CHARVET (NIG) LTD v. KUTI & ORS (2020)

CHARVET (NIG) LTD v. KUTI & ORS

(2020)LCN/14613(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, September 11, 2020

CA/LAG/PRE/ROA/CV/1010M/2019

RATIO

PLEADINGS: AN APPEAL AS A “PERSON HAVING AN INTEREST” OTHERWISE KNOWN AS ‘INTERESTED PARTY’ IN THE MATTER.

This application was filed pursuant to Sections 243 (1)(a), of the Constitution of the Federal Republic of Nigeria 1999 as amended and Order 6 Rules 1 and 7 and Order 9 Rule 1 of the Court of Appeal Rules 2016. Section 243(1)(a) of the Constitution provides:
Any right of appeal to the Court of Appeal from the decisions of 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….”
The above provisions allow a party who was not involved in proceedings of the lower Court that resulted in a judgment, which affected his interest to file an appeal as a “person having an interest” otherwise known as ‘interested party’ in the matter. However, since he was not a party in the trial Court’s proceedings, his right of appeal is on the condition that he seeks the leave of the lower court or the Appellate Court before which he intends to file the appeal. He must convince the Court by his application that he is indeed aggrieved by the judgment because he is affected or likely to be affected or his right of title to something is affected or threatened by the judgment which he seeks leave to appeal against. See IN RE: MADAKI (1996) 7 NWLR (pt. 459) 153, U. B. A. V. South Land Associates Ltd & Ors. (2019) LPELR-47121 (CA), Funduk Engineering Ltd & Ors. Vs. Mcarthor & Ors. (1996) LPELR-1291 (SC).
In this application, the Applicant has stated in the affidavit in support that it was in physical possession of the land, the subject matter of the judgment of the Lagos High Court, which it attached as exhibit ‘C’. Also attached to the affidavit are the deeds of assignments in respect of the land in its favour and in favour of its predecessor-in-title dated since 1977. The parties reflected in the judgment of the High Court did not include the Applicant, only the 1st Respondent as the claimant and the 2nd and 3rd Respondents as the Defendants were parties to that suit. I have also perused the six proposed grounds of appeal contained in the proposed Notice of Appeal attached to the supporting affidavit as exhibits ‘E’, which are substantial in my view. I am therefore satisfied that the Applicant deserves the exercise of this Court’s discretion to grant it permission to appeal the judgment of the High Court of Lagos State delivered on the 7th March 2019 in respect of Suit No: ID/3831LMW/2016. Per BALKISU BELLO ALIYU, J.C.A.

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

CHARVET NIGERIA LIMITED APPELANT(S)

And

HRM OBA SHAKIRUDEEN ADESHINA KUTI 2. HRM OBA AGBABIAKA KABIRU ORISEDEKO ELEMO (OSOLO OF ISOLO) 3. CHIEF HUSSAIN RAHEEM SHEKONI BELLO (BAALE MAFOLOKU/AJAO ESTATE) RESPONDENT(S)

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading judgment): This ruling is in respect of a motion on notice filed on the 23rd August 2019 by the Applicant herein as an interested party praying this Court for the following orders:
1. AN ORDER of the Honourable Court granting an enlargement of time within which CHARVET NIGERIA LIMITED as Applicant herein may seek leave to appeal as a party interested against the judgment of HONOURABLE JUSTICE F. BANKOLE OKI of the Lagos High Court delivered on the 7th day of March 2019 in Suit No. ID/3831LMW/2016 between HRM OBA SHAKIRUDEEN ADSHINA KUTI and HRH OBA AGBABIAKA KABIRU ORISEDEKO ELEMO AND ANOTHER.
2. AN ORDER of the Honourable Court granting the Applicant CHARVET NIGERIA LIMITED leave to appeal to the Court of Appeal as an interested party against the judgment of HONOURABLE JUSTICE F. BANKOLE OKI of the Lagos High Court delivered on the 7th day of March 2019 in Suit No. ID/3831LMW/2016 between HRM OBA SHAKIRUDEEN ADSHINA KUTI and HRH OBA AGBABIAKA KABIRU ORISEDEKO ELEMO AND ANOTHER.
3. AN ORDER of the Honourable Court granting leave to the Applicant, CHARVET NIGERIA LIMITED, to appeal as a party

interested in the judgment delivered by HONOURABLE JUSTICE F. BANKOLE OKI of the Lagos High Court on the 7th day of March 2019 in Suit No. ID/3831LMW/2016 between HRM OBA SHAKIRUDEEN ADSHINA KUTI and HRH OBA AGBABIAKA KABIRU ORISEDEKO ELEMO AND ANOTHER in terms of the proposed Notice of Appeal attached herewith as exhibit ‘E’.
4. AN ORDER of the Honourable Court granting an enlargement of time within which the Applicant, CHARVET NIGERIA LIMITED may file and serve the Notice of Appeal attached as exhibit “E”.
5. AN ORDER of injunction restraining the Respondents, their agent, servants or privies from disturbing or otherwise interfering with the Applicant’s occupation and use of its property situate at 88/90, Muritala Mohammed International Airport Road, Mafoluku, Oshodi Lagos which property is registered as No. 56 at page 56 in Volume 1656 of the Register of Deeds kept at the Lagos Lands Registry, Lagos, Nigeria pending the hearing and determination of the appeal.
6. AN ORDER for stay of further execution of the judgment delivered by HONOURABLE JUSTICE F. BANKOLE OKI of Lagos High Court delivered on the 7th day of

March 2019 in Suit No. ID/3831LMW/2016 between HRM OBA SHAKIRUDEEN ADSHINA KUTI and HRH OBA AGBABIAKA KABIRU ORISEDEKO ELEMO AND ANOTHER pending the hearing and the final determination of the appeal.
7. AN ORDER of the Honorable Court granting the Applicant, CHAVERT NIGERIA LIMITED the above named interested party leave to canvass fresh questions of mixed law and facts in the appeal to be filed against the decision of HONOURABLE JUSTICE F. BANKOLE OKI of Lagos High Court delivered on the 7th day of March 2019 in Suit No. ID/3831LMW/2016 between HRM OBA SHAKIRUDEEN ADSHINA KUTI and HRH OBA AGBABIAKA KABIRU ORISEDEKO ELEMO AND ANOTHER.
8. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstance.

The Applicant relied on the following nine (9) grounds for seeking the above stated orders of this Court:
1. That the judgment delivered by HONOURABLE JUSTICE F. BANKOLE OKI of Lagos High Court on the 7th day of March 2019 in Suit No. ID/3831LMW/2016 between HRM OBA SHAKIRUDEEN ADSHINA KUTI and HRH OBA AGBABIAKA KABIRU ORISEDEKO ELEMO AND ANOTHER, which judgment affects the Applicant’s land situate

at 88/90, Muritala Mohammed International Airport Road, Mafoluku, Oshodi Lagos which property is registered as No. 56 at page 56 in Volume 1656 of the Register of Deeds kept at the Lagos Lands Registry, Lagos, Nigeria, constitutes a flagrant breach of the Applicant’s right to fair hearing as guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as neither the applicant who had been on the land since the 28th day of April 2010, its predecessors in title who acquired the title to the land since 1977 was not made a party to the proceedings leading to the judgment.
2. That the Applicant herein being a party in physical possession of the land situate at 88/90, Muritala Mohammed International Airport Road, Mafoluku, Oshodi Lagos which property is registered as No. 56 at page 56 in Volume 1656 of the Register of Deeds kept at the Lagos Lands Registry, Lagos, and not having been made a party nor heard before the judgment was delivered, the entire proceedings leading to the said judgment constitute a breach of the Applicant’s fundamental right to fair hearing and consequently a nullity.
3. That the Applicant

herein being a party in physical possession and by virtue of the above interest who has invested hugely by erecting an office complex to the tune in excess of N1, 000, 000, 000, 000 (One Billion Naira) is a party affected by the judgment delivered by the Honorable Court on the 7th day of March 2019, hence this application seeking leave to appeal as a party interested.
4. That the 1st Respondent herein being the Claimant at the lower Court having failed to join the Applicant who is a person in physical possession or its predecessors-in-title to Suit No. ID/3931LMW/2016 which suit allegedly relates to the land upon which the Applicant erected structure since April 2010, the palpable failure to join the necessary parties to the proceeding renders the entire proceedings and judgment obtained thereto a nullity.
5. That considering the nature of the issue in Suit No. ID/3831LMW/2016, the action instituted by the 1st Respondent against the 2nd and 3rd Respondents (which parties failed to defend the suit) and which parties were not in possession or occupation of any portion of the land occupied by the Applicant, the entire proceedings before the lower Court

was tainted by fraud, being collusive proceedings between the Respondents.
6. That considering the facts that the Applicant was not a party to the action before the lower Court, it would be in the interest of justice if granted leave to appeal as a party interested and equally file notice and grounds of appeal to raise issues of facts and mixed law which were not raised before the lower Court.
7. That consequent upon the above grounds, it would be in the interest of justice if the Respondent is restrained by way of injunction from interfering with the Applicant’s possession and occupation or further levying execution on the Applicant’s property situate at 88/90, Muritala Mohammed International Airport Road, Mafoluku, Oshodi Lagos which property is registered as No. 56 at page 56 in Volume 1656 of the Register of Deeds kept at the Lagos Lands Registry, Lagos, Nigeria.
8. That owing to the fact that appeals from the High Court to the Court of Appeal ought to be filed within three (3) months of the judgment complained against, the said period having expired since the 18th June 2019, the expiration of the (period?) constitutes special

circumstances why the application has to be filed at the Court of Appeal in the first circumstance.
9. The Applicant shall also be relying on the cases ofRaufu Williams V. Madam Nimota Ajega in RE: Arowolo (1993) 2 NWLR (pt. 275) 317 at 330-331 paragraphs H-A as well as Oduola V. Nabham (1981) NSCC Vol. 12 page 180 at 194 on the need to put a party in actual possession of a property on notice of any action.

The application is further supported by a 16th paragraphed affidavit sworn by Bunmi Onatolu, the General Manager of the Applicant. He stated that the Applicant which is in actual possession of the land situated at No. 88/90 Muritala Mohammed International Airport Road Mafoluku Oshodi Lagos, and on which it erected its office known as Charvet Building had no notice of the suit filed by the 1st Respondent before the High Court of Lagos State. It only became aware of the judgment when the 1st Respondent along with some police officers invaded and locked up the entire land situate along Airport Road, including that of the Applicant in attempt to execute the judgment in Suit No ID/3831LMW/2016.

The Applicant attached documents to the affidavit in

further support of its application. The documents are the deeds of assignment between the Applicant and its predecessors in title of the land, the survey of the land, the public notice issued on the execution of the judgment of the High Court in the suit aforementioned and the judgment of the High Court all marked as exhibit A-E respectively.

All the Respondents were served with the application since August 2019, but none of them file any response to it. The application was called for hearing before us on the 17th June 2020 and the Applicant’s learned senior counsel Toyin Pinheiro SAN moved the application and prayed that all the prayers contained therein be granted.

The 1st Respondent was represented during the hearing by his counsel M. B. Jimoh Akogun Esq. who confirmed that he did not file a counter affidavit because he was just briefed by the 1st Respondent. He however draws the Court’s attention to the fact that prayer 5 of the Applicant is not grantable because there is no appeal before the Court. But by the provisions of Order 1 Rule 5 of the Court of Appeal Rules 2016, an appeal includes an application for leave to appeal such as

this one. The objection (if it can be called that) of the 1st Respondent’s counsel to prayer 5 is of no moment and is discountenanced without much ado.
Though the Application is not contested, it is a practice of this Court to examine the grounds of the application and the facts deposed to in the supporting affidavit in order to determine whether the Applicant deserves a favourable exercise of the Court’s discretion. In other words, failure of the Respondents to challenge the application by way of a counter affidavit does not mean the Applicant will automatically be entitled to the exercise of the Court’s discretion to grant his application. The failure to file a counter affidavit only means that the Respondents admit all the facts deposed to by the Applicant and the Court is free to accept such facts as established. See Stanbic IBTC V. LGC Ltd (2017) 18 NWLR (pt. 1598) 431 (SC), Societe Generale Bank (Nig.) Ltd Vs. Afekoro (1999) 11 NWLR (pt. 627) at 541 to 542,Nabore Properties Ltd V. Peace-Cover Nig. Ltd & Ors. (2014)LPELR-22585 (CA), Ikoli Ventures Ltd &Ors. V. SPDC (Nig.) Ltd (2008) LPELR-4300 (CA). I will therefore

proceed to determine the application based upon the materials placed by the Applicant before us.
This application was filed pursuant to Sections 243 (1)(a), of the Constitution of the Federal Republic of Nigeria 1999 as amended and Order 6 Rules 1 and 7 and Order 9 Rule 1 of the Court of Appeal Rules 2016. Section 243(1)(a) of the Constitution provides:
Any right of appeal to the Court of Appeal from the decisions of 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….”
The above provisions allow a party who was not involved in proceedings of the lower Court that resulted in a judgment, which affected his interest to file an appeal as a “person having an interest” otherwise known as ‘interested party’ in the matter. However, since he was not a party in the trial Court’s proceedings, his right of appeal is on the condition that he seeks the

leave of the lower court or the Appellate Court before which he intends to file the appeal. He must convince the Court by his application that he is indeed aggrieved by the judgment because he is affected or likely to be affected or his right of title to something is affected or threatened by the judgment which he seeks leave to appeal against. See IN RE: MADAKI (1996) 7 NWLR (pt. 459) 153, U. B. A. V. South Land Associates Ltd & Ors. (2019) LPELR-47121 (CA), Funduk Engineering Ltd & Ors. Vs. Mcarthor & Ors. (1996) LPELR-1291 (SC).
In this application, the Applicant has stated in the affidavit in support that it was in physical possession of the land, the subject matter of the judgment of the Lagos High Court, which it attached as exhibit ‘C’. Also attached to the affidavit are the deeds of assignments in respect of the land in its favour and in favour of its predecessor-in-title dated since 1977. The parties reflected in the judgment of the High Court did not include the Applicant, only the 1st Respondent as the claimant and the 2nd and 3rd Respondents as the Defendants were parties to that suit. I have also perused the six proposed

grounds of appeal contained in the proposed Notice of Appeal attached to the supporting affidavit as exhibits ‘E’, which are substantial in my view. I am therefore satisfied that the Applicant deserves the exercise of this Court’s discretion to grant it permission to appeal the judgment of the High Court of Lagos State delivered on the 7th March 2019 in respect of Suit No: ID/3831LMW/2016.
It is however observed that the Applicant has prayed for an “enlargement of time within which to seek leave to appeal as an interested party.” This is procedurally wrong because not being a party in the proceedings leading to the judgment against which it is seeking leave to appeal, time does not run against it. By this application, the applicant is seeking leave to be made a party in the proceedings, which will then enable it to appeal the judgment backed by the provisions of Section 243(1)(a) of the Constitution. This position of the law has been stated and re-stated in uncountable decisions of this Court and the Apex Court, yet counsel continue to repeat this procedural mistake. See IN RE: Dago (2018) LPELR-45263 (CA), Ojora V. AGIP (Nig.) Plc.

(2005) 4 NWLR (pt. 916) 515, Keystone Bank Ltd V. Embeco (Nig.) Ltd & Ors. (2018) LPELR- 46178 (CA) among others.
Nevertheless, the application is granted in terms of prayers 2, 3, 5, 6 and 7 thereof. The Applicant shall file its notice of appeal within 7 days from today.

MOHAMMED LAWAL GARBA, J.CA.: I have read the draft of the lead Ruling written by my learned brother Balkisu Bello Aliyu, JCA in this application and agree, for reasons set out therein, that the facts disclosed in the Applicant Affidavit warrant that the application be granted as prayed. I join in granting the application in terms of the lead Ruling.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Balkisu Bello Aliyu, J.C.A.

Appearances:

TOYIN PINHEIRO SAN, WITH HIM, K. OBAFEMI ESQ. For Appellant(s)

B. JIMOH AKOGUN ESQ. FOR THE 1ST RESPONDENT
2ND AND 3RD RESPONDENTS ABSENT. For Respondent(s)