LARRY CURRY LIMITED V. OLUMUYIWA OSHO & ORS

Legalpedia Citation: (2023-08) Legalpedia 19656 (CA)

In the Court of Appeal

Holden at Lagos

Wed Aug 2, 2023

Suit Number: CA/L/109/17

CORAM

ONYEKACHI AJA OTISI JUSTICE, COURT OF APPEAL

ABUBAKAR SADIQ UMAR JUSTICE, COURT OF APPEAL

ABDULLAHI MAHMUD BAYERO JUSTICE, COURT OF APPEAL

PARTIES

LARRY CURRY LIMITED ===   APPELLANT

 

APPELLANTS

1. OLUMUYIWA OSHO
2. ADENIYI ADELANA
3. OLUWATOYIN KOLAJO RESPONDENTS
4. OLUSENI ADEGBITE
5. ADEDELEKE ADEGBENLA
6. PERSONS UNKNOWN

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE, PROBATE LAW, PROPERTY

SUMMARY OF FACTS

One Dupe Adelana deceased (who was substituted by the 1^st Respondent at the Lower Court and is herein subsequently referred to as the 1^stRespondent), the 2^ndRespondent and one Olusoga Adelana are the beneficiaries of the property situate at No.1, Birrell Avenue, Yaba, Lagos State in the last Will of their deceased father Pa Adelana. In the Will, 50% of the property was devised to Olusoga Adelana, the remaining 50% to be shared equally by the 1^st and 2^nd Respondents.

The executors of the Will having died, the beneficiaries decided to sell the property and share the proceeds among themselves. Olusoga Adelana who has 50% and is said to be based abroad nominated the 4^th and 5^th Respondents to be his agents. Prospective buyers therefore interacted with the 1^st and 2^nd Respondents as beneficiaries in their own right as well as the 4^th and 5^th Respondents as agents of Olusoga Adelana. While there is a consensus that the property be sold for N14, 000,000(Fourteen Million Naira) only, there is no agreement among the stakeholders as to whom among the prospective buyers the property was sold. While the 1^st and 2^nd Respondents claimed that the property was unanimously sold to the 3^rd Respondent only that the 4^th -5^th Respondents backed out after the sale was concluded because the 4^th -5^th Respondents did not have control of the proceeds of the sale as they had wanted, the 4^th -5^th Respondents on their part claimed that the property was sold to somebody else whose name was not disclosed.

During this impasse, on the allegation that the 4^th and 5^th Respondents resorted to self-help to take over the property and put some persons not known in possession. The 1^st-3^rd Respondents, commenced suit No: ID/610/280 against the 4^th -5^th Respondents and the unknown persons -the 6^th Respondent as 1^st-3^rd Defendants at the lower court.

The lower court delivered judgment in the suit granting the Claimants/1^st-3^rd Respondents claim. The Appellant then appeared on the scene vide its application in which it prayed the lower court to join it as a defendant and also to set aside the judgment delivered in the suit. The 1^st-3^rdRespondents vehemently opposed the application by their counter-affidavit. The learned trial judge took argument on the application and in a reserved ruling delivered on the 15^th February, 2016 dismissed the application on the grounds that Appellant was aware of the pendency of the suit. The Appellant is dissatisfied with the said ruling and has filed this appeal to ventilate its grievance.

HELD

 

Appeal dismissed

ISSUES

Whether having regards to the entire circumstances of this case, the lower court was right to have dismissed the Appellant’s application dated the 26th May, 2015? 

RATIONES DECIDENDI

APPEAL – WHEN THERE IS A PRELIMINARY OBJECTION IN AN APPEAL

The law is settled beyond equivocation that preliminary objection in an appeal must first be disposed of before the substantive appeal so that the court will not labour in vain if at the end of the day the appeal is found to be incompetent. See ONYEMA & ORS vs. EGBUCHULAM (1996) 5 NWLR (PT. 448) 224; ACHONU vs. OKUWOBI (2017) LPELR-42102(SC) (PP. 4-5 PARAS. E). – Per A. S. Umar, JCA

 

REPLY BRIEF – WHEN THE APPELLANT FILES NO REPLY BRIEF IN RESPONSE TO PRELIMINARY OBJECTION

the Appellant did not file any Reply brief in response to the 1^st -3^rd Respondents objection to the competence of the appeal. The legal consequence of a failure to so do is that the law will presume that the Appellant has conceded or accepted the points or issues raised by the 1^st -3^rd Respondents in their Notice of Preliminary Objection. See the cases of KHALIL vs. YAR’ADUA (2003) 16 NWLR (Pt. 847) 446 AT 484; NNAMANI vs. NNAJI (1999) 7 NWLR (Pt. 610) 313; AKANBI vs. ALATEDE (2000) FWLR (Pt. 1) 928. ZAMFARA STATE GOVT & ANOR vs. UNITY BANK & ANOR (2016) LPELR-41813(CA) (PP. 8 PARAS. C). – Per A. S. Umar, JCA

APPEAL – THE AVENUE BY WHICH A PERSON WHO IS NOT A PARTY BUT AN INTERESTED PARTY CAN APPEAL A DECISION

“In the absence of leave such an appeal is a non-starter as it will be incompetent. Per KEKERE-EKUN, J.C.A as she then was now JSC in DENTON-WEST vs. MUOMA (2007) LPELR-8172(CA) (Pp. 22-24 paras. G) aptly stated the position when she said: “Any right of appeal to the Court of Appeal from the decisions of the 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 …” I have carefully examined the records in this appeal and observe, as rightly noted by learned counsel for the respondent, that there is no appeal against the orders of D.M Okocha, J. made on 25/7/07. There is no application either before the trial Court or this Court for leave to appeal against those orders as an interested party, or for leave to seek the relief in prayer 3 as an interested party. The right to appeal is only exercisable by a party to the proceedings or by an interested party with leave of Court.”

“In the instant case, as there is no pending appeal against the orders of D.W. Okocha, J and as the applicant herein was not a party to those proceedings, I hold that prayer 3 is incompetent.” – Per A. S. Umar, JCA

COURTS – DUTY OF THE INTERMEDIATE COURT TO CONSIDER ALL ISSUES CANVASSED BY PARTIES

“Since this court is not the final appellate court but an intermediate one, we are enjoined to consider and resolve all issues canvassed before us by the parties. Therefore, I shall still proceed to consider this appeal on the merit. See ADAH vs. NYSC (2004) LPELR-69(SC) (Pp. 9 paras. E, TITILOYE vs. OLUPO (1991) LPELR 3250 SC.”

BURDEN OF PROOF – BURDEN OF PROOF LIES ON THE PERSON WHO ASSERTS

“It is trite law that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist and when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. See section 131 of the Evidence Act, 2001. See also AKINYELE vs. AFRIBANK PLC & ANOR (2005) LPELR 7468 CA, DANA IMPEX & ANOR VS. ADEROTOYE (2005) LPELR 5534 CA.”

FRAUD – WHEN THERE IS AN ALLEGATION OF FRAUD IN A CIVIL MATTER

“The fact that fraud -an imputation of crime- is one of the grounds relied upon by the Appellant also raises the standard of proof on the Appellant to one beyond reasonable doubt. See section 135 of the Evidence Act, 2001. See also ABALAKA vs. MINISTER OF HEALTH & ORS (2005) LPELR 5572 CA, ANOZIE vs. OBICHERE & ORS (2005) LPELR 7478 CA, GODHEAD vs. AMACHREE & ORS (2005) LPELR 7463 CA.”

SERVICE – ESSENCE OF SERVICE OF HEARING NOTICE

“The law is firmly settled that the essence of service of a hearing notice is to notify the party of the adjourned date of the matter. Where a party is represented by a legal practitioner in a case, the service of a hearing notice on the party is dispensed with because the party is deemed to be aware of the adjourned date if the counsel representing him is aware of the adjourned date. See ZUOKEMEFA JP vs. OBIPAN CO. LTD & ANOR (2010) LPELR-5105(CA), GOVERNOR OF NASARAWA STATE & ORS vs. SHEWAZA & ORS (2017) LPELR-44032 (CA).”

JOINDER OF A PERSON – WHETHER A COURT CAN JOIN A PERSON AS A PARTY AFTER DELIVERING JUDGMENT ON A MATTER

“The position of the law is that there is no joinder of a person as a party to a case in which judgment has been delivered. When a court delivers its judgment in respect of a case, the court becomes functus officio as far as that case is concerned. Even though there are cases when the court exercises post-judgment jurisdiction on the same matter in which judgment has been delivered to set aside the same judgment on the grounds of non-service, fraud and other circumstances where the judgment amounts to a nullity at the instance of a party to the suit or to correct clerical errors, or issues relating to enforcement or execution of the judgment, the courts do so either pursuant to statutory provisions, rules of courts or the inherent powers of the court. But I am not aware of any statute or rules of court that provide for joinder of a party to a case that has been concluded and judgment delivered. It is also not within the inherent power of the court to join a party to a case in which it has delivered judgment because that will be tantamount to the court sitting on appeal over its own judgment.

The safety net provided for a person whether natural or artificial who is aggrieved by the judgment of a court in which he is not a party is to seek leave to appeal the judgment as an interested party pursuant to section 243 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. It is after the judgment has been set aside on appeal that the person can then file an application for joinder by the trial court.

This court made the point abundantly clear in ADEOSUN vs. AKINYEMI (2006) LPELR-5199(CA) (Pp. 13-16 paras. A-A) when Per GALINJE, J.C.A who delivered the lead judgment held thus: “.I also made strenuous effort to lay my hand on any statute that provides for joinder of interested party after judgment has been delivered and I have not found any. The two sections of the Constitution under which the applicant brought his application in my view have not made any provision for joinder of interested parties. For the avoidance of doubt let me set out the provisions of Sections 242(1) and 243(a) of the Constitution of the Federal Republic of Nigeria 1999- “242. The sections of the Constitution of the Federal Republic of Nigeria which the applicant has quoted in his application clearly provide for appeal and not joinder of persons. There is no doubt that a party who is interested in any civil matter may seek leave from the Federal High Court, State High Court or the Court of Appeal in order to appeal. There is no provision for joinder of an interested party in the Constitution of this country. The applicant has headed his application in such a way that the name of the country under whose Constitution he is relying upon is not mentioned. He merely stated that the motion on notice is brought pursuant to Section 243(A) 1999 Constitution …. Perhaps he is talking about a different Constitution otherwise the sections of the Nigerian Constitution under reference do not provide for joinder of persons in a case that has been finally determined. Since the ground of appeal attacks the ruling of the lower Court which dismissed this appeal, granting the application will not help the applicant as the ground of appeal does not prima facie show good cause why the appeal should be heard. On the whole I find no merit in this application. Accordingly same is hereby dismissed.” CLARA BATA OGUNBIYI, J.C.A later JSC who was a member of the panel while contributing to the lead judgment said thus: “It is startling to state that the applicant at hand seeks to appeal against the ruling of the lower Court delivered on the 19th November, 2002 in seeking an order of joinder as an interested party; there is however no indication that a similar intention exists to either appeal or seek leave to appeal against the judgment giving rise to the ruling. It is obvious that the starting point ought to have been an appeal against the judgment, the absence which cannot give rise to an exercise of discretion sought for in the matter before us. The act amounts to putting the cart before the horse which is not proper.” RAPHAEL CHIKWE AGBO, J.C.A in his own contribution also commented as follows: “Clearly there can be no question of joinder in determined suits nor can a person exercise such right as an “interested party” at 1st instance. I notice that the applicant, by paragraph 6 of his affidavit in support and counsel’s oral argument in this Court has limited his interest for which the joinder was sought only to the post judgment application for possession but in the Court below had prayed that Court for an “order joining Mr. Adisa Adeogun as 2nd defendant/interested party in the above suit”, a prayer the Court below lacked the competence to allow after it had delivered judgment in the suit before it. Indeed from the record of proceeding of the Court below on Tuesday, 25th May, 1993 in ID/339/88, the respondent in this application as plaintiff had argued his application to have the present applicant joined as defendant in the suit.” See also DAVIES & ORS vs. ODOFIN & ORS (2017) LPELR 1871 CA, IN RE: OLOKPO vs. TYOYONGO (2019) LPELR 46406 CA.”

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Evidence Act, 2001

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