THE GOVERNMENT OF KWARA STATE & ORS v. IREPODUN BLOCK MANUFACTURING COMPANY & ORS
(2012)LCN/5328(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of April, 2012
CA/IL/53/2010
RATIO
“Having found that the applicant is a person having an interest in the matter under appeal, it becomes imperative and compulsive to consider the propriety or otherwise of its second prayer for extension of time within which to appeal against the decision of the lower court as an interested party. Here, the provision of order 7 Rule 10 of the Court of Appeal Rule, 2011 is of note. It states: “ORDER 7 – APPLICATIONS TO COURT 10-(1) The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above. (2) 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 the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.” A grant or refusal of a prayer for enlargement of time, under Order 7 Rule 10 of the Rules, involves, perforce, an exercise of discretion of the court and which discretion must be exercised judicially and judiciously. Judicial discretion, a synonym of discretionary power, a mantra in judicial proceedings, connotes the right or power of a judex to act according to the dictates of his personal judgment and conscience uninfluenced or uncontrolled by the judgment or conscience of other persons, See Suleiman vs. C.O.P., Plateau State (2008) 8 NWLR (pt. 1089) 298 at 318. In any exercise bordering on discretionary power, it is incumbent on an applicant, if he must earn the favourable discretion of a court, to furnish it with sufficient materials to enable it exercise its discretion judicially and judiciously. This is because a court of law does not exercise its discretionary power in vacuo. As a matter of hard law, placing before the court the enabling material facts for exercise of discretion are desiderata for the success of any application involving discretionary power, See Menakaya vs. Menakaya (2001) 16 NWLR (pt. 738) 203; Gen. & Ariation Serv. Ltd vs. Tahal (2004) 10 NWLR (pt. 880) 50; In Re: Mawa vs. NACBCFC Ltd (2007) 7 NWLR (Pt. 1032) 54; Ebe vs. COP (2008) 4 NWLR (Pt. 1076) 189; Ifekande vs. Uzoegwu (2008) 15 NWLR (Pt.1111) 508. For any application to bear fruit under the provision of Order 7 Rule 10 of the Rules, the applicant must satisfy two twin conditions to wit: (a) that there exists good and satisfactory reasons for not filing his appeal timeously; and (b) that there are substantial and arguable grounds of appeal . The law insists that the two conditions must co-exist, that is, satisfied communally, before a court can grant this kind of application. Such application must be accompanied by an affidavit which must state enough reasons for the delay, the judgment or ruling of the lower court against which the applicant is seeking to appeal against and the proposed grounds of appeal against the judgment or ruling, see Enyibro Foods Processing Co. Ltd vs. N.D.I.C (supra); Adelekan vs. Ecu-line Nv (2006) 12 NWLR (Pt.993) 33; Oyegun vs. Nzeribe (2010) 16 NWLR (Pt. 1220) 568.” Per OGBUINYA, J.C.A.
“That takes me to a consideration of the second of the twin conditions viz-existence of substantial and arguable grounds of appeal. In dealing with this delicate condition, I am not oblivious of the law that my duty is circumscribed by law to only discovering whether the applicant’s grounds of appeal are substantial or material and unveil arguable grounds and nothing else. The reason for the limitation of this duty is not far-fetched. If a court goes beyond the four walls of the assigned duty, it will be, unwittingly, delving into the substance or merit of the appeal, which is still in escrow, at an interlocutory stage which the law, seriously, deprecates in all ramifications, See Enyibros Food Processing Co. Ltd. vs. N.D.I.C. (supra); Adelekan vs. ECU -Line Nv (supra); Oyegun vs. Nzeribe (supra); Folowo vs. Banigbe (supra). In due obeisance to the prescription of the law, I will limit my duty within its ambit.” Per OGBUINYA, J.C.A.
JURISDICTION: COURT WITH JURISDICTION IN LAND MATTERS
“It is now settled law “that the Federal High Court is not clothed with the jurisdiction to entertain land matters of any kind. By virtue of the prescriptions of sections 39 and 41 of the Land Use Act, Cap L5, Laws of the Federation of Nigeria, 2004, it is the High Court of a State that is vested with the jurisdiction, concurrently with other inferior courts of record, to adjudicate over land matters. Besides, since the Federal High Court is not imbued with the jurisdiction to hear land matters under the provision of section 251 of the 1999 Constitution, as amended, the jurisdiction of the High Court of State over land matters crystallizes pursuant to the provision of section 272 of the 1999 Constitution, as amended. To bear my view out, I draw on the case of Adetayo v. Ademola (2010) 15 NWLR (Pt.1215) 169 at 192 – 194 wherein Mohammed, JSC, stated: “Since the provisions of section 251(1) (r) of the 1999 Constitution are not helpful in tracing any jurisdiction in land matters to the Federal High court its jurisdiction of court is derived from statutes conferring the jurisdiction, I decided to examine the provisions of the Land Use Act 1978 which was promulgated specially and specifically to deal with the control and management of land in Nigeria. The courts conferred with jurisdiction to entertain disputes between Nigerians in exercising their right to acquire and use land under the Act are already specified therein. The relevant sections in this respect are sections 39, 41 and 42… It is quite clear from the provisions of the above sections of the Land Use Act with specific powers and jurisdiction in respect of land matters specified therein conferred on State High Court, Area Court. Customary Court and Magistrate Court that the Federal High court is not one of the courts conferred with jurisdiction to entertain any dispute in land matters. Infact, the purpose which sections 39, 41 and 42 of the Land Use Act are designed to serve are very clear…. As there is nothing in these section 39, 41 and 42 of the Land use Act that conferred any jurisdiction on the Federal High court to entertain land cause or matters, I entirely agree with the court below that the Federal High court has no jurisdiction to hear and determine any dispute on declaration of title to land”. see, also, Nkuma vs. Odili (2006) 6 NWLR (Pt. 977) 587; Oladapo vs. Nigeria Customs Service Board (supra).” Per OGBUINYA, J.C.A.
“It is not in doubt that the applicant is a Federal government agency by virtue of the provisions of sections 1 and 7 of the Nigerian Meteorological (Establishment) Act, cap N152. Laws of the Federation of Nigeria, 2004. Be that as it may, I must, without much ado, place on record that the respondents’ view point on this point is as sweeping as it is parochial. This is because the jurisdiction of a court to entertain a matter, in which a Federal Government agency is a party, has two dimensional facets. In this wise, where a Federal Government agency is a party to a proceeding a court is mandated to look at both party and subject-matter jurisdictional aspects of it. That is to say, a court has to, in addition to a party being a Federal Government agency, examine the facts of a matter with a view to determining the subject-matter of it. If the res comes within the jurisdictional provisions under section 251 of the 1999 Constitution, as amended, then the Federal High Court will have, exclusive jurisdiction where the party is a Federal Government agency, where, however, the subject-matter falls outside the precincts of those provisions, then a state High court will be vested with jurisdiction notwithstanding that the party involved is a Federal Government agency. The supreme court has set a seal on this grey and nagging area of law in the case of Obiuweubi vs. CBN (2011) 7 NWLR (pt. 1247) 465. The rationale behind this cardinai principle of law is underpinned by the fact that one of the triumvirate ingredients of jurisdiction is that the subject matter of a case must come within the jurisdiction of the adjudicating court and there is no feature therein which will prevent it, the court, from exercising its jurisdiction, see Madukolu vs. Nkemdilim (1961) 2, NSCC 374; Agbiti vs. Nigerian Navy (2011) 4 NWLR (Pt.146) 175; SLB Consortium Ltd vs. N.N.P.C.(2011) 9 NWLR (Pt. 1252) 317.” Per OGBUINYA, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
1. THE GOVERNMENT OF KWARA STATE
2. THE ATTORNEY-GENERAL KWARA STATE
3. THE PERMANENT SECRETARY, MINISTRY LANDS & HOUSING, KWARA STATE Appellant(s)
AND
1. IREPODUN BLOCK MANUFACTURING COMPANY
2. ALHAJI JIMOH ADIGUN
3. ALHAJI TOYIN OTTAN
V.
NIGERIAN METEOROLOGICAL AGENCY Respondent(s)
OBANDE OGBUINYA, J.C.A. (Delivering the Lead Ruling): By a motion on notice, dated 01/06/2011, but filed on 02/06/2011, the applicant, Nigerian Metrological Agency, prayed this court for the following reliefs:
“1. Extension of time within which to seek leave as party interested under section 243 of the 1999 Constitution of the Federal Republic of Nigeria to appeal against the judgment of the lower court.
2. Extension of time to appeal as an interested party pursuant to section 243 of the 1999 Constitution of the Federal Republic of Nigeria against the judgment of this lower court.
3. Leave of court to appeal as an interested party against the judgment of the lower court.
AND FURTHER TAKE NOTICE THAT THE GROUNDS OF THE APPLICATION ARE:
1. The judgment of the lower court delivered on the 31st July, 2009 touches and adversely affects the interest of the Applicant.
2. By the time the applicant became aware of the judgment of the lower court the time within which it is required to seek leave of this court to appeal as a party interested as well as file notice of appeal against the judgment of the lower court delivered on the 31st July, 2009 has elapsed.
3. Part of the subject-matter that was in dispute in the lower court is the landed property of the Applicant situate and being at Ilorin and the Applicant was not a party to the proceedings in the lower court but the judgment of the lower court had the effect of nullifying the Applicant title to the said property without being heard.
AND FURTHER TAKE NOTICE THAT THE FOLLOWING DOCUMENTS ARE EXHIBITED IN THIS APPLICATION:-
1. Certified True Copy of the judgment of Honourable Justice E. B. Mohammed delivered on the 31st July, 2009.
2. Copy of the proposed grounds of appeal.
3. The present motion on notice.
4. Certified True copy of the ruling of Honourable Justice E.B. Mohammed delivered on the 21st September, 2010”.
The High court of Kwara State, presided over by Hon. Justice E.B. Mohammed, on 31/07/2009, delivered judgment in suit No. KWS/23/08 instituted by the claimants/respondents against the appellants/respondents. The lower court gave judgment in favour of the claimants/respondents whilst the appellants/respondents appealed against it on 29/09/2009.
“When the application came up for hearing, the Claimants/respondents (hereinafter abridged to “the respondents”) indicated their intention to oppose it. Sequel to that indication, this court ordered parties to file written addresses.
On 22/02/2012, the application came up for adoption of written addresses. Consequently, on that 22/02/2012, learned counsel for the applicant, D. O. Delano, Esq., adopted the applicant’s written addresses and written reply on points of law, filed on 21/11/2011 and 01/12/2011 respectively, as representing his arguments in support of the application. He prayed the court to grant it. Similarly, on that same 22/02/2012, learned counsel for the respondents, A. B. Jimoh, Esq., adopted the respondents written address, filed on 28/11/2011, as representing his arguments against the application. He urged the court to dismiss it.
The preliminary objection
The respondents raised a preliminary objection to the hearing of the applicant’s application on the following grounds: (a) Failure of the applicant to follow or comply with the Rules of this court (b) Lack of jurisdiction of this court to hear and determine the application.
Learned counsel pointed out that a similar application was filed and refused by the lower court on 21/09/2011 as shown in exhibit F attached to the applicant’s affidavit in support dated and filed on 02/06/2011. He stated that nine months later, the applicant filed the application contrary to the provision of Order 7 rule 3 of the Court of Appeal Rules, 2011. He submitted that that applicant failed to seek and obtain leave to bring the application out of time.
He asserted that “may” as applied in the provision of order 7 rule 2 was mandatory and the applicant ought to have prayed for enlargement of time as specified by those provisions. He placed reliance on the case of Otu vs. ACB (2008) 3 MJSC 191 at 206 – 207
He further submitted that the lower court examined all the issues raised in the applications, dated and filed on 29/06/2010 and 30/06/2010 respectively, on their merits as shown in paragraphs, 20 and 21 of the affidavit in support and exhibit F, on pages 9-13, attached to it. He added that the motion, as shown on pages 18-19 of exhibit F, was dismissed on the merit and the applicant could only appeal against it. He referred to section 14 (1) of the Court of Appeal Act. He prayed the court to dismiss the application because the applicant failed to comply with the rules and the law.
On behalf of the applicant, its learned counsel identified the grounds for the respondents’ preliminary objection thus:
“1. The Applicant did not comply with the rule of this Honourable court as contained in order 7 rule 3 directing that where an application has been refused in a court below an application for a similar purpose may be made within 15 days of the refusal.
2. Secondly the application of the Applicant in the lower court was dismissed after examining all the issues raised in it and the proper step for the Application to have taken was an appeal.
3. The Applicant being a Federal Government of Nigeria Agency cannot sue and be sued in a State High Court”
In arguing grounds one and two together, learned counsel submitted that the prayers sought in the lower court resulting in the ruling contained in exhibit F were different from those being sought in the applicant’s application. He reproduced the prayers in the two applications and insisted that the application before the court was not seeking the same prayers sought in the lower court so that the applicant did not need to file it within 15 days of the lower court’s rejection of those prayers. He asserted that under the court of Appeal Rules, the applicant had the right to apply to the court as of right.
Learned counsel further submitted that the lower court in exhibit F, pointed out that it was functus officio since an appeal had been entered in the court of Appeal. He referred to pages 17 – 18 of exhibit F. He added that as such there was no need to file an appeal on a ruling whose ratio was that the court had no power to hear the application because an appeal had been entered. He noted that being a factual situation to which the applicant was not aware as at the time of filing its application, it would be waste of time and an exercise in futility to proceed on appeal.
On ground three, learned counsel argued that a Federal Government of Nigeria Agency would not be sued in a state High Court. He contended that considerations or factors that determine jurisdiction entailed parties and subject matter. He placed reliance on the cases of Oladapo vs. Nigeria Customs Service Board (2009) 135 (incomplete citation); Federal college of Education vs. Akinyemi (2008) 7 WRN 107. He opined that the contrary narrow view expressed in the case of Federal College of Education vs. Ogbona (2008) 3 WRN 83, which eliminated subject-matter as one of the criteria for deciding jurisdiction, would result in substantial injustice even to the Federal Government Agencies themselves. He maintained that jurisdiction was not only determined by the party, but, also, by the subject-matter. He noted that the subject-matter, the basis of the application, was the consequential order made by the lower court revoking the certificate of occupancy of the applicant without being heard. He persisted that joining the applicant, a Federal Government of Nigeria agency, to the proceedings in the lower court would not have ousted its jurisdiction.
RESOLUTION OF THE PRELIMINARY OBJECTION
The thrust of the respondents’ first grievance in the preliminary objection is grounded on the applicant’s non-compliance with the provision of order 7 rules 2 and 3 of the Court of Appeal Rules, 2011, hereunder abridged to “the Rules”. Being at the epicentre of the respondents’ objection, it is imperative I reproduce the provision. It provides:
” ORDER 7 – APPLICATIONS TO COURT.
2. Any application to the court for leave to appeal (other than an application made after the expiration of time for appealing shall be By Notice of Motion, which shall be served on the party or parties affected.
3. Where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the refusal”
This provision is susceptible to easy comprehension. This is because it is clear, precise and unambiguous. To this end, I will employ the literal rule of interpretation of legislations, including their subsidiaries such as the Rules, in construing it, see Uwazurike V. A. – G., Fed (2007) 8 NWLR (Pt. 1035) 1; Berliet vs. Kachalla (1995) 12 SCNJ 147;
In due obeisance to the age-long literal canon of interpretation, I will accord the words used in the provision their ordinary and natural meanings without any embellishments. In my view, the purport of the provision is that a party whose application is refused by a lower court, which could be a High Court of a State, the Federal High Court or any other court whence from appeals are emptied into the court of Appeal, he, the party, is at liberty to file another application for a similar purpose in the court of Appeal within a time frame of fifteen days after the lower court had delivered its ruling. The operative words in the provision are “similar purpose” – implying that the two applications, the one in the court below and the other in the court of Appeal, must be for a similar purpose. “Similar”, an adjective, means’ “like, much the same”, while purpose, a noun, signifies, “a result which it is desired to obtain and kept in mind in performing an action” Page 811. see the New Webster’s Dictionary of the English Language, International Edition, page 927 and 811 respectively.
In the light of this background, is the applicant’s application, under consideration, of a similar purpose with the one and it filed in the lower court that was replaced? In dealing with this stubborn query, I will use the reliefs in the two applications as compass or templates. I had, at the dawn of this ruling, set out verbatim ac litteratem the reliefs the applicant is soliciting or supplicating from this court. Since the distance between the cradle of the ruling and here is not far, it is pointless to go the whole hog of replicating them. Suffice to say, however, by way of recap, that the synopses of the prayers are that the applicant is asking for leave of this court and enlargement of time within which to appeal against the judgment of the lower court handed down on 31/07/2009 as a person, having an interest in the subject matter of the case that led to the said judgment. The applicant’s claims, plucked out from exhibit F, the ruling of the lower court delivered on 21/09/2010, were as follows:
“1. AN ORDER setting aside the judgment of this Honourable court delivered on the 31st day of July, 2009.
2. AN ORDER restoring and re-listing this suit on the cause list for hearing de-nono (sic) to enable all the parties with interest in the land the subject matter of this suit be heard on merit.
3. AN ORDER joining the Applicant as a co-defendant to this suit its presence is necessary and essential for the complete and effectual determination of all the issues in this suit.
4. AN ORDER suspending any warrant of possession or any other court processes issued out by the claimant/determination of this motion”
I have, duly, situated the reliefs in the previous application dismissed by the lower court, with those of the present/pending application. It is axiomatic that the two sets of claims do not tally.
They are not parallel, one set is distinct from and diametrically opposed to the other. As already pointed out, in the extant application, the applicant is requesting this court for leave and extension of time within which to appeal against the lower court’s judgment as a party interested in the matter. In the previous application, the applicant prayed the lower court to: set aside the said judgment, relist the matter to be heard de novo, join it as a co-defendant and suspend the warrant for possession issued by the respondents. Given this obvious fact that the two applications are not on all fours or do not mirror themselves, their aims or end results cannot meet. That is to say, the present application cannot qualify as “an application for a similar purpose” as envisaged by the provision of Order 7 rule 3 of the Rules. The implication of this, lack of oneness of the two applications, is that the applicant’s application is not caught in the web of this provision. In other words, the applicant has not desecrated or transgressed this provision, which, at any rate, is directory, not mandatory, by the employment of the word “may”.
Moreover, since the application has not done any violence to the provision, the issue of leave of court for filing it outside the time frame of fifteen days from 21/09/2010, stoutly canvassed by the respondents, is totally spent. Let me place on record, pronto, – that the case of Otu vs. ACB Int’l Bank Plc (supra)/ (2008) 3 NWLR (Pt.1073) 179, on which the respondents placed high premium on this ground, is neither here nor here vis-a-vis this application. The provision of Order 7 rule 3 of the Rules was never interpreted in that case to make it in pari materia with the pending application.
On this score, based on facts differentials, I will not honour the respondents’ inviting invitation to invoke that decision against the application. The net effect of the foregoing is not a second guess.
This ground of objection stands on a quicksand. Accordingly, the ground fails.
I move to settle the respondents’ second ground of objection. The kernel of the respondents’ complaint on that ground is that the applicant ought to have appealed against the ruling in the previous application. Now, I fall in with the respondents that the said application was heard on merit and dismissed as clearly evidenced in exhibit F, the end product of the application. I am at one with the respondents that the applicant has a right of appeal against that ruling by virtue of the provision of section 14( 1) of the court of Appeal Act, Cap (16), Laws of the Federation of Nigeria, 2004. I must add, apace, that the applicant cannot be compelled to harvest that right of appeal. The provision of Section 242 of the same 1999 Constitution, as amended, also donates the same right of appeal to the applicant against that ruling.
Nevertheless, the respondents’ contention seriously overlooks the cold fact that those rights exist paripassu with its right to appeal, with leave against the judgment of the lower court in which it was not a party, as a person having interest in the subject matter. This later right is entrenched in section 243 (a) of the 1999 Constitution, as amended. It seems to me that the applicant, in its infinite wisdom, decided to harness the second option of challenging the judgment of the lower court by dint of an application for leave to appeal as a person having interest in the matter. It is up to the applicant to exercise any of those rights of appeal that are available to it. It is not for the respondents, or even the court, to mandate or impel the applicant to choose a particular option, especially as one is not made a condition precedent for the other. I see nothing wrong in the applicant’s style of choice where two options enure in its favour. Again, in view of the above reasons, this ground, too, is not deeply rooted in law. In effect, it fails too.
All in all, since the two grounds have fallen flat, the respondents, preliminary objection is devoid of any jot of merit. It is doomed to failure. Consequently, I overrule the preliminary objection and dismiss it. I move to consider the application on its merits.
THE MAIN APPLICATION
In the applicant’s written address, its learned counsel informed the court that the application was brought under 36 (1) of the 1999 Constitution, as amended, and supported by a 26- paragraph affidavit with 8 annexures, exhibits A, B, C, D1, D2, E, F and G attached to it, and an 11- paragraphed reply to the respondents’ counter-affidavit filed on 11/11/2011. He relied on all the paragraphs of the two affidavits and the exhibits attached thereto.
Learned counsel took the view that the salient part of the applicant’s case was contained in paragraphs 3 – 9 of its affidavit which were reproduced in full. He, then, submitted that the facts that emerged from those reproduced depositions were: (1) By a letter of 24/10/2004, the applicant, a parastatal of the Federal Republic of Nigeria, applied to the first appellant for land to build an office in Kwara State. (2) By a letter Ref. No. LANARO/COMM/27891/48 of 15/08/2007, signed by the Director of Lands for the Governor of Kwara State, the applicant was granted a right of occupancy in respect of No. 8, part of Block 18 Misc 216 TPS, 158, Ilorin of 0.204 HA as per L. P 60 WA. (3) By the applicant’s letter, Ref No. NIMET/ILO/04/Vol. VI/89 of 05/04/07, exhibit C, the applicant was put in possession by the end of August and has continued to be in undisturbed possession to the present. (4) The applicant made developments on the land, but, most importantly, was unaware of any land tussle between the respondents and the appellants.
He stated that on 28/02/08, six months after the first appellant had completed the process of granting to the applicant right of occupancy over part of the land initially granted to the respondents, the respondents brought the action against the appellants making the four claims which were reproduced. He pointed out that the couching of the third prayer the respondents’ certificates already could not be cancelled or invalidated. He added that the trial resulted in the judgment, applicant’s exhibit E, that contained the consequential order that nullified and quashed the right of occupancy contained in letter Ref No. LANARO/COMM/27891/48 of 15/08/2007 signed by the Director of Lands for the Governor of Kwara State pursuant to which the applicant was granted a right of occupancy in respect of No. B part of Block 18 Misc 216 TPS, 158, Ilorin of 0.204 HA as per L. P- 60 WA, part of the parcel of the land in dispute. He drew the court’s attention to the evidence of the appellants’ witness, Mr. Ejide, in the lower court, wherein he stated, inter alia, that they had allocated the land to some people, National Communication Commission, Nigerian Metrological Agency and Federal Pay Office.
Learned counsel further submitted that, as averred in paragraphs 18-20 of the applicant’s affidavit, from the time the respondents’ action was filed and at the point, in the proceedings, that the name of the applicant was mentioned and its interest surfaced, any of the parties or the court ought to have joined the applicant to the suit as party interested. He referred to the case of Anambra State Government vs. Ezechukwu (2011) 37 WRN 63 which followed the case of Enyibros Food Processing Company Ltd. vs. N.D.I.C. (2007) All FWLR (Pt. 396)793 on the test for determining a party or person interested under section 24) (a) of the constitution, as amended, and the meaning of persons having interest in a matter. He insisted that the applicant met the definition in those cases. He posited that having failed to join the applicant in the suit as a party interested, its fundamental right to fair hearing had been violated and any order given against it, either directly or consequently, violated its fundamental right to fair hearing as guaranteed by the Constitution.
It was the submission of learned counsel that the first appellant, who was the grantor of exhibit A to the applicant, was not its representative in the suit and, consequently, the applicant ought to have been joined as a necessary party, citing the case of in Re: Yinka Folawiyo & Sons Ltd. (1991) 7 NWLR (Pt.202) 237 in support of the submission. He noted that as the time the respondents filed the action, on 28/02/08, the first appellant no longer had any interest in the land, the subject-matter of the suit having granted a right of occupancy evidenced the certificate of occupancy No. KW15399, exhibit B, with effect from 15/08/07. He insisted that the proper person, by that grant, for the respondents to have sued was the applicant and other grantees or as Mr. Ejide stated in his evidence, “some people, National Communication Commission, Nigerian, Metrological Agency and Federal Pay Office”. He added that bringing an action after the completion of the suit against “unknown persons” as in the respondents’ exhibit 1, attached to their counter-affidavit, did not cure the situation. He relied on the case of Amuda vs. Ajobo (1995) 7 NWLR (Pt.406) 170 at 182 and insisted that having given a right of occupancy to the applicant, since 15/08/07, the interest of the appellants was in reversion and the proper person for the respondents to have said was the applicant.
Learned counsel took the stance that the applicant was not looking on and standing by while the legal tussle was going on as there was no basis for that conduct. He asserted that the applicant was a Federal Government Agency involved in carrying services for the general well-being of the country. He noted that the applicant had, in its supporting affidavit, stated unequivocally that it was not aware of any tussle before it received the grant conveyed in exhibit A nor was it aware of the case going on in court, maintaining that it became aware after judgment had been given when counsel to the respondents informed its Mr. Ojediran. He referred to paragraph 10 of the affidavit in support of the motion. Learned counsel stated that since the applicant became aware after the completion of the case, the law allowed an interested person to join on appeal or set it down in the same court and have the judgment set aside and retrial ordered if pronouncements made therein negated the principle of fair hearing, particularly if the applicant was in occupation, relying on the case of the Alhaji Musu Arowolo (1993) 2 NWLR (Pt.275) 317.
Learned counsel contended that since it was shown that the applicant had interest in the subject-matter of the suit, was not joined nor given opportunity to be heard, was not guilty of standing-by and an order adverse to its interest subsisted, the consequence that flew was that it was denied its right to fair hearing and the proceedings null and void. He placed reliance on the case of Ashiru vs. Ayoade (2005) 35 WRN 180 Atuko v. A. Ajiboye (2011) 35 WRN 150 at 178-179. He persisted that where it had been established that fair hearing was breached, it was immaterial whether substantial justice was done in the matter nor the court would have reached the same decision. He relied on the cases of Idakwo vs. Ejiga (2005) 48 WRN 19; Olufeagba vs. Addul-Raheem (2010) 17 WRN 23 at 72-73; Adigun v. A.-G, Oyo State (1987) 3 S.C.50 at 309. He added that the aspect of the judgment in exhibit E, which by way of consequential order extinguished, nullified and voided the title of the applicant without being heard, was null and void. He argued that where a court had given a decision which was a nullity in law, the remedy of the party affected was to apply to the same court to set it aside rather than embarking immediately on appeal, although an appellate court, also, had the power to set aside such null decision. He referred to the case Okafor v. A.-G., Anambra State (1991) NWLR (Pt.200) 659 at 680.
He further argued that the summary of the respondents’ counter-affidavit was that after the judgment in suit No. KWS/23/2008, they took further proceedings to give effect to it, the judgment, which included an action for recovery of possession against Tangent Construction Limited and four unknown persons as defendants. He persisted that the applicant could not be one of the unknown persons because in the course of the case the respondents wanted to recover possession, the applicant was already known. He repeated the evidence of the appellants’ witness, Mr. Ajide, to the effect that:
“We have allocated the land to some people; National Communication Commission, Nigeria Metrological Agency and Federal Pay Office”. He posited that when the respondents filed the suit for recovery of possession, they were fully aware that four sets of persons had been re-allocated the land in dispute to wit: (a) some people (b) National Communication Commission (c) Nigerian Metrological Agency (the applicant) (d) Federal Pay Office. He took the stand that while the four unknown people might include and cover Tangent Construction Limited and others that were not stated by Mr. Ajide, they clearly could not be meant to include the National Communication Commission, Nigeria Metrological Agency and Federal Pay Office unless the primary aim was to deliberately mislead the court into believing that they were unknown which in itself vitiated the order granted. On the bases of the above submission, learned counsel urged the court to grant the prayers in the application.
For the respondents, their learned counsel, in their written address, intimated the court that they, the respondents, filed a 21 paragraph counter-affidavit with 10 annexures, exhibits 1- 10, attached thereto in opposition to the applicant’s application.
In respect of the main application, learned counsel submitted per contra that by sections 1 and 7 of the Nigerian Meteorological Agency (Establishment) Act, 2003 and paragraphs 3, 4 and 5 of the applicant’s affidavit in support of the motion, the applicant was, rightly, described as a Federal Government Agency that could not sue or be sued in the State High Court. He further submitted that section 251 (1) of the 1999 Constitution, as amended, conferred exclusive jurisdiction on aviation and safety of aircraft matters on the Federal High Court and the applicant could not be joined as a co-defendant at the State High Court. He posited that the respondents’ claim before the lower court was not a challenge to the statutory power of the State Government to issue, revoke and grant certificate of occupancy, but application of the law. He added that by virtue of the Land Use Act, the government and its agencies were necessary parties and the respondents had no claim against the applicant and, consequently, it was not a necessary party to the effectual decision of the matter in the lower court. He drew the conclusion that the applicant was not qualified to be a party at the lower court and a party not qualified to be a co-defendant at the lower court could not be joined as a party having interest on appeal. He placed reliance on the case of Ojukwu vs. Gov. Lagos State (1985) 2 NWLR (P. 10) 807 at 815; Maja & Ors v. Harriet Johnson (1951) 13 WACA 194. He urged the court to uphold his submission on this Point.
Learned counsel adopted his submissions stated above and added that the applicant had no interest worthy of being protected by the court. He noted that in paragraph 10 of the respondents’ counter-affidavit, the respondents deposed that the certificate of occupancy No. KWS 4807, exhibit 7, was granted to the first respondent in 1991 and which took possession of the land until the commencement of the action in 2008. He observed that while that suit was going on, unknown persons entered the land and the lower court stopped them. He referred to the warning notice published in the Herald Newspaper of 03/07/2009 warning all persons to keep off from the land. He added that on 21/08/09, there was notice to the whole world by calling those known and unknown to respect the judgment of the lower court. He referred to the respondents’ counter-affidavit, filed on 22/09/11, particularly paragraphs 11 -18 (I-IX) thereof, for other numerous acts of ownership listed by the respondents. He insisted that when the respondents commenced the action, the applicant was not physically present on the entire land and that the applicant never challenged that deposition, contained in paragraph 17 of the counter-affidavit, materially. He noted that the applicant, in its affidavit, merely claimed ignorance of the legal battle between the parties that led to the appeal.
Learned counsel contended that the appellant obtained the purported certificate of occupancy No.KWS 15399, exhibit B attached to its affidavit in support of the motion, when the respondents’ certificate of occupancy No. KWS4807 subsisted including the alleged construction done when the matter was pending at the lower court. He asserted that exhibit D attached to the applicant’s affidavit was self-explanatory. He persisted that whatever the alleged interest put in place illegally could not be protected as court would only protect legally recognizable interest; adding that the heavy weather made about Mr. Ajide’s (DW1’s) evidence was of no moment. He further contended that the hurriedly made fence during the pendency of the suit at the lower court, exhibit D aforementioned, was carried out to perfect the purported transfer of the land to the applicant, exhibit B and paragraphs 8 and 6 of the applicant’s affidavit, were illegal acts and caught by the doctrine of lis pendis, citing the case of Enyibros Food Processing Co. Ltd. vs. NDIC (2007) 3 S C (Pt.1) 178 at 207, in support of the contention.
It was his further contention that the applicant, who disobeyed the lower court’s order (exhibit 4), Kwara State Town Planning and Development Authority’s order (exhibit 10), caveat published on 03/07/09 in the Herald Newspaper (exhibit 7) and the publication in Nigerian Tribune Newspaper of 21/08/09 (exhibit 8) and feigned ignorance of legal tussle between the parties and hurriedly constructed a fence and a gatehouse, could not claim to have legal interest on the land. He referred to paragraphs 12,18 (1), 18 (2) 18 (x) of the respondents’ counter-affidavit wherein those exhibits, 4, 7, 8 and 10 were respectively attached to. He maintained that an applicant without legally recognizable interest would not “rightly be given leave to appeal in a matter” relying on the case of SGB v. Afekuro (1999) 7 SCNJ 177; Ademola v. Sodipo (1992) 7 SCNJ 42; C.P.C. vs. Nyako (2011) 5-7 MJSC (Pt.II) 158 at 188. He prayed the court to hold that the applicant had no interest to be protected and should not be granted leave to appeal the judgment.
Learned counsel postulated that the applicant should not be granted leave for extension or enlargement of time within which to appeal as a person having interest. He noted that the applicant’s reasons for delaying bringing the application on time could be gleaned from paragraph 21 of its affidavit in support which counsel reproduced in extenso. He reproduced paragraph 18 (iv) and (v) of the respondents’ counter-affidavit wherein they contained the applicant’s reason for the delay.
He, then, submitted that the alleged mixed-up in the chamber of the counsel for the applicant, given as reason for the delay, was not satisfactorily explained. He narrated that the ruling referred to in exhibit F was delivered on 21/09/2011 whilst the judgment sought to be appealed against was delivered on 03/07/09 and executed on 15/03/2010 as shown in exhibit F. He added that the first application at the lower court was brought 9 months after the delivery of the judgment in exhibit F and in contravention of Order 7 rule 3 of the court of Appeal Rules, 2011, the application was filed on 02/06/2011, about 2 years after the judgment and 9 months after a similar application was dismissed at the lower court. He opined that the applicant had no intention to appeal against the judgment, that when the third appellant was not forthcoming, the applicant then considered it necessary to seek leave to appeal. He maintained that the delay was not due to mix-up in the applicant’s counsel’s office. He asked, who was the legal adviser referred to in the said paragraph 21 of the applicant’s affidavit in support of the motion? He insisted that the applicant did not comply with the provision of section 115 (3) and (4) of the Evidence Act, 2011, former section 89 of the Evidence Act, 2004.
He referred to the case of Ajiboye v. Ajiboye (2004) 4 FR 1 at 74 wherein the common approach to “error of counsel” was not accepted. He persisted that the required facts to explain the delay were in short supply in the application and he urged the court to dismiss it on the authority of Iketa v. A.-G, Rivers state (2008) 12 MJSC 156 at 189.
Learned counsel reasoned that if the principal counsel in the office of Oladisun Delano and Co. was absent for 3 (three) weeks, other counsel in the office could have filed or appealed at the right time. He asserted as a fact that Oluwasun Amusa, a senior counsel, in the said office was physically around during the period under consideration as averred in paragraph 18 (iv) and (v) of the counter-affidavit filed on 22/11/2011. He urged the court to hold that the purported mix-up was an after thought and that the applicant failed to supply the facts that might assist the court to exercise its power judicially and judiciously.
Learned counsel noted that the applicant’s proposed grounds questioned the consequential order made by the lower court and its failure to join the applicants as a co-defendant. He referred to exhibit G attached to the applicant’s affidavit in support of the motion. He stated the law that the likelihood of success or otherwise of these grounds was not the question for the court to determine, but whether the grounds were substantial and arguable. He placed reliance on the case of Iketa Best v. A-G., Rivers state (supra). He observed that the consequential order made by the lower court flew from the judgment, citing the case of Ezeonwu vs. Onyechi (1996) 2 SCNJ 250 at 268-269 in support. He posited that it was not a matter of jurisdiction or whether the lower court was not qualified to make the order so that the ground was not arguable nor substantial to allow the applicant leave to appeal the judgment.
He admitted that substantial grounds of appeal might compel the court to grant the application for leave, but where necessary facts to establish the substance were missing, the court would dismiss the prayer. He referred to the cases of Maja vs. Johnson (supra); Ojukwu vs. Military Governor of Lagos state (supra); Enyibros Food Processing vs. NDIC (supra), wherein the applicants had proprietary right as distinguishable from the applicant’s application. He argued that the two grounds proposed in the application failed to question the proprietary right of the parties and the intervener had no business to interfere. He submitted that the proposed grounds of appeal, in exhibit c, had no prospect of success when the proper parties were before the lower court. He urged the court to so hold.
Learned counsel took the view that the respondents did not challenge the statutory power of the appellants to acquire or grant land, but questioned the application of the law binding on the parties. He added that the purported interest of the applicant did not remove the statutory power conferred on the appellant, citing the provisions of sections 1, 28 and 44 of the Land Use Act. He asserted that the State Government was empowered to grant certificate of occupancy and the respondents’ certificate was granted in 1991 while the applicant’s purported certificate No. KW/15399 was granted in November, 2009. He reiterated the points that: the applicant was not a necessary party to be joined at the lower court in the court, the failure to join the applicant was supported by law, that is the claims of the respondents and the applicant with its branch office in Ilorin (within jurisdiction) intentionally wanted for the appellant to fight its purported cause for it so that no breach of fair hearing occurred at the lower court. He posited that the applicant erroneously harped on the oral evidence of DW1 to claim that it was denied fair hearing. He persisted that the facts of a case denoted non-compliance with the principle of fair hearing. He relied on the case of Maikyo vs. Itodo (2007) 3 SCC (pt.11) 34 at 54.
Learned counsel submitted that the lower court rightly ruled, contrary to the contention of the applicant that the evidence of DW1, Mr. Ejide, should have compelled it to make it, the applicant, a party, that the provision of section 36 of the 1999 Constitution, that is, fair hearing was not relevant to the issue as the suit was determined effectively and completely on the validity of a former allottee by the government. He adopted the view of the lower court and urged the court to hold that the applicant failed or neglected to prove the alleged breach of fair hearing. He contended that sections 3, 22(1) and (2) of the Nigerian Meteorological (Establishment) Agency, 2003 provided legal ways to acquire land for the applicant and rather than apply for leave it could have followed the provisions of that Act. On the strength of the foregoing arguments, learned counsel prayed the court to dismiss the application.
On points of law, learned counsel for the applicant conceded that the name of the applicant’s legal adviser, with whom Mr. Delano had telephone conversation with was not mentioned, but, quickly, argued that whilst such full details must be enumerated its not being stated was a defect which the court could overlook. He added that even if those averments that mentioned to the legal adviser, without his name, were discountenanced, there were still sufficient averments to show that the delay was due to the mix up in office of counsel to the applicant. He submitted that a court could allow defective affidavit to be used, amended or resworn by leave of court because courts were not concerned only with technicalities. He referred to the case of FGN Vs A.I.C. Ltd (2005) 49 WRN 102 at 107 and urged the court to discountenance the defect and use the affidavit.
He maintained that the applicant qualified as party interested. He referred to exhibits A and C, dated 18/08/2007 and 05/04/2007 respectively, and persisted that they were in place before the respondents commenced the action in the lower court on 28/02/2008. He added that exhibits A and C were not caught by the principle of lis pendis and that the applicant was the proper person the respondents could have sued. He wondered why the respondents did not err on the side of caution by joining the applicant after the evidence of Mr. Ajide, that part of the land had been re-allocated to the applicant, or discontinue the action and file a fresh one in the Federal High Court which they believed had jurisdiction over the applicant. He stated that a claimant (the respondents) had a duty to join all necessary parties to an action. He relied on the cases of Agbekoni Vs. Kareem (2008) 15 WRN 117 at 134; Nabaruma Vs. Offodile (2005) 1 WRN 47 at 65 – 66.
Learned counsel contended that the applicant’s grounds of appeal spoke for themselves. He submitted that a decision against any party that adversely affected that party’s interest and who was not given an opportunity to be heard, his fundamental right to fair hearing had been breached and he would be allowed to seek redress. He added that a decision taken in circumstances which showed that a court acted as being Father Christmas, an appellate court would intervene on behalf of the party affected, on the basis of the foregoing, learned counsel urged the court to grant the application.
Resolution of the application
The hub of the applicant’s application is for leave to enable it appeal, as a person having an interest in the matter, against the judgment of the Kwara State High Court delivered on 31/07/2009 in suit No. KWS/23/2008. To this end, the provision of section 243 of the 1999 Constitution, as amended is of note. It states:
“243. 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 of 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 on 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 person as may be prescribed;
(b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. In attending to the application, my first port of call, per force, is to determine whether the applicant has met the requirement of the first limit of the provision of section 243(a) of the 1999 Constitution, as amended, reproduced above. In this direction, the applicant took the proper step when it sought for the indulgence of this court by way of leave to file its appeal. The word “leave, in this con, simply connotes permission. The very essence of leave is to enable a court determine or ascertain whether it is proper in law to grant the party permission to appeal against a judgment as a person having an interest in a matter, See Otu vs. ACB Int’l Bank Plc (supra)/(2008) 3 NWLR (Pt. 1073) 179 at 197; BBN Ltd vs. Olayiwola & Sons Ltd (2005) 3 NWLR (Pt. 912) 434; Agip (Nig) Ltd vs. Agip Petroli Int’l (2010) 5 NWLR (Pt.1187) 348.
It is my humble view that by requesting for the permission of this court, to appeal against the said judgment of the lower court, the applicant has fulfilled the first requirement of this provision.
Nonetheless, it is not yet hooray for the applicant. Having crossed the first hurdle, it must go further to show that it comes within the province of the expression, “person having an interest in the matter” factored into the provision. Again, it is imperative to appreciate the purport of the phrase in relation to this specie of application. To begin with the phrase, “person having an interest in the matter”, traces its roots to the provision of section 117(b) of the defunct 1963 Constitution. It was adopted in section 222(a) of the erstwhile 1979 Constitution and later counted in as section 243(a)in the extant 1999 Constitution, as amended. Interestingly and exultantly, the phrase has been, clearly, defined in a galaxy of judicial authorities. See Ikonne VS. COP (1986) 4 NWLR (Pt.36) 473; Ede vs. Nwidenyi: In Re: Ogbuzuru Ugadu (1988) 5 NWLR (pt.93) 189; Fawehinmi vs. NBA (No.1) (1989) 2 NWLR (Pt. 105) 494; CPC vs. Nyako (2012) WRN. In the case of SGB Bank (Nig) Ltd vs. Afekoro (1999) 11 NWLR (Pt. 628) 521 at 539, Ogundare, JSC defined it in these illuminating words:
“On the authorities, therefore, the expression “person having interest” is synonymous with “person aggrieved.” And 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…. His interest must be one that is legally recognizable …”
In the case of Enyi bros Foods Processing Co. Ltd vs. N.D.I.C (supra) or (2007) 9 NWLR (Pt.1039) 216 at 251, Tobi, J.S.C., observed that:
“The test of interest to determine a person interested is whether the person could have been joined as a party to the suit. A person interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings.”
See, also, Ojukwu vs. Military Governor of Lagos State (supra); Maja vs. Johnson (supra).
The vexed question, begging for an answer, is: has the applicant shown that it has come within the meaning of a person having an interest in the matter? To elicit an answer, the averments in the applicant’s two affidavits come in handy. In this regard, the depositions in paragraphs 6, 7, 8, 9, 10, 11, 12,13, 14, 15, 16,17,18 and 19 of the applicant’s affidavit in support of the motion are relevant. At the expense of prolixity or verbosity, borne out of necessity, those paragraphs are reproduced verbatim thus:
“6. By letter Ref. LAN/ARO/COM27891/48 of 15th August, 2007 signed by the Director of Lands for the Governor of Kwara State of Nigeria the Applicant was granted approval for the Grant of a Right of occupancy in respect of No.8, PART OF BLOCK 18 MISC 216 TPS, 158, ILORIN OF 0.204 HA AS PER L.P 60 WA, a photocopy of which letter is attached marked EXHIBIT A, and commenced processing the Certificate of occupancy in respect of the grant which certificate was handed over to the Applicant sometime in late 2009 and photocopy of certificate of Occupancy No KW 15399 of 4 November, 2009 with commencement date 16th August, 2007 is attached and marked Exhibit B.
7. Upon issuance of Approval for the Grant of a Right of Occupancy in respect of No.8, PART OF BLOCK 18 MISC 216 TPS, 158, ILORIN OF 0.204 HA AS PER L.P 60 WA Exhibit A which the Applicant accepted by its letter Ref: NO. NIMENT/ILO/04/VOL.V1/89 of 5th April, 2007 Exhibit C, the said Applicant was put in possession by the end of August 2007 and has continued in undisturbed possession to the present time.
8. Before and since accepting the grant in Exhibit A above, and getting into possession, the Applicant is unaware of any tussle over ownership of the land and in particular the Applicant is unaware of the claimants/Respondents previous title or interest in the Exhibit A and revocation of same by the first Defendant/Respondent.
9. After the first Defendant allocated Exhibit A to the Applicant, the said Applicant took possession and have done the following improvements thereon:-
a. Fenced it round at a cost of N4.5Million (Four Million, Five Hundred Thousand Naira) as the presence of fencing is duly acknowledge by the letter of the Claimants/Respondents Solicitor a photocopy of which is attached and marked Exhibit D the name of the Applicant is conspicuously written on the wall.
b. Built a security post on the said parcel of land.
c. Completed arrangement to erect a building and install advanced highly sophisticated technological equipment for fulfilling its functions and services to the people of Nigeria when Chief Metrological Technologist with the Applicant and I verily believe him that he received a phone call from Mr. Jimoh Counsel to the Claimants/Respondents inviting him for a meeting.
10. I am further informed by Mr. Ojediran of the following facts and I verily believe him:
i. He Mr. Ojediran met with Mr. Jimoh Counsel to the Claimants/Respondents who informed him for the first time that a suit in respect of which judgment is subsisting in favour of the Claimants/Respondents covering property in Exhibit B has taken place.
ii. He Mr. Ojediran was alarmed at this piece of information and upon returning to the office summoned me to his office and asked me as the officer covering legal matters if any case is subsisting against the applicant in respect of Exhibit B to which I answered in the negative.
iii. Mr. Ojediran went further to meet with the Director-General of the First Defendant/Respondent Mr. Kamaldeen Ajibade who informed him for the first time that the Claimants/Respondents sued them to court and obtained judgment against which an appeal has been filed by the First Defendant/Respondent.
11. About middle of June 2010, the Applicant received a letter from the counsel to the Claimants/Respondents already Exhibit D to which were attached photocopies of which are attached marked Exhibits D1 and D2, respectively and Exhibit D2, the warrant of possession is in respect of Charge No. KWS/159/09
12. The Applicant immediately wrote to the Director-General of the first Defendant/Respondent without receiving any response.
13. In addition, the Applicant immediately instructed the firm of OLADISUN DELANO & CO. to investigate the content of the said Exhibit D and were astonished to discover that a judgment had indeed been delivered in favour of the Claimants/Respondents by this Honourable Court on the 31st of July, 2009 and a photocopy of the certified true copy of the said judgment is attached and marked Exhibit E.
14. Without the Applicant being a party in Exhibit E, this Honourable Court under its consequential order, extinguished, nullified and voided the interest/title of the application in Exhibits A and B.
15. The order of the court in Exhibit E is gravely injurious to the interest of the Applicant as the Applicant was not heard or afforded an opportunity of being heard before the order was made.
16. The Defendants/Respondents in this case did not defend this suit in a representative capacity on behalf of the Applicant.
That I am informed Oladisun Delano Esq. Applicant counsel in this case, and I verily believe him, that upon conducting investigating into the proceeding in this case on Thursday 24th June, 2010, he discovered that one Mr. Ajide a staff of Kwara State Ministry of Lands and Housing gave evidence at the trial and stated as follows:
“That the land remained undeveloped as at the time of revocation, this was known due to the inspection made by the staff of the Ministry. That warning were issued in the national dailies to people who have failed to develop their plots within the stipulated period, failure of which shall be revoked.
That the land is among the many lands revoked. That the land was initially an industrial plot after revocation the land has been redesigned to other use such as residential and commercial we have allocated the land to some people; National Communication Commission, Nigerian Metrological Agency and Federal Pay Office.” (emphasis ours).
18. Application ought to have been joined in this proceeding from the beginning and in particular as at the time its name and interest surfaced at the trial but both the Claimants/Respondents and Defendants/Respondents failed to take steps to notify the Applicant or join them in the suit.
19. Also the lower court did not order that the Applicant be joined in this suit”
I have given a thorough scrutiny to those averments. The synopses of the depositions are that the applicant applied for, via exhibit A, and was granted a certificate of occupancy KW15399, in respect of the land in dispute exhibit B, on 16/08/2007 which it accepted vide exhibit C. They, the depositions, amply show that the applicant took possession of the land and built a fence around it with a gate house which was, curiously, as it were solidified by exhibit D, authored by A. R. Jimoh, Esq – counsel for the respondents. It can be deciphered from those depositions that the applicant was not in the know about the legal battle over the land between the respondents and the appellants in the lower court in suit No. KWS/23/2008 wherein a witness, DW1, mentioned the applicant as one of the beneficiaries of the appellants’ re-allocation of the disputed land. It can be garnered, too, that in Exhibit E, the final product of the said suit, the applicant’s certificate of occupancy was one of those nullified and set aside by the lower court.
Contrariwise, the respondents in their 21 paragraph copious counter-affidavit never doused or punctured those critical averments or facts touching on the applicant’s relationship with the disputed land. On the contrary, some of the respondents’ depositions fortified those of the applicant’s. For instance, the respondents’ depositions in paragraph 12 of their counter affidavit confirmed the presence of fence on the land when their counsel, A. B. Jimoh, ESQ., pasted their exhibit 4 thereon. In the eyes of the law, what is not refuted is admitted and the law gives a court the nod to act and rely on such undebunked facts, see Minister, F.M.R. V. Erh (Nig) Ltd (2010) 12 NWLR (Pt. 1208) 267.
A conglomeration of those facts apply demonstrate that the applicant was aggrieved as it was adversely affected by the nullification and setting aside of its certificate of occupancy No. KW 15399 granted to it over the disputed land. Simply put, the applicant has established that it was deprived of something by exhibit E and ipso facto, it suffered in legal grievance, its title, rightly or wrongly awarded to it, over the land having been affected by judicial extinction by dint of exhibit E, the judgment of the lower court handed down on 31/07/2009.
The respondent tried to show that their own certificate of occupancy No. KWS4807, donated to them by the selfsame appellants, was subsisting and earlier in time than that of the applicant. They, also, raked up the issue of lis pendis. The respondents made a meal of these points. I am afraid, I will turn a blind eye to these dazzling submissions and resist the inviting temptation of delving into them with a view to reaching findings thereon. My raison d’etre for so declining is obvious. To dissect those points and make findings thereon will necessarily entail my plunging into the substantive appeal at this preliminary stage. That will constitute an affront to the law which, seriously, frowns upon any court descending into the domain of substantive matter at an interlocutory stage such as this class of application, see Falowo vs. Banigbe (1998) 6 SCN J 42; Agip (Nig) Ltd Vs. Agrip Petroli Int’l (supra); Enyi bros Food Processing co. Ltd vs. N.D.I.C. (supra); Nwankwo vs. Yar’adua (2010) 12 NWLR (Pt.1209) 518.
It was part of the respondents’ contention, defence to the application, that the applicant could not have been joined as a party to the proceedings in the High Court because it is a Federal Government agency for which the lower court would not have had jurisdiction if it was joined. I concede that under the provision of section 251(1) (p), (q) and (r) of the 1999 constitution, as amended, it is the Federal High Court that has jurisdiction over matters involving a Federal Government agency such as the applicant, see NEPA vs. Edegbero (2002) NWLR (pt. 798) 79; Olutola vs. Unilorin (2004) 18 NWLR (pt. 905) 416; Oloruntoba -oju vs. Dopamu (2008) 7 NWLR (Pt.1085) 1; Osakue vs. F.C.E., Asaba (2010)1 0 NWLR (Pt.1201) 1.
It is not in doubt that the applicant is a Federal government agency by virtue of the provisions of sections 1 and 7 of the Nigerian Meteorological (Establishment) Act, cap N152. Laws of the Federation of Nigeria, 2004.
Be that as it may, I must, without much ado, place on record that the respondents’ view point on this point is as sweeping as it is parochial. This is because the jurisdiction of a court to entertain a matter, in which a Federal Government agency is a party, has two dimensional facets. In this wise, where a Federal Government agency is a party to a proceeding a court is mandated to look at both party and subject-matter jurisdictional aspects of it. That is to say, a court has to, in addition to a party being a Federal Government agency, examine the facts of a matter with a view to determining the subject-matter of it. If the res comes within the jurisdictional provisions under section 251 of the 1999 Constitution, as amended, then the Federal High Court will have, exclusive jurisdiction where the party is a Federal Government agency, where, however, the subject-matter falls outside the precincts of those provisions, then a state High court will be vested with jurisdiction notwithstanding that the party involved is a Federal Government agency. The supreme court has set a seal on this grey and nagging area of law in the case of Obiuweubi vs. CBN (2011) 7 NWLR (pt. 1247) 465. The rationale behind this cardinai principle of law is underpinned by the fact that one of the triumvirate ingredients of jurisdiction is that the subject matter of a case must come within the jurisdiction of the adjudicating court and there is no feature therein which will prevent it, the court, from exercising its jurisdiction, see Madukolu vs. Nkemdilim (1961) 2, NSCC 374; Agbiti vs. Nigerian Navy (2011) 4 NWLR (Pt.146) 175; SLB Consortium Ltd vs. N.N.P.C.(2011) 9 NWLR (Pt. 1252) 317.
In this application, it can be gleaned or discovered from the processes filed, particularly from exhibit E, that the respondents’ action in the lower court, High court of Kwara state, which snowballed into the appellants’ appeal, is predicated on the ownership or otherwise of No. 3 Afon Road, Ilorin, property in dispute. This means that the suit, to all intents and purposes, is a quintessence of land matter. It is far from being an issue of the legality or otherwise of the first appellant’s power to grant certificates of occupancy or aviation and safety aircraft, under section 251(1) (k) of the 1999 Constitution, as amended, as tenaciously, canvassed by the respondents. It is now settled law “that the Federal High Court is not clothed with the jurisdiction to entertain land matters of any kind. By virtue of the prescriptions of sections 39 and 41 of the Land Use Act, Cap L5, Laws of the Federation of Nigeria, 2004, it is the High Court of a State that is vested with the jurisdiction, concurrently with other inferior courts of record, to adjudicate over land matters. Besides, since the Federal High Court is not imbued with the jurisdiction to hear land matters under the provision of section 251 of the 1999 Constitution, as amended, the jurisdiction of the High Court of State over land matters crystallizes pursuant to the provision of section 272 of the 1999 Constitution, as amended.
To bear my view out, I draw on the case of Adetayo v. Ademola (2010) 15 NWLR (Pt.1215) 169 at 192 – 194 wherein Mohammed, JSC, stated:
“Since the provisions of section 251(1) (r) of the 1999 Constitution are not helpful in tracing any jurisdiction in land matters to the Federal High court its jurisdiction of court is derived from statutes conferring the jurisdiction, I decided to examine the provisions of the Land Use Act 1978 which was promulgated specially and specifically to deal with the control and management of land in Nigeria. The courts conferred with jurisdiction to entertain disputes between Nigerians in exercising their right to acquire and use land under the Act are already specified therein. The relevant sections in this respect are sections 39, 41 and 42…
It is quite clear from the provisions of the above sections of the Land Use Act with specific powers and jurisdiction in respect of land matters specified therein conferred on State High Court, Area Court.
Customary Court and Magistrate Court that the Federal High court is not one of the courts conferred with jurisdiction to entertain any dispute in land matters. Infact, the purpose which sections 39, 41 and 42 of the Land Use Act are designed to serve are very clear…. As there is nothing in these section 39, 41 and 42 of the Land use Act that conferred any jurisdiction on the Federal High court to entertain land cause or matters, I entirely agree with the court below that the Federal High court has no jurisdiction to hear and determine any dispute on declaration of title to land”.
see, also, Nkuma vs. Odili (2006) 6 NWLR (Pt. 977) 587; Oladapo vs. Nigeria Customs Service Board (supra).
These authorities castrate the seemingly sterling submission of the respondents that the applicant could not have been joined as a party to the proceedings in the lower court because it is a Federal Government agency that is not amenable or submissive to the jurisdiction of the High court in that land matter.
In sum, in the light of the foregoing, it seems clear to me that the decision of the lower court was inimical or prejudicial to the interest of the applicant in the disputed property. In the circumstance, it is in keeping with the law for the applicant to take refuge under the sanctuary of the expression, “person having an interest in the mater” as entrenched in section 243(a) of the 1999 Constitution, as amended. In the end, I return a positive answer to the earlier poser, id est, that the applicant has duly satisfied the requirements of the enabling provision in section 243(a) aforementioned.
Having found that the applicant is a person having an interest in the matter under appeal, it becomes imperative and compulsive to consider the propriety or otherwise of its second prayer for extension of time within which to appeal against the decision of the lower court as an interested party. Here, the provision of order 7 Rule 10 of the Court of Appeal Rule, 2011 is of note. It states:
“ORDER 7 – APPLICATIONS TO COURT
10-(1) The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.
(2) 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 the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
A grant or refusal of a prayer for enlargement of time, under Order 7 Rule 10 of the Rules, involves, perforce, an exercise of discretion of the court and which discretion must be exercised judicially and judiciously. Judicial discretion, a synonym of discretionary power, a mantra in judicial proceedings, connotes the right or power of a judex to act according to the dictates of his personal judgment and conscience uninfluenced or uncontrolled by the judgment or conscience of other persons, See Suleiman vs. C.O.P., Plateau State (2008) 8 NWLR (pt. 1089) 298 at 318. In any exercise bordering on discretionary power, it is incumbent on an applicant, if he must earn the favourable discretion of a court, to furnish it with sufficient materials to enable it exercise its discretion judicially and judiciously. This is because a court of law does not exercise its discretionary power in vacuo. As a matter of hard law, placing before the court the enabling material facts for exercise of discretion are desiderata for the success of any application involving discretionary power, See Menakaya vs. Menakaya (2001) 16 NWLR (pt. 738) 203; Gen. & Ariation Serv. Ltd vs. Tahal (2004) 10 NWLR (pt. 880) 50; In Re: Mawa vs. NACBCFC Ltd (2007) 7 NWLR (Pt. 1032) 54; Ebe vs. COP (2008) 4 NWLR (Pt. 1076) 189; Ifekande vs. Uzoegwu (2008) 15 NWLR (Pt.1111) 508.
For any application to bear fruit under the provision of Order 7 Rule 10 of the Rules, the applicant must satisfy two twin conditions to wit: (a) that there exists good and satisfactory reasons for not filing his appeal timeously; and (b) that there are substantial and arguable grounds of appeal . The law insists that the two conditions must co-exist, that is, satisfied communally, before a court can grant this kind of application. Such application must be accompanied by an affidavit which must state enough reasons for the delay, the judgment or ruling of the lower court against which the applicant is seeking to appeal against and the proposed grounds of appeal against the judgment or ruling, see Enyibro Foods Processing Co. Ltd vs. N.D.I.C (supra); Adelekan vs. Ecu-line Nv (2006) 12 NWLR (Pt.993) 33; Oyegun vs. Nzeribe (2010) 16 NWLR (Pt. 1220) 568.
I must observe, pronto, that the application itself is in accord with the law in the sense that it is supported by a 26 paragraph affidavit, with loads of exhibits attached thereto and an 8 – paragraph reply affidavit. The judgment of the lower court, being appealed against, is attached to the application as exhibit E. Also, the applicant’s proposed grounds of appeal are annexed to the application as exhibit C.
Now, for the twin conditions, which the applicant must satisfy, I will tackle them in their numerical sequence. In this wise, I kick off with the first condition, existence of good and satisfactory reasons for the delay in filing the appeal. Has the applicant satisfied this condition? The applicant’s reason is found in paragraphs 20 and 21 of its affidavit in support of the application wherein it is averred as follows:
“20.The applicant then filed an application dated 29th June, 2010, which amongst other prayers asked the court to set aside its judgment. In a ruling delivered on the 21st day of September, 2010 the court refused to grant the prayers of the Applicant, a photocopy of the ruling is attached marked Exhibit E.
21. Applicant counsel Oladisun Delano Esq, informed me of the following facts and I verily believe him.
a. After the ruling EXHIBIT E Applicant Legal Adviser was informed of the outcome and advised that further steps will have to be taken at the Court of appeal. Upon receiving this advice the said applicant Legal Adviser called Mr. Delano by phone and instructed him to proceed with filing the necessary papers at the Court of Appeal.
b. About this time Mr. Delano was traveling to the United States of America for three weeks and asked Ms. Lola Omoyele a senior Counsel in his chamber to tidy up the draft papers he left behind and cause same to be filed at the Court of Appeal, Ilorin upon receipt of Exhibit E.
c. upon receipt of the said Exhibit E, Ms. Omoyele did not complete the assignment and left the chamber of OLADISUN DELANO & CO. at the end of October 2010. d. The Legal Adviser of the Applicant called Mr. Delano on the Thursday 26th May, 2011 to find out the position of the matter. It was at that stage that Mr. Delano discovered that the motion has not been filed.
e. The delay in bringing this application is not due to the fault of the Applicant, but to the mix-up in the chamber of their counsel.”
I have given a holistic and a microscopic examination to these averments. A resume of the applicant’s reason, for its tardiness in filing the appeal, is a mix-up in the internal organization of the chambers of its legal practitioner, Oladisun Delano & Co. That, to my mind, signifies negligence or inadvertence of counsel which, in the eyes of the law, is a pardonable and acceptable reason for delay in filing appeal. This is owning to the hallowed rule of law that a party does not bear the brunt of negligence of counsel. In the case of Nwora vs. Nwabueze (2011) 15 NWLR (pt. 1271) 467 at 505, the apex court, per Adekeye JSC, held:
“The Supreme Court will normally exercise its discretion judicially and judiciously. It will exercise its discretion in favour of the appellant where failure to file on time was due to the negligence of the counsel or excusable or pardonable error of counsel. The failure of the party to act within time when caused by an omission or lapse of counsel will not be taken out on an appellant…
This is extended to error of judgment or inadvertence on the part of the counsel’s clerk or failure of communication at the crucial time between him and the plaintiff/appellant/applicant particularly where the mistake or inadvertence is in respect of procedural matters. The court wilt usually lean towards accommodating the party in the interest and a determination of the case on the merits.”
The respondents, vehemently, argued that the applicant’s failure to state the name of its legal adviser amounted to a violation of the provision of section 115(3) and (4) of the Evidence Act, 2011. I am not at one with the respondents in that their stance. The deponent to the applicant’s affidavit hosting the aforesaid paragraph 21, Adebayo Omotosho, categorically mentioned the name of the informant, Oladisun Delano, Esq, as the person who fed or relayed those facts to him. To me, that is a substantial compliance with the requirement of the provision of section 115 (3) and (4) of the Evidence Act, 2011, a far cry from an infraction of it.
Since the applicant’s reason for dithering in filing the appeal, fault of counsel, has the blessing or imprimatur of the law, I entertain no doubt that the applicant has duly fulfilled the first condition-precedent for a grant of the second prayer. In all, the applicant has showcased good and satisfactory reason for its delay in not filing the appeal within the time bracket ordained by law.
That takes me to a consideration of the second of the twin conditions viz-existence of substantial and arguable grounds of appeal. In dealing with this delicate condition, I am not oblivious of the law that my duty is circumscribed by law to only discovering whether the applicant’s grounds of appeal are substantial or material and unveil arguable grounds and nothing else. The reason for the limitation of this duty is not far-fetched. If a court goes beyond the four walls of the assigned duty, it will be, unwittingly, delving into the substance or merit of the appeal, which is still in escrow, at an interlocutory stage which the law, seriously, deprecates in all ramifications, See Enyibros Food Processing Co. Ltd. vs. N.D.I.C. (supra); Adelekan vs. ECU -Line Nv (supra); Oyegun vs. Nzeribe (supra); Folowo vs. Banigbe (supra). In due obeisance to the prescription of the law, I will limit my duty within its ambit.
The applicant’s notice of appeal is annexed to the application vide paragraph 23 of the affidavit in support of the motion as exhibit C. The applicant’s two grounds of appeal are encapsulated in the notice of appeal. I have perused the two grounds of appeal with a fine toothcomb, being mindful of the fragile nature of my duty under this condition. Suffice to say that those grounds, abundantly, demonstrate substantial, material and arguable grounds worthy of consideration. This is particularly so as the grounds evince and, at once, launch vitriolic attacks on the applicant’s inalienable or inviolable right to fair hearing over the lower court’s decision which extinguished its right of occupancy over the property in dispute behind it. On account of these, I am satisfied that the applicant has met this second condition precedent for a grant of the applicant’s second relief. Overall, on the premise of the foregoing, I hold that the applicant has fulfilled the twin conditions for a grant of its second prayer – extension of time within which to appeal against the judgment of the lower court. On this premise, I, therefore, welcome the applicant, as a party having an interest in the matter, to the appellants’ pending appeal.
On the whole, given the reasons advanced heretofore, I hold that the applicant’s application is imbued with merit.
Consequently, I grant the application. Accordingly, I order:
(a) That the applicant is granted extension of time within which to seek leave to appeal, as a party having an interest in the matter, against the judgment of the lower court delivered on 31/07/2009.
(b) That the time within which the applicant shall file its appeal, as a party having an interest in the matter, be and is hereby extended to today, 26/04/2012.
(c) That the applicant is granted leave to appeal, as a party having an interest in the matter, against the judgment of the lower court delivered on 31/07/2009.
(d) That the applicant be and is hereby given twenty-one (21) days, from tod ay 26/04/2012 to file its appeal.
(e) That parties bear their respective costs of prosecuting and defending the successful application.
ITA G. MBABA, J.C.A.: I had the privilege of advanced knowledge of the well articulated Ruling just delivered by my learned brother, Obande F. Ogbuinya JCA, having taken part in the hearing and conference. I agree with him completely that the applicant seeking to be joined is a necessary party, whose joinder will enable this Court to effectually and completely settle all the questions arising for resolution in the case, especially as the Applicant shall be bound by the order to be made in the case. See the case of Green vs. Green (2001) FWLR (Pt.75) 795 held 4, as to who are necessary Parties;
“… those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with … and that question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action …”
See also Lawal vs. P.G.P. Nig. Ltd (2001) 17 NWLR (pt.742) 393; Mobil Oil PLC v. DENR LTD (2004) 1 NWLR (pt.853) 142.
For this reason and more elaborate reasons in the lead Ruling, I too, allow the application and abide by the reliefs granted in the lead Ruling.
TIJJANI ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead ruling which my learned brother Obande Ogbuinya JCA, just delivered. His Lordship has meticulously and exhaustively dealt with all the live issues that call for determination in this application. Admirably too, his Lordship resolved all in favour of the Applicant. I endorse my Lordship’s conclusion that the applicant is meritorious and I too allow it in the terms set out in the lead ruling. I abide by all the consequential orders therein contained.
Appearances
D.O. DELANO ESQFor Appellant
AND
A.B. JIMOH ESQFor Respondent
