BAMS INVESTMENT LIMITED v. ALHAJI BUKAR KOLO & ANOR
(2019)LCN/12918(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/J/415M/2017(R)
RATIO
COURT AND PROCEDURE: WHEN AN APPEAL IS REFUSED
“Under Order 6 Rule 3 of the Court of Appeal Rules, 2016 provision is made for situations such as this at hand. I herein under reproduce the said provision. ORDERS 6 RULE 3: ‘Where an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal’. By the foregoing, it is clear as crystal water that where an Application is made to a trial Court and refused, the Applicant can make similar application to this Court within 15 days commencing after the date of the refusal…” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
COURT AND PROCEDURE: WHEN AN APPLICATION IS STRUCK OUT
“…when an application is struck out as in this matter at hand, it has no adverse consequence on the Applicant because such order of striking out is not on its merit. It gives the Applicant a two window option i.e. to refile similar application or to seek for an order relisting the application struck out.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
COURT AND PROCEDURE: MEANING OF JUDICIAL DISCRETION
“The word discretion in my view simply means quality of being discreet, prudence and liberty to act unrestricted, hence it makes it possible for cases to be individualized or personified in the light of their peculiar facts. A Court will be said to have exercised its discretion only when it has exercised such discretion according to law. In the contrary it will seize to be a discretion if it is exercised based on sentiments or premeditated or pet ideas, or completely outside the dictates of the law and general jurisprudence. Where these happens, the opposite of justice which is injustice will happen. See the following cases ALHAJI ABDULRAUF OLUMEGBON & ORS V. AMIDA ADEDEJU KAREEM & ORS (2002) 5 SC (PT. 1) 101, UNION BANK OF NIG. PLC V. ASTRA BUILDERS (W.A) LTD (2010) 5 NWLR (PT. 1186). 1.Also my learned brother Onyemenam JCA in the case of VIOLET N. THAVE V. THE DIRECTOR GENERAL/PEANENT S ECRETARY BUREAU OF LAND & SURVEY MAKURDI BENUE STATE & ORS. (2011) LPELR ? 5088 said thus on exercise of discretion. A judicious and judicial discretion is that power of a Judge directed by sound judgment in determining the right of a litigant when such right is not absolute. It is the liberty of a judge to decide and act in accordance with that which is fair and equitable under the peculiar circumstance of the given case guided by the spirit of the law.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
BAMS INVESTMENT LTD Appellant(s)
AND
1. ALHAJI BUKAR KOLO
2. FIRST BANK OF NIGERIA LIMITED Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A.(Delivering the Lead Ruling):
By a motion on Notice dated 5th of October 2018 and filed on 9th October 2018, brought pursuant to Order 6, Rule 1,2,7 and 10 of the Court of Appeal, Rules, 2016; Section 25 of the Court of Appeal Act, 2010 (As amended) and Section 6 (6) (a), 242 (1) & (2) and 243 (a) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) and the inherent jurisdiction of the Honourable Court, the interested party/Applicant is seeking for the following Orders.
1) AN ORDER granting leave to Bams Investment ltd, party interested/Appellant/Applicant to file an appeal against the judgment of the High Court of Justice, Borno State Maiduguri Judicial Division delivered by Honourable Justice Kashim Zannah, the Honourable the Chief Judge of Borno State on 31st day of May, 2016 in Suit No: BOHC/MG/CV/49/2015 as a party ? interested.
2) AN ORDER granting extension of time to BAMS INVESTMENT LTD, Party-interested /Appellant/ Applicant within which to apply for leave (or seek leave) to Appeal against the judgment of the High Court of Justice, Borno State, Maiduguri judicial Division delivered by Honourable Justice Kashim Zannah, the Honourable Chief Judge of Borno State on 31st day of May 2016 in Suit No BOHC/MG/CV/49/2015 as a party interested.
3) AN ORDER granting leave to BAMS INVESTMENT LTD, Party-interested/ Appellant/ Applicant within which to Appeal against the judgment of the High Court of justice, Borno State Maiduguri Judicial Division delivered by Honourable Justice Kashim Zannah, the Honourable chief judge of Borno State on 31st day of May, 2016 in Suit No BOHC/MG/CV/49/2015 as a party ? interested.
4) AN ORDER granting extension of time to BAMS INVESTMENT LTD, Party ? interested / Appellant / Applicant within which to Appeal against the judgment of the High Court of justice, Borno State, Maiduguri Judicial Division delivered by Honourable justice Kashim Zannah the Honourable Chief Judge of Borno State on 31st day May, 2016 in Suit No. BOHC /MG /CV/49/2015 AS A party ? interested.
5) AN ORDER granting leave to BAMS INVESTMENT LTD, party-interested / Appellant /Applicant to raise and argue fresh points inter alia bordering on jurisdiction which were not raised in the Court of first instance.
And for such further or other Orders that this Honourable Court may deem fit to make in the circumstances.
The grounds upon which the application is predicated are as follows:
1) The party-interested/Appellant/Applicant is the rightful and lawful Owner of the landed property known as No. 76 Damboa Road, Opposite NTA Maiduguri covered by Certificate of Occupancy No: NE/2833 having acquired interest on same from the Receiver namely BOLU AGBAJE AKADRI.
2) The subject matter of the judgment delivered by the Honourable, the Chief Judge of Borno State, Hon Justice Kashim Zannah on 31st day of May 2016 in Suit No. BOHC/MG/CV/49/2015 to wit, the landed property known as No.76 Damboa Road Opposite NTA Maiduguri covered by Certificate of Occupancy No.NE/2833 is one of the properties comprised in the charged assets upon which the receiver was appointed to deal with as prescribed in the instrument of appointment.
3) The judgment delivered by the Honourable, the Chief Judge of Borno State, Hon. Justice Kashim Zannah on 31st day of May, 2016 in suit No. BOHC/MC/CV/49/2015 has negatively impacted on the powers bestowed on the Receiver in the instrument of appointment, the entire Receivership process and by extension the party-interested/Appellant/ Applicant.
4) BOLU AGBAJE AKADRI in his capacity as Receiver is the only person legally and lawfully empowered to deal with the said property by virtue of the instrument of appointment inter alia
5) By reason of the foregoing, the party ? interested/Appellant/Applicant is desirous of filing an Appeal against the judgment delivered by the Honourable, the Chief Judge of Borno State, Hon. Justice Kashim Zannah on 31st day of May, 2016 in Suit No. BOHC/MG/CV/2005.
6) The time within which to file Notice of Appel against the Said Judgment has since expired hence leave of this Honourable Court is required.
7) The leave of this Honourable Court is required before the party-Interested/Appellant/Appellant can file its Notice of Appeal against the Judgment in question.
8) The leave of this Honourable Court is equally required before the party ? interested /Appellant /Applicant can raise and argue fresh points bordering on jurisdiction of the lower Court which were not raised at the Court of first instance.
AND FURTHER TAKE NOTICE that the party-interested/Appellant /Applicant shall at the hearing of this Application use and rely on the affidavit in support of this Application as well as the Exhibits hereto attached.
The application is supported by an affidavit of eleven paragraphs dated 9th day of October 2018 Sworn to by Ayuba Jacob Adudu, Esq. a legal practitioner in the law firm of the Applicant?s Counsel (AKUBO & CO). Attached to the said affidavit are the following annexures marked Exhibits ?APP1?, the Notice of Appointment of Receiver pursuant to Section 206 (1) of CAMA.
2). Exhibit ?APP2,? letter dated 15th January, 2015 with the heading.
A DEED OF APPOINTMENT OF RECEIVER/MANAGER IN RESPECT OF STARCOMMS PLC?.
3.Exhibit ?APP 3,?
Judgment of High Court of Borno State, Maiduguri in suit No.BOHC/MG/CV/49/2015 DELIVERED ON 31ST DAY OF May 2016 by Hon. Justice Kashim Zannah C. J.
4. Exhibit ?APP 4,?
Ruling of the High Court of Justice of Borno State in Suit No. BOHC/MG/CV/67M/2016. Delivered on 27th day of January 2017, by Hon. Justice Kazim Zannah C.J.
5.Exhibit ?APP 5,?
Deed of Assignment and supplemental security among STARCOMMS NIGERIA LIMITED As Burrower.
AND
THE BANK
LISTED IN SCHEDULE 1
AS LENDERS
AND
FIRST TRUSTEES NIGERIA LIMITED
AS SECURITY TRUSTEE
DATED 18TH DAY OF APRIL 2008
6.EXHIBIT ?APP 6?
(1)UBA Cheque (photocopy) No.07522098
Dated 14/08/2015 for N10,000,000.00
(2)UBA Cheque (Photocopy) No.07522097
Dated 14/08/2015 for 10,000,000.00
7.Exhibit ?APP 7?
(1)UBA Cheque (photocopy) No.07522099
Dated 14/08/2015 for N10,000,000.00
(2)Skye Bank Cheque (photocopy)
No. 11094324 for N10,000,000.00
8.Exhibit ?APP 8,?
Irrevocable Power of Attorney
Dated 17th August, 2015
Granted by STARCOMMS LIMITED
(IN RECEIVERSHIP) (PRINCIPAL)
TO
BAMS INVESTMENT LIMITED
(DONEE)
9.Exhibit ?APP 9,?
Proposed Notice of Appeal in
Suit No. BOHC/MG /CV/49/2015
Date 5th day of October 2018.
The applicant also filed a further and Better Affidavit of seven paragraphs Sworn to by Ayuba Jacob Adudu Esq. of the law firm of Akubo & CO. dated 16th day of November, 2018.
In opposing the application the 1st Respondent filed a Counter affidavit of seven paragraphs Sworn to by Ahmed Mohammed a litigation secretary in the law firm of Messrs Konto Saje Musa and company. Annexed to the said affidavit are the following Exhibits.
1. Exhibit ?ABK 1?
Letter reference CAM/EIV dated June 3, 2015 by First Bank and addressed to the Managing Director, Ms Shehu & Brothers Ltd. Kano with the Caption
APPOINTMENT AS SALES AGENT IN RESPECT OF PROPERTY LOCATED NO 76 DAMBOA ROAD, OPPOSITE NTA MAIDUGURI BORNO STATE?.
2. Exhibit ?ABK 2?
Letter by First Bank reference CAM/EIU dated June 29, 2015 addressed to the Managing director MS Shehu & Brothers Ltd Kano with the heading
OFFER FOR PURCHASE OF PROPERTIES LOCATED AT 76, DAMBOA ROAD, OPP. NTA MAIDUGURI, BORNO STATE?
3. Exhibit ?ABK 3?
LETTER BY First Bank reference
No CAM/EIU dated June 29,2015
Addressed to Managing Director
KONTO SAJE MASU & COMPANY BORNO
Maiduguri with the heading
RE OFFER FOR PURCHASE OF PROPERTIES LOCATED AT 76 DAMBOA ROAD OPP NTA MAIDUGURI BORNO STATE,?
4.Exhibit ?ABK 4?
Enrolled Court Order of High Court of Justice, Maiduguri Borno State dated 15th day of September 2012.
Signed by Hon. Justice Kashim Zannah. Chief Judge.
5.Exhibit ?ABK 5?
Motion on Notice by interested party ?BOLU AGBAJE AKARI ?in Appeal No. CA/J/365/M/18, Suit No. BOHC/MG/CV/49/15 DATED 9TH October, 2018.
The first Respondent also filed a further Counter Affidavit of five paragraphs. Attached to the said affidavit are:
1.Exhibit ?ABK 6?
Letter on KONTO SAJE MASU & COMPANY HEADED paper dated 29th/6/2015.
2. Exhibit ?ABK 7?
Defendant?s answers to the PRE-Trial Question? in Suit No. BOHC/MG/CV/49/2015. DATED 29TH day of October 2015
3. Exhibit ?ABK 8?
Ruling of the High Court of Justice of Borno State of Nigeria in Suit No. BOHC/MG/CV/67/M/2016 delivered by Hon. Justice Kashim Zannah C. J. on 27th day of January 2017.
4. Exhibit ?ABK 9?
Motion on Notice by BAMS INVESTMENT LTD: as interested party Appellant dated 30th day of October 2018.
Based on the foregoing and in compliance with the order of this Court parties filed and exchanged their written address. The Applicant?s written address authored by P. A Akubo SAN, FCI Arb, is dated and filed on 16th of November, 2018.
He also filed a written Reply on point of law to the 1st Respondent?s written address on 15th January 2019.
The 1st Respondent?s written address by S. M. Konto Esq. was filed on 17th December, 2018.
Respective Counsel from inner and outer bar adopted their address. The Appellant/Applicant?s Senior Counsel urged the Court to grant all the prayers in his application. The Respondent urged the Court to refuse and dismiss the application. The 2nd Respondent did not file any process.
The Appellants sole issue for determination goes thus:
Whether having regard to the entire circumstance of the Application this Honourable Court should exercise its discretion in favour of the interested-party/Appellant Applicant by granting the application.”
?On his own part, the 1st Respondent distilled the following two issues for determination:
“(1) Whether the interested party/Appellant/Applicant application is competent.
(2) Whether having regard to the affidavit evidence and the materials before this Honourable Court the interested party/Appellant/Applicant is entitled to be granted the relief sought?.
I have carefully read and compared the issues formulated by respective counsel from inner and outer bar. It is my view that both the lone issue by the applicant and issue 2 by the 1st Respondent are similar, same and factioned out to achieve the same objective end. However issue one of the 1st Respondent is challenging the competence of the application. Be that as it may, I will adopt issue one by the 1st Respondent and the lone issue by the Applicant.
Therefore the issues for determination in this application are:
1) Whether the interested Party/Appellant /Applicant?s application is competent.
2) Whether having regard to the entire circumstances of the Application, this Honourable Court should exercise its discretion in favour of the Interested Party/Appellant/Applicant by granting the application.
The brief fact leading to this application as stated by parties in the record of Appeal and the written address by respective party is as follows: Consequent upon the advertisement by the 2nd Respondent calling for offer for purchase of landed property situated at No 76 Damboa Road, opposite NTA Maiduguri Borno State and covered by Certificate of occupancy No: NE/2833 the 1st Respondent claimed he offered to buy the said land at the advertised rate. He said he paid the sum of N25,000,000.00 for the purchase of the said property. After payment of the said amount the 2nd Respondent again demanded that he should pay an additional amount of N25,000,000.00 for the same property. He refused to pay the said amount and hence he filed the Suit No. BOHC/MG/CV/49/2015 at the Borno State High Court Maiduguri seeking for declaration of title of the property in question, delivery of possession and an order directing the 2nd Respondent to execute Deed of assignment in his favour regarding the said property and N50,000,000.00 as damages for trespass and injunctive orders against the 2nd Respondent.
The lower Court entered judgment in his favour.
The Applicant claimed lack of knowledge of the pendency of the Suit until after judgment. Hence his application to the trial Court for leave to file an Appeal as an interested party. In his considered Ruling on the application delivered on 27th day of January 2017, the learned trial Judge (Chief Judge) refused and dismissed the application (see Annexure ?APP 4?). This informed this application for leave to appeal as an interested party and upon which this Ruling is predicated .
I will from here proceed to consider the adopted issues for the determination of this application.
ISSUE ONE
Whether the interested party/Appellant /Applicants application is competent.
The contention of the learned Counsel representing the Respondent on this issue, is that the application is incompetent. He referred to Section 243 and 243 (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and submitted that both the High Court and this Court has the jurisdiction to entertain and grant such application by virtue of the constitutional provisions under reference. He again conceded to the position of the law, that such order to grant or refuse such application is appealable.
He cited the case of OTTI V. OGAH (2017) ALL FWLR (PT. 8867) p. 2075 at P 2113. He argued that pursuant to the said provision of the 1999 Constitution of the Federal Republic of Nigeria the Applicant applied to the Trial Court for leave to Appeal as an interested party but the Court refused and dismissed the application based on the reason that the Applicant was aware of the pendency of the Suit but deliberately stood by and allowed his battle to be fought by the 2nd Respondent. He contended that the only option opened to the Applicant was to Appeal against the Ruling refusing his application and not to file another application in this Court for the same order and which step the Applicant has rightly taken. He identified the incompetence of the application by the Applicant on the fact that the first application by the Applicant in this Court NO. CA/J/415/M/2018 was withdrawn and struck out on the 11th day of October 2018. He submitted that the motion No. CA/J/415/M/2018 having been withdrawn and struck out cannot come before this Court for the second time unless an order to relist it is sought and obtained. He relied on the case of AEROBELL NIGERIA LTD V. N.D.I.C. (2018) ALL FWLR (PT.947) P.1229 at P 1267 where this Court held thus:
the effect of withdrawing and consequent striking out of the process is that the process would be as it was never filed at all?
Based on the foregoing he urged the Court to resolve the issue in his favour.
Responding, the learned Senior Counsel representing the Applicant in his reply on point of Law filed on 15th January, 2019 on the competence or otherwise of the application referred to Order 6, Rule 3 of the Court of Appeal Rules which is to the effect that where an application has been refused by the Lower Court, an application for a similar purpose may be made to this Court within (15) days after the date of refusal. Based on this provision, he submitted that the application is competent.
He contended further that both the Ruling of the Lower Court delivered on 27th January, 2017 and the judgment delivered on 31th May 2016 are appellable decisions, hence the relief in the application seeking for leave to appeal as an interested party by the Appellant. The Applicant is not in any way estopped from filing fresh application in this Court.
In the light of the foregoing arguments for and against, the pertinent question is whether or not the application is competent.
Under Order 6 Rule 3 of the Court of Appeal Rules, 2016 provision is made for situations such as this at hand. I herein under reproduce the said provision.
ORDERS 6 RULE 3
Where an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal?
By the foregoing, it is clear as crystal water that where an Application is made to a trial Court and refused, the Applicant can make similar application to this Court within 15 days commencing after the date of the refusal. From the averment contained in the supporting affidavit, the Applicant took advantage of the first opportunity opened to him by applying to the trial Court vide his motion number BOHC/MG/CV/67M/2016 for leave to Appeal as an interested party. The application was refused by the trial Court. See the Ruling by the learned trial Judge (Chief Judge) delivered on 27th day of January 2017 marked as
Exhibit ?APP 4? annexed to the application. Consequent upon that refusal the Applicant opted for his second option under Order 6 Rule 3 of the rules of this Court. It is not in dispute that the Applicant?s first application was struck out by this Court. The said motion is annexed to the further counter affidavit by the 1st Respondent marked Exhibit ?ABK 9?.
In the light of the foregoing it is my candid view that when an application is struck out as in this matter at hand, it has no adverse consequence on the Applicant because such order of striking out is not on its merit. It gives the Applicant a two window option i.e. to refile similar application or to seek for an order relisting the application struck out. It appear the learned Counsel to the 1st Respondent chose to close his eyes to one of the options and continue to hammer on the other. That is the option to relist. There are numerous decided authorities by the apex Court and this next Court to the Apex Court on this point. See PEOPLE DEMOCRATIC PARTY & ANOR. V. HON DR. PATRICK O. ASADU & ORS (2016) LPELR, NDIC V. OKEKE (2010) LPELR ? 14597, MOHAMMED V. HUSSEINI (1998) 14 NWLR (PT.584) 108, CHIEF GREAT OVEDJE OGBORU & ANOR V. DR EMMANUEL EWETAN UDUAGHAN & ORS. (2013) LPELR ? 20805, AEROBELL NIGERIA LTD V. N.D.I.C. (2018) ALL FWLR (PT.947) P. 1229 AT 126. It is my ardent view in the light of the foregoing that the application by the applicant is competent and permissible under the Rules. I answer the question positively and hence the issue is resolved against the 1st Respondent.
ISSUE 2
Whether having regard to the entire circumstance of the Application this Honourable Court should exercise its discretion in favour of the interested party/Appellant/Applicant.
The argument of the Applicant?s learned Senior Counsel is that in an application of this nature, it is trite that an interested party/Appellant/Applicant is obliged to seek leave of Court as a pre-condition for filing an Appeal. He relied on the case of EKANEM EKPO OTU V. A.C.B. INTERNATIONAL BANK PLC & 1 OR (2008) 3 NWLR (PT. 1073) 179, PARA F-H, THE REGISTERED TRUSTEES CHRIST APOSTOLIC CHURCH NIGERIA V. UFFIEM (1998) 10 NWLR (PT. 569) 312, IN RE WILLIAMS (NO 1) (2001) 9 NWLR (PT. 718) 329, IN RE OJUKWU (1998) 5 NWLR (PT.551) 673 and paragraph 8 of the Affidavit in support of the application regarding relief one sought.
On the interest of the Applicant, he relied on paragraphs 3 (a), (b), (c), (d) (i) 4 (a), (b),(c), (d), (e), (f), (g), (h), (i) and (j) of the affidavit in support and the annextures to the Application marked Exhibit ?APP 1- 8?, he submitted that an Appeal is a constitutional right of an aggrieved party and which right ought not to be unnecessarily encumbered. He referred to the case ofANI V. OTU (2017) 12 NWLR (PT. 1578) 30 AT 62 PARA A.
Further he contended that there are two conditions to be met by an Applicant. They are:
(1) There are good and substantial reasons for not filing Appeal timerously.
(2)That he has good, substantial and arguable grounds of Appeal.
For the foregoing he relied on the case of MOBIL OIL (NIG) LTD V. AGADAIGHO (1988) 2 NWLR (PT. 77) and Order 6 Rule 7 & 9 (1) & (2) of the Court of Appeal Rules 2016 and the case of EMMANUEL V. GOMEZ (2009) 7 NWLR (PT. 1139) 1 at 11 PARAS C ? D.
On the requirement for good and substantial reason for failure to Appeal within the prescribed period, he submitted that the Applicant gave sufficient reasons and sustained efforts made to Appeal against the judgment in Exhibit ?APP 3? which occasioned the delay in filing this application. He referred to the averments in paragraphs 3 (e), (f), (g), (h), (i), (j) and (k) of the affidavit in support of the application.
In satisfaction of the second pre-condition that the applicant has good, substantial and arguable grounds of Appeal he contended that the certified true copy of the judgment sought to Appeal against is attached to the application and marked Exhibit ?APP 3? and so also the certified True Copy of the Ruling of the lower Court refusing the Application attached and marked Exhibit ?APP 4? and also the proposed notice of Appeal marked as Exhibit ?APP 9? attached. He also relied on paragraphs 5 & 6 of the Affidavit in support of the Application on this second precondition. He contended that in the said proposed Notice of Appeal there are substantial grounds of Appeal bordering on jurisdiction, as well as denial of Fair hearing. He said, grounds 2, 3 and 7 are on complaint on jurisdiction while ground 12 is on denial of fair hearing and which violates grossly Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999, (as amended). He argued that one of the absurdities in the proceedings before the lower Court in this case was that the 1st Respondent in whose favour judgment was delivered vide Exhibit ?APP3? and who testified as CW 1 in Kanuri language, albeit, without an interpreter. He argued that Kanuri language is not the language of the Court but English language. He relied on the cases of MAITUMBI V. BARAYA (2017) 2 NWLR (PT. 155) 347 at 415, UKWU V. BUNGE (1997) 7 SCNJ 262 at 274. Paras H ? A Line 21 -27, FEDERAL COLLEGE OF EDUCATION, OKENE & ORS V. MRS IRENE ADANA OGBONNA & 8 ORS (2006) 7 NWLR (PT.979) 282 at 299, PARAS F- G.
Further, he contended that on issue of leave to raise and argue fresh point of law which borders on issue of jurisdiction of the lower Court which was not raised at the trial Court but borne out of prayer 5 in the application. He submitted that it is settled law that before a party can seek to file and argue any fresh issue in the appellate Court he must first seek and obtain the leave of the Court.
He relied on the case of ALHAJI RAJI I. AKINWALE V. BANK OF THE NORTH (2001) 4 NWLR (PT.704) 448 at 456, EDISON AUTOMOTIVE INDUSTRIES LTD & 2 ORS V. NATIONAL ECONOMIC RECONSTRUCTION FUND (NERFUND) (2009) 8 NWLR (PT. 1144) 535 at 565 PARA G-H, PRINCE ADEWUYI AKINTARO V. MR. J. EEGUNBOHUN & 3 ORS (2007) 9 NWLR (PT. 1038) 103 at 125 ? 126 PARA G-A. He submitted that ground of jurisdiction can be raised on Appeal even without leave of Court and that what the Applicant has done by this application is merely to err on the part of caution, ?ex abundanti cautela?. He added that jurisdiction is the life wire of any case and as such can be raised on Appeal for the first time with or without leave. He relied on the cases of ISAAC GAJI & ORS V. EMMANUEL O. PAYE (2003) 8 NWLR (PT. 823) 583 at 599 ? 600 PARAS H-A, ROE LTD V. U.N.N. (2018) 6 NWLR (PT. 1616) 420 at 435, PARA D-F and ETSAKO WEST L.G.C. V. CHRISTOPHER (2014) 14 NWLR (PT. 1426) 73 PARA F-H. He said the Applicant is undisputedly an interested party in this case. He urged the Court to resolve the issue in favour of the Applicant.
The learned Counsel representing the Respondent contended that by virtue of Section 243 (a) of the 1999 Constitution, this Court has the power to grant leave to Appeal to an interested person. But in seeking the leave, the Applicant must show that he is a person having an interest in the matter. He argued that the Apex Court has interpreted the phrase ?at the instance of any person having an interest in the matter? to mean not intended to apply to a party who stands by and allows his battle to be fought by parties having the same interest. He relied on the case of ADEMOLA V. SODIPO (1992) 7 SCNJ 417 at P. 428. He submitted that the Applicant is very much aware of the case before the trial Court but decided to stand bye and allowed its battle to be fought by the 2nd Respondent. He referred to paragraphs 3 (I,) 3 (J), 3 (K), 3(I) and 4 (i) of the Counter affidavit and paragraph 3 (a) of the further Counter affidavit. He added that the 1st Respondent obtained order of injunction (Exhibit ABK 4) on 15th September, 2015 and pasted same on the property in dispute at several places and the property remained under lock and key till judgment. The Applicant decided to fight through the 2nd
Respondent. He said further that the Applicant?s managing Director (Baba Kura Kolobe) a custom officer is resident in Maiduguri, off Damboa Road, which is right behind the property in issue. He relied on paragraph 3 (ii) of the further Counter affidavit. He also contended that by exhibit ?ABK 7? which is the answer of the 2nd Respondent to pretrial question on 29th October 2015 after the order of injunction are clear pointer to the fact that the Applicant is aware of the pendency of the Suit. Therefore the mere fact that a person has some interest in the subject matter of a case is not sufficient to qualify him as a party interested. He relied on the case of SOCIETE GENERALE BANK (NIG) LTD V. AFEKORO (1999) 7 SCNJ P. 171 at 189.
He argued further that by the provision of Section 390 of the Company and Allied Matters Act (CAMA) a receiver Manager is an agent of the person on whose behalf he is appointed. Because of the agency relationship created by the law, the principal can take action on behalf of the agent. He cited the case of UNIBIZ (NIG) LTD V. C.B.C.L. LTD (2003) FWLR (PT. 152) P. 71 at P. 86. For this reason he submitted that the alleged interest of the Applicant is not worthy of protection under the law on the ground that first purchaser takes the priority in law. He relied on the case of OPARA V BRIGGS (2016) ALL FWLR (PT. 822) P. 1594 at P.1614 to 1615 PARA H-B. He submitted that where parties with the same interest in a subject matter, and Judgment is given against one of them, all of them will not be allowed to file separate Appeal. He referred to the case of P.D.P. V. PETERSIDE (2016) 7 NWLR (PT. 1512) P. 574 at P. 581.
On issue of granting extension of time to Appeal, an Applicant must give good reasons why he could not Appeal within the stipulated time. He cited the case of E.F.P.C. LTD V. N.D.I.C. (2007) ALL FWLR (PT. 367) p. 793 at P. 812. He argued that other than the averment in paragraph 3 (i) and 3 (J) the Applicant did not given any sufficient reason to support the delay.
On the Ground of Appeal he argued that all the grounds of Appeal borders on technicality and hence he urge the Court to resolve the issue in favour of the Respondent.
I have carefully read the submissions of respective Counsel from inner and outer bar, the fact leading to this application as can be gleaned from the record of Appeal and the exhibits attached to the respective process. I have equally examined the provision of the rules of this Court under which the application is channeled. The question that readily comes to mind is whether or not the Court can exercise its discretion in the circumstances of this application.
The word discretion in my view simply means quality of being discreet, prudence and liberty to act unrestricted, hence it makes it possible for cases to be individualized or personified in the light of their peculiar facts. A Court will be said to have exercised its discretion only when it has exercised such discretion according to law. In the contrary it will seize to be a discretion if it is exercised based on sentiments or premeditated or pet ideas, or completely outside the dictates of the law and general jurisprudence. Where these happens, the opposite of justice which is injustice will happen. See the following cases ALHAJI ABDULRAUF OLUMEGBON & ORS V. AMIDA ADEDEJU KAREEM & ORS (2002) 5 SC (PT. 1) 101, UNION BANK OF NIG. PLC V. ASTRA BUILDERS (W.A) LTD (2010) 5 NWLR (PT. 1186). 1.
Also my learned brother Onyemenam JCA in the case of VIOLET N. THAVE V. THE DIRECTOR GENERAL/PEANENT SECRETARY BUREAU OF LAND & SURVEY MAKURDI BENUE STATE & ORS. (2011) LPELR ? 5088 said thus on exercise of discretion.
A judicious and judicial discretion is that power of a Judge directed by sound judgment in determining the right of a litigant when such right is not absolute. It is the liberty of a judge to decide and act in accordance with that which is fair and equitable under the peculiar circumstance of the given case guided by the spirit of the law.
The foregoing view tends to agree with my notion of judicial discretion. Therefore, and bearing in mind the circumstance of this application, and the fact presented by the Applicant and the 1st Respondent, it is not in dispute that both at different times expressed their interest to purchase the property described as No 76 Damboa Road, Opposite NTA Maiduguri covered by Certificate of Occupancy No NE/2033, based on the notice calling for offer to that effect and emanating from the 2nd Respondent. From the affidavit evidence of the 1st Respondent there is disagreement on the price of sale. Still from him is the fact that after paying the sum of N25,000,000.00 he was asked to pay on additional sum of N25,000,000.00. This warranted his resort to litigation and the filing of the Suit BOHC /MG/CV/49/2015. at the High Court of justice, Maiduguri Borno State. Judgment was entered in his favour.
The Applicant claimed lack of knowledge, of the pendency of the action till after judgment and at the stage of execution. In order to defend his claimed title which he said he got through on appointed receiver after paying N40,000,000.00 for the said property hence his application to the trial Court for leave to Appeal as on interested party. His application met a brick wall. See exhibit ?APP 4? Ruling of the trial Court on the application of the Applicant as an interested party before the trial Court. This position led to this application under consideration. At this stage the question that comes to mind is who is an interested party? In the case of HARRY AKANDE V. GENERAL ELECTRIC CO. & ORS (1979) 3-4 SC 115. Aniagolu JSC (as he then was) has this to say. Hear him.
?a party or person interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings?.
See also the case of FUNDUK ENGINEERING LTD V. JAMES MCARTHUR & ORS (1990) 4 NWLR (PT.143) 266, OJUKWU V. GOVERNOR LAGOS STATE (1985) 2 NWLR (PT. 10) 807, EFP CO. LTD V. NDIC (2007) 3 SC (PT.1) 178. Going by the foregoing definition of an interested party and the fact I expressed herein before where in the Applicant also claimed to have purchased the property in dispute through an agent of the 2nd Respondent, tend to suggest a prima facie interest of the Applicant in the subject matter of the Suit decided by the trial Court. The Respondent to the Contrary argued that the Applicant is aware of the pendency of the Suit and decided to stand by and watch the outcome. He supported this argument with the order of injunction granted in favour of the 1st Respondent and which was pasted at several places on the property in dispute. Agreed this might be so. In my view, one cannot conclusively say that the order of injunction has been directly brought to the knowledge of the Applicant. I say this, because it has not been shown that the Applicant was operating from the said property in dispute nor has any of his presence in it. It makes the position dicey. It leaves the position to the realm of speculation which Courts are enjoined not to act upon. On issue of delay the reason expressed in Exhibit ?APP 3? and as averred in paragraphs 3 (e), (f), (g), (h), (i), and (k) of the affidavit in support of the application are of convincing and reasonable weight to tilt the mind of the Court not to apportion blame to the Applicant for delay.
Looking at the proposed ground of Appeal and in particular, those grounds complaining of lack of fair hearing which is guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, and the challenge to the jurisdiction of the Court, they are prima facie recondite issues of law. They are complaints against noncompliance with the provisions of the grund norm i.e. the Constitution of the Federal Republic of Nigeria 1999. Not this alone, complaints bordering on the jurisdiction of a Court can be raised at any stage even for the first time at the Apex Court of the land. There are numerous authorities on this. See ETSAKO WEST L.G.C. V. CHRISTOPHER (2014) 14 NWLR (PT.1426) 73., ROE LTD V. U.N.N. (2018) 6 NWLR (PT.1616) 420 at 435. Based on this, I have no hesitation in holding that there are recondite and arguable ground of Law in the proposed ground of Appeal to support the application.
I refuse the temptation posed by the learned Counsel representing the Respondent in his argument on issue of 1st purchaser in Law. Commenting on this issue will lead the Court delving into the substance of the issue at stake between the parties at this Preliminary stage.
In the light of the foregoing and considering the position that in the exercise of the discretionary powers, the Courts are called upon to reconcile two competing interest and which will require all the tact, caution and precaution, it will become difficult to lay down an acid test. What I am saying is that the whole idea of exercise of discretionary power is to do substantial justice in the matter except where injustice will arise from the possible exercise of the discretionary power. In the circumstance of the facts of this application, it is my considered humble view that interested party Applicant can access the discretionary power of this Court having regard to the fact and circumstance of this application. This will allow all parties to ventilate their grievance and for justice to take its course. I therefore, answer the question in the affirmative and resolve the sole issue against the 1st Respondent.
Accordingly the application is granted and the objection thereto is overruled and dismissed.
In that regard, I make the following orders.
(1) Leave is granted to BAMS INVESTMENT LTD as an interested party to file an Appeal against the judgment of the High Court of Justice Borno State, Maiduguri in Suit No. BOHC/MG/CV/49/2015 delivered on 31st day of May 2016.
(2) Time is extended for BAMS INVESTMENT LTD as an interested party to apply for leave to Appeal against the judgment of the High Court of Justice, Maiduguri, Borno State, delivered on 31st day of May 2016 in Suit No: BOHC/MG/CV/49/2015.
(3) Leave is granted to BAMS INVESTMENT LTD as party interested to Appeal against the judgment of the High Court of Justice Maiduguri Borno State delivered on 31st day of May 2016 in Suit No. BOHC/MG/CV/49/2015.
(4)Time is extended for BAMS INVESTMENT LTD as party interested within which it will appeal against the judgment of the High Court of Justice Maiduguri Borno State delivered on 31st day of May 2015 in Suit No. BOHC/MG/CV/49/2015.
(5) Leave is granted to BAMS INVESTMENT LTD as party interested to raise and argue fresh point bordering on jurisdiction in the manner and as contained in exhibit ?APP 9?, the proposed Notice of Appeal.
(6)The interested party Applicant BAMS INVESTMENT LTD should file and serve his notice of Appeal in the manner and as contained in the proposed Notice of Appeal marked exhibit ?APP 9?, within 15th days from today.
Parties to bear their cost.
UCHECHUKWU ONYEMENAM, J.C.A.: I have had the opportunity of reading in draft the Ruling just delivered by my learned brother MUDASHIRU NASIRU ONIYANGI, JCA, and I agree with the conclusion reached thereat.
I too grant the application and endorse all the consequential orders made therein.
TANI YUSUF HASSAN, J.C.A.: I read before now, the Ruling delivered by my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA. I agree with the reasoning granting the application and dismissing the objection. I abide by the orders made.
Appearances:
P. A. Akubo, SAN with him, S.Y. Tsok, Esq., A. J. Adudu, Esq. and G. S. Orshio (Miss)For Appellant(s)
S. M. Konto for the 1st Respondent.
S. G. Oyatemi holding the brief of Y. G. Bello for the 2nd RespondentFor Respondent(s)
