PRINCE FESTUS IKUGBANMIRE & ORS. v. CHIEF M. I. O. KUDEHINBU & ORS.
(2013)LCN/6120(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of April, 2013
CA/B/288/2006
RATIO
“For an application for extension of time to succeed, 2 circumstances must co-exist. These are: – (1) Good and substantial reasons for the failure to appeal within the period prescribed by the appropriate rule of court; and (2) Grounds of appeal which show good reasons why the appeal should be heard. See BOWAJE v. ADEDIWURA (1970) 6 SC 143.” Per GUMEL, J.C.A
“An appeal which is filed out of time without leave is incompetent. However, this court may extend the periods prescribed by the court of Appeal for the giving of notice of appeal.” Per GUMEL, J.C.A
“I consider the law to be well defined and settled that to qualify as a person having an interest in the matter, two tests are proffered. The first and common test is whether such a person might have been a party to the suit culminating in the appeal. The other test is whether the person is aggrieved by the judgment appealed against. Since the decision in MAJA v. JOHNSON (1951) 13 WACA and lately in BUSARI V. OSENI (1992) 4 NWLR (Pt 237) 557 the courts have maintained that these 2 tests are distinct even though one person may qualify in both respects. Each stands of its own independent of the other.” Per GUMEL, J.C.A
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. PRINCE FESTUS IKUGBANMIRE
2. PRINCE ENIOLA OJUTIRI
3. PRINCE ESANBO ASEMUDARA
4. PRINCE ADEYANJU OMOGUNWA
5. PRINCE JETHRO OGUNYE
(For themselves and on behalf of the Kulajolu Royal Family of the Ademitufewa Ruling House of the Maporure of Agerige Kingdom) Appellant(s)
AND
1. CHIEF M. I. O. KUDEHINBU
2. PRINCE RICHARD ADUBI KUDEHINBU
AND
1. MR. NEWTON OLUWOLE
2. MR. TIMOTHY OLUWOLE
(For themselves and on behalf of Awoete Akata Family Substituted by Order of Court dated 10/3/11
3. ILAJE LOCAL GOVERNMENT
4. GOVERNMENT OF ONDO STATE
5. ATTORNEY-GENRAL ONDO STATE
6. PRINCE ILESANMI IKUEMONISAN MAFO Respondent(s)
ALI ABUBAKAR B. GUMEL, J.C.A. (Delivering the Lead Ruling): In a motion on notice dated 22/9/11 and filed on 23/09/11, the Applicants sought for 4 main reliefs. They are: –
“1. AN ORDER granting LEAVE to the applicants to appeal to this Honourable Court as a party affected and having interest in the matter against the judgment in suit No.HOK/8U99 delivered on 15-03-06 by Honourable Justice W. A. Akintoroye of the Ondo State High Court Okitipupa Judicial Division.
2. AN ORDER of this Honourable Court extending the time within which the Applicants may file their Notice and grounds of Appeal in this case.
3. AN ORDER of this Honourable Court deeming as properly filed and served the applicants Notice of Appeal, necessary fees having been paid.
4. AN ORDER permitting the Applicants to use the records of Appeal compiled for the prosecution of the Appeal in APPEAL NO: CA/B/288/2006 which is before this Honourable Court
The application was brought pursuant to S. 243 (a) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. Order 7 rules 1 and 10 of the Court of Appeal Rules 2011 as well as under the inherent jurisdiction of this court.
The grounds for the application are very detailed and are hereby reproduced thus: –
“1. The Applicants are persons affected and interested in the subject matter of the Appeal.
(a) The action at the lower court culminating in Appeal No. CA/B/288/2006 now before this Honourable Court and the Application of the Applicants/Appellants herein are in respect of the right to the throne of Maporure of Agerige-Aheriland in the Ilaje Local Government Area of Ondo State.
(b) The right to the throne of Maporure of Agerige Aheriland is among the 9 male children of Osobitan who descended from Ademitufewa the progenitor of Aheri people.
(c) The said 9 children are Kulajolu (the 1st son and lineage of the Applicants), Awete (the lineage of the plaintiff and the 1st and 2nd Defendants), Gbangun, Peteino, Tehinmowo, Fafo, Molutehin (the lineage of the 6th Defendants), Uhiomare, and Oguntimehin.
(d) The Applicants (Kutajotu Royal Family) has long nominated Prince Esanmbo Asemudera who is a party to this application as the candidate of the Applicants family for the vacant stool of the Maporure of Agerige Aheriland
2. The Plaintiffs deliberately refused to include the Applicants/Appellants as necessary parties in order to exclude them from their inheritance
3. The Applicants are mandatory and necessary parties to this case
4. The judgment of the lower court will effectively exclude the Applicants/Appellants from their inheritance and irreparably prejudice their interests in the Maporure of Agerige Aheriland chieftaincy.
5. The Applicants were not aware of this case at the lower court.
6. The Applicants only became aware of the case through one of the family members who is a legal practitioner and coincidentally in court for another matter when he heard the case being mentioned at the Court of Appeal in Benin.
7. The Applicants now being aware immediately filed Application for joinder of the Appeal on 07-09-2009 at the Benin Division of this Honourable Court
8. The Applicants withdrew the Application for joinder when the present named 1st & 2nd Respondents were substituted for the deceased 1st Respondent, by the order of this Honourable Court on 10-03-2011.
9. The grant of this Application will ensure holistic consideration of the case by this Court and avoid multiplicity of action and proceedings.
10. The Applicant need and are seeking the leave of this Honourable Court to appeal as interested persons.
11. The Applicants also need and are seeking the leave of this Honourable court to file their Notice of Appeal.”
In support of the application is a 41 paragraph no less copious affidavit. It was deposed to by the 1st Applicant on behalf of himself and the other 4 applicants.
The 1st and 2nd Respondents filed a 16 paragraph counter affidavit to oppose this application wherein they denied and challenged paragraphs 2 to 27, 30, 31, 34, 36, 38 – 41 of the affidavit in support. It was deposed to by the 1st Respondent on behalf of himself and the 2nd Respondent.
The court ordered respective learned counsel to file and exchange written addresses. The address of the Applicants is dated 19/11/12 but filed on 22/11/12. The 1st and 2nd Respondents responded with an address dated and filed on 16/01/13 but deemed properly filed and served on 19/2/13. The other set of Respondents did not join issues with the applicants and did not file written address. The reply address of the Applicants to the address of the 1st and 2nd Respondents is dated 5/2/13 but deemed filed and served on 19/2/13.
At the hearing of the application on 19/2/13 respective counsel who filed written addresses adopted and relied on same. After adopting his written address, learned Counsel Mr. Ogungbamila for the Applicants relied on all the arguments and submissions therein and urged on the court to grant the application, while learned Counsel Mr. Atewe for the 1st and 2nd Respondents urged on the court to refuse the application and dismiss same. On behalf of the Appellants/Respondents, learned Counsel Mr. Abioje told the Court that he had no objection to the granting of the application. Mr. Omotayo, learned Counsel to the 3rd Respondent indicated that he too had no objection to the granting of the application, while respective learned counsel to the 4th and 5th respondents and 6th Respondent, though duly served with hearing notice, were not in court on 19/2/13.
In his address, learned Counsel Mr. Ogungbamila formulated 2 issues for the determination of this application. They are: –
(1) Whether the Applicants are persons interested in the subject matter of this appear as to be entitled to the leave of this honourable court to appeal against the judgment of the lower court
(2) Whether the applicants are entitled to the extension of time within which to appeal.
In opposition to the application Learned Counsel Mr. Atewe identified a single issue for the determination of the application. It is thus: –
Whether the Applicants can validly appeal as interested party when their claim is in violent contradiction or materially different from the case of the Appellants and other parties in the appeal
It appears to me that the 2 issues identified and argued on behalf of the Applicants appear to be more encompassing and I shall proceed to determine this application on those issues.
In arguing the 1st issue, learned Counsel referred to S.243 of the constitution and suggested that the Applicants are persons interested within the meaning contemplated therein and who are entitled to be granted leave to appeal as such. While referring to a number of decisions of this Court and the Supreme Court, learned counsel pointed out that in all those decisions the courts have held that a person who is not a part to a suit but claims that he has an interest in the matter or orders made therein and desires to appeal against that decision or order may do so with the leave of court. Learned Counsel then specifically focused on and quoted extensively from the decisions in OLAYIOYE V. AJIBIKE (2009) 1 NWLR (Pt.1123) 650, In Re: MADAKI (1996) 7 NWLR (pt. 459) 153 at 163, Re: NDAYAKO (2003) 4 NWLR (pt. 809) 42.
Against this background learned counsel emphasized the decision of this court in OLAYIOYE V. AJIBIKE (Supra) which in his opinion has similar facts and circumstances thereby relying on it as most applicable. In a further effort learned counsel pointed out some of the key and material averments in the affidavit in support. He underscored and highlighted those salient facts and specifically referred to paragraphs 25 – 29 for maximum effect. After this, learned counsel took on the counter affidavit of the 1st and 2nd Respondents. According to learned counsel paragraph 13 of the counter affidavit goes to vindicate the stand of the Applicants that they are parties interested in the outcome of this appeal. With respect to paragraph 9 of the counter affidavit, learned counsel pointed out that it derogates from the principle of law laid down by this court in Re: NDAYAKO (Supra). He urged the court to discountenance the suggestion of the 1st and 2nd Respondents for the Applicants to commence a fresh action. Rather, he urged on the court to approve the procedure of allowing an interested part to get involved with the matter at the Appellate stage in order to avoid unnecessary delay in ventilating whatever complaints they have against the judgment on appeal. He urged on the court to uphold the disclosed interest of the Applicants and grant them leave to appeal.
In what I consider to be his response to the points argued above, Mr. Atewe, contended that the proposed grounds of appeal of the Applicants, as interested parties are materially different from the case of the Appellants on record. He also argued that 2 sets of Appellants should not be allowed to set up conflicting claims. He characterized this application as an unnecessary distraction and urged on this court to refuse it and strike out same with substantial costs. Right from paragraph 1.9 to the end of his unpaginated written address, learned counsel, Mr. Atewe appeared to have gone ahead to argue the proposed appeal of the Applicants. This is highly pre-mature and prejudicial to a proper and fair determination of this application. I therefore discountenance all those arguments and submissions.
I have carefully considered all the foregoing arguments and submissions of respective learned counsel. Against this background, I consider the law to be well defined and settled that to qualify as a person having an interest in the matter, two tests are proffered. The first and common test is whether such a person might have been a party to the suit culminating in the appeal. The other test is whether the person is aggrieved by the judgment appealed against. Since the decision in MAJA v. JOHNSON (1951) 13 WACA and lately in BUSARI V. OSENI (1992) 4 NWLR (Pt 237) 557 the courts have maintained that these 2 tests are distinct even though one person may qualify in both respects. Each stands of its own independent of the other.
The averments in paragraphs 24 to 31 are very strong and pungent as to raise a sufficient belief in the mind of a court that the applicants have shown sufficient interest in the outcome of Suit No. HOK/81/99. None of the paragraphs of the counter affidavit of the 1st and 2nd Respondents is strong or cogent enough as to specifically challenge or contradict these averments of the Applicants. Paragraph 4 of the counter affidavit is bare, empty and bereft of any substance as to stand in the way of this application. I am fully satisfied that the applicants have disclosed enough grounds to show an interest to convince this court to grant them leave to appeal as an Interested party. I accordingly so do.
An appeal which is filed out of time without leave is incompetent. However, this court may extend the periods prescribed by the court of Appeal for the giving of notice of appeal. For an application for extension of time within which to appeal to succeed, 2 circumstances must co-exist.
These are: –
(1) Good and substantial reasons for the failure to appeal within the period prescribed by the appropriate rule of court; and
(2) Grounds of appeal which show good reasons why the appeal should be heard.
See BOWAJE v. ADEDIWURA (1970) 6 SC 143.
I have considered paragraphs 21 and 22 of the supporting affidavit of the Applicants and the purported notice of appeal exhibited in this application and I am fully satisfied that the Applicants have shown enough good reasons to be granted extension of time to file their notice of appeal.
Against the foregoing background the Applicants are hereby granted leave to file their own separate appeal against the judgment of the Ondo State High Court, Okitipupa Judicial Division delivered on 15th March, 2006 in suit No. HOK/81/99 by Akintoroye, J. pursuant to their prayer 2 herein, the Applicants are granted extension of time to file their own notice of appeal against the judgment of Akintoroye, J, of the Ondo State High Court, Okitipupa Division delivered in suit No. HOK/81/99 on 15th March, 2006. The notice of appeal shall be filed at the lower court within 21 days from today. Prayer 3 for a deeming order on filed and served purported notice of appeal is refused and struck out. Prayer 4 is also refused. The applicants shall compile and transmit their own record of appeal.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the advantage of reading in draft the ruling of my learned brother, Gumel, JCA just delivered. I agree that the application should be granted in the terms set out in the said ruling.
I adopt and abide by all the orders made therein.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the Ruling of my learned brother, Ali Abubakar B. Gumel, JCA just delivered now. I agree entirely with all the reasoning and conclusions of His lordship and I adopt them as mine.
I abide by all the consequential orders of His Lordship.
Appearances
Mr. Sam Ogungbamila for the Appellants
Mr. P. O. Abioje for the Appellants/RespondentsFor Appellant
AND
Mr. C. Atewe for the 1st and 2nd Respondents
T. Omotayo for the 3rd Respondent
4th and 5th Respondent not represented
6th Respondent not represented.For Respondent
