Legalpedia Citation: (2023-07) Legalpedia 15638 (CA)

In the Court of Appeal

Holden at Lagos

Fri Jul 21, 2023

Suit Number: CA/LAG/PRE/ROA/CV/549MI/2022

CORAM

OBANDE FESTUS OGBUINYA JUSTICE, COURT OF APPEAL

ONYEKACHI AJA OTISI JUSTICE, COURT OF APPEAL

FREDERICK OZIAKPONO OHO JUSTICE, COURT OF APPEAL

PARTIES

ATTORNEY GENERAL OF DELTA STATE –    APPELLANT/APPLICANT

 

APPELLANTS

1. CHIEF ISAAC OWOLABI OLAYEMI
2. ALHAJI MUSTAPHA AKANNI AKINLOLU (FOR THEMSELVES AND AS REPRESENTING THE KUJE AMUWO CHIEFTAINCY FAMILY)
3. ATTORNEY GENERAL OF THE FEDERATION
4. THE FEDERAL MINISTRY OF WORKS AND HOUSING RESPONDENTS

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, JUDGMENT, LAND, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The applicant who was not a party at trial, as an interested party, prayed this to grant him leave to appeal as an interested person against the judgment of the trial court (Federal High Court Lagos). The subject matter (or res) of the said suit is the land lying and being at Oluti (a.k.a) Alakija Area of Badagry Expressway on the East by Old Ojo Road, on the South by Navy Town Road linking on the North by Astral Seafood Company Limited, along old Ojo Road, Badagry Expressway (a part of the land known as Satellite Town and more properly described in the Satellite Town Land (Title Vesting and Validation Decree 1991 (Decree No. 5) published in the Federal Republic of Nigeria Official Gazette of 18 th January, 1991). The Delta State Government became seised of the land, the subject of this Appeal (land in dispute), from the sharing of the assets of the defunct Bendel State. They had been in undisturbed possession of the said land in dispute until the Writ of Possession pursuant to the Judgment being appealed against was executed. Despite being in possession however, they were not joined as party in the suit, FHC/L/CS/235/2000 before the suit was heard, determined, and Judgment delivered to her detriment. They only got wind of the suit when judgment was pasted one of the premises as notice. The applicant felt blindsided and being aggrieved, made the instant appeal before this court.

HELD

Application granted

ISSUES

Whether the Applicant has made out a case to entitle him to the grant of this application?

RATIONES DECIDENDI

JUDGES – CONDUCT OF JUDGES IN THE EXERCISE OF DISCRETION

Discretion signifies: the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina Goerge Ind. Ltd (2019) 16 NWLR (Pt.1699) 560. A Judge, in exercise of discretion, must act judicially and judiciously. To act judicially denotes “…discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances”. See Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand, “Acting judiciously … is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision”, see Babatunde v. P.A.S. & T.A. Ltd (supra), at 164, Per Ogbuagu, JSC.

Being an exercise of discretion, the law mandates an applicant, if he must attract the favourable discretion of a court, to furnish it with sufficient material facts that it will use, as the springboard, to exercise its discretion judicially and judiciously. This is because a court does not dish or dash out its discretion in vacuo as material facts are the desiderata for such judicial exercise, see Dongtoe v. Civil Service Commission, Plateau State (2001) 9 NWLR (Pt. 717) 132; Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203; In Re: Mawa v. NACBCFC Ltd. (2007) 7 NWLR (Pt. 1032) 54; Ebe v. C.O.P. (2008) 4 NWLR (Pt. 1076) 189; Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt. 1111) 58; Ani v. Otu (2017) 12 NWLR (Pt. 1578) 30. – Per O. F. Ogbuinya, JCA

APPEAL – RIGHT OF APPEAL AND THE DUTY OF AN APPLICANT SEEKING TO BE MADE A PARTY TO AN APPEAL

…section 243(1)(a) of the Constitution, as amended…

243-(1) Any right of appeal to the Court of Appeal from the decisions of Federal High Court or a High Court conferred by this Constitution shall be –

(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or person as may be prescribed;

This provision, which is comprehension-friendly, has fallen for interpretation before the apex court in loads of judicial authorities, see Chukwu v. INEC (2014) 10 NWLR (Pt. 1415) 285; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Assams v. Ararume (2016) 1 NWLR (Pt. 1493) 368; Otti v. Ogah (2017) 7 NWLR (Pt. 1563) 1; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) 91; IGP v. Mobil Producing (Nig.) Unltd. (2018) 14 NWLR (Pt. 1639) 379; Alioke v. Oye (2018) 18 NWLR (Pt. 1651) 247; APGA v. Oye (2019) 2 NWLR (Pt. 1657) 472; In Re: Maduike (2019) 7 NWLR (Pt. 1671) 255; Bi-Courtney Ltd. v. A. – G., Fed. (2019) 10 NWLR (Pt. 1679) 112; In Re: Abiola (2019) 12 NWLR (Pt. 1685) 27; Persons, Name Unknown v. Sahris Int’l Ltd. (2019) 13 NWLR (Pt.1689) 203; Virgin Atlantic Airways v. Amaran (2021) 12 NWLR (Pt. 1789) 91. I will be guided by the interpretation placed on those authoritative decisions in order not to fracture the law. For an applicant to succeed in this genre/class of application, he must show: (a) that he is a party interested in the case whose interest must be protected; (b) good reasons for delay in appealing; (c) that the proposed notice and grounds of appeal is substantial and arguable, see CPC v. Nyako (2011) 17 NWLR (Pt. 1277) 451; Waziri v. Gumel (2012) 9 NWLR (Pt. 1304) 185; In Re: Abiola (2019) 12 NWLR (Pt. 1685) 27. To satisfy the first ingredient/requirement, an applicant must establish that he is a person having an interest. The expression “person having an interest” is coterminous with “person aggrieved”, that is, “a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something or wrongfully affected his title to something”, see Ikonne v. C.O.P.

(1986) 4 NWLR (Pt. 36) 473. At 503, per Karibi-Whyte, JSC, CPC v. Nyako (supra); Bakare v. Ajose-Adeogun (2014) 6 NWLR (Pt. 1403) 320; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Assams v. Ararume (2016) 1 NWLR (Pt. 1493) 368. – Per O. F. Ogbuinya, JCA

GROUND OF APPEAL – TEST FOR GAUGING WHETHER A GROUND IS ARGUABLE OR NOT

The litmus test for gauging whether a ground is arguable or not was, graphically, captured in Obikoya & Sons Ltd. v. Wema Bank Ltd. (1989) 1 NWLR (Pt. 96) 157  wherein Obaseki, JSC, incisively and insightfully, declared:

The grounds of appeal required to be exhibited are only to show good cause why the appeal should be heard. The rule does not require the grounds to show good cause why the appeal should be allowed. Although in both cases, the grounds of appeal should be substantial, the certainty required in the latter case, does not necessarily need to be present in the former case. A ground showing good cause why an appeal should be heard is a ground, which raises substantial issues of fact or law for the consideration of the court. It is a ground, which cannot be dismissed with a wave of the hand or totally lacking in substance. It is a ground, which evokes a serious debate as to the correctness of the decision of the court below. It is a ground, which taxes the intellect and reasoning faculties of the appeal Judges. It is a ground, which is not frivolous.

See, also, Optimum C & P. Dev. Ltd. v. Ake Shareholdings Ltd. (2021) 18 NWLR (Pt. 1807) 148.  – Per O. F. Ogbuinya, JCA

APPEAL – CONDCT OF THE COURT AT THE STAGE OF APPLICATION FOR LEAVE TO BE JOINED AS A PARTY TO AN APPEAL

I am mindful of the inelastic position of the law that the duty of the court, at this infant stage of the proceeding, is not to decide the notice of appeal on its merit, but to see if it reveals arguable grounds, see Enyitros Foods Processing Co. Ltd. v. NDIC (2007) 9 NWLR (Pt. 1039) 216; Adelekan v. Elu-Line NV (2006) 12 NWLR (Pt. 993) 33; Oyegun v. Nzeribe (2010) 16 NWLR (Pt. 1220) 568. – Per O. F. Ogbuinya, JCA

JURISDICTION – IMPORTANCE OF JURISDICTION IN ADJUDICATION

Indubitably, jurisdiction has been characterised as the spinal cord, lifeline, touchstone, bedrock and linchpin of adjudication. It oxygenates the power and duty of courts in adjudication. A court without jurisdiction has been likened to an animal that is drained of blood. Hence, it occupies an olympian position in the pyramid of adjudication.

It is now an elementary law that a court proceeding, conducted without jurisdiction, no matter the quantum of transparency, industry, dexterity and sophistry injected into it, will be marooned in the murky ocean of nullity. To underscore the royal position of issue of jurisdiction in adjudication, a genuine complaint of jurisdiction in a notice of appeal dispenses with the reasons for an applicant’s delay in filing an appeal, see FHA v. Kalejaiye (2010) 19 NWLR (Pt. 1226) 147; Nwabueze (2011) 15 NWLR (Pt. 1271) 467; Ngere v. Okuruket ‘XIV’ (2014) NWLR (Pt. 1417) 11; Anachebe v. Ijeoma (2014) 6 NWLR (Pt. 1426) 168; FBN Plc v. Agbara (2020) 15 NWLR (Pt. 1748) 537.

In the spirit of ex abundanti cautela, a right of appeal is one that is enshrined in the Constitution, as amended, the fons et origo of our corpus juris. An applicant is entitled to reap his right of appeal once he meets the necessary conditions, see Nigerian Army v. Yakubu (2013) 222 LRCN (Pt. 1) 120; Ngere v. Okuruket XIV (2014)  NWLR  (Pt. 1417) 11. – Per O. F. Ogbuinya, JCA

CASES CITED

NOT AVAILABLE

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Satellite Town Land (Title Vesting and Validation) Decree, 1991
3. Land Use Act
4. Evidence Act, 2011
5. Federal Housing Act

CLICK HERE TO READ FULL JUDGMENT