; Amadi v. N.N.P.C (2000)10 NWLR (Pt. 674) 76; Ibator v. Barakuro (2007) 9 NWLR (Pt. 1040) 475. The ground of appeal from which the issue was formulated read thus:- The learned Justices of the Court of Appeal erred in law when they dismissed the appeal of the appellant. PARTICULARS OF ERROR (a) The decision to dismiss the appeal of the appellant was based on issues of technicality (b) The Court of Appeal did not appraise itself properly with the suit and therefore arrived at a wrong decision to dismiss the appellant's appeal (c) The exercise of the Court of Appeal of its inherent jurisdiction was not carried out justiciably. (d) There was no proper application before the Court of Appeal on which the decision to dismiss could have been premised. It is the first issue in the respondent's brief that bears relevance to the(2019) complaint laid LPELR-46348(SC) out in the ground of appeal. The other two issues cannot be said to relate to the ground and so the arguments in those issues have to be discountenanced."Per AKA'AHS, J.S.C. (Pp. 4-5, Paras. B-D) - read in context 2. APPEAL - NOTICE(S) OF APPEAL: Whether a notice of appeal can be amended at anytime "...Granted that the respondent had filed a motion dated 8th June, 2006 praying the lower Court to strike out the appeal which preceded the appellants' motion of 11th January, 2008, the normal practice of the Court of Appeal is to hear the application which seeks to preserve the appeal rather than take the motion to strike out the appeal. And in considering the application to amend the Notice of Appeal, the Court should examine the original grounds of appeal to see if there is a ground that would sustain the appeal. Once a notice of appeal is valid, it can be amended at any time before the appeal is heard. Such amendment should not be made to overreach the respondent, but only to serve the ends of justice and ensure that the complaints of the appellant against the judgement appealed against are laid and ventilated before the Court. See: Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208; Adelaja v. Alade (1994) 7 NWLR (Pt.35) 537; Pharmatek Ind. Projects Ltd v. Ojo (1996) 1 NWLR (Pt. 424) 332 and F.B.N Plc v. May Medical Clinics & Diagnostic Centre Ltd (2001) 9 NWLR (Pt. 717) 28. No reason whatsoever was given by the lower Court in its refusal to allow the appellants to amend the notice appeal. The reason for the refusal to grant the application was as to the filing of the appellants' brief which was not filed for a period of four years after the appeal had been entered. The refusal should affect only prayer 4 in the motion. Even if the appellants had filed their brief of argument, they were entitled to amend the brief to accommodate the ground for which the notice of appeal was being(2019) amended and sinceLPELR-46348(SC) they had not filed the appellants' brief they were entitled to an extension of time to file the appellants' brief after filing the amended notice of appeal. There was no justifiable reason for refusing the application in its entirety and further dismissing the appeal."Per AKA'AHS, J.S.C. (Pp. 12-13, Paras. A-E) - read in context 3. APPEAL - NOTICE(S) OF APPEAL: Whether a notice of appeal can be amended at anytime "...the position of the Law as correctly stated by my learned brother is that once a notice of appeal is valid, it can be amended at any time before hearing as long as such amendment is not intended to overreach the respondent."Per OKORO, J.S.C. (P. 21, Paras. C-D) - read in context 4. JUSTICE - TECHNICAL JUSTICE: Attitude of Court to technical justice "It is trite that our Courts have moved away from the realm of technicalities to substantial justice. This Court in a plethora of decisions has held that matters should rather be determined on their merits and not on technicalities. See Amaechi v. INEC (No.3) (2007) 18 NWLR (Pt. 1065): Balonwu v. Obi (2007) 5 NWLR) (Pt. 1028) 488 at 542."Per OKORO, J.S.C. (Pp. 20-21, Paras. E-A) - read in context (2019) LPELR-46348(SC) 5. PRACTICE AND PROCEDURE -MISTAKE OF COUNSEL/COURT/REGISTRY: Attitude of Court towards mistake of counsel "The appellants' stand in initiating this appeal is based on the fact that they were denied the right to fair hearing as the Court below did not exercise discretion judiciously by considering the circumstances of the matter but rather based their decision on technicalities to the detriment of substantial justice. The contrary position of the respondent is that the application of the respondent dated 8th June 2006 for an order of Court below dismissing the appeal was earlier in time to that of the appellants of 11th January, 2008 for extension of time within which to file appellants' brief of argument and that the ill health of the appellants' counsel put forward as excuse for the delay was a ruse which the Court should discountenance. The crux of the matter is based on the appellants positing in their affidavit in support of the application for extension of time to file the brief of argument was due to the ill-health of their counsel which assertion was not controverted. This solid undisputed fact taken within the backdrop of the stance of the Court including the Supreme Court that the fault of counsel, be it blunder, inadvertence of mistake cannot be an obstacle to a hapless litigant in such a way as to deny him the right to ventilate or defend his case. The reason is because the Court has moved away from the realm of technicalities but stands for substantial justice which will enable the Court allow the trashing out of all parts of the case and a decision either way made. It is true that each posited mistake or inadvertence of counsel on the face(2019) would not LPELR-46348(SC)without more guarantee a favourable consideration of the application but when viewed within circumstances, exculpating in content then the judicial and judicious tackling by the Court is to bend favourably for the applicants and that is the situation in the case at hand. See Okafor v Bendel Newspaper Corporation (1991) 7 NWLR (Pt.206) 651 at 666; Collins v Vestry of Paddington (1880) 5 QBD 380 at 381; Adeleke v Awoliyi & Ors (1962) 1 SCNLR 401; Ekpenyong & Ors v Nyong & Ors (2003) 51 WRN 44; Kalio & Ors v Daniel Kalio (1975) 2 SC 15."Per PETER-ODILI, J.S.C. (Pp. 17-19, Paras. E-E) - read in context (2019) LPELR-46348(SC) KUMAI BAYANG AKA'AHS, J.S.C. (Delivering the Leading Judgment): On 16th January, 2008, the Court of Appeal, Lagos (coram: Ogunbiyi and Galinje JJCA as they were then) and Mshelia JCA heard a motion filed 11 January, 2003 by the appellants applicants seeking the following reliefs:- 1. Granting the applicants leave to amend the notice of Appeal dated the 26th day of March, 2001 in the terms of Exhibit HO1 attached. 2. Granting the applicants leave of this Honourable Court to raise a new issue in this appeal as formulated in Ground 2 of the Proposed Amended Notice of Appeal and issues 3 and 4 under the issues for determination of the Brief of Arguments filed and served. 3. Granting the applicants leave of this Honourable Court to file additional grounds of appeal. 4. Extending the time limited by the rules within which to file the Applicants’ Brief of Argument. 5. Deeming(2019) the Amended LPELR-46348(SC) Notice of Appeal filed and served by the applicants as having been properly filed and served. 6. Deeming the additional ground of appeal filed as having been properly filed. 1 Ruling on the application, the Court held:- "It is apparent also to mention that the applicant in his submission admits that the record of this appeal was transmitted to this Court in the year 2004.
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