CRUSADER STERLING PENSIONS LIMITED VS TAIWO MOJEED AJASA
April 3, 2025SENATOR ALZ ATAI AIOOKO USMAN VS ISAH JIBRIN & ORS
April 3, 2025Legalpedia Citation: (2019) Legalpedia (CA) 66812
In the Court of Appeal
HOLDEN AT LAGOS
Mon Oct 14, 2019
Suit Number: CA/L/656/2011
CORAM
PARTIES
SAMBO TARIA AMAIMTIBI (DECEASED) APPELLANTS
MARTINS NNEBEDUM, ESQ.(Practicing under the name & style of Martins Nnebedum& Co.)AND SATARIA JOHN RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Applicant herein filed an application seeking leave of the Court of Appeal to appeal against the decision of the trial Court as an interested party. The Applicant is one of the children of the Defendant in the lower court. The Applicant was not recorded as representing the Defendant in the lower court neither was the Defendant sued in a representative capacity. The Respondent on the other hand argued that the motion was incompetent on the ground that it was not filed at the trial Court.
HELD
Application Dismissed
ISSUES
Whether this is an appropriate occasion in which to grant leave to the Applicant to Appeal as an interested person.
RATIONES DECIDENDI
ISSUES FOR DETERMINATION- POWER OF THE COURT OF APPEAL TO ADOPT OR FORMULATE ISSUES FOR DETERMINATION
“By law, this court has the power to adopt the issues formulated by either of the parties or formulate its own issue for determination”
PARTY TO AN ACTION – METHOD BY WHICH A PARTY CAN BE JOINED TO AN ACTION AFTER JUDGMENT
“Not being a party in the lower court, the only way, the Applicant can come into the matter at this level after judgment is by filing this motion to appeal as an interested party. See Williams vs. Mokwe & Anor (2005) LPELR-3489 (SC)”.
APPEAL AS AN INTERESTED PARTY – COURT WITH JURISDICTION TO ENTERTAIN AN APPLICATION TO APPEAL AS AN INTERESTED PARTY
“In this respect, section 243 (a)(b) of the Constitution of the Federal Republic of Nigeria and Order 6 Rule 4 of the Court of Appeal Rules 2016 are relevant and important. For ease of reference, I will reproduce the provisions of section 243(a) of the Constitution:
“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, 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……”
Order 6 Rule 4 of the Court of Appeal Rules, 2006 provides thus:
“ Where under the Rules an application may be made either to the court below or to the court it shall not be made in the first instance to the court except where there are special circumstance, which makes it impossible or impracticable to apply to the court below.” (underlined for emphasis)
This statutory provision has received judicial pronouncement. These are in the apex court. I will refer to the cases of Chief Onwuka Kalu vs Chief Victor Odili & Ors (1992)5 NWLR (Pt. 240,132); Re: Madaki (1996)7 NWLR (Pt. 459) 153. In Kalu vs. Odili (supra), 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.”
From the authorities stated above, the Applicant ought to have filed the application before this court in the lower court before coming here. The only exception or reason why the application can be made directly to this court is, if special circumstances exist. The burden is on the Applicant to show the special circumstances in the affidavit in support. It is my opinion, that if when the application is filed the time to appeal has elapsed at the lower court, then that can be a special circumstance to file the application in this court. There is no time limit within which the application to appeal as an interested party can be filed but there is a time limit within which an appeal against a decision can be filed. When that time has expired in the lower court, it is better and I am sure there is nothing against filing the application for leave along with the trinity prayers in the court of appeal.”
LEAVE TO APPEAL AS INTERESTED PARTY – PREREQUISITE FOR THE GRANT OF AN APPLICATION TO APPEAL AS AN INTERESTED PARTY
“Now to the main issue, which is whether the facts before this court warrants the granting of the application? To answer that question, the appropriate thing to do is to take an excursion into the law as to when a court can grant leave to an interested party to appeal. For the leave to be granted to the Applicant, he must show that he is an interested party and not a busy body. The law court is not for busybodies but for parties who can show that they have sufficient interest to be there. In determining the interest of the party who wants to join the suit or appeal on grounds of interest, the relief of the claimant as shown in the writ of summons and statement of claim is necessary. A court will look at the relief and the judgment in determining how the judgment affect the interest of the party who is seeking leave to appeal as an interested party and the grounds of appeal contained in the proposed notice of appeal. The burden is on the Applicant to show in the affidavit in support of the motion his interest in the specific matter in relation to the claim in the affidavit in support of the motion. It must be shown how the enforcement of the judgment will affect the Applicant. If the Applicant does not disclose this in the affidavit, the application will fail as the trite position of the law is that the burden of prove is on the Applicant who is alleging the existence of a thing. See Apampa vs State (1982)4 SC 47; Mamman vs. FRN (2010) LPELR-25592 (CA). 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 (sic) a decision or applying for leave to appeal.
Section 243 (a) of the Constitution makes leave a mandatory pre-condit ion 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.”
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 as a party in the lower court, he would have been joined because he has sufficient interest to be protected and this will ensure that justice is done. 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 does affect the Applicant’s right then the application to appeal as an interested party will succeed.”
EVIDENCE – WHETHER COURTS CAN MANUFACTURE EVIDENCE TO ASSIST ANY PARTY TO AN ACTION
“The affidavit evidence is bereft of material facts to support the application and since a court of law is to do justice between the parties and as an unbiased umpire will not supply any missing evidence for any of the parties, this court cannot help the weak case of the Applicant in this application. 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). In Kaydee Ventures Ltd vs The Hon. Minister FCT & Ors (2010)7 NWLR (Pt. 1192, 171) the Supreme court held:
“Courts of law, as I observed earlier, are not to manufacture evidence in a bid to help or assist, as it were any of the parties. They are and umpire, having no interest on the matters brought before them, All parties must be seen and treated to be the same. The imaginary scale of justice must be directed to tilt toward that party whose case appears more just and more, acceptable than that of the otherside.”
ISSUES FOR DETERMINATION- POWER OF THE COURT OF APPEAL TO ADOPT OR FORMULATE ISSUES FOR DETERMINATION
“By law, this court has the power to adopt the issues formulated by either of the parties or formulate its own issue for determination”
PARTY TO AN ACTION – METHOD BY WHICH A PARTY CAN BE JOINED TO AN ACTION AFTER JUDGMENT
“Not being a party in the lower court, the only way, the Applicant can come into the matter at this level after judgment is by filing this motion to appeal as an interested party. See Williams vs. Mokwe & Anor (2005) LPELR-3489 (SC)”.
APPEAL AS AN INTERESTED PARTY – COURT WITH JURISDICTION TO ENTERTAIN AN APPLICATION TO APPEAL AS AN INTERESTED PARTY
“In this respect, section 243 (a)(b) of the Constitution of the Federal Republic of Nigeria and Order 6 Rule 4 of the Court of Appeal Rules 2016 are relevant and important. For ease of reference, I will reproduce the provisions of section 243(a) of the Constitution:
“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, 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……”
Order 6 Rule 4 of the Court of Appeal Rules, 2006 provides thus:
“ Where under the Rules an application may be made either to the court below or to the court it shall not be made in the first instance to the court except where there are special circumstance, which makes it impossible or impracticable to apply to the court below.” (underlined for emphasis)
This statutory provision has received judicial pronouncement. These are in the apex court. I will refer to the cases of Chief Onwuka Kalu vs Chief Victor Odili & Ors (1992)5 NWLR (Pt. 240,132); Re: Madaki (1996)7 NWLR (Pt. 459) 153. In Kalu vs. Odili (supra), 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.”
From the authorities stated above, the Applicant ought to have filed the application before this court in the lower court before coming here. The only exception or reason why the application can be made directly to this court is, if special circumstances exist. The burden is on the Applicant to show the special circumstances in the affidavit in support. It is my opinion, that if when the application is filed the time to appeal has elapsed at the lower court, then that can be a special circumstance to file the application in this court. There is no time limit within which the application to appeal as an interested party can be filed but there is a time limit within which an appeal against a decision can be filed. When that time has expired in the lower court, it is better and I am sure there is nothing against filing the application for leave along with the trinity prayers in the court of appeal.”
LEAVE TO APPEAL AS INTERESTED PARTY – PREREQUISITE FOR THE GRANT OF AN APPLICATION TO APPEAL AS AN INTERESTED PARTY
“Now to the main issue, which is whether the facts before this court warrants the granting of the application? To answer that question, the appropriate thing to do is to take an excursion into the law as to when a court can grant leave to an interested party to appeal. For the leave to be granted to the Applicant, he must show that he is an interested party and not a busy body. The law court is not for busybodies but for parties who can show that they have sufficient interest to be there. In determining the interest of the party who wants to join the suit or appeal on grounds of interest, the relief of the claimant as shown in the writ of summons and statement of claim is necessary. A court will look at the relief and the judgment in determining how the judgment affect the interest of the party who is seeking leave to appeal as an interested party and the grounds of appeal contained in the proposed notice of appeal. The burden is on the Applicant to show in the affidavit in support of the motion his interest in the specific matter in relation to the claim in the affidavit in support of the motion. It must be shown how the enforcement of the judgment will affect the Applicant. If the Applicant does not disclose this in the affidavit, the application will fail as the trite position of the law is that the burden of prove is on the Applicant who is alleging the existence of a thing. See Apampa vs State (1982)4 SC 47; Mamman vs. FRN (2010) LPELR-25592 (CA). 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 (sic) a decision or applying for leave to appeal.
Section 243 (a) of the Constitution makes leave a mandatory pre-condit ion 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.”
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 as a party in the lower court, he would have been joined because he has sufficient interest to be protected and this will ensure that justice is done. 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 does affect the Applicant’s right then the application to appeal as an interested party will succeed.”
EVIDENCE – WHETHER COURTS CAN MANUFACTURE EVIDENCE TO ASSIST ANY PARTY TO AN ACTION
“The affidavit evidence is bereft of material facts to support the application and since a court of law is to do justice between the parties and as an unbiased umpire will not supply any missing evidence for any of the parties, this court cannot help the weak case of the Applicant in this application. 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). In Kaydee Ventures Ltd vs The Hon. Minister FCT & Ors (2010)7 NWLR (Pt. 1192, 171) the Supreme court held:
“Courts of law, as I observed earlier, are not to manufacture evidence in a bid to help or assist, as it were any of the parties. They are and umpire, having no interest on the matters brought before them, All parties must be seen and treated to be the same. The imaginary scale of justice must be directed to tilt toward that party whose case appears more just and more, acceptable than that of the otherside.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended) Court of Appeal Rules, 2006
