AKITI v. OYEKUNLE (2018)

In The Supreme Court of Nigeria

On Friday, the 9th day of February, 2018

SC.932/2015(R)

Before Their Lordships

OLABODE RHODES-VIVOUR  Justice of The Supreme Court of Nigeria

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

CLARA BATA OGUNBIYI   Justice of The Supreme Court of Nigeria

AMIRU SANUSI   Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE   Justice of The Supreme Court of Nigeria



Between

MRS. LINDA AKITI –Appellant

AND

PRINCE OLADIMEJI OYEKUNLE –Respondent                                                                       …………………….A…………………….
OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Lead Ruling): By way of a Motion on Notice filed on 8 March 2017 and brought under Order 8 Rule 8(4) and Order 2 Rule 31, of the Supreme Court Rules, and under the inherent jurisdiction of the Court, the appellant/applicant seeks the following orders:
1. An Order restoring this appeal which was dismissed on 13 July 2016.
2. An Order extending time within which the appellant/applicant may compile and transmit the Record of Appeal in this appeal against the judgment of the Court of Appeal handed down on 26 March 2015 by the Court of Appeal, Lagos Division.
3. An Order granting the appellant/applicant 30 days within which to compile and transmit the Record of Appeal in this appeal.

The application is supported by a 15 paragraph affidavit deposed to by Saheed Majiyagbe-Kosoko, a legal practitioner in Chambers of learned counsel for the appellant/applicant. Annexed to it are documents marked.
Exhibit A – Appellant’s Motion
Exhibit B – Respondent’s counter-affidavit.
Exhibit C – Order of Court given on 13 July 2016.

The grounds on which the application is brought are:
1. The appeal was fixed for 23 June, 2016 for the Respondent’s motion to dismiss same;
2. Prior to 23 June, 2016 this appellant brought a Motion for an order extending time within which it would compile and transmit the Record of Appeal from the lower Court. The appellant also filed a counter-affidavit to the Respondent’s motion giving reasons why she had not compiled and transmitted the Record of Appeal;
3. The Appeal came up in open Court on 23 June 2016 and both parties were represented by counsel;
4. Due to the fact that the Appellant’s motion seeking to save the appeal was not ripe for hearing the Honourable Court adjourned the appeal on that day in open Court to 6 March 2017 for the hearing of the pending applications and awarded N50,000 costs against the Appellant
5. On 6 March 2017 Respondent’s counsel informed the Honourable Court that the appeal had been dismissed in Chambers on 13 July, 2016 despite the fact that the Respondent filed a counter affidavit to the appellant’s motion to extend time to compile and transmit Records in 2017;
6. The appellant/applicant is diligent and desirous in the prosecution of this 
appeal but delayed in compiling and transmitting the Record of Appeal because she was intent of exploring the possibility of an amicable settlement; and
7. The appellant is desirous of prosecuting the appeal.

A written brief was filed in support of the Motion. Prince Oladimeji Oyekunle, the respondent and a retiree deposed to 7 paragraph counter-affidavit to which is attached exhibit 3A.
A written brief was filed urging the Court to dismiss the application.
At the hearing of the application on 14 November 2017 learned counsel for the appellant/applicant, O. Agbebi esq., urged the Court to grant the application as the Record of Appeal had been transmitted to this Court on 19 May 2017.
Opposing the application learned counsel urged this Court not to restore the appeal as the applicant has failed to show exceptional circumstances why the appeal should be relisted. I read the written submissions of counsel.
Both counsel agree that the issue for determination is:
Whether the Honourable Court ought not in the interest of justice to grant the prayer of the appellant/applicant as contained in her motion paper.
Learned counsel for the appellant observed that on 23 June, 2016 when this appeal was called in open Court there were two pending applications.
i. The respondent’s motion on Notice filed on 8 December, 2015; and
ii. The appellant’s motion on Notice filed on 22 June 2016.

He submitted that dismissing the appeal does not serve the interest of justice as the dismissal amounts to a denial of fair hearing of the appellant especially as the appellant was not aware that her appeal had been dismissed in chambers. Reliance was placed on Olumesan v. Ogundepo (1996) 2 NWLR (pt. 433) p. 628; Adeyemi v. Y.R.S. Ike-Oluwa & Sons Ltd (1993) 8 NWLR (pt. 309) p. 27
She urged the Court to declare the Ruling dismissing this appeal on 13 July 2016 a nullity.
Opposing the application learned counsel for the respondent observed that the applicant deliberately refused to compile and transmit the Record of Appeal to this Court and not as result of her desire to explore amicable settlement. He submitted that since learned counsel for the appellant has not shown
                                                               …………………….B…………………….
exceptional circumstances why the appeal should be restored as required by law, the application should be dismissed. Reliance was placed on J.O.E Co. Ltd v. Skye Bank Plc (2009) 6 NWLR (pt. 1138) p. 518.
I shall reproduce relevant extracts from the affidavits in order that a clearer picture is seen.
Paragraphs 3 – 14 of the affidavit in support of the application states that:
3. The appeal was fixed for 23 June, 2016 for the respondent’s motion to dismiss same.
4. Prior to 23 June, 2016 the appellant brought a motion for an order extending time within which it would compile and transmit the Record of Appeal from the lower Court. The appellant also filed a counter-affidavit to the Respondent’s motion giving reasons why she had not compiled and transmitted the Record of Appeal. A copy of the appellant’s motion is hereto attached and marked exhibit A.
5. The Appeal came up in open Court on 23 June, 2016 and both parties were represented by counsel.
6. Due to the fact that the appellant’s motion seeking to save the appeal was not ripe for hearing, the Honourable Court adjourned the appeal on that day in open Court to 6 March, 2017 for the hearing of the pending applications and awarded N50,000 costs against the appellant.
7. On 6 
March, 2017 Respondent’s counsel informed the Honourable Court that the appeal had been dismissed in chambers on 13 July, 2016 despite the fact that the respondent filed a counter affidavit to the appellant’s motion to extend time to compile and transmit Records in 2017.
8. A copy of the Order of Court given on 13 July 2016 is hereto attached and marked exhibit C.
9. The Appellant/Applicant is diligent and desirous in the prosecution of this appeal but delayed in compiling and transmitting the Record of Appeal because she was intent of exploring the possibility of an amicable settlement.
10. The Appellant is desirous of prosecuting the appeal.
11. The failure of the Appellant/Applicant in compiling and transmitting the Record of Appeal within the time limited by the Rules of this Honourable Court was occasioned by the attempts towards settling the dispute out of Court by the Appellant/Applicant and Respondent when settlement was attempted.
12. The Appellant/Applicant herein is a widow and was substituted at the trial Court when her husband died.
13. The property which is the subject matter of the dispute is the only property 
left to the Appellant/Applicant by her late husband and also serves as her residence.
14. It will be in the interest of justice if this application is granted as the Respondent will not be prejudiced thereby.

Relevant extracts from the counter-affidavit is as follows:
3. That the averments in paragraphs 12 and 13 of the affidavit in support of Motion are sentimental; the applicant was aware from the beginning that she was building on disputed piece of land, the applicant ignored all available proof I showed to her late husband that the piece of land in dispute belonged to me.
4. That the averments in paragraphs 9, 10 and 11 of the affidavit in support of the motion do not represent the true position.
In further response to the facts in those paragraphs I state as follows:
(a) All the attempts said to have been made by the applicant to settle the dispute are mockery of the intention to settle.

All subsequent paragraphs of the counter-affidavit show futile attempts to settle the matter. I must state that depositions in affidavit on material facts resolve applications in Court. Where depositions on material facts in an affidavit in support of an application are not denied by the adverse party filing a counter-affidavit, such facts not denied in the affidavit in support remain the correct position and the Court acts on them except they are moonshine.
Material facts in a counter-affidavit not denied by a reply affidavit are the true position. It is only when the affidavits cannot resolve facts that parties are invited to lead evidence in proof of the facts they deposed to see
Akinsete v. Akindutire (1966) 4 NSCC p. 157 ; Eboh v. Oki (1974) 9 NSCC p. 29; National Bank (Nig) Ltd v. The Are Brothers Nig Ltd (1977) 11 NSCC p. 382; Alagbe v. Abimbola 1978 2SC p. 39.
Paragraphs 3, 4, 5 and 6 of the affidavit in support are not denied by the respondent. Depositions in these paragraphs are clear that when this Court dismissed the appeal on 13 July 2016 there was pending before this Court an application filed on 22 June 2016 for:
1. An Order extending time within which the Appellant/Applicant may compile and transmit the Record of Appeal in this appeal against the judgment of the Court of Appeal handed down on 26 March,
                                                               …………………….C…………………….
2015 by the Court of Appeal Lagos Division.
2. An Order granting the Appellant/Applicant 30 days within which to compile and transmit the Record of Appeal.

Where documentary evidence support depositions in an affidavit such depositions are the correct position of what it seeks to establish. Documentary evidence lends more credence to material facts deposed to in an affidavit. The applicant’s motion on Notice filed on 22 June, 2016 for extension of time to compile and transmit the Record of Appeal is exhibited by the applicant in this application. Documentary evidence, to wit motion on Notice filed on 22 June 2016 is conclusive proof that the said motion was pending before the appeal was dismissed on 13 July 2016.
I am satisfied that when this appeal was dismissed on 13 July 2016 there was pending before this Court a motion for extension of time to regularize the applicant’s processes, and it was filed on 22 June 2016.
Order 8 Rule 8(4) of the Supreme Court Rules states that:
(4). An appellant whose appeal has been dismissed under this Rule may apply by notice of motion that his appeal be restored. Any such application may be made to the Court and the Court may where exceptional circumstances have been shown, cause such appeal to be restored upon such terms as it may think fit.
What then are exceptional circumstances?
Any fact which if known the judge would not have dismissed the appeal is an exceptional circumstance. For example if at the time of dismissal of the appeal there was before the Court an application for extension of time to file relevant processes. If all processes were properly before the Court but this was not brought to the attention of the judge due to inadvertence or carelessness of counsel.
In the affidavit in support of the application to restore the dismissed appeal, a detailed deposition of exceptional circumstances must be shown.
The appellant/applicant has deposed to the fact that when this appeal was dismissed on 13 July 2016, there was an application filed on 22 June 2016 for extension of time within which the appellant/applicant may compile and transmit Record of Appeal. It is well settled that if a Court makes an order dismissing an appeal when there is an application for extension of time to regularize the appeal, the Court should not hesitate to pronounce its order as null and void. This, the Court can do by invoking its inherent jurisdiction to correct the obvious mistake by stating that the appeal is pending, provided application is made to the Court as has been done in this case.
My lords, where there are two applications before the Court, one to dismiss the case for not taking necessary steps and the other (Motion filed on 22 June 2016 prior to Motion for dismissal) for extension of time, or and leave to take necessary steps to regularize the suit, the motion which would allow the Court to pursue substantial justice would be heard first. This procedure has its roots in common sense, prudence and equity, and if such a procedure is followed cases would be resolved on the merits rather than on technicalities. See Consortium M.C. v. NEPA (1992) 6 NWLR (PT. 246) P. 132
The Court should not have dismissed the appeal on 13 July 2016, rather it should have saved the appeal by hearing the application that would have saved the appeal, i.e. the motion filed earlier in time on 22 June 2016. The Court dismissed the appeal as a result of an administrative error from the Registry, when it sat in chambers and was informed by the Registry that the case should be dismissed oblivious of the pending motion filed on 22 June 2016. In such a situation the appeal should be restored to the cause list for hearing on the merits. There is merit in this application. It is hereby ordered that Appeal No.SC.932/2015 dismissed by this Court on 13 July 2016 is hereby restored to the cause list for hearing on the merits.
Time is extended by 30 days from today for the appellant/application to compile and transmit the Record of Appeal in this Appeal against the judgment of the Court of Appeal delivered on 26 March, 2015 in suit No. CA/L/1095/2011.
Application granted.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the Ruling just delivered by my learned brother, Olabode Rhodes – Vivour JSC and to underscore the support for the reasonings, I shall make some remarks.
This application was filed on 8/3/2017 by the appellant/applicant praying for the following orders, thus: –
1. An order restoring this appeal which was dismissed on the 13th day of July, 2016.
                                                              …………………….D…………………….
2. An order extending time within which the appellant/applicant may compile and transmit the Record of Appeal in this appeal against the judgment of the Court of Appeal handed down on the 26th of March, 2015 by the Court of Appeal, Lagos Division per Iyizoba, Abubakar, Obaseki – Adejumo JJCA.
3. An order granting the appellant/applicant 30 days within which to compile and transmit the Record of Appeal in this appeal.

The grounds on which this application were predicated are of seven paragraphs and the supporting affidavit is of 15 paragraphs.
There was also filed a written address along with the motion which on the 14th November 2017 date of hearing, learned counsel, Olakunle Agbebi adopted.
The respondent filed a counter affidavit on the 24/4/2017 with a written address in response which L. O. Fagbemi of counsel adopted.
The applicant raised a single issue for determination as follows: –
Whether the Honourable Court ought not in the interest of justice to grant the prayer of the appellant/applicant as contained in her Motion Paper.
The respondent drafted a sole issue too as follows: –
Whether the applicant has shown exceptional circumstances in the Affidavit in support of the application why the appeal should be restored as required by law.
The differently crafted issues are really saying the same thing and so it does not matter which one is utilised.
SOLE ISSUE:
The question is really whether the applicant has shown exceptional circumstances for the favourable grant of the application.

Learned counsel for the applicant referred to Order 8 Rule 8 (4) of the Supreme Court Rules in aid of the application contending that she is desirous of pursuing the appeal. That the dismissal is a denial of fair hearing for the appellant especially as she was not aware that the appeal had been dismissed. He cited Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433); Adeyemi v. Y. R. S. Ike-Oluwa & Sons Ltd (1993) 8 NWLR (pt.309) 27; Adigun v. A. G. Oyo State (1987) 1 NWLR (pt.53) 678 at 709.
That the applicant was not given an opportunity to move her pending application filed on the 22nd of June, 2016 before the appeal was dismissed and that the delay in transmitting the Records was when she was exploring amicable settlement of the dispute. He cited Kano State Urban Development Board v. FANZ Construction Ltd (1990) 4 NWLR (Pt. 142) 1.
Learned counsel for the respondent stated that the applicant is not entitled to invoke the principle of fair hearing, alleging that it was denied her as applicant was given lots of opportunities to compile the Record of Appeal but failed to do so and the period of over one year elapsed in that regard. That the procedure for hearing of interlocutory applications is well set out in Order 8 Rule 5 of the Supreme Court Rules, 1985 (As amended).
That to restore an appeal that was dismissed the applicant needs show exceptional circumstances as provided for in Order 8 Rule 8 (4) of the Rules of Court and the supporting affidavit is devoid of any such exceptional circumstances upon which the restoration of the appeal can be made. He referred to Kano State Urban Development Board v. FANZ Construction Ltd (supra).
That when a party is given the opportunity to present his case in Court but fails to do so he cannot complain of denial of fair hearing as in the case at hand. He cited J. O. E. Co Ltd v. Skye Bank Plc (2009) 6 NWLR (Pt.1138) 518.
The procedure for the hearing of interlocutory applications in the Supreme Court is well spelt out in Order 8 Rule 5 of the Supreme Court Rules, 1985 (As amended) and it is thus: –
“Any application under this Rule may be considered and determined by the Court in Chambers without oral arguments.”
The above provision on display, one has to see if the appellant/applicants anchor on a breach of fair hearing, is strong enough in that she was not given a hearing notice before her process was dismissed.
The applicant is herein asking to have her appeal which was dismissed to be restored. To be so entitled the supporting affidavit needs showcase the exceptional circumstances warranting such a favourable disposition of the Court.
Going through the whole gamut of the affidavit of the appellant there is to see the explanation for failure to compile the record within the time provided.
The argument put forward by the applicant that she was denied her right of being heard cannot be ignored as she had a pending application to regularise the appeal filed on the 22nd June, 2016 before the appeal was dismissed for failure to Transmit record. Even then the touted intention of the
                                                                          …………………….E…………………….
applicant for the amicable settlement did not fly off the ground as nothing was done further by her after initial move and the counter proposal for settlement of the other side, and so that intention therefore remained no more than an attempted move. The point has to be made that an applicant having an opportunity to present his or her case in Court, failing to do so loses the right to complain of a denial of fair hearing as fair hearing is not only available to the applicant but also the other party. That being the principle it has to be seen if the applicant lost that right to complain. I rely on J. O. E. Co. Ltd v. Skye Bank Plc (2009) 6 NWLR (Pt.1138) 518.
The cases of Olumesan v Ogundepo (1996) 2 NWLR (Pt. 433); Adeyemi v Y. R. S. Ike-Oluwa & Sons Ltd (1993) 8 NWLR (Pt.309) 27; Adigun v A. G. Oyo State (1987) 1 NWLR (Pt.53) 678 at 709; all of which applicant called in aid and which avail her as those authorities anticipate that an applicant is entitled to the invocation of the principle of fair hearing as the opportunity to move her pending motion was denied her and therefore the exceptional circumstances for which a favourable consideration would be made are available to the applicant.

The exceptional circumstances expected to persuade the Court to restore a dismissed appeal having been established there is basis to grant this application which has merit. I also grant the application and abide by the consequential orders made.
CLARA BATA OGUNBIYI, J.S.C.: I am in full agreement with the Lead Ruling of my learned brother Rhodes-Vivour, JSC that the application herein is worth the favour of this Court.
In the result and in terms of the lead ruling of my learned brother, I too grant the application as prayed.
AMIRU SANUSI, J.S.C.: The appellant/applicant brought a motion on notice pursue to Order 2 Rule 31 of the Supreme Court Rules and under the inherent jurisdiction of this Court.
The said motion filed on 8/3/2017 seeks principally, an order of the Court to relist the appeal among other prayers stated in the lead Ruling.
The gamut of the application is that the appeal was dismissed while the motion for extension of time to compile and transmit record of appeal was pending. Despite the fact that the respondent filed a counter affidavit to appellant motion to extend time to compile and transmit record, the appeal was dismissed in chambers. In support of the application is a 15 paragraph affidavit deposed to by one Saheed Majiyaghe-Kosoko a legal practitioner in the firm of Olakunle Agbebi & Co. The application is also supported by several annexures and, a written address. In opposing the application, the respondent herein, filed a counter affidavit of seven paragraphs deposed to by one Prince Oladimeji Oyekunle, the respondent himself. The counter affidavit is also supported by one annexture and a written address.
The appellant/applicant in its written address in support of the motion formulated sole issue for determination.
The sole issue queries whether the Court ought not, in the interest of justice, to grant the prayers of the appellant/applicant as contained in the motion paper.
The learned counsel to the appellant stated that the appellant is desirous of pursuing her appeal by filing a motion on 22/6/2016, seeking an order of the Court to enable her compile and transmit record of appeal. He submitted that the dismissal of the appeal on the 13th of July, 2016, after the said appeal had already been adjourned in open Court on the 23rd June 2016 was not entered in the cause list of Justices. He submitted further, that the dismissal amounts to a denial of fair hearing of the appellant as the appellant was not aware that her appeal had been dismissed and no opportunity was given to her to be heard before the appeal was dismissed. He cited the case of OLUMESAN v. OGUNDEPO (1996) 2 NWLR (pt. 433) where it was held that where a person’s legal right or obligation are called in to question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regards to such rights and obligation. He submitted that it will be in the interest of Justice to grant the prayers of the applicant as contained in the motion paper as the applicant was substituted at the trial Court when her husband died and the property which is subject matter of the dispute, is the only property left to the appellant/applicant by her late husband which also serves as her residence. He then urged the Court to hold that the delay in the transmission of the record was as a result of her desire to explore the possibility of an amicable settlement.
                                                                       …………………….F…………………….
The respondent in her written address in opposition to the motion also formulated one issue for determination.
In response to the contention of the appellant that the dismissal of the appeal amounts to a denial of fair hearing, the respondent’s counsel submitted that the allegation of denial of fair hearing was misconceived and that the appellant was given the opportunity to compile the record but neglected to make use of same. He argued that the notice of appeal that was dismissed was filed on the 26th day of March, 2015 and dismissed on the 13th July, 2016 which is well over a year after the appeal was filed. He submitted that the restoration of an appeal which was dismissed is not automatic and that the applicant must show exceptional circumstances why the appeal should be restored as provided for in Order 8 Rule 8(4) of the Supreme Court Rules. He argued that the affidavit in support of the application is devoid of any exceptional circumstances why the appeal should he restored. He contended further, that the reason given by the applicant for not compiling the record timeously is not cogent enough because it was the same story the applicant narrated in the affidavit in support of the applicant’s motion for extension of time to compile and transmit record filed on the 22nd day of June, 2016 attached as exhibit A in support of this application. He referred to paragraphs 4 and 5 of the counter affidavit where the applicant’s claim for settlement of the case out of Court was denied. He argued that the affidavit could use her unilateral relation to settle the matter as an excuse for her failure to compile and transmit the record as there was no time the applicant brought it to the attention of the Court that parties were at one time out of Court exploring settlement. He then urged the Court to hold that the applicant has not shown exceptional circumstances why the appeal should be restored as required by law and to dismiss the application as lacking in merit.
As could be fathomed from the argument of the applicant’s counsel in support of the application is that this Court should restore his appeal which had earlier been dismissed as according to him, he had shown special circumstance to warrant him to be obliged with the grant of the prayers she sought in the motion. He felt that refusing to grant the prayers in him motion, tantamounts to denying him his right to fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria 1999 and he relied on Order 8 Rule 8(4) of the Supreme Court Rules and the cases of Olumesan vs. Ogundepo (1996) 2 NWLR (pt. 433); Adeyemi v. Y R S Ike-Oluwa & Sons Ltd (1993) 8 NWLR (pt. 309) 27.
Conversely, the respondent’s learned counsel felt otherwise, as he refuted that any right of fair hearing was denied the applicant, because a lot of opportunities were given to her to compile the record of appeal but she failed to do so for more than one good year even though it was an interlocutory application.
I think it is not out of place to reproduce the provisions of Order 8 Rule 5 of the Supreme Court Rules 1985 here which reads thus: –
“Any application under this Rule may be considered and determined by the Court in chambers without oral arguments”
By the effect of the above quoted rule, it will not be correct for the applicant herein, to say that hearing notice was not given to her before the dismissal of her appeal.
The applicant herein, by her motion is asking that her appeal which was dismissed earlier, to be restored. The law is trite, that before an appeal which was dismissed by the Court can be restored, the applicant has the heavy task of showing special or exceptional circumstance (s). However, before deciding whether special circumstances were shown my lords, permit me to bring to fore the provisions of Order 8 Rule 4 of the Supreme Court’s Rule 1985, under which the applicant inter alia, hinged her instant application. The Rule states as below: 
Order 8 Rule 4 – “An appellant whose appeal has been dismissed under this Rule may apply by notice of motion that this appeal be restored. Any such application may be made to the Court and the Court may where exceptional circumstances have been shown, cause such appeal to be restored upon such terms as it may think fit”
In the instant application an averment was made in the supporting affidavit to the motion to the effect that there exists an application filed on 22nd June 2016 for extension of time to compile and transmit record of appeal in this instant appeal. In otherwords before, the dismissal of the
                                                                       …………………….G…………………….
appellant’s/applicant’s appeal in the chambers by this Court on 13/7/2016, unknown to this Court at that time, the appellant had taken steps to regularise his appeal although that fact was unfortunately not made known to this Court before it proceeded to dismiss her appeal during chambers proceedings. That piece of evidence deposed in the supporting affidavit, was not denied by the respondent in his counted affidavit. To my mind, that deposition by the applicant amounts to special circumstance since the Court ought not to have dismissed the appeal, if it had known of the existence of a pending application for extension of time to regularise the appeal. This Court is always ever ready to do substantial justice. Its first and foremost aim is always to see that parties before it are given adequate opportunity or level ground to ventilate their case and argue same before it after which it decides it on the merit.
It would be rather absurd, for this Court to give preference to a motion for dismissal over a another motion of regularisation of an appeal. It always goes for saving rather than for killing or shutting out a litigant. From all indications the dismissal of the appellant’s appeal on 13th July 2016 was apparently as a result of misinformation given to it at the chambers sifting proceedings by the Registry staff which could not be verified from the parties concerned since parties’ learned counsel do not normally appear during chambers sittings. The dismissal of the appeal was therefore erroneously made.
In the light of the above, I hold the view, that the applicant in his affidavit had shown special circumstances to warrant her be obliged with the prayers she sought in the motion. In agreeing with the reasoning and conclusion arrived at by my learned brother Rhodes-Vivour JSC, I also find merit in this application. It is hereby ordered by me, that Appeal No SC.932/2015 which was earlier wrongly dismissed on 13th July 2016, be immediately restored to the Cause list for hearing on the merit. I abide by all other consequential orders made in the lead Ruling.
Application granted as prayed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead judgment of my learned brother Olabode Rhodes-Vivour, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the order contained in the lead Judgment

Appearances

O. AGBEBI  –For Appellant

AND

L.O. FAGBEMI – For Respondent.

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