SEBASTIAN ADIGWE v. FEDERAL REPUBLIC OF NIGERIA
May 1, 2025FATAYI SULE DAKAN & ORS V ALHAJI LASISI ASALU & ORS
May 2, 2025Legalpedia Citation: (2015) Legalpedia (CA) 64255
In the Court of Appeal
Fri May 15, 2015
Suit Number: CA/L/174/2008
CORAM
OWOLABI KOLAWOLE, JUSTICE, COURT OF APPEAL
PARTIES
THE REGISTERED TRUSTEES OF ACTSOF APOSTLE CHURCHAND
1 MRS OLUFEMI FATUNDE
2 MRS JOLADE OLUSOLA AJAYI
3 MRS SULOLA AINA SHONUKAN
4 MRS MOFOLUWAKE O. OLUGE(For themselves and on behalf of the entire Family of Chief Abolade Olatunji Coker)
APPELLANTS
IN THE MATTER OF APPLICATION OF PARTIES SEEKING LEAVE TO APPEAL AS INTERSTED PARTIES AND
1 INCORPORATED TRUSTEES OF ACTS OFAPOSTLE CHURCH
2 MR. SOLOMON OMOLERE OLADUNJOYE(JP)
3 CHIEF ANDREW EDAMISAN ALAGBA
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The facts leading to this application are that the High Court had entered judgment in favour of the Respondent on the 16th November, 2007 granting her among other things the possession of a 5 acres of land situate at Makoko Aiyetoro, Ebute – Metta and held that the customary tenancy of the 1st Applicant had been determined. Aggrieved by the decision of the High Court, the Applicants brought an application seeking for extension of time within which to apply for leave to appeal, leave to appeal and leave to raise fresh issue of law on appeal against the decision of the High Court as an interested party amongst others. Though the Applicants were parties in the suit at the trial court, they contended that they were sued under the name of “THE REGISTERED TRUSTEES OF ACTS OF APOSTLES CHURCH” instead of “INCORPORATED TRUSTEES OF ACTS OF APOSTLE CHURCH.” Thus, they contended that the person sued at the lower court was a non-juristic person thereby ousting the jurisdiction of the lower court. Thus, the “INCORPORATED TRUSTEES OF ACTS OF APOSTLE CHURCH” being the proper party brought an application to appeal against the decision of the trial court.
HELD
Application Dismissed.
ISSUES
Whether the Applicants ought in the circumstances if this case, to be granted leave to appeal as persons having interest in the subject matter, against the judgment delivered on the 16th of November 2007
RATIONES DECIDENDI
MISNOMER – A MISNOMER IS AN INCONSEQUENTIAL ERROR WHICH THE COURTS HAVE INHERENT JURISDICTION TO CORRECT.
“In the case of Agbule v. Warri Refinery & Petrochemical Co Ltd (2012) LPELR-SC 130/2005, the SC per Ogunbiyi JSC held:
“…….The wrong use of the name did not overreach or put the Respondent to any form of disdain in the absence of any earlier complaint thereof. The use of the name in my view is, at best a misnomer and which did not occasion any negative effect. This court under its inherent powers has the jurisdiction to correct such inconsequential error which did not require any formal application to make……” PER C. E. IYIZOBA, J.C.A
“PERSON HAVING INTEREST” – DEFINITION OF A “PERSON HAVING INTEREST” IN AN ACTION
“In the case of Ikonne vs C.O.P.[1986] 4 NWLR (Pt.36) 473 @ 503, Karibi-Whyte JSC observed:
“The expression “person having interest” has been defined as synonymous with “person aggrieved.” In Re: Sidebotham, Ex. P. Sidebotham (1880) 14 Ch. D. At p. 465, James L.J., said,
“A ‘person aggrieved’ must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.”
In Re: Reed, Bowen & Co. Official Receiver (1887) 19 Q.B.D. at p.178, Lord Esher pointed out that “a person aggrieved” includes “a person who has a genuine grievance because an order has been made which prejudicially affects his interests.” PER C. E. IYIZOBA, J.C.A
LEAVE TO APPEAL – THERE IS NO TIME LIMIT WITHIN WHICH A PERSON MAY BRING AN APPLICATION FOR LEAVE TO APPEAL AS AN INTERESTED PARTY.
“It is pertinent to mention that neither the Constitution of the Federal Republic of Nigeria nor the Court of Appeal Act or Rules prescribe any period within which an interested party may bring an application for leave to appeal as a person having an interest in a matter. Application for extension of time is consequently unnecessary. See Re. Madaki (1996) 7 NWLR (Pt. 459) 153 @ 164; Adeleke v. Oyo State House of Assembly (2006) 10 NWLR (Pt. 987) 50 @ 69; Ojora v. Agip (Nig) Plc (2005) 4 NWLR (Pt. 916) 515 @ 547; Chukwu v. INEC (2014) 10 NWLR (Pt. 1415) 385.” PER C. E. IYIZOBA, J.C.A
RIGHT OF APPEAL – RIGHT OF A PERSON WHO IS NOT A PARTY TO THE SUIT TO APPEAL
“The right of a person to appeal against a decision in which he was not a party and at the hearing of which he did not participate is conferred by section 243 (a) of the 1999 CFRN.” PER C. E. IYIZOBA, J.C.A
PARTIES TO AN ACTION – TEST TO DETERMINE AN INTERESTED PARTY
“In Ojukwu v. Governor of Lagos State (Supra) it was held that the test of interest to determine a party interested is whether the person could have been joined as a party to the suit. See also Re. Madaki (1996) 7 NWLR (Pt. 459) 153 @ 164 Williams v Mokwe (2005) 14 NWLR (Pt. 945) 249.” PER C. E. IYIZOBA, J.C.A
MISNOMER – A MISNOMER OCCURS WHERE THE CORRECT PERSON IS TAKEN TO COURT UNDER A WRONG NAME. “In the case of Ishaq v. Bell (2008) LPELR-4337, this court held per Okoro JCA:
“A misnomer is said to be a mistake in name and it occurs when there is a mistake as to the name of a person who sued or was sued, or when an action is instituted by or against the wrong name of a person. In other words, the correct person is taken to court under a wrong name or incorrect name is given to a person in a Court. Usually, where there is an error only as to the correct name of a party to a suit, an amendment may be sought to correct the mistake and the court should be disposed to granting such an application. As in this case where there is a mistake in the spelling of the name of a party to the suit especially as such mistake is not occasioned by the maker of the document or even if the mistake is made by the maker, the law allows some room for human error and the Court should be obliged to allow an amendment in the circumstance. See Njoku v. UAC Foods (1999) 12 NWLR (Pt. 632) 557, Nkwocha v. Federal University of Technology (1996) 1 NWLR (Pt. 422) 112, Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 91.
Where however the mistake in the name of the parties results in confusion and leads to a miscarriage of justice, I do not think it will be proper to allow such an amendment. See Fagbola vs. Titilayo Plastic Industries Ltd (2001) 2 NWLR (Pt. 909) 1 and Esenowo Vs. Ukpong (1999) 6 NWLR (Pt. 608) 611.” PER C. E. IYIZOBA, J.C.A
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999
Court of Appeal Act
Court of Appeal Rules.
