CHRISTIAN IWUAGWU V. EMEZIE OKOROAFOR & ORS

CORAM

ATANDA FATAYI- WILLIAMS, CHIEF JUSTICE OF NIGERIA

PARTIES

CHRISTIAN IWUAGWU APPELLANTS

EMEZIE OKOROAFOR & ORS RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

By a Motion on Notice, the Applicant herein sought before this court, the following reliefs; an Order extending time within which the Applicant may seek leave to appeal as an interested party against the judgment and the Ruling of Hon. Justice C. I. Durueke made on the 30th day of October, 2009 and 8th of July, 2010 in HOW/229/2009; leave to appeal against the judgment and the Ruling as an interested party; extension of time within which the Applicant may appeal against the judgment and ruling in the Suit HOW/229/2009; an Order deeming as duly and properly filed and served the Notice of Appeal annexed as exhibits to the supporting affidavit of this motion, as appropriate fees have been paid; an order consolidating Notices of Appeal filed by the Applicant against the judgment; an Order staying further execution, setting aside as wrongful any execution made pursuant to the said judgment, restoring the Applicant to his property at Plot 638 and 639 Works Layout, Owerri Imo State, and restraining the Respondents from acting on the said judgment pending the determination of the appeal.

HELD

Appeal Allowed

ISSUES

Whether in the circumstances of this application, the court of appeal can grant the prayers sought in this application.

RATIONES DECIDENDI

LAW OF EVIDENCE, PRACTICE AND PROCEDURE

AFFIDAVIT EVIDENCE – DUTY OF A DEFENDANT WHO INTENDS TO DISPUTE THE FACTS DEPOSED IN A PLAINTIFF’S AFFIDAVIT
“The law is that in an action or proceeding determined on affidavit evidence, and where the Plaintiff or Applicant as the case may be, deposed to facts in an affidavit in support of the relief or reliefs he seeks, the defendant or respondent has a legal duty to depose to facts in a counter affidavit, if he intends to dispute the facts deposed in the plaintiff or applicant’s affidavit. The facts deposed in the counter affidavit must condescend upon particulars and must therefore specifically meet and deny the specific depositions in the plaintiff or applicant’s affidavit. Thus, in the case of Nishizawa Ltd v. Jethwani (1984) All N.L.R Pg. 470 at Pg. 484, the Supreme Court held that a counter -affidavit;
Must condescend upon particulars and should as far as possible deal specifically with the plaintiffs claim and affidavit, and state clearly whether the defence goes to the whole or part of the claim, and in the latter case, it should specify the part…
It therefore means that specific facts in an affidavit must be specifically controverted by way of a counter-affidavit.”

LAW OF EVIDENCE, PRACTICE AND PROCEDURE

AFFIDAVIT EVIDENCE – STATUS OF EXTRANEOUS AND FOREIGN FACTS DEPOSED TO IN A COUNTER AFFIDAVIT
“Thus where facts deposed to in a counter-affidavit are extraneous, foreign or not directed at the facts in an affidavit, they are irrelevant and the court will disregard them as such. Where the facts deposed to in a counter-affidavit are disregarded and discountenance, it would mean that the specific facts in the affidavit remain uncontroverted. See F.B.N Plc v. Ndareke & Sons (Nig) Ltd (2009) 15 NWLR (Pt. 1164) Pg.406; Ogunsola v. Usman (2002) 14 NWLR (Pt. 788) Pg. 636 and Okonkwo v. FRN (2011) 11 NWLR (Pt. 1258) Pg. 215.”

LAW OF EVIDENCE, PRACTICE AND PROCEDURE

AFFIDAVIT EVIDENCE – WHETHER IT IS APPROPRIATE TO FILE AN AFFIDAVIT IN SUPPORT OF A MOTION WHEN ADDRESSES ON THE MOTION HAS CLOSED
“In the case of Majaroh v. Fassassi (supra) was a contempt proceeding and in the course of the proceedings, and after issues had been joined by the parties, the learned trial Judge ordered the Appellant thereon to swear to a further affidavit of certain facts that arose in the course of the proceedings. This Court per Nnaemeka-Agu, JCA, (as he then was) considered that the proceeding was quasi-criminal and the further affidavit was ordered at a stage when the argument on the motion had opened and the parties were not heard before the order was made. What is instructive to note in that case is that the order to file a further affidavit was made after argument in the motion for contempt had commenced. Similarly, this court held in the case of Ramon v. Jinadu (supra) that it is grossly irregular for a party to file an affidavit in support of a motion when addresses on the motion has closed or opened without the leave of court as that would offend the audi alteram partem rule. The general rule as enshrined in the cases cited by the Applicant is therefore that, after argument had commenced on a motion or matter determined on affidavit evidence, a party is not permitted, except with the leave of court, to file any affidavit.”

ACTION, WORDS AND PHRASES

“IN RE”- IMPLICATION OF CAPTIONING AN APPLICATION WITH THE TERM “IN RE”
“My understanding of the term “IN RE,” simply means, “In the matter of’ or “In the application of.” Thus captioning an application with that simple Latin term is to draw the attention of the court to the person making the application. It is therefore my humble view that, where an application shows clearly on the face of it the person making the application, and the nature of the application, it should suffice.”

INTERPRETATION OF STATUTE, APPEAL, COURT

INTERPRETATION OF DOCUMENTS – DUTY OF AN APPELLATE COURT TO INTERPRET ANY DOCUMENT BEFORE IT
“However, it should be noted that, this court has a duty to interpret any document, including the motion under consideration, in such a manner as to save the document by ascribing to it such a meaning as to bring out the intention of the maker. In doing that, I am to accord the document a liberal construction, unless the intention of the maker is clearly recorded in the document without any ambiguity. This court should therefore avoid undue adherence to technicality at the expense of the justice of the case. See Nwole v. Iwuagwu (2004) 15 NWLR (Pt.895) Pg. 61; Idris v. A.N.P.P. (2008) 8 NWLR (Pt. 1088) Pg. 1 and Nig. Bank For Commerce & Industry v. Intergrated Gas (Nig.) Ltd & Anor (1999) 8 NWLR (Pt. 613) Pg. 119 at 127. To achieve that purpose, the document must be read as a whole, and interpreted in that light, so as to achieve harmony among the parts of the document. The document should be construed as a whole and given an interpretation which will be consistent with the object and general context of the entire document. See Bakare v. I.N.E.C (2007) 7 NWLR (Pt. 1064) Pg. 606; Jamb v. Orji (2008) 2 NWLR (Pt. 1072) Pg. 552; Adams v. Umar (2009) 5 NWLR (Pt. 1133) Pg. 41 and Mbani v. Bosi (2006) 11 NWLR (Pt.991) Pg. 400.”

APPEAL, CONSTITUTIONAL LAW

RIGHT OF APPEAL – NATURE OF THE CONSTITUTIONAL RIGHT OF APPEAL
“Now, it is the constitutional right of a party or person to appeal against the judgment given against him or his interest. Such right is generally jealously guarded and protected by the courts. Courts of law, and indeed the appellate courts are often disposed to interpret such Constitutional or statutory provisions granting the right of appeal in favour of any person aggrieved. In other words, the right of appeal is conferred on the person aggrieved by a determination or decision of a court which has been pronounced against him, and the substance of which has denied such an aggrieved person his right to something or has wrongly affected his title to something. The right of appeal and the person who can exercise such right of appeal is constitutionally and in some instances statutorily circumscribed. It is not a right enuring to all comers, but is a right specifically donated by either the Constitution or the Statute that created either the trial court or the appellate court. See Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt 1111) Pg. 508; N.I W.A v. S.P.D.C (Nig.) Ltd (2007) 1 NWLR (Pt. 1015) Pg.305; Isulight (Nig) Ltd v. Jackson (2005) 11 NWLR (Pt. 937) Pg. 631 and Ekunola v. C.B.N (2006) 14 NWLR (Pt. 1000) Pg. 292.”

APPEAL, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE

RIGHT OF APPEAL- EXERCISE OF THE RIGHT OF APPEAL TO THE COURT OF APPEAL
“For the purpose of this Application, it is the provision of Section 243(a) of the 1999 Constitution (supra) that calls for interpretation. That provision states that:
243. 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 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, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this constitution and any powers conferred upon the Attorney General of the Federation or the Attorney-General of the State to take over and continue or to discontinue such proceedings at the instance of such other authorities or persons as may be prescribed.
It would be seen therefore that Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 confers a right of appeal to the Court of Appeal from the decisions of the Federal High Court or High Court of a state arising from civil proceedings at the instance of a party thereto, or with the leave of the High Court or the Court of Appeal at the instance of any other person having an interest in the matter. It means therefore that, where the person affected by the decision of the lower court was a party to the case and in the proceedings before the lower court, he need not seek leave to appeal provided he appeals within the time allowed by either the Statute or Rules of Court regulating the powers, practice and procedure of the Court of Appeal. However, the person seeking the exercise of the right of appeal does so as “a person having an interest in the matter,” he must first of all, seek and obtain the leave of the High Court or of the Court of Appeal. See Ekunola v. C.B.N (supra) at Pg. 315; Uwagba v. F.R.N (2009) 15 NWLR (Pt. 1163) Pg. 91 and E.F.P CO. Ltd. v. N.D.I.C (2009) 9 NWLR Pg. 216.”

WORDS AND PHRASES

“PERSON HAVING INTEREST”- MEANING OF THE PHRASE “PERSON HAVING INTEREST”
“The courts have generously interpreted the phrase “person having an interest” within the intendment of Section 243(a) of the 1999 Constitution to mean or synonymous with “person aggrieved”, and 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. Thus, Belgore, JCA in the case of Baido v. I.N.E.C (2008) 12 NWLR (Pt. 1101) Pg. 379 at Pg. 400 Paras. A-D cited and relied on the decision of the Supreme Court in Societe General Bank v. Afekoro NWLR (Pt. 628) Pg. 521 at 524 where the Supreme Court held thus:
“The expression “person having an interest” for the purpose of an appeal by an interested party is synonymous with “person aggrieved”. It does not really mean a man who is disappointed of a benefit which he might have received if some order had been made. A “person aggrieved” is a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully refused him something or wrongfully affected his title to something. Such a person will be granted leave to appeal against a decision given in a proceeding to which he was not a party.
See also Ngige v. Obi (2006) 14 NWLR (Pt. 999) Pg. 1 at 206 per Alagoa, JCA (as he then was); Ojora v. Agip (Nig) Plc (2005) 4 NWLR (Pt. 916) Pg. 515 and Ozueh v. Ezeweputa (2005) 4 NWLR (Pt. 915) Pg. 221.”

APPEAL, PRACTICE AND PROCEDURE

LEAVE TO APPEAL AS AN INTERESTED PARTY – WHETHER AN INTERESTED PARTY CAN APPLY FOR AN EXTENSION OF TIME TO SEEK LEAVE TO APPEAL AS AN INTERESTED PARTY
“This court has held in the case of Ojora v. Agip (Nig) Plc (supra) that, it is wrong and a misconception of procedure for a person to apply for an extension of time to seek leave to appeal as an interested party. Thus, Aka’ahs; JCA (as he then was) in the above cited case stated the position of the law clearly in his contribution at page 547 Paras. C-G, as follows:
The application cannot be defeated on the ground that he did not apply for extension of time within which to seek leave to appeal because there is no time limit within he should do so. See Section 242(1) and 243(a) of the 1999 Constitution. In Re: Madaki (1996) 7 NWLR (Pt.459) 153 which interpreted order 3 Rule 3(3) Court of Appeal Rules and Section 221 und 222(a) of 1979 Constitution (which are the same as Section 243(1) and 243(a) of the 1999 Constitution) Uwais CJN stated clearly at page 164 thus:
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.
It is settled therefore that, it is a wrong procedure and a misconception of procedure and the law, for a person seeking for extension of time to appeal as an interested party, to include in his motion, a prayer seeking for extension of time within which to seek leave to appeal as an interested party.”

APPEAL, PRACTICE AND PROCEDURE

NOTICE OF APPEAL – PRESCRIBED PERIOD FOR FILING A NOTICE OF APPEAL
“It therefore follows that after showing that he qualifies as an interested party, for his appeal to be competent, it must be further shown that the Applicant is within the time stipulated for filing of the appeal as prescribed by Section 24(2)(a) of the Court of Appeal Act, 2004, which stipulates that:
24(2).The periods for the giving of notice of appeal or notice of application for leave to appeal are-
In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.” –

APPEAL, PRACTICE AND PROCEDURE

NOTICE OF APPEAL- CONDITION PRECEDENT FOR THE COURT OF APPEAL TO EXERCISE ITS POWERS IN EXTENDING THE PERIOD FOR GIVING OF NOTICE OF APPEAL
“Happily, Section 24(4) of the Court of Appeal Act (supra) gives power to this court to extend the periods prescribed in sub-section 2 for the giving of the notice of appeal or the notice of application for leave to appeal. However, for the court to exercise its power granted by Section 24(4) of the Court of Appeal Act (supra), its jurisdiction must be activated by the person seeking to appeal, by way of a Motion on Notice in the manner prescribed by order 7 Rule 10(2) of the Court of Appeal Rules, 2011, which stipulates as follows:
Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard….”

APPEAL, COURT, PRACTICE AND PROCEDURE

DISCRETIONARY POWER OF THE COURT- REQUIREMENT FOR THE EXERCISE OF THE DISCRETIONARY POWER OF THE COURT TO GRANT EXTENSION OF TIME TO APPEAL OR SEEK LEAVE TO APPEAL
“In that respect, for a party to secure the favour of the court in the exercise of its discretion whether or not to grant the extension of time to appeal or to seek leave to appeal (as in the instant case), to justify the exercise of the court’s discretion in the exercise of its power to extend such time, he must supply sufficient material upon which the court will base its discretion. This is so because, an application for extension of time within which to appeal or seek leave to appeal is not granted as a matter of course. That being so, the Applicant must satisfy the requirements of Order 7 Rule 10(2) of the Court of Appeal Rules (supra). By that Rule of this court, an applicant seeking the grant of an order of extension of time within which to appeal or to seek leave to appeal must satisfy two mandatory conditions, as follows:
(a) He must disclose by his affidavit evidence in support of the application, good and substantial reasons for his failure to appeal within the prescribed period; and
(b) The grounds of appeal must prima facie disclose good cause why the appeal should he heard.
See Scoa (Nig.) Plc v. Omatsola (2009) 11 NWLR (Pt. 1151) Pg.106; Savannah Bank (Nig) Plc v. C.B.N (2007) 8 NWLR (Pt. 1035) Pg. 26; F.C.M.B Plc v. N.I.M.R (2009) 9 NWLR (Pt. 1147) Pg. 509; Majekodunmi v. Christlieb Plc (2009) 9 NWLR (Pt. 1145) Pg. 121; Micro-Lion Int’l (Nig) Ltd v. Gadzama (2009) 15 NWLR (Pt. 1162) Pg. 481; Akinpelu v. Adegbore (2008) 10 NWLR (Pt. 1096) Pg. 531 and Lawal v. U.B.N Plc (2008) 12 NWLR (Pt. 1102) Pg. 707.”

LEGAL PRACTITIONER, PRACTICE AND PROCEDURE

INADVERTENCE OF A COUNSEL – WHETHER A PARTY CAN BE BLAMED FOR THE INADVERTENCE OF A COUNSEL
“It is now settled that, once a party has done what is required of him by acting promptly to secure the services of counsel and further instructing counsel to carry out his instructions, and the counsel acted inadvertently or even negligently by failing to take steps to file the appeal within time, such a party is absolved of any blame. Accordingly, I am of the view that the inadvertence of counsel of the nature advocated in this application should be resolved in favour of the Applicant as qualifying as a good and substantial ground to warrant the grant of this application. See Lawal v. U.B.N (supra) at Pg.718 and 719 and Akinpelu v. Adegbore (supra) at Pg. 555.”

APPEAL, COURT, PRACTICE AND PROCEDURE

EXTENSION OF TIME TO APPEAL – CONSIDERATION BY THE COURTS IN AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
“Having satisfied the requirement that an applicant must show good and substantial grounds, he must proceed to show that the grounds of appeal prima facie show good cause why the appeal should be heard. What is required to be shown here is not that the appeal is likely to succeed? In other words, all that is required of an Applicant in this respect is to show that the proposed grounds of appeal disclose an arguable issue. The fact that the appeal may succeed or not is immaterial at this stage. Thus, Nwodo; JCA in the case of F.C.M.B. Plc. v. N.I.M.R (supra) put the position succinctly at pages 521-522 Paras. H-A as follows:
“Grounds of appeal provide the mirror through which the court takes a peep at the appeal, not to determine the strength of the appeal but to provide useful information on the trend of the appeal. This is why good reason must be disclosed for hearing of the appeal not that the appeal will succeed. All the court should be concerned with is the strength of the grounds of appeal and not the success.
That being so, the only duty of the court is limited to seeing whether the grounds of appeal are substantial and reveals arguable grounds. The court should therefore avoid considering or deciding on the success of the grounds of appeal, for to do so would amount to deciding the substantive appeal in an interlocutory application. See N.N.P.C v. O.E (Nig) Ltd (2008) 8 NWLR (Pt. 1090) Pg. 583; Micro-Lion Int’l (Nig) Ltd v. Gadzama (supra) at Pg. 501; Savannah Bank (Nig) Plc v. C.B.N (supra) at Pg. 39; E.F. Co. Ltd v. N.D.I.C (2007) 9 NWLR (Pt. 1039) Pg. 216 and Majekodunmi v. Christlieb Plc (supra) at Pg. 129.”

JUDGMENT AND ORDER, COURT, PRACTICE AND PROCEDURE

STAY OF EXECTION- DUTY OF COURTS IN DETERMINING WHETHER OR NOT TO GRANT AN ORDER OF STAY OF EXECUTION
“Now, I wish to restate that, the principles guiding the grant or refusal of an application for stay of execution and injunction are the same. Both are granted as a matter of discretion of the court and which discretion is usually exercised based on a consideration of same conditions. Generally however, the court are loath to deny a successful litigant from enjoying the fruits of the judgment. The court should also consider the effect of refusal of the application on the appellant/applicant if he eventually succeeds in the appeal. In the determination of whether or not to grant an order of stay of execution, the court should therefore do a balancing act between the contending interests of the parties. In doing that balancing act, the court would consider whether the Applicant has disclosed special circumstances which would attract the determination of the application in his favour.”

JUDGMENT AND ORDER, COURT, PRACTICE AND PROCEDURE

STAY OF EXECUTION – REQUIREMENT FOR THE GRANT OF A STAY OF EXECUTION
“Some of the circumstances under which an application for stay of execution or injunction pending appeal may be made are:
(a) Whether the subject matter of the dispute will be destroyed if injunction or stay of execution is not granted;
(b) Where a situation of helplessness would be foisted on the court, especially an appellate court;
(c) Where execution will paralyze right of appeals;
(d) Where the order of the court would be rendered nugatory; or
(e) Where execution will prevent a return to the status quo if the appeal eventually succeeds.
By the use of the word “or” it means that these conditions are considered disjunctively. It means therefore that the Presence of any of the above stated requirements will suffice for the grant of the injunction. The burden is on an applicant to depose to an affidavit which discloses any of the above stated special circumstances. See Ajuma v. S.P.D.C.M. Ltd (2011) 18 NWLR (Pt.1279) Pg. 797; Olojede v. Olaleye (2010) 4 NWLR (PT. 1183) Pg. 1; Ho v. Abubakar (2011) 12 NWLR (Pt. 1261) Pg. 323 and S.P.D.C.N. Ltd v. Amadi (2011) 14 NWLR (Pt. 1266) Pg. 157).”

CASES CITED

Not Available

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria, 1999|Court of Appeal Act, 2004|Court of Appeal Rules, 2011|Imo State High Court (Civil Procedure) Rules, 2008|

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