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NKOB AND FNMGBAB STORES LTD VS AHMED OLORUNNIMBE

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NKOB AND FNMGBAB STORES LTD VS AHMED OLORUNNIMBE

ELECTRONIC CITATION: LER [2019] CA/L/893M/2014

 

AREAS OF LAW:

Appeal, Law Of Evidence, Parties, Practice And Procedure

SUMMARY OF FACTS

The trial court entered judgment in favour of the Respondent over parcels of land situate at Block “A” Tokunbo Street, Wright Estate, now No.19 Moween Street, Yaba and the property under title NO: M00413 at Adewale Street, Wright Estate, Yaba, now known as 37, Hughes Avenue, Yaba, Lagos. The Defendant, Mr. Abiodu Ojo, a member of the Late Abdul Hamid Ojo Family was sued in his personal capacity over the family land but he died while the matter was still in court. The Applicant/Appellant who is in occupation of the property claimed he bought same from the family of the late Abdul Hamid Ojo and has been in possession since 31st August 2012.Upon the death of the Defendant which was communicated to the court, the lower court took address and delivered judgment against the dead sole Defendant. The Appellant came to know about the case when execution was attempted to be levied on the property hence, he filed a motion for trinity prayers along with prayers to appeal as an interested party and an injunctive relief. The Respondent opposed the motion on the grounds that an injunction cannot be granted over a matter that execution has been levied on, that the Applicant cannot be joined in the suit in the lower court.

HELD

Application Succeeds

ISSUE FOR DETERMINATION

  • Whether this court can grant the application of the Appellant/Applicant based on the facts before this court.

 

RATIONES

RIGHT OF APPEAL BY A PARTY INTERESTED – PROCEDURE TO BE ADOPTED BY AN APPLICANT SEEKING TO APPEAL AGAINST A DECISION OF A HIGH COURT AS AN INTERESTED PARTY

“That an interested party can appeal against a decision he is not happy with is not in doubt. That he was not a party in the matter in the lower court does not foreclose him from appealing against the judgment. Once, he can show that he has an interest in the subject matter and in the outcome of the subject matter of the case; he can seek for leave to appeal as an interested party. This is a trite legal position. The Applicant must follow the proper procedure in bringing such application. In Keystone Bank Ltd vs. Embeco (Nig.) Ltd & Ors (2018) LPELR-46178 (CA), this court at held:

It is not in doubt that Section 243(1) (a) of the amended 1999 Constitution of the Federal Republic of Nigeria (hereafter to be simply referred to as the Constitution) donates the right of appeal to a party interested and that the said right of appeal can only be exercised by the party interested first procuring the leave of the High Court (i.e. the lower Court) or this Court, to exercise the same. There is a plethora of decided cases dealing not only with what a party who claims to be a party interested must establish to warrant the grant by the Courts of prayers to enable him appeal, but the appropriate procedure to be followed by a party interested in setting in motion the exercise of his right of appeal. One of the cases which I consider to be very illuminating in respect of the procedure to be adopted by an applicant seeking to appeal against a decision of a High Court as an interested party is that of Funduk Engineering Ltd. V. Mcarthur (1996) LPELR 1291 (SC). In the said case, the Supreme Court per Uwais, CJN; dwelling on the proper interpretation to be accorded the provisions of the 1979 Constitution of the Federal Republic of Nigeria in respect of appeal by a party interested (and which provisions are word for word with those of Section 243(1)(a) of the extant Constitution) said thus: –

‘Now, I think there is some confusion with regard to the prayer in the application in question here for extension of time within which to seek leave to appeal. By the provisions of Section 222 of the Constitution of the Federal Republic of Nigeria, Cap.62 of the Laws of the Federation of Nigeria, 1990, only a party to civil proceedings can appeal to the Court of Appeal without any inhibition on his capacity to do so. Any other person who has interest in a case but is not a party to the case, cannot appeal in the proceedings, until he obtains the leave of either the High Court from which the case is being appealed or the Court of Appeal to which the appeal is to be brought. The section further provides that such a right to appeal must be exercised in accordance with any Act or rules of Court applicable which regulate the powers, the practice and the procedure of the Court of Appeal. The section also provides that a party, who desires to appeal as an interested party, has the option to obtain the necessary leave prescribed for doing so, on application to either the High Court which decided the case or the Court of Appeal. The manner in which to make the application is provided by both the Court of Appeal Act, 1976(Cap. 75) and the Court of Appeal Rules, 1981 as amended (Cap.62). Neither the Constitution nor the Court of Appeal Act or the 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.”

  • PER E. TOBI,J.C.A

“PERSON HAVING INTEREST” – DEFINITION AND DETERMINATION OF A “PERSON HAVING INTEREST”

“His lordship continues in the judgment in defining what will constitute a person with interest as follows:

“The determinants of the term person having interest in the matter as used in Section 243(1) (a) of the Constitution has consistently been pronounced upon in many cases decided by both the Supreme Court and this Court. One of such cases is that of Enyibros Foods Processing Company Ltd V. N.D.I.C. [2007] All FWLR (Pt. 367) 793. In the case, the Supreme Court amongst others, held to the effect that the test to determine a party or person interested as envisaged under Section 243(1)(a) of the Constitution is whether the person or party could have been joined as a party to the suit. That a person interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings. See also the case of Societe Generale Bank Nigeria Ltd. V. Afekoro (1999) LPELR 3082 (SC) wherein the Supreme Court in dwelling on what is required of a person or party seeking leave to appeal as a party interested amongst others said to the effect that on the authorities, the expression “person having interest” is synonymous with “person aggrieved”. That a person aggrieved is a person who has suffered a legal grievance, a person against whom a decision has been given which has deprived him of something or refused him something or affected his right or title to something.”

Similarly, in Okonkwo & Anor vs. UBA Plc (2011) 16 NWLR (pt 1274) 614, the apex court held:

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 appealing 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.”

  • PER E. TOBI,J.C.A

 

“PERSON HAVING INTEREST” – DUTY OF A PARTY SEEKING LEAVE TO APPEAL AS AN INTERESTED PARTY

“Also in Waziri vs. Gumel & Anor (2012) 9 NWLR (pt 1304) 185, the apex court held:

The power of the Court of Appeal to grant leave to the 1st Respondent to appeal as an interested party is discretionary and all discretionary powers must be exercised with correct and convincing reason. Once this is done an Appeal Court is always loath to interfere with the way a judge exercises his discretion. On the other hand, an Appeal Court would be compelled to interfere where the discretion was wrongly exercised, or found to have been tainted with some illegality or irregularity or arbitrarily exercised. See; University of Lagos vs. Aigoro (1985) 1 NWLR (Pt. 1) pages 143; Demuren vs. Asuni (1967) 3 (SC) pages 91; Enekebe vs. Enekebe (1964) 1 All NLR page 102; President Ibadan Province vs. Lagunju (1954) 14 WACA pg. 552. An applicant seeking leave of Court of Appeal as an interested party must make a detailed deposition in his affidavit in support of the application to show:

(a)        His interest in the matter

(b)        Why he was not a party in the trial court.

(c)        Good reasons for delay in filing the application.  Affidavit evidence before the Court of Appeal explained all of the above. The application before the Court of Appeal was brought because there were competing interests on the land in question. It is the duty of Courts at all times to ensure a fair determination of the issues between the parties and in that regard the purpose of granting leave for a party to be joined as an interested party on appeal is to enable justice to be done between the parties”

See; Chukwu & Anor vs. INEC & Ors (2014) LPELR-25015 (SC); Williams vs. Mokwe &Anor (2005) LPELR-3389 (SC)”. PER E. TOBI,J.C.A

AFFIDAVIT EVIDENCE – PRINCIPLES GOVERNING THE RESOLUTION OF CONFLICTING AFFIDAVIT EVIDENCE

“There is a challenge here and the law is that once there is conflicting affidavit evidence, a court cannot pick and choice which to believe but rather to call oral evidence to settle same except a document can assist the court in deciding which to believe. See; The Chairman, National Population Commission vs. Chairman Ikere Local Government (2001) 7 SC (Pt. III) 90; Atago vs. Nwuche NSCQR Vol. 52 2012 page 621; Ugbane vs. Hussain (2011) EPR Vol. 10 2013 page 367; LSDPC vs. Adold Stamn International (Nig.) Ltd & A nor (2005) 1 SC (Pt. II) 44; Ejezie & Anor vs. Anuwu & Ors (2008) 4 FWLR (Pt. 445) 6857”. PER E. TOBI,J. C. A

ESTOPPEL BY STANDING BY – CONDITIONS FOR APPLICATION FOR ESTOPPEL BY STANDING BY

“The general legal position is that a party who is liable for standing by cannot enjoy the benefit of his standing by. In Clay Industries (Nig.) Ltd vs. Aina & Anor (1997) 8 NWLR (Pt. 516) 208, the apex court held:

This is a clear case of standing-by which constitutes estoppel. Where any person having an interest may make himself a party to a suit by intervening and knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to reopen the case. See Wytcherley vs. Andrews (1871) L.R.2 P.& D; 327 at 328, Nana Ofori Atta II & Ors. vs. Nana Abu Bonsna II & Ors. (1957)3, All E.R. 559 and Obodo & Ors. vs. Ogba & Ors.; Nnaeme & Ors vs. Maduekwe & Ors. (1987) 2 NWLR (Pt. 54) [email protected] 15 where Oputa, JSC observed that estoppel by standing by is but a specie of estoppel by conduct and that it is a kind of equitable estoppel applicable to a situation where because a party omitted to intervene in a pending action affecting his interest, he is concluded by the result of the action although he was not a party to it.”

See also; Ogueijiofor & Ors vs.  Ejidike & Ors (2012) LPELR 14440 (CA); Ezeanya Duru & Ors vs. Peter Onwumelu NSCQLR Vol. 8 (2001) 577”. PER E. TOBI,J. C. A

TECHNICAL JUSTICE – ATTITUDE OF COURT IN APPLYING TECHNICAL JUSTICE WHERE SAME WILL ERODE SUBSTANTIAL JUSTICE

“The law courts exist for one purpose and that purpose is to do justice.  Nothing should be sacrificed for justice and in this context, justice in its substantial sense and not in technical sense.  Anytime, applying technical justice will erode substantial justice, a court will be wary in applying technical justice. In Green vs. Green (1987) 3 NWLR (Pt. 61) 480, the Supreme Court per Kayode Esho, JSC held:

The sole aim of the Court is to seek justice. True, it must be justice according to law, but when parties are available, who are so affected by a claim, pleadings evidence, and a subsequent order would spell detriment, or indeed, incalculable wrong, to what they consider their right, and they have either, technically or inadvertently, been excluded from stating their own side to the story, it is, with respect, waving goodbye to justice!”

If adhering therefore to technicality either in procedure or substantive law will amount to injustice, the court will look beyond those principles and ensure that justice is done. In Owuru & Anor vs. Adigwu & Anor (2017) LPELR-42763 (SC), Onnoghen JSC (as he then was) said:

The powers granted the Courts in Section 6 of the Constitution of the Federal Republic Nigeria 1999, (as amended) are meant to be used to do Justice to all manner of persons. Therefore, at all times, the Courts must be vigilant to make sure that every person who comes to the Temple of justice receives his due share.”

Similarly, in Casaka (Nig.) Co Ltd & Anor vs. Aina & Anor (2016) LPELR-42044 (CA), this court per Obaseki-Adejumo, JCA held at pages 24-25 thus:

The duty of this Court and indeed every Court in the land is to ensure that justice is not only done but must be manifestly seen to be done. This inviolable duty was emphatically stressed by the Apex Court in Solomon Thomas Akpan V The State (1992) LPELR – 381 (SC) 31 – 32, paras’ E – A thus: “It is of fundamental importance in the administration of Justice that the Court should not allow its judicial role as an impartial and unbiased arbiter to be diverted to by the ineptitude of counsel. The Court has as its primary role the doing of Justice between the parties before It. Judges are acknowledged repositories of the law. They owe it as their sublime duty to the parties and in the absence of their judicial oath to do Justice to the parties before them. A Judge should therefore not sit unconcerned, watching where the ignorance, inadvertence or forgetfulness of counsel is likely to result in injustice. He is under obligation to correct the error leading to such injustice if this will not result in injustice to the opponent.”

  • PER E. TOBI,J. C. A

 

LEAVE TO APPEAL – BASIS FOR THE GRANT OF AN APPLICATION FOR LEAVE TO APPEAL

“The purpose of the leave sought to appeal is to enable justice to be done between the parties. See; Keystone Bank vs. Embeco (Supra). Once there are, arguable grounds of appeal, it will help in determining an application of this sought. The proposed notice of appeal disclosing arguable grounds of appeal will support applicant’s case in this appeal. In CPC & Anor vs. Nyako & Ors (2011) LPELR 23009 (SC) Mohammed, JSC held at pages 15-16 thus:

“…this Court in a plethora of cases had laid down principles for granting application for leave to appeal simplicita which is also included in the requirement under Section 233(5) of the Constitution for application for leave to appeal as person having interest in the matter. The general rule is that an application for leave to appeal will be granted where the grounds of appeal raise issues of general importance or novel points of law or where the grounds of appeal show a prima facie arguable appeal. See Kigo (Nigeria) Ltd vs. Holman Brothers (Nigeria) Ltd. (1980) 5-7 S.C. 52. In the present application, the grounds of appeal contained in the notice of appeal in support of the application which clearly involves matters of constitutional and jurisprudential importance, in my view, have shown prima facie arguable appeal to justify granting this application.”

  • PER E. TOBI, J.C.A

STATUTE REFERRED TO:

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