IN RE: MRS. B. C. OKONJI & ANOR v. MRS. GLORIA NKEMDILIM OKONJI & ANOR (2022)

IN RE: MRS. B. C. OKONJI & ANOR v. MRS. GLORIA NKEMDILIM OKONJI & ANOR

(2022)LCN/16857(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, July 07, 2022

CA/B/13/2020(R)

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

1. CHUKWUEMEKA EUGENE OKONJI – APPELLANT IN RE: MRS. B. C. OKONJI – INTERESTED PARTY/APPLICANT APPELANT(S)

And

1. MRS. GLORIA NKEMDILIM OKONJI 2. MR. EMEKA ELIUKWU RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT CAN RAISE AN ISSUE OF JURISDICTION SUO MOTU

This brings to fore the competence of the motion, and invariably the jurisdiction of the Court to hear and determine it. Therefore, being an issue of jurisdiction, the Court can suo moto raise and determine it without inviting counsel to address her on it. See the following cases –
P.D.P. v. Rijau & Ors. (2021) LPELR – 54562 (CA) pp. 32 – 33 paras D – C, Mpanuago & Ors. v. Global Mckens Ltd (2018) LPELR – 50063 (CA) PP. 8 -10 para B, Johnson & Ors v. A. G. Rivers State & Ors (2018) LPELR – 49287 (CA) PP. 26 – 27 para A,Keystone Bank Ltd. V. Ebuh & Ors. (2021) LPELR 52773 (CA) P.66 paras A – C. PER ABUNDAGA, J.C.A.

THE DOCUMENTS THAT MUST BE ACCOMPANIED WITH AN APPLICATION FOR LEAVE OF COURT TO APPEAL

Where leave is required as in the instant application, Order 6 Rule 7 of the Court of Appeal Rules is important as it states the requirement for leave. It provides thus:
The application for leave to appeal from a decision of lower Court shall contain copies of the following items, namely-
(a) Notice of motion for leave to appeal (Form 4):
(b) A certified true copy of the decision of the Court below sought to be appealed against ;
(c) A copy of the proposed grounds of appeal; and
(d) Where leave has been refused by the lower Court, a copy of the order refusing leave.
The provisions, particularly Section 243(1) (a) of the Constitution are clear, and do not admit to an interested party joining an appeal as a respondent. He can only apply for leave to appeal as an interested party. See the case of Cole v. Ngei Abe (2019) LPELR – 49052 (CA), Per Gumel, JCA. PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an application brought pursuant to Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Order 6 Rule 2 of the Court of Appeal Rules 2016 and under the inherent jurisdiction of the honourable Court. The application brought by motion on notice was filed on 8th October 2021, and prayed the Court for the following:
(1) An order of this Honourable Court granting leave to the applicant to be joined in this appeal as interested party.
(2) And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.

In support of the motion are seven (7) grounds, enumerated as A, B, C, D, E, F and G. The motion is also supported with an affidavit of 13 paragraphs deposed to by Celia K. Okonji, daughter to the applicant. Annexed to the affidavit are Exhibit A, Exhibit B and Exhibit C.

In opposition to the motion, the 1st respondent filed a counter affidavit of 3 paragraphs which was deposed to by one Goodness Igwe, a litigation Secretary in the 1st respondent’s counsel’s Law office. The counter affidavit which was filed on 9th March, 2022, and deemed filed on 30/5/22 was attached thereto, Exhibit A. Also attached to the counter affidavit is a written address of counsel for the 1st respondent. The applicant responded to the counter affidavit by filing a further affidavit of 4 paragraphs. It was deposed to by Clement Nwagu, who described himself as a paralegal staff in the Delta State Office of Legal Aid Council of Nigeria. Annexed to the further affidavit is a written address in support of the substantive motion.
The motion was moved and argued, whereat the written addresses were duly adopted.

The applicant raised a single issue for determination in her written address; which is, “whether the interested party/applicant has made out a case to warrant this honourable Court to join her in this appeal”.

It was submitted on this issue that a party interested in an appeal who was not originally a party to the decision complained of must first seek leave to appeal as an interested party. That the settled position of the law for making such a person a party to the appeal is that he should be bound by the result of the action. That it has to be also shown that the question to be settled in the action must be questions which cannot be effectually and completely settled unless he is a party. Furthermore, it was submitted that the Court is expected in the interest of justice to join anyone who may have a stake in the subject – matter of the suit or may be affected by the decision. The case of Azubuike v. P.D.P & Ors (2014) LPELR – 22258 (SC) was relied on.

It was further contended that the applicant’s interest in the subject matter of this appeal is likely to be adversely or prejudicially affected by the decision of this Court over the subject matter since she is asserting her right over the property. That the applicant ought to be given an opportunity to ventilate her case in this appeal.

Making reference to Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) under which the instant application was brought, it was submitted that what amount to the disclosure of sufficient interest is to be found in the application itself. Refers to the case of Green v. Green (1987) 3 NWLR (Pt. 60) 480 which counsel submits is the locus classicus on the law of joinder of parties. It was contended that the conditions enumerated in Green v. Green (supra) are satisfied in this application.

It was further pointed out that inability of the trial Court to determine Suit No. HAB/72D/2017 in the absence of the applicant as a party goes beyond the interest of the applicant over her late husband’s property. That because the applicant’s interest in the property will be affected by the decision of the Court it is necessary to join her for effective and effectual determination of all the issues in the case.

Counsel therefore urged upon this Court to grant this application, and to join the applicant as 3rd respondent.

The 1st respondent as respondent in this application formulated a lone issue for determination. The issue is;
“whether the interested party/applicant has made out a case to warrant this Honourable Court to join the party sought to be joined in this suit”

In his submission on this lone issue, counsel outlines the principles for the grant of application for Joinder, which are:
(a) The parties sought to be joined must be necessary parties.
(b) The issues in the suit cannot be effectively and effectually determined without the presence of the party sought to be joined.
(c) The decision of the Court, one way or the other will affect the party.
(d) To avoid multiplicity of suits.

Counsel referred to the case of Ajayi v. Folayemi (2001) 87 LRCN pg 1789, PP. 1802 H1 – 1812 H1.

It was submitted that the only reason an applicant can be made a party to a suit is, if he is a necessary party, and without him or them the issues in the suit cannot be effectively and effectually determined. It was further submitted that the applicant has not made out a case for joinder to warrant this Honourable Court to join her as an interested party. For the definition of a necessary party, counsel relied on the case of Olawoye v. Jimoh & Ors (2013) vol. 224 LRCN Pt. 1 pg. 93. Also referred to are Green v. Green (2001) FWLR (Pt.76) 785 at P. 799, ECO Bank (Nig) PLC v. Gate Way Hotels Ltd (1999) 11 NWLR (Pt. 627) 397 at PP. 411 – 412.

It was further argued that the applicant’s case is worsened by the fact that there is no judgment against her to warrant her joinder because there is no relief against her.

It was further submitted that the applicant was well aware of the case since 2017 when she filed a case in the Magistrate’s Court during the pendency of the Suit in Edo State High Court sitting at Abudu, but that she chose to be indifferent instead of Joining in the Suit; that is, Suit No. HAB/72D/2017, on appeal herein. That the applicant’s indifference is in tandem with estoppel of standing by, and its effect. Reliance is placed on the following cases – Kelas v. FITTI (2020) LPELR – 49690 (CA), Friday Kamalu & Ors. v. Daniel Nwakudu Uka Umunna (1997) 5 NWLR (Pt. 508) 21, Olalere Oyetunji v. Alh. Asiru Awoyemi & Ors (2013) LPELR – 20226, Duru v. Onwumelu (2001) 18 NWLR (Pt. 746) 672, 695, Obodo v. Ogba (1988) 1 QLRN 175, Onwu v. Nka (1996) 7 SCNJ 240.

In the final analysis, counsel submitted that the application for joinder is baseless and only aimed at wasting the time of the Court. The Court is therefore urged to refuse the application. Counsel forwarded through the office of the Deputy Chief Registrar, an additional authority. It is, Cole v. Ngei Abe (2019) LPELR – 49052.

The sole issue formulated by both the applicant and respondent are substantially the same, the only difference being the choice of words employed by each of the counsel.

However, there are emerging issues in this application which by law, the Court can suo moto take on and determine. With the foregoing in mind, I am of the respectful view that this application can be appropriately decided on the following issue;
“Whether the applicant, not being a party at the trial, and who is not satisfied with the Judgment that affects her interest can apply to be joined as a respondent in the appeal”.

This brings to fore the competence of the motion, and invariably the jurisdiction of the Court to hear and determine it. Therefore, being an issue of jurisdiction, the Court can suo moto raise and determine it without inviting counsel to address her on it. See the following cases –
P.D.P. v. Rijau & Ors. (2021) LPELR – 54562 (CA) pp. 32 – 33 paras D – C, Mpanuago & Ors. v. Global Mckens Ltd (2018) LPELR – 50063 (CA) PP. 8 -10 para B, Johnson & Ors v. A. G. Rivers State & Ors (2018) LPELR – 49287 (CA) PP. 26 – 27 para A,Keystone Bank Ltd. V. Ebuh & Ors. (2021) LPELR 52773 (CA) P.66 paras A – C.

The application is purportedly brought under Section 243(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order 6 Rule 2 of the Court of Appeal Rules, 2021.
It is necessary to take a deeper look at the provisions of the foregoing in relation to the instant application.
Section 243(1)(a) provides as follows: –
“243. (1) 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 the leave of the Federal High Court, or 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 a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.”
Order 6 Rule 2 of the Court of Appeal Rules 2021 provides:
”Any application to the Court for leave to appeal (other than an application made after the expiration of the time for appealing) shall be by notice of motion, which shall be served on the party or parties, affected”.
Where leave is required as in the instant application, Order 6 Rule 7 of the Court of Appeal Rules is important as it states the requirement for leave. It provides thus:
The application for leave to appeal from a decision of lower Court shall contain copies of the following items, namely-
(a) Notice of motion for leave to appeal (Form 4):
(b) A certified true copy of the decision of the Court below sought to be appealed against ;
(c) A copy of the proposed grounds of appeal; and
(d) Where leave has been refused by the lower Court, a copy of the order refusing leave.
The provisions, particularly Section 243(1) (a) of the Constitution are clear, and do not admit to an interested party joining an appeal as a respondent. He can only apply for leave to appeal as an interested party. See the case of Cole v. Ngei Abe (2019) LPELR – 49052 (CA), Per Gumel, JCA.
Therefore, the cases cited by the applicant are totally irrelevant to the instant application.
Now, looking at the grounds upon which the application was brought and the averments in the affidavit in support of the application, the applicant has shown that Suit No. HAB/72D/2017 was a matrimonial cause in which she was not a party. Yet, as averred in the affidavit, property of her late husband in which she has beneficial interest was being claimed by the 1st respondent as their family property, and was also listed for settlement. The applicant has thus expressed her disillusionment with the Judgment and a desire to contest it. How then can she achieve her intention without filing a notice of appeal, bearing in mind that the role of a respondent in an appeal is to defend the judgment and not to assist the appellant. See the case of Lafia Local Government v. Executive Governor Nasarawa State & Ors. (2012) LPELR – 20602 (SC) P.14 paras A – B. See also Njaba Local Govt. Council v. Chigozie & Ors. (2010) LPELR – 9138 (CA) P. 25 paras B – C, Epe Local Govt. v. Keshinro & Ors. (2008) LPELR – 11882 (CA) PP. 22 – 23 paras D – B, Ugochukwu & Anor. v. Orji & Ors. (2009) LPELR – 5048 (CA) P. 18 paras B – C.

In view of the foregoing, this application is apparently not competent and therefore robbed the Court of the jurisdiction to hear and determine it. It is hereby struck out.
Parties are to bear their respective costs.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I have carefully studied the leading ruling of this Court just delivered by my learned brother, Abundaga, JCA., and must observe too that since the 1st Respondent herein is not the Appellant in the substantive appeal who had judgment entered against him in favour of the 1st Respondent in a matrimonial proceeding over the alleged property of the Applicant situated at No. 6 Amaechi Iyio Way, Asaba, Delta State, the convoluted scenario in this matter makes it impossible for the Applicant to be joined as a Respondent in this appeal. It would have been a different scenario had the Appellant been the 1st Respondent in this appeal and the 1st Respondent, the Appellant appealing against orders made in respect of those properties. See the Supreme Court case of Yakubu vs. Gov. of Kogi State (1995) 5 NWLR Part 414 page 397, wherein Belgore, JSC., (as he then was) observed thus:
“It is on record, and clearly undisputed, that the 5th respondent has been appointed the Ejeh of Ankpa in succession to the appellant. For purpose of law, until a Court of competent jurisdiction declares his appointment null and void he is the Ejeh of Ankpa and any suit likely in its result to affect that status of his must attract his concern and he can intervene by asking to be joined as a party. Section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 allows any person access to Court in the determination of his civil rights and obligations. The fact that the Court of Appeal never adverted to the counter-affidavit of 14th June 1994 cannot be the fault of the Justices as the party’s counsel – Ajala, S.A.N. and Onafowokan, S.A.N. – never adverted to it in their oral submission before the Court in arguing the motion. The arguments were full and interesting but one fact that the appellant could not demolish is the interest of the 5th respondent in the appeal.”
Ogundare, JSC., further expressed that “even though the 5th respondent is not a necessary party to the proceedings initiated by the appellant for the enforcement of his fundamental rights since the reliefs he claims can be adequately determined without the 5th respondent being made a party but having regard, however, to the undisputed facts in the case, it is desirable, just and convenient that he be made a party so that he should be bound by the decision of the Court in respect of the appellant’s reliefs (iii) and (v). Moreover, the 5th respondent is a person whose legal interest will be affected by the appeal. The Court below rightly, therefore, exercised its power under Order 3 Rule 6(1) in his favour.”
In the instant application, the Appellant did not initiate the Divorce proceedings. He was the Respondent in the Petition who merely filed an Answer and Cross-Petition to the Petition of the 1st Respondent. The Appellant’s interest in the property in question, that is to say: the property situate and lying at No. 6 Amaechi Iyio Way, Asaba, Delta State had already been affected and jeopardised by the orders of the lower Court. It was adjudged in favour of the 1st Respondent. The Applicant averred that her late husband and herself were the owners of the said property which had been settled in Petition No. HAB/72D/2017 in favour of the 1st Respondent. What the Applicant is saying in essence is that their rights of ownership of the said property were affected by the judgment of the lower Court delivered on 4/12/2019 in a suit in which they were not parties. It is an age-long principle of the law that where a party whose interest was affected by the decision of a Court, he can only challenge the said decision as envisaged by Section 243(1)(a) of the 1999 Constitution as amended which provides that a party interested in an appeal who was not originally a party to the decision complained of, must first seek the leave of the Federal High Court or the High Court or the Court to Appeal as a person having an interest in the matter. The person is mandated to apply for leave to appeal as an interested person/party which failure cannot be waived. The Applicant is, therefore, not competent to bring an application for joinder as a Respondent to the present appeal filed by her son in the matrimonial proceeding. It is therefore clear that the stipulated pre-condition for the commencement of an appeal against the judgment in which she was not a party affecting her interest is as contained in Section 243(1)(a) of the Constitution. Therefore any pretentious approach to appealing against the said decision not in consonance with the provisions of Section 243(1)(a) of the Constitution is regarded as incompetent and as such the Court in which the action or application is instituted or filed lacks the jurisdictional power to entertain the same. See UBA Plc vs. Ekpo (2003) 12 NWLR Part 834 page 322. In the light of the above, I too strike out the application filed by the Applicant seeking for leave to be joined as a party interested rather than for leave to appeal as a person having an interest. I abide by the orders made in the leading ruling.

ADEMOLA SAMUEL BOLA, J.C.A.: My Lord JAMES GAMBO ABUNDAGA, JCA. has afforded me the privilege of reading in draft the Ruling just delivered. I am in agreement with his reasoning and conclusion. I do abide with his decision.