EZE FESTUS ODIMEGWU & ORS v. COUNTY & CITY BRICKS DEVELOPMENT COMPANY LIMITED & ORS
(2013)LCN/6606(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of December, 2013
CA/L/629M/12
RATIO
RIGHT TO APPEAL: WHETHER AN “INTERESTED PARTY” WISHING TO APPEAL MUST OBTAIN LEAVE OF THE HIGH COURT OR THE COURT OF APPEAL, PRIOR TO THE HEARING OF THE APPEAL
It is manifest from a careful reading of section 222 (a) of the 1979 Constitution that under that section either party to the action in the High Court has a right of appeal on the Court of Appeal. But where a party, described as an “interested party” wishes appeal against the decision of the High Court, that party is obliged to obtain leave of the High Court or the Court of Appeal, prior to the hearing of the appeal. But such leave can only be granted to that “interested party” if he could show his interest in the decision for which he is seeking leave to appeal. It is therefore clear, in my respectful view, that a busy body or a meddler in the affairs of others is not likely to be granted such leave.
In other words, a person who wishes to appeal in such circumstances must show that he was aggrieved by the decision, in the sense that he had suffered a legal grievance. He must show that the decision wrongfully deprived him of something or wrongfully refused him something. It must also be shown that the decision is likely to affect or aggrieve the person seeking for such leave to appeal to the court of appeal. See In Ex parte In re Side botham (1880) 14 Ch. D. 458 at 465; Sun Insurance Office Ltd. v. Ojemuyiwa (1965) 4 N.S.C.C. 65; (1965) 1 All NLR1; Ikonne v. C.O.P. Nwachukwu (1986) 4 NWLR (Pt. 36) 473, 497 (per Ejiwunmi JSC, as he then was). PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBOAR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
EZE FESTUS ODIMEGWU & ORS Appellant(s)
AND
COUNTY & CITY BRICKS DEV. CO. LTD. & ORS Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Lead Ruling): The Applicants by their application dated 12th day of August, 2012, seek an order for extension of time to apply for leave to appeal, leave to appeal and extension of time to appeal to this court as persons interested against the decision of the Federal High Court delivered on 8th June, 2009 by Abdulahi Mustapha (C.J). The Applicants application dated the 12th day of August, 2012 was filed on the 24th of August, 2012. The Applicants are seeking for the following reliefs:
(a) An Order pursuant to section 243 (a) of the Constitution of the Federal Republic of Nigeria 1999, Order 7 Rule 2 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of this honourable Court extending the time within which the Parties Interested/Applicants may apply for leave to appeal to the Court of Appeal against the decision of the Federal High Court sitting in Lagos delivered on 8th June, 2009 by Hon. Abdullahi Mustapha CJ in Suit No: FHC/L/CS/368/07 as persons interested in the matter;
An Order pursuant to section 243(a) of the Constitution of the Federal Republic of Nigeria 1999, Order 7 Rule 2 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of this honourable Court granting leave to appeal against the decision of the Federal High Court, Lagos Division delivered on 8th June, 2009 by Hon. Abdullahi Mustapha CJ in Suit No: FHC/L/CS/368/07 as persons interested in the matter; and
An Order pursuant to section 243(a) of the Constitution of the Federal Republic of Nigeria 1999, Order 7 Rule 2 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of this honourable Court extending the time within which the Applicant may appeal against the decision of the Federal High Court delivered on 8th June, 2009 by Hon. Abdullahi Mustapha CJ in Suit No: FHC/L/368/07 as persons interested in the matter.
1.2 The grounds of the application are stated on the face of the motion as follows:
(a) The Applicants are persons whose property interests are affected by the judgment of the lower court in suit No: FHC/L/CS/368/07 despite that they were not Parties to the suit;
(b) The 1st Respondent has taken steps to enforce the said judgment given in its favour to the detriment of the Applicants’ interests in their properties over which the judgment was given;
(c) The time for bringing the application has elapsed;
(d) The proposed notice of appeal exhibited hereto disclose substantial and arguable grounds of appeal some of which challenge the jurisdiction of the Federal High Court to, inter alia, grant declaratory reliefs in respect of land or entertain disputes touching on breach of contract;
(e) The delay in bringing this application was due to counsel’s error on the previous applications for the same prayers; and
(f) The grant of this application accords with public policy and would occasion no prejudice to any party;
1.3 The application is supported by affidavits sworn as follows:
(a) a 21-paragraph affidavit deposed to by Adefolake Sadiq on the 24th day of August, 2012 and attached exhibits that accompany the motion (hereinafter referred as the affidavit; and
(b) a 5-paragraph further affidavit deposed to by Adefolake Sadiq on the 15th day of February 2013 (hereinafter referred to as the further affidavit),
1.4 Also, in response to the counter-affidavit of the 1st Respondent sworn by Ismaila Ibrahim on the 20th day of November 2012, there is a 9-paragraph affidavit in reply sworn by Adefolake Sadiq on the 11th day of February, 2013.
1.5 When the application last came up before this honourable court on the 11th day of June, 2013, because the 1st Respondent indicated through its counsel that it would be opposing it the court directed that briefs be exchanged seven days for each party with liberty to the Applicants to file a reply brief within five days. The application was accordingly adjourned to the 8th day of October, 2013 for hearing.
ISSUE FOR DETERMINATION
The Applicatants submit that there is a sole issue for determination based on the prayers sought to wit:
Whether based on the totality of the material before the Court, the Applicants have shown good reason why time should be extended for them within which to appeal and why leave should be given to them to appear as persons interested!
The sole issue for determination is captured in the Applicants brief in support of application dated 12/8/12 for extension of time to appeal etc. settled by the learned senior counsel E. O. Sofunde SAN.
The 1st Respondent filed a counter affidavit to Applications application of 12th August 2012. The said Counter – affidavit is dated and filed the 28th of November 2012. Learned senior counsel Oluyele Delano, S.A.N. for the 1st Respondent’s pursuant to the order of this court filed a written address dated and filed the 18th July, 2013. He identified a sole issue for determination therein to wit:
“Whether the Applicants have a recognizable legal interest or suffer a legal grievance by the judgment in Suit No: FHC/L/CS/368/07 to entitle them to appeal as interested parties against that judgment.”
Having perused the application and the ground upon which it is anchored, vis-Ã -vis the sole issue formulated for determination by each counsel to the parties, I am satisfied that the sole formulated by the learned Senior Counsel for the Applicants is quite apt and will be considered for the determination of this application.
ISSUE FOR DETERMINATION, whether, based on the totality of the material before the court, the Applicants have shown good reason why time should be extended for them within which to appeal and why leave should be given to them to appeal as persons interested?
It is the contention of the learned senior counsel to the Applicants that the Applicants not being parties at the trial in the lower court, their right of appeal derives from section 243 (a) of the Constitution of the Federal Republic of Nigeria 1999, that prescribes that such right of appeal by a person interested shall be with leave. The test for determining a person interested has been laid down as a person who has a recognizable stake and standing in the matter. See: In Re: Opekun (2004) 6 NWLR (Pt. 870) 576 at 599. Further apart from being a person interested, one must show that the order sought to be appealed prejudicially affected him. See Owena Bank (Nig.) Plc v. N.S.E. Ltd (1997) 8 NWLR (Pt. 515) 1 at 18 – 19.
Learned senior counsel argued further with regard to how the Applicants have been affected by the judgment, the last page of the judgment page 154 of Exhibit “OB1”, shows that the land has been granted to the 1st Respondent. And in furtherance of this judgment, paragraph 7 of the affidavit shows that the 1st Respondent has tried to enforce the judgment against the Applicants. The 1st Respondent in paragraph a (a) of the Counter-affidavit (the general traverse) denied this averment. But paragraph 10 sub-paragraphs (a) (b) (c) allege that the 1st Respondent has taken action to recover the land from the Applicants based on the judgment and pages 168 to 171 and 172 – 178 of Exhibit “OB1”
are processes filed by the 1st Respondent in lower court against Applicants.
Learned senior counsel argued further on the fact of being out of time. There are two prayers for extension of time that is to apply for leave to appeal and for leave to appeal. In such a case, two things must be satisfied, an explanation for the delay and arguable grounds of appeal. See Williams v. Mokwe & Anor. (2005) 15 NWLR (Pt. 954) 249 at 268 – 269.
Learned counsel further argued that as to the delay in bringing this application, there is material to show that the Applicants approached the lower court within time but time ran out through no fault of theirs. Rule 6 of the Rules provides that where the application was brought within time but was not heard within the period stipulated for appealing the Court if satisfied that there was no unreasonable delay in bringing it, may extend time. The facts supporting the conclusion stating herein are stated at paragraphs 3.2.1 to 3.2.3 above. After time ran out the Applicants took various steps before this court to obtain extension but one error of counsel or other aborted such applications before the present application under consideration. See paragraphs 14 – 18 of the affidavit. Also paragraph 3 of the further affidavit. These facts brings the applicants to the consideration of this court. See Iroegbu & Anor. v. Okwordu & Anor. (1990) 6 NWLR (Pt. 159) 643 at 660; Ogunbiyi & Ors. v. Mustapha (1996) 4 NWLR (Pt. 442) 337 at 346; Minister of Petroleum and Mineral Resources & Anor. v. Expo Shipping Line (Nig.) Ltd. (2010) 12 NWLR (pt. 1208) 261 at 288; John Iboroma & Ors. v. Blakk & Ors. (1998) 6 NWLR (pt. 555) 524 at 543.
Learned counsel further argued that, there are sufficient arguable grounds to support this application. Paragraph 13 of the affidavit makes reference to the notice of appeal. It is at page 163 – 167 of exhibit “OB1”. Ground 1 raises the issue of the jurisdiction of the Federal High Court to adjudicate over a cause of action that relates to title to Land. Ground 2 raises the issue of limitations. Ground 3 raises the issue of the wrongful evaluation of evidence by failing to take cognizance of a relevant document before the Court. All theses grounds are arguable. At this stage there is no need to show that the appeal will succeed but that it is arguable. See Holman Bros. (Nig.) Ltd. v. Kigo (Nig.) Ltd. & Anor (1980) Vol. 12 N.S.C.C. 251 at 260.
Learned counsel argued on the weight to be attached to the counter affidavit as there to the credibility of paragraphs 4(a), 5, 5(a) of the Counter affidavit.
In response to these arguments, learned counsel to the 1st Respondent argues that, a person is not entitled to institute suit at his whim, a person is not permitted to appeal a decision, in respect of which it was not a party (at the trial court), at its whim, to maintain a suit the law requires a person to establish his “locus standi” i.e. his legal right or interest in the subject matter. Likewise to seek leave to appeal. The mere fact that the effect of judgment may affect a person in his commercial interest does not give person a legal right to challenge the judgment on appeal, The authorities cited by Appellants in Re-Opekun (supra), Owena Bank v. NSE (supra) which both applied the decision of the Supreme Court in Ikonne v. C.O.P. Imo State (1986) 5 NWLR (Pt. 36) 473 have all now being overtaken by the Supreme Court’s decision in Societe Generale Bank (Nig) Ltd. v. Afekoro (1999) 11 NWLR (Pt. 628) 521 at 539, 541.
Learned counsel argues further that, the applicants have admitted that they entered the land in dispute pursuant to certificates of occupancy issued to them by the Appellants for a term of years. Paragraph 5 (a) and (c) of the Applicants Reply Affidavit and paragraph 5 (e) – (p). The relationship between a holder of Certificate of Occupancy and the grantor is one of Landlord/Tenant or Lessor/Lessee. Consequently as a matter of Law, the Applicants herein who are holders of Certificate of Occupancy issued by the Appellants are Tenants of the Appellants (who is the purported title holder and who is said to have the reversionary interest in the land). See: Savannah Bank of Nigeria v. Ajilo (1989) 1 NSCC 135 at 150 lines 45 – 50, Ezeanah v. Atta (2004) 7 NWLR (Pt. 471) 500.
Learned counsel argues further that, having shown that the Applicants are merely Tenants of the Appellant and that the dispute between the Appellant and the Respondent concern “Title” to a disputed land, the real question to answer is: Whether a Tenant has a legal interest in his Landlord’s title or whether a Tenant can be said to suffer a legal grievance against a Judgment nullifying his Landlords title? No doubt Tenants or lessee who Landlord or Lessors Title has been defeated will be affected in their commercial interest or stake and will suffer inconvenience as a consequence of the title defeat but such commercial interest stake or inconvenience cannot ripen into a Legal right or interest, which is the concern of the Court of Law. See A.G. Lagos State v. A.G. Federation (2004) 18 NWLR (Pt. 904) 1 at 126. Also as a matter of pure Law a Tenant can suffer no legal grievance nor does a tenant have locus standi to challenge by appeal a decision made against its Landlord’s title. Although this stands to logic, there is also direct Legal authority of the Supreme Court on this point. See: Archibong v. Ita (2004) 2 NWLR (Pt. 858) 590, at 630, 631; Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1165) 81 at 127.
Learned counsel argues further that, the Applicants in this case (being Tenants) are strangers to the Appellants title and have no Legal interest to defend or establish in a suit in which the ownership or title of his Landlord is in issue. Consequently the Applicants are not persons having interest in the judgment against their Landlord’s title ought not be granted leave to appeal the judgment. Applicants cannot cry more than the bereaved, they cannot prove a better than Landlord.
On the part of this court, the Applicants application is brought pursuant to section 243 (a) of the Constitution of the Federal Republic of Nigeria 1999. For ease of reference that section provides as follows:-
Any right of appeal to the Court of Appeal from the decisions of Federal High Court or a High Court conferred by this constitution shall be –
(a) Exercisable in the case of Civil Proceedings at the instance of a party thereto, or with the Leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of Criminal Proceeding at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings at the instance such other authorities or person as may prescribed.
Our interest for the purposes to this appeal with relation to section 243 (a) CFR 1999 is “at the instance of any other person having an interest in the matter…” In other words, an appeal as interested party. The Applicants pursuant to said section 243 (a) CFR 1999 and under Order 7 Rule 2 of the court of Appeal Rules 2011 are seeking for extension as parties interested/applicants to apply for leave to appeal to this court, against the decision of the Federal High Court sitting in Lagos.
Order 7 Rule of the Court of Appeal Rules 2011 provides as follows:
“Any application to the Court for leave to appeal (other than an application made after the expiration of the time for appealing) shall be by notice of motion, which shall be served on the party or parties affected.”
Who then is the person interested or an interested party, who may seek for the leave of this court to be joined in the appeal, hitherto not a party to suit at the 1st Court of trial. The Supreme Court in giving effect to the provisions of section 222 (a) of the 1979 Constitution of the Federal Republic of Nigeria, which is pari materia with section 243 (a) of the 1999 Constitution, in the case Societe Generale Bank (Nig.) Ltd. v. Afekoro (1999) 11 NWLR (Pt. 627) 52 at 541 – 542 stated as follows:
It is manifest from a careful reading of section 222 (a) of the 1979 Constitution that under that section either party to the action in the High Court has a right of appeal on the Court of Appeal. But where a party, described as an “interested party” wishes appeal against the decision of the High Court, that party is obliged to obtain leave of the High Court or the Court of Appeal, prior to the hearing of the appeal. But such leave can only be granted to that “interested party” if he could show his interest in the decision for which he is seeking leave to appeal. It is therefore clear, in my respectful view, that a busy body or a meddler in the affairs of others is not likely to be granted such leave.
In other words, a person who wishes to appeal in such circumstances must show that he was aggrieved by the decision, in the sense that he had suffered a legal grievance. He must show that the decision wrongfully deprived him of something or wrongfully refused him something. It must also be shown that the decision is likely to affect or aggrieve the person seeking for such leave to appeal to the court of appeal. See In Ex parte In re Side botham (1880) 14 Ch. D. 458 at 465; Sun Insurance Office Ltd. v. Ojemuyiwa (1965) 4 N.S.C.C. 65; (1965) 1 All NLR1; Ikonne v. C.O.P. Nwachukwu (1986) 4 NWLR (Pt. 36) 473, 497 (per Ejiwunmi JSC, as he then was).
Going by this elaborate definition of the “interested party” what then is the position of the applicants with respect to their leave application before this court? The Learned senior counsel to the 1st Respondent had tried to make a fine distinction between what he calls a Legal interest which he maintained the applicants do not possess and a commercial interest which applicants possesses, but cannot be the concern of the court. The decision of Societe Generale Bank (Nig) Ltd. v. Afekoro (supra) in my humble view has widen the scope of the definition of “interested party”. It is made beyond simple “Legal Interest”. It accommodates amongst others, if the applicant can show that the decision wrongfully deprived him of something or wrongfully refused him something. The 1st Respondent had admitted that the applicants had commercial interest likely or even affected by the judgment of the lower court. By the decision of the Supreme Court above, it follows that the applicants by their commercial interest on the Land in dispute had shown that the decision wrongfully deprived them of something, or wrongfully refused them something. By that therefore, they are “interested parties”
Again the 1st Respondent at page 6 of his brief, via the senior counsel furthered argument on the definition of “Legal right” cited the Supreme Court decision in A.G. Lagos State v. A.G. Federation (supra) but especially at page 126, with respect to the learned senior counsel to the 1st Respondent, the quotation provided left a significant part of the definition provided by the Supreme Court. At page 126 the 2nd paragraph, the Supreme Court stated:
What is a legal right? A regal right in my view is a right cognizable in law. It means a right recognized by law and capable of being enforced by the plaintiff. It is a right of a party recognized and protected by a rule of law, the violation of which would be a Legal wrong done to the interest of the plaintiff, even though no action is taken.
The determination of the existence of a legal right is not whether the action will succeed at the trial but whether the action denotes such a right by reference to the enabling law in respect of the commencement of the action. (the underline mine)
From the above therefore, with “reference to the enabling law in respect of the commencement of the action”. By the definition given by supreme court of “interested party” in Societe Generale Bank (Nig.) Ltd., v. Afekoro (supra) it includes a commercial interest. The central point here is not whether the action will succeed.
I had read the Supreme Court’s decisions on Archibong v. Ita (supra) and Clifford Osuji v. Nkemjika Ekeocha. Both are decisions directly related to the Landlord and Tenant relationship or status, vis-Ã -vis property. They do not have any bearing to title holding or interest derivable from title. I do not find those decisions helpful or relevant to the arguments of the Respondent.
On the whole therefore, I find the application of the Applicants dated 12th of August, 2012 and filed on the 28/8/12 meritorious, and it is hereby granted as prayed for. This court makes the following orders:
(1) Time is hereby extended to the parties interested/applicants to apply for leave of this court to appeal against the decision of the Federal High Court sitting in Lagos delivered on 8th June, 2009 by Hon. Abdullahi Mustapha CJ, in suit No: FHC/L/CS/368/07 as persons interested in the matter.
(2) Leave is granted to the Applicants to appeal against the decision of the Federal High Court, Lagos Division delivered on 8th, June 2009 by Hon. Abdullahi Mustapha CJ, in Suit No: FHC/L/CS/368/07 as persons interested in the matter.
(3) Time is extended by this court within which the applicants may appeal against the decision of the Federal High court delivered on 8th June, 2009, by Hon. Abdullahi Mustapha CJ, in suit No: FHC/L/CS/368/07 as persons interested in the matter.
I make no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour in reading in draft the comprehensive ruling prepared by my learned brother, Sidi Dauda Bage, J.C.A., with which I agree and adopt as my ruling with nothing useful to add.
TIJJANI ABUBAKAR, J.C.A.: I read the Ruling just delivered by my learned brother BAGE JCA.
I am in agreement with his reasoning and conclusion, I adopt same as my own; and hold that applicant’s application filed on 28/8/12 is meritorious and same is granted as prayed.
I abide by the consequential orders made including that on costs.
Appearances
O. Omolodun with L. Wright (Mrs.), E. A. Sadiq (Miss)For Appellant
AND
O. Delano, SAN with O. Ilori Esq.For Respondent
