CORAM
PARTIES
FIRST BANK OF NIGERIA LTD
RESORT INTERNATIONAL LIMITEDDR. BOLANLE OLAWALE BABALAKINASSET MANAGEMENT CORPORATION OF NIGERIA (AMCON)ATTORNEY GENERAL OF THE FEDERATION RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Federal Government entered into an agreement with the 1st Respondent to redesign and reconstruct the Federal secretariat building into apartments for rental. Following this agreement, there is a facility of N2,000,000,000 (Two Billion Naira) advanced to the 1st Respondent by the Applicant for the purpose of carrying out some jobs in relation to the agreement between 1st Respondent and the Federal Government. Still concerning the agreement, GT Homes indicated interest in the transaction and advanced a deposit of N 8,400,000,000 to the 1st Respondent. The transaction failed as the 1st Respondent could not deliver, so, GT Homes asked for the refund of their deposit which sum the Applicant refunded. The Applicant said it was a loan while the 1st Respondent said it was an investment by the Applicant. The sum paid by the Applicant to GT Homes was classified as a non-performing loan, which the 3rd Respondent in line with their statutory duty purchased. The Claimant as 3rd Respondent instituted an action against the 1st Respondent and the 2nd Respondent as Defendants in the Federal High Court. The claim in the lower court was principally to recover the sum of N20, 562,483,607 it purchased from the Applicant and to be given the power to sell the 2nd Respondent’s property used as security. Following this, the 3rd Respondent called on the Applicant to refund the money it paid to purchase the non-performing loan. As a result of this, the Applicant decided to appeal against the judgment as an interested party. The Applicant filed a motion seeking leave to appeal as an interested party, against the judgment of the Federal High Court, Lagos Division in Suit No. FHC/L/CS/1296/2016 – Asset Management Corporation of Nigeria (AMCON) vs. Resort International Limited & Ors. The 1st & 2nd Respondents filed a joint counter-affidavit of 54 paragraphs to which is annexed 8 Exhibits ‘resorts 1-8’. The 3rd & 4th Respondents did not file any process. Upon the exchange of processes, this court ordered parties to file their written addresses. The 1st & 2nd Respondents argued that the Applicant’s application was incompetent for non-compliance with the Order 6 Rule 4 of the Court of Appeal Rules and Section 14(2) of the Court of Appeal Act and discloses no genuine interest.
HELD
Appeal Allowed
ISSUES
Whether the Applicant is entitled to the grant of its application filed on 11th October 2018?
RATIONES DECIDENDI
FILING AN APPEAL – CONDITION PRECEDENT TO FILING OF AN APPEAL AS AN INTERESTED PARTY
“The point must be made from the onset that the law allows a person who was not a party at the lower court to file an appeal as an interested party but before then, the party must seek leave to appeal as an interested party. See Assams & Ors vs. Ararume & Ors (2015) 12 SC (Pt. 1) 43; Williams vs. Mokwe (2005) LPELR-3489 (SC); Odedo vs. PDP & Ors (2015)13 NWLR (Pt. 1476) 229”. –
LEAVE TO APPEAL – APPROPRIATE COURT WHERE AN INTERESTED PARTY CAN FILE AN APPLICATION FOR LEAVE TO APPEAL
“The application here is in relation to final decision of the lower court. The relevant provisions are those mentioned and quoted above, which are section 243 (a) of the 1999 Constitution and Order 6 Rule 4 of the Court of Appeal Rules 2016. The constitutional provision makes no provision as to which court, the Applicant is supposed to file the application for leave first. This may make an Applicant to think he has the right to choose which court he feels like filing the application. If it is taken as bare as that, it means the Applicant in this application is not offending any law by filing this application in this court without first filing it at the lower court being the Federal High Court. The Supreme Court has however stated clearly that the Applicant does not have the liberty of that discretion as the application must be filed first in the lower court. See Chief Onwuka Kalu vs. Chief Victor Odili & Ors. (1992) 5 NWLR (Pt. 240) 132. –
LEAVE TO APPEAL – EXCEPTION TO THE RULE THAT AN APPLICATION FOR LEAVE TO APPEAL AS AN INTERESTED PARTY MUST FIRST BE FILED IN THE LOWER COURT
“In this regard, Order 6 Rule 4 of the Court of Appeal Rules 2016 becomes necessary and important. By this provision, this application cannot be first made in the Court of Appeal. This makes it clear that this application should first be made in the Federal High Court. This is not the situation here. This application would have been declared incompetent but for the proviso which may be the life line of this application. The proviso is to the effect that an Applicant can file an application for leave to appeal in the first instance in the Court of Appeal if there are special circumstances which makes it impossible or impracticable to apply to the court below. Taking the entire provisions together, it is the current legal position that an Applicant for leave to appeal as an interested party must file the application at first in the lower court and subsequently in the Court of Appeal, however the exception is if there are circumstances that makes it impossible to file the application at the lower court, it can be filed in the Court of Appeal as the court of first instance. The general principle recognizes an exception. The Supreme Court stated clearly the legal position in the case of Kalu vs. Odili (supra), a case referred to by counsel to the 1st and 2nd Respondents. In this case the Supreme Court held:
“….So even though the two courts, the high court and the court of appeal have concurrent jurisdiction in the matter in the sense that both have jurisdiction to grant leave, the rule made under the authority of the Constitution itself direct that the application shall first be made in the High Court. The provisions are clear. So, any application filed in the court of appeal in the first instance is filed by non-compliance with the rules. Learned counsel for the appellant was therefore in error when he submitted that the appellant had a right to elect in which of the two courts, he could file his application. Such is contrary to the letters of the constitution and the rule which should be read together with them. The application could have been rightly filed in the court of appeal if special circumstances making it impossible or impracticable to have filed the application first in the high court were shown. None was however shown…There is no doubt that the application of the 2nd respondent filed before the court below for leave to appeal as an interested party was filed in non-compliance with the applicable rules of the court below. The application ought to have been filed before the trial Federal High Court.” Otherwise, the applicant should have shown before the court below the existence of special circumstance which made it impossible or impracticable to have filed the application first in the Federal High Court. None was alluded to by the court below, to have been shown to and considered by the court below in granting leave to the 2nd respondent to appeal as an interested party.”(underlined for emphasis)
The statute and case law have recognized exception. Though no specific situations were itemized as falling within the exception but it must be emphasized that this court and indeed any court as a court of justice which exist to do justice will interpret the special circumstance to include circumstance that will promote justice and not to condone laziness or indolence. See Green vs. Green (1987) 3 NWLR (Pt. 61) 480; Adamede & Ors vs. Ipuole & Ors (2017) LPELR-43492 (CA); Azie vs. Azie & Ors (2014) LPELR-23778(CA); Ajayi vs. Osunuku & Ors (2008) LPELR-8332 (CA); Elumiziem & Ors vs. Amadi (2014) LPELR-22459. –
PRINCIPLES OF EQUITY – EQUITY AIDS THE VIGILANT
“An Applicant who sleeps over his right or is indolent in pursuing his case to be joined in the lower court cannot come before this court claiming that special circumstance exist. The duty is on the Applicant to prove special circumstance and this must be stated in the affidavit. In A.G. Rivers State vs. Ude & Ors (2006)2 ANLR 2000; (2006) LPELR-626 (SC) p 20 the Supreme Court held:
“It is elementary law that the rules or principles of equity help only the vigilant and they do not assist an indolent party who fails to pursue his right diligently and within a reasonable time. Where this happened, the courts regard such delay or indolence of the party either as fatal to his case or as amounting to a waiver of his right under the maxim that equity helps only the vigilant. But it must be emphasized that failure to serve a hearing notice where the service of hearing notice is required, renders null and void any order made against the party who should have been served with the process. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.”
Similarly, the apex court held in Nigeria Laboratory Corporation vs. Pacific Merchant Bank (2012) NSCQR Vol. 50 2012 p. 402 at 423 I.T. Mohammed, JSC held:
“I have myself, carefully considered the depositions in the affidavit in support of the application before the court below. There is nothing in the averments contained especially in paragraphs 7-12 thereof, which would require the judicious exercise of my discretion to grant the application as supported by these porous and unsubstantiated averments. I go along with the court below that the tardiness in filing the appeal has not been explained away. He who comes to equity, must come with clean hands. And, delay, they say, defeats equity. There is nothing one can do to salvage a bad situation which seems to be compounded by the deliberate inaction of the appellants. The law helps the vigilant and not the one who sleeps on his right, Vigilantibus et non dormientibus jura subvennuint.”
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LEAVE TO APPEAL – DUTY ON AN APPLICANT TO SHOW THE EXISTENCE OF SPECIAL CIRCUMSTANCES THAT WILL WARRANT THE GRANT OF LEAVE TO APPEAL
“The duty is on the Applicant in this application to show the existence of the special circumstance. This is based on the established legal principle that he that alleges must prove. The Applicant as the one alleging is the one to prove the special circumstance. In doing so, there must be sufficient averment in the affidavit in support to show the existence of those facts. If the affidavit in support is bereft of such averment, there is nothing a court can do to assist since the court is an unbiased umpire. See Maersik Line & Anor vs. Addide Investment Ltd & Anor (2002) 11 NWLR (Pt. 778) 317; Addah & Ors vs. Ubandawaki (2015) 1 SC 1; Buhari vs. INEC & Ors (2009) 1 FWLR (Pt. 459) 1461; Apampa vs. State (1982) 4 SC 47. –
LEAVE TO APPEAL – WHETHER THERE EXIST TIME LIMIT AS TO WHEN A PARTY SEEKING FOR LEAVE TO APPEAL AS INTERESTED PARTY CAN APPLY FOR SAME
“There is a constitutional period within which an appeal will be filed and therefore, when such period has lapsed in the lower court, it stands to reason that any application for leave will be filed in the court that has the powers to entertain the appeal as it is only that court that can extend the time. See Bi-Courtney Limited vs. A.G. Federation & Anor. SC. 770/2014 (unreported). It is true, as well as established, that there is no time limit as to when the party seeking for leave to appeal as interested party can apply for leave but that does not take away the fact that by law, either the person who wants to appeal, whether as a party in the lower court or an interested party, has three months to appeal the judgment. If that period has expired, the law is that he will need to file the trinity prayers to appeal and this is to be filed in the Court of Appeal that has the power to extend the time. –
LEAVE TO APPEAL – MEANS OF ESTABLISHING SPECIAL CIRCUMSTANCES IN AN APPLICATION FOR LEAVE TO APPEAL
“If that period has expired, the law is that he will need to file the trinity prayers to appeal and this is to be filed in the Court of Appeal that has the power to extend the time. While it is true that, the application is not for extension of time, since this application will eventually lead to the trinity prayers if granted and such can only be filed in this court, I am of the opinion that this amount to a special circumstance covered by the rules of this court. From the processes filed, it is discovered that the judgment was delivered on 13/6/18 and this motion was filed on 11/10/18. The appeal is to be filed on 12/9/18 but as at then the notice of appeal has not been filed. Any notice of appeal to be filed thereafter will have to be filed after time has been extended by the Court of Appeal. Since time has elapsed, the application for extension of time can be made in this court and in the circumstance, it is only appropriate that this application can be filed here. This in my opinion, will fall under the proviso, that is to say, the situation presented above as revealed in the fact of this case will amounts to a special circumstance. Before I can draw that conclusion, the Applicant has a duty to show that the special circumstance does exist. He can only do so in the affidavit and not in the address of counsel. This being an issue of fact must be so disclosed in the affidavit as the address of counsel cannot take the place of evidence. See UBN Plc. vs. Ayodare & Sons (Nig) Ltd. (2007) 13 NWLR (Pt. 1052) 567; (2007) 4-5 S.C 42”. –
LEAVE TO APPEAL – DISCRETIONARY POWERS OF THE COURT IN DETERMINING WHAT AMOUNTS TO SPECIAL CIRCUMSTANCES IN AN APPLICATION FOR LEAVE TO APPEAL AS AN INTERESTED PARTY
“It suffice to say at this junction that, the decision as to what will amount to special circumstances has been left apparently at the discretion of the court since items that will qualify as special circumstances were not enumerated in the Rules. In such a situation, a court will be guided by the general tenet and principles of justice. It is trite legal position, that, discretion should be applied judicially and judiciously. See Akin Akinyemi vs. Odu’a Investment Company Limited (2012) LPELR-8270 (SC).”-
LEAVE TO APPEAL– NATURE OF INTEREST WHICH WILL SUPPORT AN APPLICATION FOR LEAVE TO APPEAL AS AN INTERESTED PARTY
“From the provision of the Constitution, to succeed in this application, the Applicant must show that he has an interest in the subject matter and also how the decision of the lower court will affect his interest. To decide on this, it is necessary to look at the claim at the lower court and the decision of the court. At this stage, I am not concerned about whether the judgment is right or wrong, as that will be a matter for the appeal. What I am concerned about, is how does the relief and the judgment affect the interest of the Applicant? If there is no connection between the relief and the judgment of the lower court with the interest of the Applicant, this application will fail. This is a major responsibility on the shoulders of the Applicant who has the duty in law to show his interest in the affidavit. The Supreme Court has made this point in a number of cases. I refer to two of such. In Okonkwo & Anor vs. UBA Plc (2011) 16 NWLR (pt. 1274) 614; (2011) LPELR-23010 (SC), the apex court at pages 6-7 held:
“By the provisions of Section 243 (a) of the Constitution it is a party in a suit or an interested party that can appeal against a judgment of the Court. See
In Re: Arowolo 1993 2 NWLR pt. 275 pg. 1 Ogunbiyi v. Mustapha 1996 4 NWLR Pt. 442 pg. 337
Where a party who was not a party in the Court below seeks to appeal to this Court, he can only do so if he seeks and obtains leave from this Court, and he would obtain leave if and only if he is able to satisfy this Court that he is an interested party.
An appellant is a person appearing from a decision or applying for leave to appeal.
Section 243 (a) of the Constitution makes leave a mandatory pre-condition that must be sought and obtained before an interested party can appeal. An applicant filing an appeal without satisfying or fulfilling that pre-condition is merely wasting his time.”
In Re Abdullahi (2018) LPELR-45202 (SC), the apex court per Aka’ahs, JSC at pages 38-40 held:
“The application is no doubt a novel application since the legal principle is that a personal right of action dies with the person which is summed up in the Latin maxim “actio personalis moritur cum persona”. But as argued by the applicants what stands out in this application is the injury inflicted on the estate of the deceased appellant by the respondents, which has been sustained by the order of the lower Court and only this Court can provide a remedy under the doctrine of ubi jus ibi remedium. See: Bello v. Attorney-General of Oyo State (1986) 5 NWLR (Pt. 45) 828.
The interest which will support an application for leave to appeal as interested party must be genuine and legally recognisable interest in respect of a decision which prejudicially affects such a person. And for a person to qualify as a person interested, the applicant must show not only that he is a person having interest in the matter but also that the order or judgement of the Court below which he is seeking leave to appeal against prejudicially affects his interest. In other words, to succeed in the application, the applicants must show that they are persons who are aggrieved or persons against whom decisions have been produced which have wrongfully refused them something or wrongly affected their title to something. See: Nwaogu v. Atuma (2013) All FWLR (Pt. 669) 1022, In re: Ugadu (1988) 5 NWLR (Pt. 93) 189 at 202 per Karibi Whyte JSC; Usanga & Ors v. Okada & Ors (1964) 1 All NLR 36; lkonne v. Commissioner of Police (1986) 4 NWLR (Pt. 36) 473; Dairo v. Gbadamosi In re: Afolabi (1987) 4 NWLR (Pt. 63) 18 and Ademola v. Sodipo (1992) 7 NWLR (Pt. 253) 260 261.
The applicants are the administrators of the estate of late Brigadier General James Omebije Abdullahi whose appeal was pending before this Court prior to his death on 22 October, 2014 and in the notice of appeal, he had complained against the order of the lower Court which affected his property situate at Plot 741 Cadastral Zone B2 Durumi District and covered by Certificate of Occupancy No. FCT/ABU/BN.897.
Besides being administrators, they are the wife and one of the sons respectively of the deceased Brigadier James Omebije Abdullahi who applied and were granted Letters of Administration of the estate of the said Brigadier James Omebije Abdullahi (deceased). They have therefore a genuine and legally recognisable interest in the estate of the deceased Brigadier General James Omebije Abdullahi.
In view of the fact that the applicants have shown they have a recognizable interest in the estate over which the Court below made an order of forfeiture and since they have limited their interest in the Notice of Appeal to challenging the jurisdiction of the lower Court in ordering forfeiture of the said deceased property over which Letters of Administration were issued to the applicants, they should be granted leave to argue the issue distilled from ground 9 of the Notice of Appeal.”
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APPEAL AS AN INTERESTED PARTY– NATURE OF INTEREST A PARTY SEEKING TO APPEAL AS AN INTERESTED PARTY SHOULD HAVE
“The interest referred to in this instance is an interest which is legally recognizable and indeed to be allowed to appeal as an interested party, such a person could have been joined as a party in the lower court if he had applied. The implication of this is that, an interested party to be allowed to appeal must be in such a situation that should he have applied to be joined in the lower court, he would have been joined because he has sufficient interest to be protected in the matter which will ensure that justice is done in the matter between the parties. See Societe General Bank of Nig Ltd vs. Afedkoro & Ors (1999) 11 NWLR (Pt. 628) 521; Waziri vs. Gumel (2012) 3 SC (Pt. III) 1; Chukwu & Anor vs. INEC (2014) LPELR-25015 (SC); CAN & Ors vs. Labour Party & Anor (2012) LPELR-8003 (CA). To therefore determine the level of the interest of the Applicant, the relief in the lower court becomes important. If the relief and the decision are such that affect the Applicant’s right, then the application to appeal as an interested party will succeed”. –
APPEAL AS AN INTERESTED PARTY – DUTY OF AN APPLICANT SEEKING TO APPEAL AS AN INTERESTED PARTY
“I will look at the notice later but suffice to say that the Applicant must show that his interest is genuine and recognizable. In fact, if the Applicant could originally be joined as a party in the lower court whose presence is necessary to resolve the issues before the lower court, then he is an interested party. See E.F.P.C. vs. N.D.I.C. (2007) All FWLR (Pt. 367) 793. –
LEAVE TO APPEAL– CONDITION PRECEDENT FOR A COURT TO GRANT LEAVE TO AN APPLICANT TO APPEAL AS AN INTERESTED PARTY
“In determining whether a court can grant leave to an interested party to appeal, the Applicant must file a proposed notice of appeal wherein a court can deduce his interest. Such a proposed notice of appeal must arise or be related to the decision of the court. See Ogembe vs. Usman & Ors (2011)17 NWLR (Pt. 1277) 638. –
LEAVE TO APPEAL– REQUIREMENTS WHERE A PARTY SEEKS FOR LEAVE TO APPEAL AS AN INTERESTED PARTY
“This court in Onukagha & Anor vs. Okoroafor & Ors (2018) LPELR-44080 (CA) per Mbaba, JCA at pages 13-15 held:
“It has been stated, repeatedly, that one who applies for leave to appeal, as an interested party, does not need extension of time to seek leave to appeal. This is so because time does not run out against him, upon coming to know of the judgment, to appeal against, and having not yet been a party to the said Suit, he seeks to contest the judgment, he cannot be questioned for not bringing the appeal within time (90 days from the delivery of the judgment). See the case of In Re Vs Madaki (1996) 7 NWLR (Pt.459) 153, wherein the Supreme Court interpreted Order 3 Rule 3(3) of the Court of Appeal Rules and Section 221 and 222(a) of the 1979 Constitution (which are the same as 242 and 243(1)(a) of the 1999 Constitution ), where my Lord, Uwais CJN, said:
Neither the Constitution nor the Court of Appeal Act or Court of Appeal Rules prescribe any period within which an interested party may bring application for leave to appeal as a person having an interest in the matter.
It is settled therefore, that, it is a wrong procedure and a misconception of procedure and the law, for a person to apply for extension of time to seek leave to appeal, when he seeks to appeal, as an interested party; he does not need to include in his motion, a prayer for extension of time to seek leave to appeal. What he actually needs, is for leave of Court to appeal, as an interested party, in which case he must convince the Appellate Court of his interest in the judgment he seeks to appeal against. See the cases of Christian Iwuagwu vs. Emezie Okoroafor & Ors(2012) LPELR 20829 CA; Funduk Engineering Ltd vs. Mcarthur & Ors (1996) LPELR 1291 (SC). See also Fed. Airport Authority of Nigeria Vs BI Courtney Ltd & Anor (2011) LPELR 1942 CA, where this Court said:
Party interested against the judgment Applicant must show his legal interest and the following conditions must co-exist:
(a) Good and substantial reasons for failure to appeal within the period prescribed by the appropriate rules of Court, and
(b) Good and substantial ground(s) of appeal which prima facie show good cause why the appeal should be heard Ukwu Vs Bunge (1997) 1 NWLR (Pt.518) 527; Ibodo Vs Enarofia & Ors (1980) 5 7 SC 42.
See also Ogembe Vs Usman & Ors (2011) LPELR 8155 (SC); (2011) 7 NWLR (Pt.1277) 638, where the Supreme Court stated the important requirements where a party seeks for leave to appeal as an interested party; thus:
One of the important requirements, where a party seeks for leave to appeal as an interested party, is that he ought to annex to his application a proposed Notice of Appeal. This is to assist the Appellate Court in the consideration of the grounds of appeal to find whether the proposed grounds of the appeal are substantial and arguable.”
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CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended) Court of Appeal Rules, 2016 Court of Appeal Act, 2004