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AFOLABI FAJEBE & ANOR v. ISAAC ADEBAYO OPANUGA

(2019) LPELR-46348(SC)

In The Supreme Court of Nigeria

On Friday, the 11th day of January, 2019

SC.130/2010


Before Their Lordships

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA'AHS Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria


Between

1. AFOLABI FAJEBE
(Substituted for his father, Alfred Olaiya Fajebe (deceased) by Order of Court dated 28/1/2013)
2. MOPELOLA FAJEBE
(Substituted for her mother, Madam Ade Oyegunle (deceased) by Order of Court dated 28/1/2013 - Appellant(s)

AND

ISAAC ADEBAYO OPANUGA
(Substituted for his father Michael Opanuga (deceased) by Order of Court dated 4/2/2003 - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This is an appeal against the ruling of the Court of Appeal sitting in Lagos. 

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 the Amended 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.

Ruling on the application, the Court refused to grant the application and also dismissed the substantive appeal.

Being aggrieved with the ruling, the Appellants appealed to the Supreme Court.

ISSUES:
The Court determined the appeal on this issue couched as follows:
"Whether considering all the facts and circumstances of this case, the learned Justice (sic) of the Court of Appeal were right to have dismissed the appeal of the appellants, for failure to file their brief of argument within time in the light of the unassailable and uncontroverted facts stated in the affidavit in support of the appellants' motion prayer inter alia for an order extending the time to file the said brief and which delay was attributed to ill-health and inadvertence of counsel coupled with the untardiness of the Registry of the Court of Appeal in making available the necessary documents on demand."

DECISION/HELD:
On the whole, the Court found merit in the appeal and accordingly allowed same. The decision of the Court of Appeal was set aside. The Appellants' application at the Court of Appeal was therefore granted in terms of prayers 1,2, 3  and 4 of the motion.


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