FAJEBE V. OPANUGA (2020)

Background

This appeal concerned the exercise of appellate discretion where an appellant failed to file a brief of argument within the period prescribed by the rules of court. The appellants had appealed to the Court of Appeal, Lagos, but their brief was not filed within the relevant time after the record of appeal was transmitted and the appeal was deemed entered on 12 May 2004. The appellants subsequently filed a motion on 11 January 2008 seeking, among other reliefs, leave to amend their notice of appeal, leave to raise a new issue, leave to file additional grounds of appeal, and an extension of time within which to file their brief.

In the affidavit supporting the motion, the appellants explained that the delay resulted from the ill-health and intermittent incapacity of the counsel handling the matter, counsel’s inadvertence, and delays by the registry in making relevant documents available. The respondent did not file a counter-affidavit contradicting these assertions. Instead, the respondent urged the Court of Appeal to dismiss the appeal, relying on the lengthy delay and on an earlier application dated 8 June 2006 seeking to strike out the appeal.

The Court of Appeal refused the appellants’ prayers and dismissed the entire appeal under its inherent jurisdiction, awarding costs of N30,000 to the respondent. The appellants appealed to the Supreme Court.

Issues

1. Whether the Court of Appeal was right to dismiss the entire appeal for failure to file the brief within time.
2. Whether the Court of Appeal properly exercised its discretion in refusing the applications to amend the notice of appeal, raise a new issue, file additional grounds, and extend time.
3. Whether the respondent could properly raise issues unrelated to the appellants’ sole ground of appeal without filing a cross-appeal or respondent’s notice.

Ratio Decidendi

The Supreme Court held that a respondent who has neither filed a cross-appeal nor a respondent’s notice cannot introduce issues that do not arise from the appellant’s grounds of appeal. Such issues are irrelevant, go to no issue, and the arguments based on them must be discountenanced.

The Court further held that where competing applications exist—one seeking to preserve an appeal and another seeking to strike it out—the normal and proper approach is for the appellate court to hear the application aimed at preserving the appeal. A court should not proceed mechanically to terminate an appeal when an application for extension of time or other restorative relief is before it.

On amendment, the Court explained that once a notice of appeal is valid, it may be amended at any time before the appeal is heard, provided the amendment is not intended to overreach or prejudice the respondent. The court should examine the original grounds to determine whether they disclose a ground capable of sustaining the appeal. The purpose of amendment is to ensure that the real complaints against the judgment are properly placed before the court and determined on their merits.

Court Findings

The Supreme Court found that the Court of Appeal failed to give any satisfactory reason for refusing the application to amend the notice of appeal. Its concern about the delayed filing of the brief could, at most, have justified refusing or regulating the prayer for extension of time; it did not justify refusing all the other prayers or dismissing the appeal in its entirety.

The uncontroverted affidavit evidence concerning counsel’s ill-health, inadvertence, and registry-related difficulties deserved judicial consideration. Although every assertion of counsel’s mistake or inadvertence does not automatically entitle a litigant to relief, the courts should determine whether the surrounding circumstances are sufficient to excuse the default. The Supreme Court stressed that a litigant should not ordinarily be deprived of the opportunity to have a case heard on the merits merely because of the blunder, mistake, or inadvertence of counsel.

The Court reaffirmed the modern preference for substantial justice over technicality. Procedural rules are important, but they are intended to facilitate the just determination of disputes and should not be applied in a manner that produces an unjust or disproportionate result, particularly where the opposing party has not shown actual prejudice.

Conclusion

The appeal was allowed unanimously. The Supreme Court set aside the decision of the Court of Appeal, Lagos, delivered on 16 January 2008, which had dismissed the appellants’ appeal. It granted leave to amend the notice of appeal, leave to raise the new issue formulated under ground 2, and leave to file additional grounds of appeal. The appellants were granted 30 days from the date of judgment to file the amended notice of appeal together with their brief. No order as to costs was made.

Significance

Fajebe v. Opanuga is significant for its protection of the right of appeal and its insistence that appellate discretion be exercised judicially and judiciously. The decision confirms that dismissal for procedural default is not automatic where an appellant has made a credible application explaining the delay. It also clarifies the relationship between applications to preserve and strike out an appeal, the permissible scope of a respondent’s argument, and the liberal approach to amendments made before hearing. More broadly, the case reinforces the Nigerian Supreme Court’s consistent position that procedural rules should serve, rather than defeat, substantial justice.