ADEBANJI JEGELE & ANOR v. CHIEF ONI AFE & ORS
(2018)LCN/11789(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/AK/243M/17(R)
RATIO
THE CONCEPT OF JUSTICE
The concept of justice is the backbone and life wire of a peaceful co-existence in any given society and it cannot therefore be under estimated. A just society is an embodiment of Gods attribute and as the Holy Scriptures put it:- Gods throne is built on justice and righteousness per MOHAMMED AMBI-USI DANJUMA, J.C.A.
THE ROLE OF JUDGES
The Judge as he sits in Court to adjudicate, is expected to be absolutely convinced and satisfied within his conscience and exhibit objectivity in the same way that he is expected in weighing evidence of parties on an imaginary scale in the course of deciding which partys evidence is to be believed on the balance of probability. per MOHAMMED AMBI-USI DANJUMA, J.C.A.
TECHNICALITIES AND THE LAW
Technicality should not therefore be used to erode or sacrifice justice on the altar of procedure. per MOHAMMED AMBI-USI DANJUMA, J.C.A.
WHAT GUIDES A TRIAL JUDGE
A trial judge, in determining whether to grant the defendant leave to defend must be guided by the overall interest of justice, bearing in mind always that, while appreciating the need for procedural requirements to be obeyed, the ultimate dictates of justice must over-ride niggling technicalities. per MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
- ADEBANJI JEGELE
2. MRS. DEBORAH JEGELE Appellant(s)
AND
1) CHIEF ONI AFE
2) CHIEF DARE ADEGOROYE
3) MICHEAL IDOWU AJAYI
For themselves and on behalf of Abusoro Community, Akure/Ado Road, Akure North Local Government.
In Re: Suit No: AK/151/2007
Chief ONI AFE & 2 ORS
(For themselves & on behalf of Abusoro Community)
And
Chief Adebayo Jegele (Deceased) Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Lead Ruling):
By a motion on notice dated and filed on the 10th day of January, 2018, the Applicants herein as interested parties prayed as follows:
i. Extension of time within which Applicants shall apply for leave to appeal against the Judgment of the High Court, Akure, Ondo State delivered on 5th August, 2013 in suit No. AK/151/2007 by his Lordship, Hon. Justice O. Akintan Osadabey as parties interested.
ii. Leave to appeal
iii. Extension of time within which Applicants/Parties interested shall appeal against the Judgment of the High Court Akure, Ondo State given on 5th August, 2013 in suit No. AK/151/2007 by his Lordship, Hon. Justice O. Akintan Osadabey
iv. An for such further order or other orders as the Honourable Court may deem fit to make in the circumstances.
The Grounds upon which the application is brought are reproduced seriatim, thus:
(1) The case Suit No: Ak/151/2007 which plaintiffs commenced in year 2007 at the High Court, Akure Ondo State against defendant now deceased now seeking varying declaratory reliefs, is in respect of land situate lying and being along Akure/Ado-Ekiti Road in Akure described as ABUSORO land.
(2) Upon trial of the Suit, the High Court Akure Coram Justice O. AKINTAN-OSADABEY on August 5, 2013 delivered Judgment thereon, in favour of plaintiffs and against the defendant thereat.
(3) Defendant (a Chief Adedayo Jegele) indicated to his Counsel Dan Olawale, Esq: his intension to appeal the said Judgment of the High Court Akure. Regrettably, the Notice of Appeal which was filed on March 6, 2014 by defendant Counsel was filed out of time and leave of Court was never sought to regularize it.
In the meantime, Record of Appeal etc. were compiled and transmitted to the Court of Appeal by the Registry of Court of Appeal by the Registry of Court, at the High Court, Akure.
(4) Plaintiff as respondents in the Notice of Appeal, upon receiving the record, and being oblivious of the Legal position that the Notice of Appeal filed by defendant was incompetent, brought an application on Notice and moved this Honourable Court, to dismiss the Appeal filed by defendant on the ground that he failed to file his brief of argument in the Appeal within time.
(5) On May 28, 2015, this Court upon hearing the application, made an order striking out the Appeal. Against on May 18, 2016, this Honourable Court was moved by plaintiffs as applicants/interested parties to dismiss the Appeal which application the Court acceded to and therefore dismissed same under Order 18 Rule 10, Court of Appeal rules 2011.
(6) Chief Adedabayo Jegele, appellant in the Notice of Appeal filed on March 6, 2014, died on June 1, 2016.
(7) Applicants/Interested parties herein and family members of the deceased chief, were not aware of this case either before the High Court or/and before this Honourable Court and the judgments/orders made therein until sometimes in August 2016 when notice was taken of plaintiffs/respondents herein and persons acting for them as individuals or/and collectively besieging the land including the office building of Chief Jegele on the land and occupying same vi et armis. Upon the shock find, and also upon enquiry to know if the deceased Chief, defendant in Suit AK/151/2007 at the high Court had a Counsel, the family found one Mr. Dan Olawale who confirmed to the family that he was Counsel to the deceased chief. At a meeting with Counsel in early September 2016, he informed the family/applicants herein rather tersely that although he filed an appeal for the deceased Chief Jegele in 2014, the appeal was no more in Court.
(8) The family of chief Jegele (deceased) including Applicants/parties interested who are the deceased son (DAWODU) and wife respectively needs to contact other family members (immediate and extended), prepare for burial, organize the home front, hold meetings and sessions together for his burial etc. before taking further steps on this matter which meeting/preparation lasted up until end of September 2016.
(9) The family sought Counsel, which led it into instructing Mr. Olagoke FAKUNLE, SAN to take up the matter. The instruction was concluded on October 2, 2016.
(10) Subsequently, Counsel brought an application on Notice before his Honourable Court which was heard by this Honourable Court on May 23, 2017. The ruling of Court was delivered on July 4, 2017.
(11) This honourable Court will aside its own orders of May 28, 2015 and May 18, 2016 respectively which struck out and also dismissed the Appeal of defendant (Chief Jegele) deceased for the reason (s) that the Notice of Appeal filed on March 6, 2014 was incompetent and therefore the Court in the first case had no Jurisdiction to sit on appeal over the matter. The Court also struck out the Notice of Appeal dated and filed on March 6, 2014 as being incompetent.
(12) Applicants/interested parties are desirous of Appealing the judgment of the High Court given on August 5, 2013 as interested persons. 1st applicant is the wife (widow) of the deceased who by the death ded wish of the deceased shall stand in loco parties to all the children the deceased left behind.
(13) Chief Jegele deceased was a Yoruba man. By reason of being a Yoruba man, upon his decease save he having a WILL or/and legally recognized Administrator of his estate or executors, the Dawodu takes over the management of the decease state. The subject matter of this case is Land.
(14) In the judgment of the High Court Akure of August 5, 2013. It held inter alia.This Court hereby grants judgment to the plaintiffs, A declaration that the plaintiffs are the persons entitled to the grant of Statutory Right of Occupancy in respect of the vast parced of land known and described as Abusoro Community Land as shown in the approved Abusoro Community Layout situate and being along Akure/Ado Ekiti Road Akure North Local Government excluding the area sold to the defendant vide Exhibit P2 or Ds5 as contained in Exhibits P 3a and P3b.
(15) The subject matter of the case being land, enures after the death of Chief Jegele deceased.
(16) The period within which to appeal against the judgment of the High Court in this matter which judgment is FINAL. Is three months. Time to appeal expired in November 2013. Chief Jegele had been unwell since 2013 also. He did not know that his Counsel failed to properly carry out his instruction to appeal the judgment when he filed the Notice of Appeal out of time on March 6, 2014 and without regularizing same.”
The said application is supported by a 26- paragraph affidavit deposed to by Adebanji Jegele the first son of Adedayo Jegele the deceased Judgment debtor/Defendant in suit No. Hno: AK/151/2007 and who is the first Applicant/Party interested in this application appeal.
There are attached to the motion, two exhibits to wit Annextures AJ1 and AJ2 being the Judgment of the High Court delivered on August 5, 2013 sought to be appealed, and the proposed Notice of Appeal respectively. In a vehement opposition, the respondents had contended that the application was incompetent as the fundamental prayer to give life to the other prayers i.e leave to appeal as interested parties was not sought. It is instructive to not that the facts deposed to in the supporting Affidavit for the motion were not countered by the Respondents. Suffice it, however, that upon the order of this Court, written addresses were filed by the respective learned counsel for the parties and adopted on the 30th of April, 2018 as their respective submissions for and against the exercise of this Courts jurisdiction/discretion as sought by the Applicants desirous of Appealing as interested parties. The Application herein had come up for hearing on the 18th day of January 2018, as an application necessitated by previous applications either withdrawn or struck out or dismissed by this Court when the Applicants had unsuccessfully sought to Appeal by application substituting them as
Appellants in place of their deceased father/husband respectively, the Notice of Appeal earlier filed having been incompetently filed out of time in the name of the deceased person Solo, who was by impossibilia unable to remedy the defective Notice of Appeal. Appearing with I.M Fakunle (Esq.) and O.E. Akintan ESQ.Fakunle (SAN) for Applicants observed that the Respondents learned counsel was not contesting the facts and depositions in the Applicants Affidavit in support of Motion but was only of the view that Four prayers and not Three ought have been sought with the preceding prayers being for leave to appeal pursuant to Section 243 (a) of the Constitution Federal Republic of Nigeria, 1999 as amended.
The learned senior counsel does not think that represents the position of the Law. Consequentially the learned Senior Advocate of Nigeria poses as the issue before this Court thus:
(i) Whether the applicants having stated in their application that they having this application interalia, for leave to appeal pursuant to Section 243 (a) of the Constitution of the Federal Republic of Nigeria, 1999 as amended ought to repeat same all over in the body of the motion paper or put in another way, whether in an application of this nature i.e one brought by applicants/parties interested for leave pursuant to Section 243 (a) of the 1999 Constitution, Federal Republic of Nigeria as amended four reliefs must be sought before the Court shall consider the application.”
(ii) Whether the applicants application have (sic) merit and ought to be granted.
The learned counsel arguing the Issue one submitted that the Notice of motion having been brought pursuant to Section 243 (a) of the Constitution, Federal Republic of Nigeria, 1999, all a person needs to do to take the benefit of the section is to make out a prima facie case that he is a person aggrieved or likely to be aggrieved, affected or likely to be appealed against. MAJA & ORS VS. JOHNSON (1951) 13 WACA p. 1194; JOHNSON VS. ADEREMI 13 WACA PG 297 299 AND AKANDE VS. GENERAL ELECTRIC LTD (1979) 3-4 SC p.115 were relied upon. That such an applicant having been out of time to seek leave to Appeal, simply would ask for extension of time to apply for leave to appeal. That is the purport of prayer 1 in this case.
Counsel referred to Registered Trustees, Acts of APOSTLES CHURCH VS. FATUNDE (2016) 11 NWLR (pt. 1523) 225 par H and contends that all an applicant needs is extension of time to seek leave to appeal and leave to appeal. The counsel Contends that the subject of the intended appeal is Land which even the respondents acknowledged was in possession of Chief Jegele the deceased as owner save the disputed portion, the subject of the litigation and Judgment complained of. It was contended that the subject matter being Land survives a deceased person; relies on NZOM VS. JINADU (1987) 1 NWLR pt. 51 pg 533. That by Yoruba Native Law and Custom, the 1st applicant as Dawodu (Eldest Male Child) of Chief Jegele (deceased) takes over the Management of the Estate of the deceased upon death, while the 2nd applicant by the death bed wish of Chief Jegele stands in locos parentis to all the children of Chief Jegele deceased. That this Court should hold that they are persons interested and aggrieved by the Judgment sought to be appealed against. The learned counsel refers to paragraphs 3-25 of the Affidavit as justifying the reasons for the delay in seeking leave to appeal. Refers to LAMAI VS. ORBIH (1980) 5-7 SC page 2. In conclusion, it was contended that from the materials presented in the Affidavit before this Court,
(i) Cogent, convincing and compelling reasons for the delay in appealing within time has been shown.
(ii) That the delay is not in ordinate
(iii) The grounds of Appeal complained in the proposed Notice of Appeal exhibited to the application has shown good cause why the appeal should be heard.
In Response, the respondents adopted their written address of 10-4-18. Therein they addressed the Solo issue to wit; whether this Honourable Court can entertain and grant the applicants application dated 5th January, 2018 and filed 10th January, 2018 as same is incompetent. The learned counsel submitted with reference to Section 243 (a) of the Constitution of the Federal Republic of Nigeria, 1999 that the application was incompetent as leave to appeal as interested parties to give validation that could give it a sub-stratum, firm enough to ground a substratum thereon of parties, was absent. Now in this application, the Applicants who are not parties to the proceedings and in Judgment of the Court below (High Court of Justice, Ondo State) delivered in suit No. AK/151/2007 of 5th August, 2013, have applied pursuant to Section 243 (a) of the Constitution, Federal Republic of Nigeria 1999 as amended which provides as follows:
Section 243 (a) any right of appeal to the Court of Appeal from the decision of a High Court conferred by this Constitution:-
(a) Shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the High Court, or the Court of Appeal at the Instance of any other person having an interest in the matter,..
The learned senior counsel for the Applicants, Mr Olagoke Fakunle, (SAN) in his Brief of Argument or written Address settled by O.E. Akintan prays for the grant and as interested parties. It is opposed. The provisions of Section 243 (a) of our Constitution ipsima verbal reproduced and contends that it is only the prayer to that effect that will give life to all other prayers in the motion. EZENWOSU VS. NGONADI (1988) 3 NWLR (pt. 81) 163 pp. 175 paras F-H. In their contention, the decision of this Court in Registered Trustees of Acts of Apostles CHURCH VS. FATUNDE & ORS (2016) II NWLR (pt. 1523) 211, applies. That the Motion be dismissed as incompetent as the Fundamental prayer was absent, to wit Leave to appeal as a person having an interest in the matter and extension of time within which to apply for leave to appeal it out of time.
RESOLUTION
This application ought not raise eye brows or strain any nerves between the parties inter se nor task the eagle and judicious mind of an ebullient, arbiter in its primary duty to administer justice equitably in its essence and purport devoid of technical resort to shenanigan of parties cum counsel. The decision sought to be appealed is a final decision of the High Court. By virtue of Section 241 (1) (a) (b) of the Constitution of the Federal Republic of Nigeria 1999, Appeals lie as of right from such a decision of the High Court in any Civil or criminal proceedings before the Courts sitting at first instance, and in other cases, where the ground of appeal involves questions for instance of jurisdiction which is an issue of law no leave was required. See UGO VS. UGO (2017) 18 NWLR pt. 1597 page 218 at 245 par. A-C.
In the instant, application for the strangers in the proceedings and resultant Judgment sought to be Appealed to be accommodated within the canopy of the unfiltered right of Appeal as of right in the final Judgment in reference, all he or they need (s) is leave to Appeal as an interested party. If the period limited to Appeal has expired, then the party interested who has been granted leave to Appeal as interested party and therefore joined in the Appeal then asks for extension of time to Appeal as such an interested party, time limited to Appeal the final decision or interlocutory decision having expired, then it is only superfluous to so seek for extension of time to appeal; such a prayer, will only be pedantic but will certainly not render incompetent the application nor render the jurisdiction of the Court comatose. There is no doubt that the constitution grants an unfettered right of Appeal against the decision of the trial Court and even to the apex Court as provided by Sections 246 of the Constitution, 1999. At any rate though a right of appeal is conferred on aggrieved parties, such rights must not be abused. It is trite Law that rights of Appeal are exercised according to Law, rules and procedures governing such Appeal. In other words, it is incumbent for the litigant to follow the law, Rules and procedure governing the exercise of such right of Appeal, one of which is to guide against abusing the process of Court.
See BUKOYE VS. ADEYEMO (2017) NWLR pt. 1546, 173 (Supreme Court). In EZENWOSU VS. NGONADI (1988) 3 NWLR (pt. 81) 163 page 175 pars F-H (SC) per Craig, JSC relied upon by the Appellant, the apex Court in an application for leave to Appeal brought 7 years late, held that leave to Appeal under Section 222 (a) of the 1979 constitution (same as Section 241 (1) (a) of the 1999 Constitution as a person interested should be sought and then (ii) Extension of time within which to apply for leave to appeal and then possibly extension of time to file Notice and grounds of appeal. The Court added however that it is necessary to point out that the last three prayers are wholly dependent on the first prayer. The other prayers cannot succeed unless the applicant is first made a party in the case. It is clear from the above case, that it is the Court that will make an applicant a party to a case where he is not an original party but has so sought for leave or permission to Appeal as an interested party. By the instant application, no doubt the Applicant seeks leave to appeal as interested parties. It is discernable by their prayer one. The fact that is starts the prayer for extension of time to apply for leave to Appeal as interested parties, does not ipso facto make the superfluous and unnecessary request for extension of time to seek leave, one that can defeat the prayer and essence of the said prayer, being leave to appeal as an interested party. The learned counsel of the other side or its counsel has not shown that they were misled. Indeed and of paramoucy is the fact that it has not been shown that this Court was misled or did not understand or comprehend the prayer as couched. This semantics in the couching or drafting of prayer number one has not been shown to have occasioned any miscarriage of Justice to the respondents. The learned counsel for the respondents had argued that by the decision in EZENWOSU VS. NGONADI supra, if a prayer for leave to appeal as interested parties is not the precursor thus making 4 distinct prayers, then the application would be incompetent.
Even, if that were the correct position, I had so explained that the Courts view in the case had been satisfied in case I am wrong in my understanding of the prayer one as couched, and the apex Courts decision, I am still of the humble view that a decision of Court given later in time where it is at variance with a previous decision means that the later decision prevails and has consequentially altered the earlier decision.
See OSUDE VS. Azodo (2017) 15 NWLR pt.1588, SC 21.
In the appeal supra, His Lordship, Galinje (JSC) stated in his contributory Judgment at page 322 of the Report thus:
The decision in Lokpobiri Vs. Ogola (supra) was delivered after the decisions in PDP VS. SYLVA (supra) and KAKIH VS. PDP. This Court apart from correcting the defect in the decisions of the lower Court, has the onerous responsibility of correcting itself, since it is the apex Court and there is no other Court to which its errors can be submitted for correction. It follows therefore that where its later decisions are at variance with its previous decisions, it means that the previous decision have been overruled to the extent of the variation. Learned counsel for the respondents in this appeal seems to have paid more attention to the previous decision of the Court which seems to be at variance with the latest decision in LOKPOBIRI VS. OGOLA (supra). This I think is a wrong posture and ought to be discouraged. The decision in LOKPOBIRI VS. OGOLA (supra) is very clear, and that is the Federal High Court has concurrent jurisdiction with the FCT and States High Court in respect of matters provided for under Section 87 (9) of the Electoral Act, 2010.”
Drawing from the instructive and lucid position of the apex Court above, there is the need to find out whether a more recent or subsequent decision of the apex Court on the right to appeal as interested party exists, and how such applications are treated. Is dogmatism and technicality the determinant now In OTTI VS. OGAH (2017) 7 NWLR (pt. 1563) at page 36, the apex Court, 29 years after the decision of 1988, in EZENWOSU VS NGONADI supra, has this to say in a more proactive posture in allowing the ventilation of the right of Appeal by a person (s) aggrieved and interested in a decision and who evince the desire to Appeal or feel threatened or dissatisfied and show that they are affected by that decision. The Honourable Justice Akaahs JSC at page 36 of the report has this to say: The applicants have disclosed their interest in the appeal and Justice demands that they should be given the opportunity to ventilate their grievance where orders were made directly affecting their interest without their being afforded a hearing..
The interest of the Applicants had been copiously deposed to in the 25-paragraph Affidavit in support of their application. The averments were not denied by any jot or at all. Materials had been brought to this Court vide the Affidavit evidence and the grounds of intended Appeal such that this Court ought to grant them leave to Appeal as interested parties as shown ex-facie by the fact of reference to the Constitutional provisions to that effect and right, express statement to that effect and the prayers, submissions of counsel to the Applicant and authorities relied upon in urging for the relief. His Lordship in his leading ruling in Otti Vs. Ogahs case (supra) Ogunbiyi JSC has this to say
In other words, when the law expects the applicants to lay before a Court all materials necessary for the exercise of discretion in his favour, the respondent is not to be subjective in his opposition but rather allow the principle of law and objectivity to apply. This is more especially when regard to the submission made on behalf of the Appellants/Applicants that they cannot Appeal against the lower Courts decisions in Appeals No. CA/AK/390A/2016 because they were not parties therein. The Applicants application borders squarely on their right to be heard on a case that affects their interest.
It is the same in this application. The right to be heard in circumstances of the depositions made and the clarity of the desire to appeal and as persons who were not original parties but interested in the subject of the subsisting Judgment that is binding and affects their interest as first son and Dawodu entitled to the management of the estate of the deceased Judgment debtor in respect of land/reality that subsists and survives the decision in its cause of action and so also the 1st and the 2nd Applicant/widow of the Deceased Judgment Debtor, standing in locos parentis and both of whom have been shown by the uncontradicted Affidavit evidence to be persons directly interested in and further reinforced by the authority of a family meeting to so Appeal the Judgment. Why on earth and in Justice will such applicants be frustrated out of the Judgment seat when quia-timet they fear the enforcement of the Judgment that affects their alleged inheritance The right to be heard cannot be denied on the ground of technicalities; See Abubakar Vs. Yar Adua (2008) 4NWLR (pt.1078) p. 465. Substantial Justice must be the essence of Justice. His Lordship, Ogunbiyi, JSC (as she then was) referring to Nwokoro Vs. Onuma (1990) 3 NWLR (pt. 136) 22 reiterated that the right to be heard cannot be compromised on any ground. This Court, per Danjuma, JCA in Appeal No. CA/AK/185AM/2015 delivered on 12th March, 2018, granted leave to Applicant to Appeal as interested party and enlargement of time to Appeal as sought, interest having been disclosed by applicant who was not a party in the proceedings and Judgment as he was affected by an order made in an interlocutory Ruling.
The Applicants Motion is not incompetent as it is their lack of locus standi, that has ignited their instant application and thus conferring locus standi, by the fact of the Constitutional enablement vide Section 243 (a) of the Nigerian Constitution. The application is neither incompetent nor an abuse of Court process. This Court in an application seeking leave to appeal by an interested party, had in AFRO CONTINENTAL NIGERIA LTD VS. JOSEPH AYANTUYI & ORS CA/B/6/90 delivered on Friday 9th March, 1980 per Michael Ekundayo Ogundare, Isa Ayo Salami and Akintola Olufemi Ejiwunmi JCA held per Ogunare, JCA (in the lead) at thus:
To be a party interested the applicant must show that he is affected by the order (s) sought to be Appealed against. In other words, any person seeking to take advantage of Section 222 (a) must make out a prima facie case that he is a person aggrieved, affected or likely to affected by the Judgment sought to be Appealed against. A total stranger to the proceedings who has no interest therein can not therefore take advantage of the section. See MAJA & ORS VS. JOHNSON (1951) 13 WACA p. 94, Johnson Vs. Aderemi 13WACA 297, 299; Akande vs. General Electric Ltd. (1979) 3-4SC 115
The Applicants Senior Counsel also appeared in the above referred case for a Respondent and rightly took no objection to the application then. That is the beauty of the law as a universal standard, not meant for a particular litigant. It is now his turn to urge the invocation of the same principle of law to his clients as Applicants in respect of property shown to be under an imminent vi-et-armis occupation not withstanding that their benefactor was in possession and with a certificate of occupancy thereon. Indeed, the Respondents reaction is in the nature of a preliminary objection that challenges only the competence of the application, herein. Having been resolved that the application is not incompetent nor abusive of Court process, the desirability of proceeding further other than to grant same will not ordinarily have arisen. The determining bottom line and guiding principle whether to grant leave to appeal as interested parties here is the Justice of the case which should override and not technicalities which application operates inimically and negates the principles of Justice.
The Applicants had shown by Affidavit evidence and the title and wordings of their application and indeed legal submissions, their status and interest vis–vis the Lis i.e subject of appeal and Judgment. It must be crass injustice to shut them out of a hearing in challenge of the Judgment. A cold shiver and complete loss of faith in the Justice system would have been sent. An invitation to anarchy and hopelessness See Dangote iles Vs. Hascon Ltd 57 NSCQR (pt II) 1155 at 1168 paragraph D-G and page 1169 A-G per Ogunbiyi JSC, thus:
The provision of Order 22 Rule 3 (1) on undefended list procedure, by nature seeks to ensure that the trial judge must satisfy himself having regard to all the materials placed before him, the defendant has no defence to the uncontested liquidate sum claimed. This exercise which involves the use of discretion must however be judicious and judicial; it must be objective.”
The section in my view is not watertight and its interpretation should not be draconian in nature. It rather envisages that consideration should be taken of all the facts placed before the Court as disclosed on the affidavits of parties to the action.
The Judge as he sits in Court to adjudicate, is expected to be absolutely convinced and satisfied within his conscience and exhibit objectivity in the same way that he is expected in weighing evidence of parties on an imaginary scale in the course of deciding which partys evidence is to be believed on the balance of probability. The determining bottom line and guiding principle in deciding whether or not to grant the leave to defend is the justice of the case which should override and not technicalities which application operates inimically and negates the principle of Justice. In otherwords, while the need for procedure may be relevant in itself for operational guiding purposes, it must not however be seen to replace justice which is the very fundamental basic reason upon which our entire judicial system is founded and anchored. The concept of justice is the backbone and life wire of a peaceful co-existence in any given society and it cannot therefore be under estimated. A just society is an embodiment of Gods attribute and as the Holy Scriptures put it:- Gods throne is built on justice and righteousness,
Technicality should not therefore be used to erode or sacrifice justice on the altar of procedure. The view held by the learned jurist Aniagolu, JSC in the case of NISHIZAWA VS. JETHWANI supra at page 493 is very instructive wherein he said:-
A trial judge, in determining whether to grant the defendant leave to defend must be guided by the overall interest of justice, bearing in mind always that, while appreciating the need for procedural requirements to be obeyed, the ultimate dictates of justice must over-ride niggling technicalities.
I am guided and bound by this legendary sense of Justice. Accordingly, the Applicants motion succeeds and is granted as prayed thus:
i. Leave is granted to the Applicants to appeal as interested parties against the decision of the High Court of Justice Ondo State sitting at Akure and delivered on 5th August, 2013 in suit No. CA/AK/151/2007 by His Lordship O. Akintan-Osadabey.
ii. Extension of time within which the Applicants/Parties interested shall appeal the Judgment in suit No. CA/AK/151/2007 of August 5, 2013 delivered by O. Akintan-Osadabey is granted.
iii. Time is further Extended by 30 days from today to appeal.
iv. The Notice of Appeal in respect of the leave granted, shall be filed at the Registry of the lower Court.
COSTS:- Parties to bear their respective costs.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had read in draft form, the lead Ruling just delivered by my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA. I agree with his reasoning and final conclusion arrived at. I adopt them as mine. The facts leading to the case at hand are already spelt out and well articulated in the leading Ruling.
By their motion on notice filed on the 10th day of January, 2018 brought pursuant to Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Appellants as interested parties prayed; thus:
i. Extension of time within which Applicants shall apply for leave to appeal against the judgment of the High Court, Akure, Ondo State delivered on 5th August, 2018 in Suit No: AK/151/2007 by his Lordship, Hon. Justice O. Akintan Osadabey, as parties interested.
ii. Leave to appeal.
iii. Extension of time within which Applicants/Parties interested shall appeal against the judgment of the judgment of the High Court/Akure, Ondo State delivered on 5th August, 2013 in Suit No: AK/151/2007 by his Lordship, Hon. Justice O. Akintan Osadabey.
iv. And for such further order or other orders as the Honourable Court may deem fit to make in the circumstances.
The Respondents had opposed the application and contended that the said application was incompetent as the fundamental prayer to ignite and or give life to the other prayer as contained in the application. i.e. leave to appeal as interested parties was not sought.
The position is that where an Applicant is desirous of appealing against a decision of a Court, which he was not initially a party thereto, he is enjoined by the provision of Section 243(a) of the 1999 Constitution (as amended), to seek leave to appeal against such decision as an interested party. If the Applicant fails to seek leave of Court as an interested party, the application is incompetent and liable to be struck out.
Section 243(a) of the said Constitution provides thus:
Any right of appeal to the Court of Appeal from the decision of a High Court conferred by this Constitution:-
(a) “Shall be exercisable in the case of civil proceedings at the Instance of a party thereto, or with the leave of the High Court, or the Court of Appeal at the Instance of any other person having an interest in the matter..
By the above provision of the Constitution, it is mandatory for a prospective Applicant as an interested party to obtain leave to appeal as an interested party, therefore, failure to seek leave renders the application incompetent. In the instant case, it is discernable that the Applicants by their prayer one, seeks leave to appeal as interested parties. Through the Applicants had stated in their prayer one, the application for Extension of time to seek leave and that of leave to appeal (as interested parties). The style adopted by the Applicants in drawing the prayer as couched above, has not in my respectful view, defeated the intention of the provision of Section 243(a) of the Constitution, 1999 (as amended). The prayer for leave to appeal as interested parties being married with that of Extension of time to seek leave does not infect the prayer with the virus of incompetence, neither does it mean that the Applicants does not seek for leave to appeal as interested parties.
Besides, the Respondents did not show that any miscarriage of justice was occasioned to him by the style adopted by the Applicants in drawing his prayer number one. Courts are to do substantial justice without regard to technicalities. See Abubakar v. Yar’Adua (2008) 4 NWLR (Pt. 1078) 46.
For this and the more elaborate reasoning and conclusion in the lead ruling, I too grant the application as prayed I also abide by all the orders contained in this Ruling including that on costs.
OBANDE FESTUS OGBUINYA, J.C.A. (DISSENTING): By a motion on notice, dated 5th January, 2018 and filed on 10th January, 2018, the applicants/interested parties prayed this Court for:
(i) Extension of time within which Applicants shall apply for Leave to Appeal against the Judgment of the High Court, Akure, Ondo State delivered on August 5, 2013 in Suit No: AK/151/2007 by His Lordship, Hon. Justice O. AKINTAN-OSADABEY as parties interested.
(ii) Leave to appeal UNITED BANK FOR AFRICA PLC & ANOR v. I. U. FOOD LIMITED & ANOR
(2018)LCN/11788(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of June, 2018
CA/J/141/2012
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
- UNITED BANK FOR AFRICA PLC
- MATTHEW ADEGBOLA – Appellant(s)
AND
- I. U. FOOD LIMITED
- MUSA MOHAMMED – Respondent(s)
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal is as a result of the Judgment of the Bauchi State High Court of Justice, Bauchi, delivered by Hon. Justice Kunaza N. Hamidu on July 27th, 2011 wherein the claims of the Respondents (the Plaintiffs at the Court below), were granted.
The gist of the matter between the parties as contained in the printed Record before this Court was that, an accident occurred between the Appellants and the Respondents vehicles around Murtala Mohammed main road, Bauchi on June 15th, 2009. The 2nd Respondent, a driver with the 1st Respondent was driving the 1st Respondents vehicle, one Canter Brand tagged Quini with registration number XB 927 BAU through Murtala Mohammed road, the 1st Appellants Bullion van, being driven by the 2nd Appellant was on Abdulkadir road to enter the said Murtala Mohammed road when the accident occurred and the Respondents vehicle carrying pure water in sachets was hit. Between the parties, the 1st Appellant agreed to fix the 1st Respondents vehicle but it was not done for about ten months. The Appellants side of the story was that, the delay was due to the Respondents refusal to sign the form from the Appellants Insurance Company, Leadway Insurance. The Respondents claimed that they would sign only after the work was done. The repair consequently was not done and the vehicle was not returned to the Respondents. They therefore commenced the Suit at the Court below and sought the following reliefs which as earlier stated were granted:
- A declaration that the 2nd defendant is negligent when he hit the 1st Plaintiff (sic) vehicle driven by the 2nd plaintiff in the morning of 15th June, 2009 at the T Junction along Murtala Mohammed way and Abdulkadir Ahmed Road near Investment House, Bauchi.
- N3 Million special damages being the cost of the crushed vehicle of the 1st Plaintiff Canter Brand tagged Quini with Registration No. XB 927 BAU.
- N117, 000. Special damages being cost of the medical expenses of the driver who sustained injury and his boy.
- N15, 000 special damages being cost of the one load of 300 parks (sic) of pure water destroyed in consequence of the accident negligently caused by the second defendant.
- N4, 000 special damages for loss of user payable per day from 15th June, 2009 till the date the defendants pay the cost of the plaintiffs vehicle or replacement of the vehicle.
- N1 Million general damages for negligence.
- Cost of the action.
After the trial, where both sides testified and called witnesses, judgment was entered in the sum of N15,000.00 special damages as the cost of the 300 packs of pure water destroyed in consequence of the accident negligently caused by the second defendant at the rate of N50. 00 per pack. The sum of N4, 000. 00 special damages for loss of user payable per day from 15th June, 2009 till the date the defendants repairs (sic) and hand over the vehicle to the plaintiffs, immediate repair of the plaintiffs (sic) vehicle without any reference to insurance forms, and cost of the action.
The Appellants were dissatisfied with the foregoing judgment and therefore have come to this Court. Their Notice of Appeal with five (5) grounds of appeal dated July 29th, 2011 was filed August 1st, 2011. They seek the following relief;
“An order allowing the appeal and setting-aside the judgment of the Lower Court.
The Appellants brief of argument dated July 16th, 2012 was filed on July 17th, 2012 and deemed on February 7th, 2018 and settled by Irorakpor C.C. Esq. of Irorakpor & Co. The Respondents dated September 25th, 2017, filed September 29th 2017 and was deemed February 7th, 2018. It must be mentioned that, at the hearing of this appeal on April 16th 2018, the Respondents were absent and unrepresented. The Court heard the appeal upon satisfaction that the Respondents were duly notified of the hearing through their Counsel, E. E. Uzochukwu Esq. on April 4th, 2018.
The Appellants submitted the following five (5) issues:
- Whether the learned trial Judge was right in law to have entered judgment of N4, 000 special damages for loss of user payable per day from 15th June, 2009 till the date the Defendants repair and handover the vehicle to the Plaintiffs when same has not been specifically proved as required.
- Whether the learned trial Judge was right in law to hold “that the Defendants did not dispute the amount claimed (the sum of N4, 000. 00 per day as loss of earning) in their pleadings neither do they cross examine the prosecution (sic) witnesses on this issue or call evidence to disprove same which amounts to admission.
- Whether the learned trial Judge was right in law to have awarded the sum of N15, 000. 00 as special damages being cost of one load of 300 packs of pure water destroyed in consequence of the accident negligently caused by the 2nd Defendant at the rate of N50. 00 per pack in his judgment. When it was not proved that the packs of pure water were destroyed as a result of the accident.
- Was the learned trial Judge right in law to have held that I must say that the repairs of the vehicle ought not to be tied to signing any insurance forms. The issue of insurance is an issue between the defendants and the insurance company; therefore, the plaintiffs ought not to suffer as a result of their internal procedure.”
- Whether the judgment of the trial court is supported by the weight of the evidence adduced by the Plaintiff.
The following were the issues by the Respondents:
- Whether the trial Judge was justified in awarding the claim for negligence.
- Whether there was sufficient evidence before the lower Court to justify the award of special damages for loss of user and the cost of 300 packs of pure water.
- Whether the learned trial Judge was right in holding that the repair of the vehicle ought not to be tied to signing any insurance form.
In my view and humbly, a sole issue thus should justly and fairly determine this appeal:
Whether or not the Court below was right in entering judgment in favour of the Respondents, given the evidence placed before it.
At this point, it would assist a great deal in a nut shell to bring out in the main the Appellants grouse. The award of N15, 000. 00 as special damages for the cost of one load of 300 pack of pure water was unacceptable, as well as the order to pay the sum of N4000. 00 per day as loss of earning from June 15th, 2009 till the date repair is effected, immediate repair of the Appellants vehicle and to hand over same.
ARGUMENTS ON BEHALF OF THE PARTIES
Mr. C. C. Irorakpor Esq. submitted that, there were no credible and cogent evidence on the sum of N4, 000. 00 claimed by the Respondents as there were no receipts tendered as pleaded which omission offended Section 149 (d) of the Evidence Act. That, there was no evidence as to the number of the packs of pure water and the number of trips to be made with the 1st Respondents vehicle that would amount to the said sum per day. Whether or not the vehicle was old or new at the time of the accident was not in evidence, he argued and therefore, the Court was wrong to have ordered as it did with respect to payment of N4, 000. 00. per day, being special damages in favour of the Respondents. In support, he cited the cases of ARISONS V. OGUN STATE (2009) 6 SCNJ 141, NIGERIAN NATIONAL PETROLEUM CORPORATION V. CLIFCO NIGERIA LTD. (2011) 4 SCNJ 107 and JOHNSON OKON V. MOBIL PRODUCING UNLIMITED (2010) 52 WRN 54 amongst others. He argued further that, it was erroneous for the Court to have awarded the said sum of N4,000 per day on the basis that the Appellants did not dispute the amount claimed by the Respondents. He asserted that, the Appellants denied the Respondents claim. Further that, the Respondents did not adduce cogent evidence as required for proof in special damages and cited in support the cases of SYLVESTER CHUMA CHUKWUMA V. ANTHONY EZECHI NWOYE & 15 ORS (2010) 30 WRN 79 and MANSON V. H. E. S. NIGERIA LTD. (2007) 2 NWLR (PT. 1018) 211.
On the award of N15, 000. 00 for the bags of pure water said to have been destroyed, the learned Counsel submitted that the Respondents testimony was at variance to the pleading and therefore was of no evidential value and in support, cited the case of ADU V. GBADAMOSI (2009) 19 WRN 178.
He argued that, it was wrong for the Court to have held that the issue of insurance was one between the Appellants and their Insurance Company as a miscarriage of justice thereby occasioned to the Appellants. That, as the piece of evidence regarding the role played by the Appellants Insurance Company to repair the Respondents vehicle was not challenged the Court ought to have accepted the evidence in their favour. He cited in support, the case of NSITFMB V. KLIFCO NIG. LTD. (2010) 42 WRN 1 and NASIR V. C. S. C. KANO STATE (2010) 25 WRN 1. He consequently urged that a re-evaluation of the evidence before the Court below be done.
He contended that the totality of the evidence by the Respondents did not support the decision of the Court and in support cited the case of SANNI V. ABDULSALAM (2009) 15 WRN 61. In conclusion, he submitted that the 2nd Respondent owed the Appellants bullion van a duty of care which would have avoided the accident and urged on the overall that the appeal be allowed and the Judgment of the Court below be set aside.
Mr E. E. Uzochukwu Esq, learned Respondents Counsel submitted that, the Court was right in its findings and decision in favour of the Respondents as the 2nd Appellant unequivocally admitted that he owed the duty of care to observe the road before entering the major road in his testimony at the trial. That, the Court was right to have held that, every driver irrespective of the status of his vehicle owes a duty of care to other road users even where it is a bullion van. He submitted further that, the Appellants failed to ask PW3 relevant questions at the trial on whether and how the Respondents vehicle made N4, 000.00 per day as well as the cost of the packs of sachets of water. That, the evidence in that regard was clear and uncontroverted. He asserted that, the Respondents apart from the admissions by the Appellants also led credible and uncontroverted evidence in proof of the claim for the special damages of N4,000. 00 and the cost of the packs of sachets of pure water. In support, he cited the cases of BENJAMIN OBASUYI V. BUSINESS VENTURES LTD. (2000) 77 LRCN P. 849, A. G. LEVENTIS V. AKPU (2007) 17 NWLR (PT. 1050) P. 416 and NBC V. UBANI (2014) 4 NWLR (PT. 1398) P.421.
He argued that, the alleged contradiction in the testimonies of the Respondents witnesses was not material to cast doubt on the Respondents case and cited the case of NWOKORO V. ONUMA (1990) 72 LRCN P. 3015.
He contended that the issue of the insurance form was an afterthought by the 1st Appellant and the Court was right to have treated it as a domestic matter between the Appellants and their insurance company. That, they denied the Respondents the use of the vehicle when they did not repair it and failed to return it for about 8 months. Further that, they failed to prove the necessity for the Respondents to sign the insurance form.
In conclusion, he urged that the appeal be dismissed and the decision of the Court below be affirmed.
COURTS POSITION ON THE SOLE ISSUE
Civil cases are proved on the preponderance of evidence or balance of probabilities. Burden of proof is on the party who asserts a fact and has to prove same with cogent and credible evidence before it shifts to the opposing party. See the cases of DAODU V. NNPC (1998) 2 NWLR (PT. 538) 355, KALA V. POTISKUM (1998) 3 NWLR (PT. 540) 1,ITAUMA V. AKPE-IME (2000) 7 SC (PT. 11) 24, ELIAS V. DISU (1962) 1 ALL NLR 214 and LONGE V. FBN PLC. (2006) 3 NWLR (PT. 967) P. 228. A party is not allowed to rely on the weakness of the case of the opposing party. See the cases of IMAM V. SHERIFF (2005) 4 NWLR (PT. 914) P. 80, ELIAS V. OMO-BARE (1982) 2 SC P. 25 and AGBI V. OGBEH (2006) 11 NWLR (PT. 990) P. 65.
The law is and settled that that the measure of damages in an action for negligence is founded on the principle of restititio in integrum, which means that the owner of a damaged vehicle as a result of the negligent act of another is entitled to restitito in integrum. In other words, the owner should recover a sum such as will replace his loss as far as can be done by compensation in money, and to be in the position as if the loss had not occurred, subject to the rules of law on remoteness of damages. See the case of LAGOS CITY COUNCIL CARETAKER COMMITTEE V. BENJAMIN O. UNACHUKWU (1978) 3 SC 199.
Therefore, for a Claimant to succeed in an action for negligence, he must plead and show evidence of the duty of care owed by the opposing party, the breach by the party and the damages suffered thereby, save where the party admits the wrong.
From the evidence as agreed between the parties, the accident occurred at a Junction along Murtala Way while the 2nd defendant was driving his vehicle from Abdulkadir Way to join Murtala Mohammed Way while the 2nd plaintiff was driving his vehicle from Wunti going towards CBN round about.
And with the Police investigation and report to the effect that the driver Mathew M of UBA drove his motor vehicle recklessly by crossing without proper observation of traffic flow.
The Court found as follows:
In the present case, I am convinced that the 2nd defendant was negligent in the way and manner he drove his car which resulted into the accident. The plaintiffs have successfully proved the negligent act of the 2nd defendant and I so hold.
See pages 124-126 of the Record.
The Respondents vehicle from Exhibits D1-D3 was not found to be damaged beyond repairs and the Court found in evidence that it was agreed that the defendants were to repair the plaintiffs vehicle.
See page 126 of the Record. However, the Court held the view and with respect, wrongly in my view and humbly, thus:
Here I must say that the repairs of the vehicle ought not to be tied to signing any insurance forms.
The issue of insurance is an issue between the defendants and the insurance company, therefore the plaintiffs ought not to suffer as a result of their internal procedure.
See page 126 of the Record.
From the foregoing position of the Court, it rightly refused the prayer for special damages for the sum of N3 Million to replace the 1st Respondents vehicle. It however awarded the sum of N4, 000 per day as loss of earning in favour of the 1st Respondent from June 15th, 2009, the date the accident occurred till the repairs of the vehicle are carried out. The Appellants were aggrieved by that decision and have appealed on same that the Respondents failed to prove such claim. They argued that there was no cogent evidence as to the number of trips the vehicle would make with the pure water before earning the said sum.
The Respondents position on the other hand is that, the Appellants did not dispute or challenge the amount claimed by them nor did they cross-examine their witnesses and neither did they disprove the evidence at trial.
Special damages are such that the law will not infer from the nature of the act. All losses claimed on every item must be specifically stated in the pleading in terms of value and amount. See the case of SHODIPO & CO. LTD. V. DAILY TIMES (1972) ALL NLR 842. The apex Court in ODULAJA V. HADDAD (1973) 11 SC 357 held that,
Strict proof does not mean unusual proof or proof beyond reasonable doubt. What is required is that the party should establish his entitlement to that category of damages by such credible evidence of such character as would suggest that he indeed is entitled to an award under that head.
In SPDC NIG. LTD V. TIEBO VII ORS (2005) 9 NWLR (PT. 931) 439 the apex Court stated thus in that regard per Oguntade JSC as he then was,
.. In some cases, it may be necessary to show documentary proof of loss sustained while in others it may be unnecessary, the important thing is that the evidence proffered must be qualitative and credible and such as lends itself to quantification..
This Court, in EZENWA BROS. NIG LTD. V. ONA-JONES NIG. LTD. (2012) LPELR-9789 CA, per Adamu Jauro JCA, in similar vein held that, proof of special damage is not radically different from the general method of proof in civil cases.
See further the cases of NWABUOKU V. OTTIH, OSHINJINRIN V. ALHAJI ELIAS (1970) 1 ANLR (PT. 1) 153 and EMIRATE AIRLINE V. MISS PROMISE MEKWUNYE (2014) LPELR-22685 CA.
Going through the gamut of the Record, one is able to agree with the position of the Court that: the defendants did not dispute the amount claimed in their pleadings neither do they cross examined (sic) the prosecution witnesses on this issue or call evidence to disprove same which amounts to admission. I am of the firm view that plaintiffs are entitle (sic) to their claim for lost of revenue due to the accident.
See pages 13-14, 19-22, 24-26, 40-41 and 128 of the Record.
It is important to note that, for proof of special damages as afore stated, it is not to be unusual proof, or proof beyond reasonable doubt and it is not in all cases that the documentary proof of loss sustained must be tendered. See the cases ODULAJA V. HADDAD supra, SPDC NIG. LTD V. TIEBO VII ORS supra, NWABUOKU V. OTTIH supra, OSHINJINRIN V. ALHAJI ELIAS supra and EMIRATE AIRLINE V. MISS PROMISE MEKWUNYE. The Court consequently entered judgment in that regard as follows:
The sum of N4, 000. 00 special damages for loss of user payable per day from 15th June, 2009 till the date the defendants repairs (sic) and hand over the vehicle to the plaintiffs.
The Appellants have appealed against the foregoing.
In my considered view and humbly, the Court was right to have found in favour of the Respondent for the loss of revenue as it did. However, it would appear from the Record that there were certain factors that the Court ought to have considered before concluding the issue of the loss of revenue. It is the law that, a party has the responsibility to mitigate his loss as the incident is not an avenue for hitting undeserved gold mine ad infinitum. See the cases of KEREWI V. BISIRIYU ODUGBESAN (1965) 1 ANLR 98 and UBANI-UKOMA V. G.E. NICOL (1962) 1 ANLR 105.
From the Record, it would appear that the 1st Respondent did not mitigate its loss. Its vehicle was in the custody of the 1st Appellant from about two three days following the accident which occurred on June 15th, 2009. PW5 testified as one who was in charge of the business of the 1st Respondent in Bauchi and stated that he agreed that 1st Appellant should go and repair the vehicle in the presence of the DPO at the GRA Police Station. See pages 43-44 of the Record. From the testimony of the Respondents and their witnesses, the vehicle was still with the Appellants even as at the trial at the Court below, unrepaired, which of course was the reason for the said relief granted and the instant appeal. The accident occurred on June 15th, 2009 the hearing of the suit commenced May 4th 2010 and closed on July 6th 2011 as on pages 12-85 of the Record.
It is also pertinent to state that from the evidence before the Court, the issue regarding the signing of the insurance form as a precondition for the repairs of the Respondents vehicle, in my considered and respectful view was incorrectly concluded by the Court. The reason for the Respondents to sign the said forms was clearly stated and explained by the Appellants. That, since it was their Insurance Company, Leadway Assurance, that was going to be financially responsible for the repairs of the Respondents vehicle, they needed the Respondents to sign. The argument against it by the Respondents in my view was misplaced. That, the treatment of the injured driver must be paid for and that they should repair the vehicle first. One holds the view and humbly that the issues are different. Reimbursement of the medical bills from the Record was not contested or refused at any time, the Appellants requested for receipts of the treatment received by 2nd Respondent. There was no evidence to the effect that the form was to acknowledge that repairs had been effected, the Respondents never complained in that vein and the Appellants explained the need for the forms. See pages 12-78. The Respondents could have mitigated their loss if a different attitude was taken with regard to the insurance form. See also pages 44and 45 of the Record. They could have enquired and satisfied themselves on the need for the insurance forms up to the possible top most management of the 1st Appellant before deciding not to sign the forms. One on this point is in no way exonerating the responsibility which the 1st Appellant had agreed to, neither is one oblivious of the fact of delay or the length of time that elapsed in consequence. The 1st Appellant from the Record is still ready to repair the 1st Respondents vehicle.
An appellate Court has jurisdiction to look at the evidence on record to see whether they justify the conclusions of the learned trial Court or not. Ot is ordinarily not the function of an appellate Court to disturb the findings of fact of the trial Court as it saw, heard and was therefore ought to be better able to decide with the imaginary scale of justice. See the cases of BALOGUN V. AKANJI (1988) 1 NWLR 301 SC, KODILINYE V. MBANEFO ODU (1935) 2 WACA 365, and FATOYINBO 7 ORS V. WILLIAM ALIAS SANNI & ORS (1956) 1 FSC 87.
From the foregoing, as can be seen with regard to the principle of mitigation as well as other factors which in my view with respect, which appear were not put into consideration or were wrongly interpreted, one finds the need and justification herein to interfere with the award on special damages made by the Court below, having correctly found, as regards the period of time the sum of N4,000.00 should be paid daily to the Respondent. See the cases of OMOREGIE V. IDUGIEMWANYE (1985) 2 NWLR (PT. 5) 41 and ANYANWU V. MBARA (1992) 5 NWLR 386.
As regards the award of the special damages in the sum of N15,000.00. One is unable to fault the finding and its award. The Court stated thus in that regard:
Here I must say that the evidence before me is that the packs of pure water the vehicle was carrying were destroyed as a result of the accident. This piece of evidence was not challenged in cross-examination therefore admitted.
The argument by the Appellants Counsel that the Respondents should have picked the pure water after the accident according to the Court was an after thought. One would say that such could go no where given the facts of the case that the driver was unconscious and the concern of those at the scene of accident was to save his life. See pages 13-14, 17-18 19,25, 40, 44, of the Record. the Court therefore and correctly found thus:
I am of the opinion that the plaintiffs are entitled to the cost of the pure water destroyed as a result of the accident and I so hold.
The difference between 300 to 350 packs of pure water and the amount of one sachet at N50. 00 as opposed to N60. 00 stated by the 2nd Respondent and the PW3 in my view is not substantial enough to cause for their evidence to be discredited or discounted.
In the light of the foregoing, this appeal succeeds in part only with respect to the length of time awarded for the payment of the sum of N4, 000. 00. The payment of the sum of N4, 000. 00 per day is upheld only for the period of one year from the date of the accident, June 15th 2009. It is hereby further ordered that immediate repair of the Respondents vehicle be effected within the next two months from the date of this judgment.
UCHECHUKWU ONYEMENAM, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA. I agree with his conclusion that the appeal succeeds in part.
I abide by the consequential order as contained in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree.
Appearances:
Irorakpor C.C. Esq.For Appellant(s)
Mr E. E. Uzochukwu, Esq.For Respondent(s)
Appearances
Irorakpor C.C. Esq.For Appellant
AND
Mr E. E. Uzochukwu, Esq.For Respondent
.
(iii) Extension of time within which Applicants/Parties interested shall appeal against the Judgment of the High Court Akure, Ondo State given on August 5, 2013 in Suit No: AK/151/2007 by His Lordship, Hon. Justice O. AKINTAN-OSADEBEY.
And for such further order or other order or orders as this Honourable Court may deem fit to make in the circumstances.
The application was based on sixteen grounds. It was supported by a 26-paragraph affidavit with two annexures, marked Exhibits AJI and AJ2, attached to it.
When the application was to be argued on 18th January, 2018, learned counsel for the respondents greeted it with an objection. In view of that, the Court ordered parties to file written addresses. They duly complied. The application was heard on 30th April, 2018.
During its hearing, learned counsel for the applicants, O. O. Fakunle, SAN, adopted the applicants’ written address, filed on 5th April, 2018, as representing his arguments for the application. He urged the Court to grant it. Similarly, learned counsel for the respondents, A.O. Afolabi, Esq., adopted the respondents’ written address, filed on 10th April 2018, as forming his reactions against the application. He urged the Court to dismiss it.
In the applicants’ written address, learned senior counsel distilled two issues for determination to with:
(i) Whether applicants having stated on their application that they bring this application interalia, for leave to Appeal pursuant to Section 243(a) of the Constitution, Federal Republic of Nigeria 1999 as amended ought to repeat same all over in the body of the Motion Paper.
Or Put in another way,
Whether in an application of this nature i.e. one brought by applicants/parties interested for leave pursuant to Section 243(a) of the 1999 Constitution, Federal Republic of Nigeria as amended, four reliefs must be sought before the Court shall consider the application.
(ii) Whether applicants’ application has merit and ought to be granted.
Learned counsel for the respondents, in the respondents’ written address, crafted a single issue for determination viz:
“Whether this Honourable Court can entertain and grant the Applicants’ Application dated 5th January, 2018 and filed 10th January, 2018 as same is incompetent.”
A close look at the two set of issues shows that the applicants’ alternative issue to issue one and the respondents’ solitary issue are identical in substance. I will decide the application based on that alternative issue formulated by the applicants; the undoubted owners of the application.
Arguments of Counsel.
Learned counsel for the applicants enumerated the things required of applicants in an application brought under Section 243(a) of the Constitution, as amended. He relied on Maja v. Johnson (1951) WACA 1194; Johnson v. Aderemi 13 WACA 297; Akande v. General Ltd (1979) 3 – 4 SC 115. He submitted that in an application under Section 243(a) of the Constitution, as amended, the applicant needed the prayers as stated in the applicants’ motion. He cited Registered Trustees, Acts of Apostles Church v. Fatunde (2016) 11 NWLR (Pt. 1523) 225; Afro Continental Ltd. V. Joseph Ayantuyi & Ors. (unreported), Appeal No. CA/E/6/90, delivered by this Court on 9th March, 1990. He posited that the subject matter (land) could survive a deceased person. He referred to Nzom v. Jinadu (1986) 1 NWLR (Pt. 51) 533. He maintained that the applicants, in their affidavit, had shown reasons for the delay in appealing against the judgment and good grounds of appeal. He relied on Lamai v. Orbih (1980) 5-7 SC 28.
On behalf of the respondents, learned counsel contended that in an application under Section 243(a) of the Constitution, as amended, an applicant must first seek leave to appeal. He relied on Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) 163; Registered Trustees of Acts of Apostle Church v. Fatunde (supra). He noted that the applicants failed to seek leave and its application was incompetent.
Resolution of the application.
The application is weaved around the provision of Section 243(a) of the Constitution, as amended. On this score, it is foremost to pluck it out, where it is ingrained in the Constitution, ipsissima verba, thus:
243-(1) Any right of appeal to the Court of Appeal from the decisions of Federal High Court or a High 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 proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a state to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
To begin with, this one – sentence provision is obedient to clarity. In this wise, the law mandates this Court to employ the literal canon of interpretation of statute, id est, to accord the provision its plain and ordinary meaning without any embellishments by resort to external aids, see Ugwuanyi v. Nicon Ins. Ltd. (2013) 11 NWLR (Pt. 1366) 546; Comm. Edu. Imo State v. Amadi (2013) 13 NWLR (Pt. 1370) 133; Amobi v. Nzegwu (2014) 2 NWLR (Pt. 1392) 510; Reg. Trustees, A.O.N. v. Nama (2014) 8 NWLR (Pt. 1408) 1; Saraki v. FRN (2016) NWLR (Pt. 1500). I will pay due obeisance to this legal commandment so as not to fracture the law.
Now, the raging controversy, which yearns for resolution, is whether the applicants’ application met the requirement of leave as ordained in the provision of Section 243(a) of the Constitution, as amended.
In the eyes of the law, leave in this con, signifies permission, see S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718/(1987) 2 NSCC, vol. 18, 1219; Garuba v. Omokhodion (2011) 14 NWLR (Pt. 1269) 145; Otu v. ACB Int’l Ltd. (2008) 3 NWLR (Pt. 1073) 179.
It is settled law, beyond any per adventure, that a person having an interest in a matter, who beseeches a Court by dint of an application, must seek leave of Court in that capacity to infuse validity into it. In Chukwu v. INEC (2014) 10 NWLR (Pt. 1415) 385, at 408 and 409, Muntaka-Coomassie, JSC, incisively, declared:
In the instant case, the applicant/respondent is hopelessly out of time in applying for leave to appeal. He is seven years late and what he ought to have done was first to apply for:
(i) Leave to appeal under Section 222 of the 1979 Constitution as a person having an interest in the case, and under the rules of Court.
(ii) Extension of time within which to apply for leave to appeal.
(iii) Leave to appeal, he may, of course, add other prayers, as for instance.
(iv) Extension of time within which to file notice and grounds of appeal.
It is necessary to point out that the last three prayers wholly dependent on the first prayer. The other prayers cannot succeed unless the applicant is first made a party in the case. The applicant/respondent has in fact not asked for this first prayer and the lower Court was, in my view, wrong to have given the respondent leave to appeal.
As can be deduced from the above authorities, the first relief for a new party to seek is leave to appeal.
As submitted by Fagbemi, SAN, it is clear from the foregoing that the first prayer a person seeking leave to appeal as an interested party must seek is for leave to be made a party in the case, pursuant to the relevant section of the Constitution. So it is not just the trinity prayers that the applicant should seek. His first prayers should be for leave to be made a party in the case or it may be couched as prayers one in the above quotation i.e. for leave to appeal under Section 243(a) of the 1999 Constitution (as amended) as a person having an interest in the case.
See also, Ezenwosu v. Ngonadi (supra); Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229.
It can be gleaned from the magisterial pronouncement. In those ex-cathedral authorities, that prayer for leave to appeal as a person having interest is sine qua non for in an application under Section 243(a) of the Constitution, as amended. I have given a clinical examination to the applicants’ three prayers in the motion paper. Interestingly, they are obedient to comprehension friendly. Incidentally, I am unable to locate, even with the eagle eye of this Court, the applicants’ prayer for leave as decreed by the sacrosanct provision of Section 243(a) of the Constitution, as amended, and as sanctioned by the case-law. Put simply, the applicants, in their infinite wisdom, starved this Court of the requisite prayer for leave which is a consideration for the application. The trinity prayers, solicited in the application, have no substratum without a relief for leave to appeal as a person having an interest. In the glaring absence of the latter, the trinity prayers, which are intended to cater for the applicants’ delay in appealing, are rendered orphan. They are castrated/impotent to impregnate the application with validity and ignite the jurisdiction of this Court.
It stems from these, that the application, ex facie, is tainted with the invincible stigma of incompetence. In the view of the law, a castigation of incompetence of a process impinges on the jurisdiction of a Court and drains it of the vires to entertain it, see Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172. I must, ex debito justitiae, pay due loyalty to the injunction of the law on incompetent process.
Where leave of Court, trial or appellate, is required for filing a process and a party ignores seeking and obtaining the requisite leave before filing same, the process is rendered incompetent, see UBA Plc. v. Sogunro (2006) 16 NWLR (Pt. 1006) 504; Garuba v. Omokhodion (supra); Thor Ltd. v. FCMB Ltd.(2002) 4 NWLR (Pt. 757) 427; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 1113) 278; Akinyemi v. Odu’a Inv. Co. Ltd. (2012) 17 NWLR (Pt. 1329) Okwuagbala v. Ikwueme (2010) 19 NWLR (Pt. 1226) 54; Nwaolisah v. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600; Njemanze v. Njemanze (2013) 8 NWLR (Pt. 1356) 376; Imegwu v. Okolocha (2013) 9 NWLR (Pt. 1359) 347; Ugwu v. State (2013) 14 NWLR (Pt. 1374) 257; Ngere v. Okuruket ‘xiv’ (2014) 11 NWLR (Pt. 1417) 147; Ekunola v. CBN (2013) 15 NWLR (Pt. 1377) 224; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1507) 1; Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Obasi v Mikson Est. Ind. Ltd. (2016) NWLR (Pt. 1539) 335; Otti v Ogah (2017) 7 NWLR (Pt. 1563) 1; Sogunro v Yeku (2017) 9 NWLR (Pt. 1570) 290; Mato v. Hember (2018) 5 NWLR (Pt. 1612) 258. The applicants’ failure to procure the leave of Court, as constitutionally commanded, is the bane of their application and, de jure, disables it.
In the light of this brief, legal anatomy done in consultation with the law, I hold the firm view that the application is plagued by irredeemable incompetence. In effect, I have no option than to resolve the issue against the applicants and in favour of the respondents. Consequently, I strike out the application for being incompetent. The parties shall bear the respective costs they incurred in the prosecution and defence of the ill-fated application.
Appearances:
Olagoke Fakunle, SAN with him, O.O. Adeniyi, Mrs. (Nee Olabiwonnu), I.M. Fakunle, Esq., T.T Adeyeye Miss and O.E. Akintan, Esq.For Appellant(s)
A.O. Afolabi, Esq.For Respondent(s)
Appearances
Olagoke Fakunle, SAN with him, O.O. Adeniyi, Mrs. (Nee Olabiwonnu), I.M. Fakunle, Esq., T.T Adeyeye Miss and O.E. Akintan, Esq.For Appellant
AND
A.O. Afolabi, Esq.For Respondent
