CORAM

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Mohammed Lawal Garba – Justice of the Supreme Court of Nigeria

Biobele Abraham Georgewill – Justice of the Court of Appeal

Jamilu Yammama Tukur – Justice of the Court of Appeal

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PARTIES

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JOEL CHUKWUWETARA EMECHETA

APPELLANTS 

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1. CHIEF ADISA SOWEMIMO

2. SOWEMIMO MOTORS NIG. LTD

3. KANEM NIGERIA LIMITED

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, PRACTICE AND PROCEDURE, CONSTITUTIONAL LAW, EVIDENCE, JOINDER, ADMINISTRATIVE LAW, PROPERTY LAW, LAND LAW, LITIGATION, CIVIL PROCEDURE

 

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SUMMARY OF FACTS

This case involves an application by Joel Chukwuwetara Emecheta (the Applicant) seeking to be joined as an interested party to an ongoing appeal. The Applicant claimed to have purchased one acre of land from the Appellants (Chief Adisa Sowemimo & Anor) on October 16, 2012, through a Deed of Assignment. He alleges he was in quiet and peaceful possession of the property until February 2014, when court processes in Suit No. ID/48/2010 between the Appellants (as Claimants) and Kanem Nigeria Limited (the Respondent) were posted on his premises.

Upon discovering the litigation, the Applicant confronted the Appellants, who assured him that the suit had nothing to do with the property they had sold to him. Initially, the Applicant reported the matter to the police alleging fraud and later demanded a refund of the N70 million he had paid for the property, to which the Appellants offered to refund only N60 million.

Subsequently, the Applicant sought verification from the Office of the Surveyor General of Lagos State, which allegedly confirmed that his property was distinct from the property in dispute in the suit. Based on this, he applied to be joined as a party to the original suit (ID/48/2010) to protect his interest, but his application was dismissed by the High Court in a ruling delivered on July 13, 2015.

The Applicant had previously filed an application for leave to appeal against this ruling on October 5, 2015, but later withdrew it. He then filed the present application seeking leave to appeal as an interested party against two judgments of the High Court delivered on October 22, 2012, and July 13, 2015, respectively.

The Appellants and Respondent opposed the application, contending that the Applicant knew the property he bought was the subject of ongoing litigation, and therefore had no legal interest to protect, as he was caught by the doctrine of lis pendens.

 

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HELD

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1. The application was dismissed for being incompetent and lacking in merit.

2. The Court held that the Applicant, being a privy to the Appellants, was not a necessary party to the appeal, as his presence was not required for the effective and complete determination of the issues in the appeal.

3. The application was deemed incompetent because it was filed long after the expiration of the three-month period prescribed by Section 24(2)(a) of the Court of Appeal Act, without a prayer for extension of time.

4. The Court determined that the Applicant, as a privy to the Appellants, would be bound by the outcome of the appeal whether or not he was joined as a party.

5. The Court ruled that the question of whether the doctrine of lis pendens applied could

not be resolved at the stage of an application for joinder but would be a matter for the substantive appeal.

 

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ISSUES

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1. Whether the Applicant is a person interested and having sufficient interest in the subject matter of the appeal to enable the Court grant his prayer to be joined as a co- Respondent to the appeal and whether the application for leave to appeal as a person interested is competent?

2. Whether the relief of extension of time to file appeal is not against the extant law?

3. Whether the Applicant who purchased the subject land from the Appellant during the pendency of the suit at the Court below has the locus standi to apply to be joined as a party to this appeal?

4. Whether the proposed Notice of Appeal attached to the application and marked as Exhibit JC9 is not incompetent in law and should be struck out?

5. Whether the prayers sought by the Applicant on the motion paper are not incompetent and should be dismissed with substantial cost?

 

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RATIONES DECIDENDI

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JOINDER OF PARTIES – TEST FOR DETERMINING WHETHER A PERSON IS A NECESSARY PARTY:

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“In law therefore, what would render a person to be a necessary party is not whether he has an interest in the argument to be canvassed in the proceedings but rather whether in the light of the relief sought he is a person in whose absence the issues in controversy between the parties on record cannot be effectively and effectually determined by the Court unless he is joined as a party and so that he may be bound by the result of the proceedings.”- Per BIOBELE ABRAHAM GEORGEWILL, JCA

 

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NECESSARY PARTY – CRITERION FOR DETERMINING WHO IS A NECESSARY PARTY IN A SUIT:

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“It follows therefore, the most crucial consideration in determining whether a person is a necessary party is whether the suit can be effectively and completely disposed of without that person keeping in mind the salient position of the law that a person who is not joined as a party to a proceedings would likewise ordinarily not be bound by the result, the outcome of such a proceedings. A necessary party is therefore, that person whose presence is very essential for the proper and just determination of the issues in the existing suit between the parties.”- Per BIOBELE ABRAHAM GEORGEWILL, JCA

 

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INTERESTED PERSON IN A PENDING APPEAL – WHO IS ENTITLED TO BE JOINED AS A PARTY TO A PENDING APPEAL:

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“Thus, in law, the litmus test whether an Applicant has an interest in an appeal is whether the person could have been joined as a party to the suit before the Court of trial and thus an interested person in a pending appeal who ought to be joined as a party if he was not made a party by the existing parties on the record is that person who is able to show that he has proprietary interest in the subject matter of the appeal and that in his absence the issues raised in the appeal cannot be effectively and effectually be resolved by the appellate Court.”- Per BIOBELE ABRAHAM GEORGEWILL, JCA

 

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SUCCESSOR IN TITLE – EFFECT OF JUDGMENT ON SUCCESSOR IN TITLE:

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“However, it is of equal importance and ought to be pointed out at once that where an Applicant seeking to be joined to a pending suit or appeal is a person who claims his title from one of the parties on record or is a successor in title to one of the parties on record, then such a person whether joined as a party or not would be bound by the judgment the outcome of such a suit or appeal and therefore, need not even be joined as a party to the suit or appeal.”- Per BIOBELE ABRAHAM GEORGEWILL, JCA

 

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JOINDER TO AN APPEAL – CRITERION FOR JOINING A PERSON TO AN APPEAL:

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“Now, since in law a person cannot be joined to an appeal unless he has a legal interest in the proceedings, it implies therefore, that there must be some issues between the person and someone already a party to the proceedings in respect of which some remedy or relief in the proceedings could be claimed. Thus, any person who has no legal interest but is merely a person who could be affected either commercially or in some other respect in the outcome of the appeal cannot be joined as a party.”- Per BIOBELE ABRAHAM GEORGEWILL, JCA

 

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JUDICIAL PROCEEDINGS – ESSENCE OF FINDING THE TRUTH IN JUDICIAL PROCEEDINGS:

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“Justice is much more than a game of hide and seek. It is an attempt, our human imperfections notwithstanding, to discover the truth” – Per BIOBELE ABRAHAM GEORGEWILL, JCA (quoting Oputa JSC in Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 @ p. 269)

 

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VALIDITY OF JUDGMENTS – EFFECT OF JUDGMENTS UNTIL SET ASIDE:

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“It is trite law that once a judgment of Court is given it remains valid, subsisting and binding until it is set aside by a Court of competent jurisdiction.”- Per BIOBELE ABRAHAM GEORGEWILL, JCA

 

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PRIVY – DEFINITION AND SCOPE OF WHO IS A PRIVY:

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“A person who is in privity with another is one who is a partaker or has any part or interest in any action or matter or thing. In connection with the doctrine of Res Judicata, one who after the commencement of the action has acquired interest in the subject matter affected by the judgment through or under one of the parties as by inheritance, succession, purchase or assignment.” – Per BIOBELE ABRAHAM GEORGEWILL, JCA

 

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TIME LIMIT FOR APPEALING – TRINITY PRAYERS FOR APPEAL OUT OF TIME:

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“It is clear from the foregoing that the first prayer a person seeking leave to appeal as an interested party must seek leave to be made a party in the case pursuant to the relevant Section of the Constitution. The other three prayers in the above quotation will now follow if the application is made outside the time prescribed for appealing under Section 24 (2) of the Court of Appeal Act 2004" – Per BIOBELE ABRAHAM GEORGEWILL, JCA (quoting Muntaka-Coomasie JSC in Chukwu V. INEC (2014) 10 NWLR (Pt. 1415) 385 @ p. 409)

 

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RIGHT OF APPEAL – LIMITATION ON CONSTITUTIONAL RIGHT OF APPEAL:

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“At any rate, in law while the right of appeal is constitutionally guaranteed it does not lie in perpetuity and thus, must be exercised within the period of time as prescribed by law or with the leave of Court extending the time within which it could be exercised if not exercised within the time allowed by law.”- Per BIOBELE ABRAHAM GEORGEWILL, JCA

 

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LIS PENDENS – DOCTRINE AND APPLICABILITY:

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“The doctrine of lis pendens is predicated on the need to prevent the deposition of property that is the subject matter of a pending law suit, so that the eventual pronouncement of the Court on the property is not stultified and may be given its proper legal effect and to avoid the Court acting in vain. Thus, a sale pendente lite is not by itself necessarily void but will abide the outcome of the litigation.” Per BIOBELE ABRAHAM GEORGEWILL, JCA

 

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LIS PENDENS – CONDITIONS PRECEDENT FOR APPLICABILITY OF THE DOCTRINE:

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 “For the doctrine of lis pendens to apply, it must be shown (a) that at the time of the sale of the property the suit regarding the dispute about the said property was still pending … (b) that the action or lis was in respect of real property; it never applies to personal property; (c) that the object of the action was to recover title to a specific real property; that is to say, an action in a subject matter adverse to the owner in respect of substantive right which is proprietary in nature: (d) that the other party had been served with the originating process in the pending action…”- Per BIOBELE ABRAHAM GEORGEWILL, JCA (quoting Uwaif JSC in Bua V. Dauda (2003) 13 NWLR (Pt. 838) 657 @ p. 686)

 

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DETERMINATION OF SUBSTANTIAL ISSUES – PROPRIETY OF RESOLVING SUBSTANTIVE ISSUES AT PRELIMINARY STAGE:

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“The contention of counsel as to whether the Applicant will succeed in the appeal or not … because the property had been purchased lis pendens are matter for resolution in the substantive appeal. These matters cannot be enquired into now”- Per BIOBELE ABRAHAM GEORGEWILL, JCA (quoting In Re Mbamalu (2002) FWLR (Pt. 85) 246 @ p. 260)

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended), Sections 241(1), 242(1), 243(a) (b)

 Court of Appeal Act 2004, Sections 24(1), 24(2)(a), 24(4)

 Court of Appeal Rules 2016, Orders 6 Rules 1, 4, 6, 7 9

 Order 7 Rule 2(1) of the Court of Appeal Rules 2016

 

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