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CHIDI B. NWORIKA VS MRS. ANN ONONEZE-MADU & ORS
March 18, 2019
COUNTY & CITY BRICKS DEVELOPMENT COMPANY LTD VS HON. MINISTER OF ENVIRONMENT HOUSING & URBAN DEVELOPMENT & ANOR
March 22, 2019

COUNTY & CITY BRICKS DEVELOPMENT COMPANY LTD VS HON. MINISTER OF ENVIRONMENT HOUSING & URBAN DEVELOPMENT & ANOR

SC.239/2011

Legalpedia Electronic Citation: LER [2019]SC.239/2011

AREAS OF LAW:

Appeal, Court, Estoppel, Practice And Procedure

SUMMARY OF FACTS

Following the judgment of the Federal High Court wherein it entered judgment for the Plaintiff, it ordered that the Plaintiff is the owner of the entire land comprised in the survey plan, is entitled to the grant of Statutory Right of Occupancy over the 16 hectares of land and that the 1st Defendant has no interest whatsoever in the land and the purported grant of leases or Certificate of Occupancy over same to the 3rd-8th Defendants are null and void. Subsequently, Counsel to the 1st and 2nd Defendants now Respondents (who were among 8 Defendants in the suit at the Federal High Court), elected and communicated to the Appellant their decision not to appeal against the judgment of the trial Court in favour of negotiation towards an amicable resolution. However, a motion on notice was filed more than a year later at the instance of the Respondents, seeking for an order of Court extending the time within which to seek leave to appeal, an order granting leave to the Applicants to appeal and an order enlarging the time within which the Applicants may appeal against the Judgment of the trial court. The Appellant relying on Order 7 Rule 10(2) of the Court of Appeal Rules, 2011, vehemently opposed the application. It contended that the Respondents who had abandoned their right of appeal by consciously electing not to exercise that right to appeal cannot be heard to say that their decision to abandon their right of appeal by electing not to appeal constitutes “good and substantial reasons for failure to appeal within the prescribed period”. The lower court granted leave to the Respondents to appeal against the judgment of the Federal High Court hence, the instant appeal by the Appellant contending that the 1st and 2nd Respondents did not give good and substantial reasons for failing to appeal within the time prescribed by law and so the discretion was wrongly exercised in favour of the Respondents.

HELD

Appeal Allowed

 

 

ISSUES FOR DETERMINATION

  • Whether by their letters and conduct, the respondents had abandoned, extinguished, relinquished and waived their right of appeal.

 

  • Whether the court has no option but to grant an extension of time to appeal to a party who fails to show good and substantial reasons for not appealing within the prescribed time, so long as a proposed ground of appeal prima facie raises as issue of jurisdiction.

RATIONES

PRINCIPLE OF ESTOPPEL BY CONDUCT – BASIS OF THE PRINCIPLE OF ESTOPPEL BY CONDUCT

“The principle of estoppel by conduct is based on the public policy that says that there must be an end to litigation. Its aim is, not only to hold a party to his undertaking that he will no longer insist on either his right to appeal or the accrued right or obligation from the judgment, but also not to allow a person benefit from his prevarication”. PER E.EKO, J.S.C

EQUITABLE DOCTRINE – HE WHO COMES TO EQUITY MUST COME WITH CLEAN HANDS

“Equity, generally abhors subterfuge, deception and some other unconscienable conduct. Equity acts in personam. That is why it is stated that he who comes to equity must come with clean hands.   My learned brother, C. C. Nweze, JCA (as he then was) emphasised this in Standard Chartered Bank Nigeria Ltd v. Dr. Tunji Braithwaite (2013) L.P.E.LR. 20814 (CA) in his statement –

Equity like an immaculate garment, abhors the company of those who are likely to contaminate its majesty; taint its purity or dampen its allure! Above all, since it does not trade on detergents, those who approach her hallowed portals are forewarned to denude their hands of all dirt – that may be detestable and impeachable.

– PER E.EKO, J.S.C

RIGHT OF APPEAL- EXTENT TO WHICH A PARTY CAN WAIVE HIS RIGHT OF APPEAL

“I do not agree with the Respondents that the right of appeal is not a personal right vested in them as parties in the suit at the trial Court. That right enures to them to exercise, and it can only be exercised within 90 days or such longer time as the Court may extend. The fact that the Respondents are public officers does not derogate the truth of the matter that as parties to the suit they, like all parties in the suit are at par and do enjoy “the equality of rights, obligations and opportunities before the law”   as assured by Section 17(2)(a) of the Constitution, as amended. They can waive the right conferred on them, as litigants, by law. In the instant case they can waive the right of appeal conferred on them, as litigants and like all other litigants, by Section 241 of the Constitution read together with Section 24(2)(b) of the Court of Appeal Act. The decision of this Court in Ariori v. Elemo (1983) 14 N.S.C 8, particularly the opinion of Eso, JSC at page 37 thereof, puts the question beyond doubt thus –

The next enquiry is to what extent to which a person could waive rights conferred on him by law? When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such right. The right is for his benefit. He is sui juris. He is under no longer disability. He should be able to forego the right; in otherwords waive it either completely or partially, depending on his choice. The extent to which he has foregone his right would be a matter of fact and each case will depend on its peculiar facts. —- A beneficiary under statute should have full competence to waive those right once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of its statutory provisions.

  • PER E.EKO, J.S.C

RIGHT OF WAIVEROPERATION OF THE EXERCISE OF THE RIGHT OF WAIVER

“Waiver operates as estoppel against “the person who is to enjoy the benefit or who has the choice of two benefits (and is) fully aware of his right to the benefit or benefits, but – either neglect to exercise his right to the benefit, or where he has the choice of the two, he decides to take one but not both”: Ariori v. Elemo (supra) citing with approval VYVYAN v. VYVYAN 30 bear 60.  The exercise of the right of waiver, as Eso, JSC, explains in Ariori v. ELEMO (supra), has to be voluntary, devoid of any legal disability. It operates thus: if a person with full knowledge of the rights, interest, profits or’ benefits conferred upon or accruing to him by and under the law, intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his right, or that he has suffered by his not having exercised his rights. In the circumstance, just like in the instant case, he should be held to have waived his rights and   consequently   estopped   from   raising   the issue subsequently”. PER E.EKO, J.S.C

AUTHORITY OF A COUNSEL – EXTENT OF THE GENERAL AUTHORITY OF A COUNSEL IN A MATTER

“This case, subtly, raises yet another issue – the general authority every Counsel has over every cause or matter he is employed or engaged to prosecute or defend.   Unless his authority has been expressly limited the ordinary authority of Counsel in any matter he has been engaged includes entering into to comprise or settlement: Afegbai v. A.G. Edo State (2001) 7 S.C. (Pt. II) 1; (2001) 14 N.W.LR. (Pt. 733) 425”. PER E.EKO, J.S.C

ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL – DUTY OF A PARTY SEEKING FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL

“a party asking for enlargement of time within which to appeal not only does he have the burden of proving two facts before he gets the indulgence, that is: good and substantial reasons for the delay, and a ground(s) of appeal which prima facie show good cause why the appeal should be heard; he shares additional burden with the Court to ensure that the Rules of Court must prima facie be obeyed: Ratnam v. Cumarasamy (1964) 3 ALL E.R. 933 at 935; Bank Of Baroda v. Mercantle Bank (1987) 6 S.C 341 at 350. Even where the application is not opposed the Court still bears the onerous responsibility of satisfying itself that exceptional circumstances exist to warrant the grant of the indulgence because the Rules of Court must prima facie be obeyed: Nwabuba v. Enemuo (1988) 5 S.C.NJ. 154”. PER E.EKO, J.S.C

EXERCISE OF DISCRETION – ATTITUDE OF APPELLATE COURTS TO THE EXERCISE OF DISCRETION BY LOWER COURTS

“Generally, the attitude of appellate Courts to the exercise of discretion by lower courts is that, unless the exercise of discretion by the lower court is manifestly wrong, arbitrary, reckless or injudicious, or where it does occasion miscarriage of justice to the Respondent, the appellate Court would not interfere merely because, faced with similar circumstances, it would have reacted differently: University Of Lagos V. Olaniyan (1985) 1 N.W.LR. (Pt. 1) 156; Williams V. Mokwe (2005) 14 N.W.LR. (Pt. 945) 249 at 269; Enyibros Food Processing Co. Ltd v. N.D.I.C. (2007) 9 N.W.LR. (Pt. 1039) 216. PER E.EKO, J.S.C

EXTENSION OF TIME FOR LEAVE TO APPEAL -CONDITIONS TO WARRANT THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME FOR LEAVE TO APPEAL

“This Court, as can be seen from the In re: Adewunmi & Ors. (1988) 3 N.W.LR. (Pt. 83) 483; University Of Lagos v. Olaniyan (supra); (Pt. 284) 630; Williams v. Mokwe (supra), has consistently maintained that the two conditions, under Order 7 Rule 10(2) of the Court of Appeal Rules, 2011 or its equivalent, which must be fulfilled to warrant the grant of an application for extension of time for leave to appeal are good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie good cause why the appeal should be heard.   The two conditions are statutory and conjunctive, and they are intended to be given effect to by the Courts interpreting them. The Judge’s duty being merely to interpret the statute, and not to make a statute; the Judge when interpreting a statutory provision, as Order 7 Rule 10(2) of the Court of Appeal Rules, 2011, is only to bring out the natural meaning of words in the statutory provision where the words are clear and unambigous: Abayomi Babatunde v. Pan Atlantic Shipping & Transport Agencies Ltd. & Ors. (2007) ALL F.W.LR. (Pt. 372) 1721 at 1752. PER E.EKO, J.S.C

WAIVER OF A RIGHT OF APPEAL – WHETHER A PARTY CAN WAIVE AND EXERCISE HIS RIGHT OF APPEAL

“I agree with the Appellant that the Respondents could not waive their right of appeal and still want or expect to exercise it. They cannot have both in the circumstances.   In judicial chemical laboratory, operated by equity, a waiver of right produces an irreversible permanent change in favour of the third party. Equity will not allow a party to trap and overreach the other. HRH Umeanadu v. A.G. Anambra State (2008) 34 N.S.C.Q.R. 1 at 24”.PER E.EKO, J.S.C

EXERCISE OF DISCRETION – CONDITIONS UPON WHICH AN APPELLATE COURT WILL INTERFERE WITH THE EXERCISE OF DISCRETION BY A LOWER COURT

“This appeal throws up very interesting facets as one is mindful of the fact that an appellate court will not easily interfere with the exercise of discretion by a lower court such as presented in the case in hand. To interfere, this court has to be satisfied from the showing a materials that a wrongful exercise of that discretion has been made such as where the court below acted under a misconception of the law or under a misapplication of fact such that it is seen that the lower court gave weight to irrelevant or unproved matters or it omitted to take into account issues that are relevant or where it exercised or failed to exercise the discretion on wrong or insufficient materials and so it behoves the appellate court the duty in the interest of justice to disturb that earlier decision. I rely on Enekebe v Enekebe (1964) 1 All NLR 102 at 106; Demuren v Asuni (1967) All NLR 94 at 101; Mobil Oil v Federal Board of Inland Revenue (1977) 3 SC 97 at 141; Sonekan v Smith (1967) 1 All NLR 329; Solanke v Ajiboia (1968) 1 All NLR 46 at 52”. PER M.U.PETER-ODILI, J.S.C

RIGHT OF APPEAL – WHETHER A PARTY IS OBLIGATED TO EXERCISE HIS RIGHT OF APPEAL

“It is to be noted that the right of appeal is a personal one conferred on a party by law for the sole benefit of the party though the right is not such as to be open ended or at large for which the party is free to exercise it whenever the fancy takes him no matter how long.

This is because the right of appeal has a time limit within which it can be exercised by the party seeking to appeal and that circumscription is in this instance Section 25 of the Court of Appeal which has set the time frame for a party so wishing to appeal. The right to appeal being personal, nobody or institution can force a party to exercise his right of appeal and in like manner a party is at liberty to release, abandon, relinquish or waive his right of appeal since it is his choice”. PER M.U.PETER-ODILI, J.S.C

RIGHT OF APPEAL – CONSTITUTIONAL NATURE OF THE RIGHT OF APPEAL

“A reiteration of the position on this matter of appeal is that the constitutional right to appeal being  personal is for the sole benefit of the appellant and no statute which forbids or controls how the respondents may use their rights and the effect of that is that the right is capable of being waived or abandoned or released. Therefore where a party has decided not to appeal a judgment given against him and he has further decided to communicate to the opposing party with the inaction as far as initiating an appellate process and to the extent that the opportunity and time frame accorded him by law had expired the circumstances may present such a facet that it could be taken that the right to appeal is lost for all time. See Ariori v Elemo (1983) NSCC Vol. 14 page 8. PER M.U.PETER-ODILI, J.S.C

RIGHT OF APPEAL – APPLICABILITY OF THE PRINCIPLE OF ESTOPPEL TO A PARTY’S RIGHT OF APPEAL

Halsbury’s Laws of England Vol.37, 4th Edition Page 522, Para. 682, the learned authors considering the applicability of the principle of estoppel to a party’s right of appeal and Stated thus”-

“A party may be estopped from appealing by his conduct after the judgment or award, or may be that conduct have released the right of appeal at law or in equity”.

  • PER M.U.PETER-ODILI, J.S.C

PARTY – DUTY OF A PARTY NOT TO APPROBATE AND REPROBATE AT THE SAME TIME

“It has always been the position of the law that a party may not approbate and reprobate at the same time in the conduct of his case. In other words, a party may not blow hot and cold. See: F.R.N. Vs Iweka (2013) 3 NWLR (Pt. 1341) 285: Agide Vs Kelani (19851 11 SC 124”. PER K.M.O KEKERE-EKUN,J.S.C

ESTOPPEL BY CONDUCT – RULE OF ESTOPPEL BY CONDUCT

Section 169 of the Evidence Act is very clear. It provides as follows:

When one person has either by virtue of an existing judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.”

This is known as the rule of estoppel by conduct. In Nsirim Vs Nsirim (2002) 3 NWLR (Pt. 7551 697 @714 – 715 H – A. this court per Iguh, JSC explained the rule thus:

“….where one by his words or conduct willfully causes another to believe the existence of certain state of things and induces him to act on that belief so as to alter his previous position, the former is precluded from averring against the latter, a different state of things as existing at the same time. This is how the rule in estoppel by conduct otherwise known as estoppel by matter in pais has been stated.

See: Joe Iga & Ors Vs Ezekiel Amakiri & Ors (1976)11 SC1; Gregory tide Vs Clement Nwora and Anr (1993) 2 NWLR (Pt. 278) 638 § 622-663.” See also: Overoqba & Anor. Vs Egbewole Olaopa (1998) 13 NWLR (Pt. 583) 509; Bank of the North Vs Yau (2001) 10 NWLR (721) 408”. PER K.M.O. KEKERE-EKUN,J.S.C

STATUTES REFERRED TO:

Constitution of the Federal Republic of Nigeria 1999(as amended)

Court of Appeal Act, 2004

Court of Appeal Rules, 2011

Evidence Act 2012(as amended)

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