ROUGH DIAMOND TELECOMS LIMITED v. MINISTER OF FEDERAL CAPITAL TERRITORY & ANOR (2019)

ROUGH DIAMOND TELECOMS LIMITED v. MINISTER OF FEDERAL CAPITAL TERRITORY & ANOR

(2019)LCN/13141(CA)

(2019) LPELR-48371(CA)

RATIO

PARTIES: INTERESTED PARTIES: CONDITIONS TO QUALIFY AS AN INTERESTED PARTY

The next port of call is who is a Party Interested and what are the conditions he must meet or the hurdles he must scale to have a viable appeal as an Interested Party.
The Supreme Court has stated clearly in the case of CHUKWU V INEC (2014) 10 NWLR (PT. 1415) 385 414 H – A cited by learned Counsel to the Applicant that an Interested Party must be a person whose interest has been directly and not obliquely affected by a decision of a Court that that he can validly seek leave to appeal as a Party pursuant to Section 243(1)(a) of CFRN 1999 as amended.
In the case of DIAMOND BANK PLC V H.R.H. EZE (DR) PETER OPARA & ORS (2018) 7 (PT. 3) SCM 119 AT 129 A-D per BAGE, JSC who said:-
“In my view, an aggrieved person, as in the circumstances of this appeal can be likened to a party interested as espoused by this Court, per Mohammed, CJN (Rtd.) in the case of NWAOGU VS ATUMA (2013) All FWLR (669) 1022 at 1034, (2013) 2 SCM, 205 where His Lordship stated the law in these words:
…for a person to qualify as a person interested, the Applicant must show not only that he is a person having interest in the matter but also that the order or judgment of the Court below he is seeking leave to appeal against pre judicially affects his interest.PER PETER OLABISI IGE, J.C.A.

LIMITATION OF TIME IN APPEAL: TIME WITHIN WHICH AN INTERESTED PARTY MUST APPLY FOR LEAVE TO APPEAL

There is no time limit prescribed for an Interested Party to apply for leave to appeal but he must lay before the Court enough materials showing convincingly that he ought reasonably be allowed or permitted to appeal the judgment affecting prejudicially his interest in the subject matter over which the judgment complained of was given. See EDWARD N. NIKAGBATE VS JOSEPH OPAYE & ANOR (2018) 3 SCM 138 AT 155 E – H per RHODES-VIVOUR, JSC who said:-
“I earlier observed that distinguishing a ground of law from one of mixed law and fact can be very difficult as the line of distinction can be very thin at times.
When in doubt, no harm is done if counsel out of the abundance of caution applies for leave. In this way he can never be wrong or have his appeal struck out simply because leave was not obtained before the appeal was filed.
Furthermore, I observed that learned counsel for the appellant is strongly of the view that there are many flaws in exhibits D and E. It beats my imagination why he never filed an appeal against exhibit E. Exhibit E was delivered in 1965. There is no time limitation for filing appeals.PER PETER OLABISI IGE, J.C.A.

In The Court of Appeal of Nigeria

On Thursday, the 18th day of April, 2019

CA/A/300/M/2017(R)

Justice

ABDU ABOKI Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

ROUGH DIAMOND TELECOMS LTD
-PLAINTIFF/RESPONDENT

ABUJA ELECTRICITY DISTRIBUTION COMPANY PLC
-INTERESTED PARTY/APPLICANTAppellant(s)

AND

1. MINISTER OF FEDERAL CAPITAL TERRITORY
2. HUSSEB VENTURES NIG LTDRespondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Lead Ruling): By her Motion on Notice dated 4th May, 2017 and filed on 5th May, 2017 the Interested Party/Applicant prays this Court for the following Orders:-
1. An Order of this Honourable Court granting Leave to the Applicant to appeal as an Interested Party against the Judgement of U.P. Kekemeke J, of the FCT High Court in this Suit delivered on 5/3/2015.
2. An Order for Extension of time within which the Applicant may seek Leave to Appeal against the Judgement of U.P. Kekemeke J, of the FCT High Court in this Suit delivered on 5/3/2015. Annexed hereto as Exhibit A
3. An order of this Honourable Court granting leave to the Applicant to Appeal against the Judgement of U.P. Kekemeke J, of the FCT High Court in this Suit delivered on 5/3/2015.
4. An Order for Extension of time within which the Applicant may Appeal the Judgement of U.P. Kekemeke J, of the FCT High Court in this Suit delivered on 5/3/2015. As per the Notice And Grounds of Appeal annexed as Exhibit B.”

The Application is predicated on the following grounds:-
a. That the Applicant who is a Necessary

Party in this Suit, was not made a party in the Suit and hence was denied Fair Hearing.
b. That the Trial Court Nullified the Revocation of the title of the Plaintiff/Respondent to Plot 552 Cadastral Zone C02 Gwarimpa 1 District, Abuja when there was no Claim by the Plaintiff/Respondent or any Declaration by the Court that the said Revocation was wrongful or deficient in any way, thereby undermining the Power of the 1st Defendant/Respondent, as granted by Section 28 of the Land Use Act, Cap L5, LFN, 2004, to revoke the Plaintiff/Respondent’s title for Overriding Public Interest.
c. The Trial Court gave judgment in this suit which judgment affected the rights and interests of the Applicant/Interested party, whose Predecessor was at all material times, put in possession of the land, the subject matter of this Appeal, for the purposes of providing services for Public Purposes and who are indeed providing Public Services in accordance with the acquisition of the land by the 2nd Respondent for Overriding Public Interest.
d. That the Plaintiff/Respondent is estopped from setting up a contrary title to that of the Applicant as affirmed by the

judgement of the FCT High Court in Suit No. FCT/HC/CV/1771/16: Rough Diamond Telecoms Ltd vs. AEDC, Minister Federal Capital Territory Abuja And Federal Capital Development Authority.
e. That Section 243 (a) of the Constitution of the Federal Republic of Nigeria 1999 (As amended) gives the Applicant the right to seek leave to appeal as an Interested Party against the Judgement.”

The application was supported by seven (7) paragraph Affidavit sworn to by the CHIDIMMA KALU OKONKWO on 5th May 2007 having attached to it Exhibits 1 – 8.

Plaintiff/1st Respondent filed its Counter Affidavit on 1st June, 2017 while the Applicant filed Further and Better Affidavit on 23/6/2017. The Plaintiff/1st Respondent also filed Further Counter Affidavit on 12/2/2018. The Applicant thereafter filed Applicant’s 2nd Further and Better Affidavit on 6/3/2018.

On 21st September, 2018 the 2nd Respondent (Minister of FCT) filed Counter Affidavit against the grant of the Appellant’s prayers.
The Applicant filed Further and Better Affidavit against the Counter Affidavit of 2rid Respondent on 24/9/2018.

This Court ordered the parties to exchange Written

Addresses on the Motion brought by the Applicant seeking to appeal the judgment of Federal Capital Territory High Court delivered on 5th March, 2015 by KEKEMEKE, J.

The learned Counsel to the Appellant moved his application and relied on all the paragraphs of the Affidavit in Support of the Application and the Further and Better Affidavits in Support of the said application. He formulated two issues which will be taken together. They are whether Applicant has made out a case for the grant of the application and whether the depositions in the Affidavit in Support have been effectively controverted.

The learned Counsel to the Appellant relied on Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria as giving right to those who were not parties to a case who are affected by the decision reached by the lower Court – an opportunity to appeal against the decision not as of right but with the leave of the trial Court or the Court of Appeal.

According to the learned Counsel, the Applicant maintains the exclusive possession of the property the subject matter of the action. He relied on paragraphs 3(a), (e), (f), (g), (h), (i) of

and Exhibit 8 and photographs attached in Support.

That the fact of being in possession as at the time the action originated makes Applicant a necessary Party to the suit. On who is a necessary Party, he relied on the cases ofGREEN VS GREEN (1987) 3 NWLR (PT. 61) 480 AT 439 E – F and AZUBUIKE VS PDP (2014) 7 NWLR (PT. 1406) 292 AT 313 – 314 D – C. That the outcome of the case affected the Applicant who are in exclusive possession of Plot 552, Gwarinpa which houses their injection substation. On the interpretation of Section 243 (1)(a) of the CFRN 1999 as amended and in order to show that Applicant is really affected by the decision aforesaid the learned Counsel relied on the cases of CHUKWU VS INEC (2014) 10 NWLR (PT. 1415) 385 AT 414 H-A and ODEDO VS OGUEBEGO (2015) 13 NWLR (PT. 1497) 229 AT 274 – 275.

On whether the Applicant can be said to be a “person aggrieved” and whether the decision of the lower Court prejudicially affected her interest in the subject matter of the suit, the learned Counsel to the Applicant relied once again on the Supporting Affidavit and the Exhibits particularly Exhibit 8 as showing that

the decision adversely affected the Applicant.

That the judgment sought to appeal against cannot stand in view of judgment given in Applicant’s favour in Suit No, FCT/HC/CV/1771/16: ROGUH DIAMOND TELECOMS LTD VS AEDC & ORS.

On Issue 2 as to whether the Applicant’s Affidavit was controverted effectively, the learned Counsel referred to the Counter Affidavit of the Plaintiff/Respondent and the two Further and Better Affidavits sworn to by the Applicant to further support the application and to controvert the Plaintiff/1st Respondent’s depositions in its Counter Affidavit, the learned Counsel relied on Section 115 of the Evidence Act 2011 to contend that facts in paragraph 1 are not within the knowledge of the 1st Respondent deponent MR CHARLES UTOM to contend that Power of Attorney relied upon by 1st Respondent was not dated and was not registered being a document affecting land under provisions of an Instrument Registration Law applicable in FCT. That the document is invalid and it is undated. That the undated document of 1st Respondent cannot be relied upon. That the Counter Affidavit of the 1st Respondent is full of falsehood. He relied on the

cases of ALELU V EZE (2015) 13 NWLR (PART 1472) 74 AT 95 A – B and ANYAOHA V OBIOHA (2014) 6 NWLR (PT. 1404) 445 AT 475 F – G. He urged the Court to resolve the issue in Applicant’s favour and to grant the application as prayed.

The learned Counsel to the 1st Respondent OBI C. NWABOR, ESQ stated that Plot 552 Cadastral Zone CO2 GWARINPA 1 DISTRICT ABUJA was allocated to the 1st Respondent by the 2nd Respondent (Minister of Federal Capital Territory) vide Certificate of Occupancy dated 10/5/2007 for housing estate. It is Exhibit RDI. That the 2nd Respondent claimed to have revoked the Certificate of Occupancy.

The learned Counsel raised what he called Preliminary Issues one of which is that the Applicant’s learned Counsel did not affix his current NBA seal to the application filed. That the stamps imprinted on 17/3/2017 and the Motion was filed on 5/5/2017. That by Rules 9, 10 and 13 of Rules of Professional Conduct and the case of YAKI V BAGUDU (2015) 10 USE (PT..) 43 the Motion is deemed not to have been properly filed.

Secondly that the judgment the Applicant sought to appeal against must be annexed to Affidavit in

Support and not to Motion as was done in this case by the Applicant. That Exhibits A and B not being annexure to the Affidavit cannot be treated as Exhibits. He relied on the case of A.G. ENUGU STATE V. AVOP PLC (1995) 6 NWLR (PT. 399) 90.

That though Section 243 (1) (a) of the Constitution did not prescribe time within which application for leave to appeal as Interested Party is not prescribed, the learned Counsel believes that from the Affidavit in Support the Applicant became aware of the judgment in question in June 2015 but did not apply for almost 2 years after until May 2017. That no reason was given for the exercise of Court discretion to be exercised in Applicant’s favour.

He adopted the issue formulated by Applicant and relied on the cases of SGBN LTD VS AFEKORO & ORS (1999) 7 SC (PT. 111) 95; IKONNE V COP (1986) 4 NWLR PAGE 473 AT 497 and EDE V NWIDENYI & ORS (1988) 5 NWLR (PT. 93) 189 to submit that the application ought to fail having regard to facts contained in the Affidavit in Support. That the interest which will support an application under the provision must be a genuine and legally

recognizable interest and against a decision which has affected a person’s title to something.

That the judgment of the lower Court confirmed the title of 1st Respondent to the property in dispute. That the Applicant has not shown or exhibited any document of allocation which entitles the Applicant to the exclusive possession of the land.

That the Applicant agreed that the transformers/injection station was not built by them but by FCDA and they were made Caretaker of it. That 2nd Respondent did not give the land to Applicant.

That the issue in Suit FCT/CV/1771/16 Exhibits 2, 2a – b in support of Affidavit in Support of the Application is of no moment. That the 1st Respondent applied to withdraw the suit but the trial Judge dismissed the suit. That no finding was made in favour of Applicant.

On Issue 2, the learned Counsel to 1st Respondent stated while conceding that the Power of Attorney was undated but that Court had also held that oral/parole evidence of date left out in the document is admissible to show when the document was written and its effective date. He relied on AMIZU V NZERIBE (1989) 4 NWLR (PART 118) 755. He urged the Court to refuse the application.

In his own written address on behalf of the Minister of Federal Capital Territory, the learned Counsel to him ELIZABETH NDAKOTSU, ESQ stated that before the filing of the Applicant’s Motion, the 2nd Respondent had since March, 2017 fully obeyed the judgment in question and reinstated ROUGH DIAMOND TELECOMMUNICATION LIMITED to the land.
That it is only a person whose interest had been directly affected by a decision that can apply for leave to appeal the judgment.

That such aggrieved person must have genuine grievance and show that the order made prejudicially affects his interest relying on CHUKWU V INEC (2014) 10 NWLR (PT. 1415) 388 and ODEDO V OGUEBEGO (2015) 13 NWLR (PT. 1497) 229.

That from the facts of this case Plot 582 Cadastral Zone CO2 the title was vested in Rough Diamond Telecommunication Ltd. That the Applicant has not suffered wrong of being protected on appeal.

In response to the Respondents submissions, the learned Counsel to the Applicant J. N. ONYEKWULUJE, ESQ also contended that the 1st Respondent filed its written address outside the 7 days order given by this Court. That

the written address is incompetent. That order of Court must be obeyed relying on the case of OBULOR VS OBORO (2001) 8 NWLR (PT. 714) 25 AT 33. He urges that the written address be struck out.

On the failure of Appellant’s learned Counsel to affix her current NBA seal. That there is nothing to show that she is not a Legal Practitioner and that in any event she has demonstrated by Exhibit A annexed to the Further and Better Affidavit that she represented the Applicant in Suit No. FCT/FHC/CV/1771/16. She said the whole essence of NBA Seal is a profit making venture.

She also relied on the receipt of payment for the NBA Seal (Exhibit “A)” and that Counsel to the Applicant should not be made to pay for NBA’s neglect to produce and make available to her, the Practice Certificate.

On failure to annexed the judgment sought to appeal and proposed Notice of Appeal, learned Counsel stated there is nothing in the Rules of Court making it mandatory to annex the documents as Exhibits to an Affidavit.
In all he urged the Court to grant the application.

Now, the learned Counsel to the Applicant was accused of failing to annex her current Nigerian Bar

Association Seal and stamp on the Motion filed on behalf of the Applicant thereby submitting that the Motion was incompetent and ought to be struck out.
The learned Counsel to the Applicant took the matter nonchalantly by referring to the issue as pedestrian and stated that the stamp put on the Motion was the one approved by NBA. The Counsel argued:-
“The 1st Respondent has not alleged that the stamp affixed to the Application is not one approved by the NBA, and that being the case he cannot employ the preceding provisions of the Rule in aid of this unsustainable contention and we humbly urge this Court to so hold.”
It is glaring that the seal imprinted on the Applicant’s Motion has expired as at 5/5/2017 when she filed the Motion.
The apex Court had in numerous cases emphasized and underscored the need for Legal Practitioners to take issue of seal and stamp seriously and that where such seal and stamp are not put on their processes it shall be deemed not to have been filed although it can be regularized where the Legal Practitioner applies to the Court to allow him affix the seal. See:-

1. SENATOR BELLO SARAKIN YAKI RTD & ANOR VS SENATOR ATIKU ABUBAKAR BAGUDU & ORS (2015) 18 NWLR (PART 1411) 288 AT 316 B – G per NGWUTA, JSC who said:-
“The documents so signed or filed shall be deemed not to have been properly signed or filed. It is my humble view that the legal document so signed and/or filed is not null and void or incompetent like the case of a Court process signed in the name of a corporation or association (even of lawyers). See Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 cited by the learned Silk for 2nd respondent/cross-appellant. The document, in terms of the Rule, is deemed not to have been properly signed or filed, but not incompetent as the 2nd respondent assumed.
It has been signed and filed but not properly so signed and filed for the reason that the condition precedent to its proper signing and filing had not been met. It is akin to a legal document or process filed at the expiration of the time allowed by the rules or extended by the Court. In such cases, the filing of the process can be regularized by extension of time and a deeming order. In the case at hand, the process filed in breach of Rule 10(1) can be saved and its signing

and filing regularised by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law. Since this was not done the Court cannot take cognizance of a document not properly filed and the filing not regularized.”
On page 346 D – E ARIWOOLA, JSC said:-
“I am of the opinion that ordinarily, any responsible member of the noble profession of lawyers will not sign or present any legal document which does not have his seal and stamp on it. This is to show authentication and responsibility. Therefore where a document is filed without the seal and stamp of the lawyer who prepared same, such document will be deemed not to have been properly signed and filed, and shall remain voidable until the necessary steps are taken to regularize same. Otherwise, if not regularized, the Court may not countenance an improperly filed document. The rules are no doubt made by the professionals to protect and guard jealously the enviable legal profession that we all belong”
2. DR. UMAR ARDO VS INEC & ORS (2017) 13 NWLR (PART 1583) 450 AT 483 F per AUGIE, JSC who said:-<br< p=””>

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“He did not think twice; he did not hesitate, and seemed sure that he was standing on a solid foundation when he urged the Court below to discountenance the objection”. A few days later, this Court gave reasons for its decision in A.P.C. v. General Bello Sarkin Yaki and contrary to the position he took at the Court below, the requirement for the said NBA seal is mandatory, although it could be regularized.”
3. WIKE EZENWO NYESOM V HON (DR) D A. PETERSIDE & ORS (2016) 7 NWLR (PART 1512) 452 AT 512 KEKERE-EKUN, JSC who:-
“With regard to the lack of NBA stamp and seal on the petition, I refer to the recent decision of this Court in Gen Bello Sarkin Yarki v. Senator Abubakar Atiku Bagudu in SC. 722/2015 delivered on 13/11/2015; reported as Yaki v. Bagudu (2015) 18 NWLR (Pt. 1491) 288 when this Court held that the failure to affix the approved seal and stamp of the NBA on a process does not render the process null and void. It is an irregularity that can be cured ‘by an application’ for extension of time and a deeming order. It is noteworthy that the issue was raised for the first time at the hearing of the appeal. Whereupon, learned senior counsel,

Chief Akin Olujinmi, SAN made an oral application to affix his stamp and seal on the petition.”
The Appellant’s Motion is however saved because the learned Counsel to her realized the need to swear to Further and Better Affidavit to exhibit receipt showing that the learned Counsel had paid for the current year (2018) for NBA’s stamp and seal.

Another vital point raised against the application by 1st Respondent’s learned Counsel is that the judgment complained about and proposed Notice of Appeal were not exhibited but annexed to the Motion. Though the said documents were marked as Exhibits they were not referred to in the Affidavit in Support of the application. The best way to annex or attach documents for use on application or matters fought on Affidavit Evidence is to specifically refer to each of the documents distinctly in sequentially in paragraphs of Affidavit, and marked each of them as Exhibit. The exhibit so marked must be referred to in the paragraphs of the Affidavit to make such documents part and parcel of the Affidavit evidence before the Court so as to accord it value and authentication.
Having been annexed and paid for and marked

as exhibits this Court will treat it as mere irregularity.

having interest in the matter but also that the order or judgment of the Court below he is seeking leave to appeal against pre judicially affects his interest.
In other words, to succeed in the application, the applicant must show that they are persons who are aggrieved, or persons who have suffered legal grievances, or persons against whom decisions have been pronounced which have wrongly deprived them of something or wrongly refused them something or wrongly affected their title to something.”
See also in Re: Ugadu (1988) 5 NWLR (Pt.93) 189.

times.
When in doubt, no harm is done if counsel out of the abundance of caution applies for leave. In this way he can never be wrong or have his appeal struck out simply because leave was not obtained before the appeal was filed.
Furthermore, I observed that learned counsel for the appellant is strongly of the view that there are many flaws in exhibits D and E. It beats my imagination why he never filed an appeal against exhibit E. Exhibit E was delivered in 1965. There is no time limitation for filing appeals. All learned counsel needs to do is to satisfy the Court with affidavit evidence the reasons for the delay in appealing. Once this is done and the Court is satisfied with the reasons for the delay an appeal can be brought even after one hundred years after the judgment was delivered.”

Has the Applicant shown in this case that on the Affidavit evidence and documentary evidence he placed before this Court her application ought to be granted and bearing in mind the Counter Affidavit filed by the 1st and 2nd Respondents against the grant of the application.

Now the entire paragraphs of the Affidavit in Support of the Application reads:-

“1. That I am the litigation secretary in the law office of Joy N. Onyekwuluje & Co of counsel to the Applicant by virtue of which position I am conversant with the fact deposed to hereunder;
2. That I have the consent and authority of both my employer and the Applicant to depose to this affidavit.
3. That I have been informed Barr. Jaja Sasi, Legal Officer of the Applicant at about 2p.m in our office on 27/4/2017 and I verily believe him as Follows;
a. That the Applicant has been in Peaceful and undisturbed Possession of the land, the subject matter of this Suit known as Plot 552, Cadastral Zone C02 Gwarimpa 1 District, Abuja.
b. That it was not until sometime in June, 2015, that the Applicant became aware of the Judgement in this Suit.
c. That the Applicant, were not made parties to the suit even though they have been in exclusive possession of the Land.
d. That the Judgement in the Suit was a default one as none of the Defendants in the suit participated in the suit.
e. That by a letter, written to the Area Manager of the Applicant’s Life Camp, Gwarimpa, Area Office, by the Solicitor to the

Plaintiff/Respondent, that they claimed ownership of the Land and demanded that the applicant should vacate the Land. Copy of letter annexed and Marked as Exhibit 1 .
f. That on 3/6/2016, the Applicants were served with a Writ of Summons in respect of Suit No. FCT/HC/CV/1 771/16: Rough Diamond Telecoms Ltd vs. Abuja Electricity Distribution Company and Ors. Copy of the Writ and other ancillary Court processes are hereby annexed and Marked as Exhibits 2, 2a-2b.
g. That the Applicant was the only defendant that joined issue with the plaintiff in that suit.
h. That after the close of pleadings and the matter had gone into hearing to the extent that the Plaintiff/Respondent had called their sole witness and closed their case, they filed a Notice of Discontinuance, urging the Court to strike out the Suit. Copy of the said Process annexed and marked Exhibit 3.
i. That the Applicant joined issue with the Plaintiff/respondent with respect of the proper Order the Court should make. Copy of Written Address on Point of Law annexed and Marked as Exhibit 4.

j. That after considering the submissions on both sides, the Court Dismissed the Suit against the Applicant and struck same out against the other defendants. Copy of the Dismissal order is hereby annexed and marked as Exhibit 5.
4. That I have also been informed by Engr. Mukhtar Ado, Team Leader, Network Planning, of the Applicant at about 2pm in our office on 27/4/2017 and I verily believe him as follows;
a. That the land, the subject matter of this suit at the High Court, formed part of the Land designated for public use under the Abuja Master Plan for the Gwarimpa District.
b. That the Land was wrongfully allocated to the Plaintiff/Respondent contrary and in distortion of the provisions of the Abuja Master Plan for Gwarimpa District.
c. That the wrongful Allocation of the Land to the Plaintiff was effectively revoked by Minister of the Federal Capital Territory through a Letter dated 10/7/2009. Copy annexed and marked as Exhibit 6.
d. That the Plaintiff/Respondent was compensated by the 1st defendant/Respondent through the allocation of an alternative Plot of Land and they were accordingly issued with a Change of Offer of Statutory Right of

Occupancy. Copy of same is hereby annexed and marked as Exhibit 7.
e. That in line with the purpose for which the Land was acquired, and in accordance with the Abuja Master Plan for Gwarimpa District, The FCDA headed by the 1st defendant/Respondent duly constructed 1 x 7.5 MV A and 2 x 2.5 MV A Sub Stations and handed the Station over to the then Power Holding Company of Nigeria (PHCN), the immediate predecessor, of the Applicant, which was the Government Agency saddled with the responsibility of providing Electricity Power to the whole Country, including the Gwarimpa (CO2) District, and the land formed part of the assets handed over to the Applicant when they took over operations from PHCN on 1st of November, 2013.
f. That since being put in possession of the entire land, the Applicant has been in exclusive and effective possession of the land and had been utilising the entire land for the purposes of supply of Electric Power to Gwarimpa district and other purposes incidental thereto. Photographs showing that they are in exclusive possession of the land are hereby annexed and marked as Exhibit 8.
g. That the Applicant states that the entire 1.28

Hectre. of land being designated for public interest use in the Master Plan, is necessary in anticipation of the construction of more Power Sub Stations to cater for future expansion and growth in the population of the Gwarimpa District. At present, the Land houses 1 x 7.5 MVA, and 2×2.5 MVA, 33/11 KV Injection Substations; which is far less than the 2 x 15 MV A, 33/11 Kv Substation required to effectively service the current population of the Gwarimpa District. The District continues to expand and the population continues to grow.
h. That the only factor that has delayed the construction of a Larger Substation on the Land is the paucity of funds required to do so. The Applicant however hopes to do so as soon as they can afford to do so as to meet the continuous Electricity needs of the ever-expanding, electricity consuming populace of Gwarimpa and its environs.
i. That the Applicant states that their predecessor company was put in exclusive possession of the entire Land, the subject matter of this Suit by the 1st Defendant/Respondent for their Exclusive use for Public Interest involving the construction of Sub Stations for the supply of

electricity to the general public in the Gwarimpa District.
j. That the Applicant states that it will be practically impossible to dismantle the whole electric Power substations along with other installations already constructed on the Land in line with the provision of the Abuja Master Plan for Gwarimpa District. That will plunge the whole general public in that district into darkness for a long period of time and will also require a huge amount of Money to do that.
k. That the nature of the Electrical Installations built on the land are such that it is hazardous to build houses close them for human habitation.
l. That in relation to the photographs annexed to this application, he hereby certifies as follows;
vii. That the Photographs were taken and printed out by himself.
viii. That the photographs were taken from his Blackberry Z30 Handset in his custody and printed out from an Hp Laserjet Pro mfp M127-M128 Pel ms Printer and that during this period, the Handset and the printer were used regularly to store information for the purpose and activities for which Handsets and printers are used for.
ix. That over the period, there was

regularly supplied to the Handset and Printer in the ordinary Course of those activities, information of the kind contained in them or of the kind of which the information so contained is derived.
x. That throughout the material part of that period the Handset and the printer was operating properly.
xi. That the information contained in the photographs are derived from information supplied to the handset and Printer in the ordinary cause of those activities.
5. That it is in the interest of Justice to grant this application.
6. That the Respondents shall not be prejudiced by the grant of this application.
7. That I, Chidinma Kalu-Nwankwo do solemnly and sincerely depose to this affidavit in good faith, verily believing the content to be true and correct to the best of my knowledge information and belief and in accordance with the Oaths Act 2004.”

Paragraphs 16, 17, 18, 22, 24, 25, 26, 32, 33 and 45 of 1st Respondent which are also relevant stated thus:-
“16. That the Rough Diamond Telecomm Ltd then sued the Minister of the Federal Capital Territory and Husseb Ventures Nigeria Limited the

beneficiary and new allotee of plot 552 Cadastral Zone CO2 Gwarimpa 1 Abuja for a declaration that the Plaintiff/Respondent is the rightful owner of plot 552 Cadastral Zone CO2 Gwarimpa 1 District Abuja with her right over same still subsisting and a nullification of the Right of Occupancy in favour of Husseb Ventures Nigeria Limited. The writ of summon is marked exhibit RD13.
17. That judgment was entered in favour of the Plaintiff against the defendants in terms of her claim by the High Court of the Federal Capital Territory. The judgment is marked exhibit RD 14.
18. That having obtained judgment; Rough Diamond Telecomm Ltd fenced the entire area without any hindrance from anyone including the party seeking leave to appeal as an interested party.
22. That I know as a fact that the party seeking to appeal as an interested party was never allocated plot 552 Cadastral Zone CO2 Cwarimpa 1 District Abuja by the Honourable Minister of the Federal Capital Territory at any time whatsoever. She does not have a Statutory Right of Occupancy over plot No 552 Cadastral Zone CO2 Gwarimpa 1 Abuja.
23. That I know as a fact that the party seeking to appeal

as an interested party was never allocated plot 552 Cadastral Zone CO2 Cwarimpa 1 District Abuja by the Honourable Minister of the Federal Capital Territory at any time whatsoever. She does not have a Statutory Right of Occupancy over plot No 552 Cadastral Zone CO2 Gwarimpa 1 Abuja.
24. That the transformer/substation on plot No 552 Cadastral Zone was not built by the party seeking to be joined or any its predecessors but by the Engineering Department of the Federal Capital Territory Administration under the Minister of the Federal Capital Territory and within less than 1000sqm area of the land.
25. That what was given to the party seeking to leave to appeal was the management of the transformers/substation and not interest in the land belonging to the Plaintiff/Respondent.
26. That the land use of plot 552 Cadastra! Zone CO2 Gwarimpa 1 Abuja, under the Abuja master plan as contained in the Right of Occupancy (exhibit RD1) given to the Plaintiff/Applicant is housing estate and this was confirmed by the Director Department of Urban & Regional Planning, Federal Capital Development Authority in a letter dated 14/1 0/2016.

The land was not designated for public use. The letter is marked exhibit RD 15.
32. That there is no judgment in Suit No FCT/HC/CV/1 771/16 Rough Diamond Telecomm Ltd vs. A.E.D.C. Minister FCT & Federal Capital Territory Abuja affirming the title of the party seeking leave to appeal over plot 552 Cadastral Zone CO2 Gwarimpa 1 Abuja.
33. That the Suit No FCT/HC/CV/1 771/1 6 Rough Diamond Telecomm Ltd vs. A.E.D.C. Minister FCT & Federal Capital Territory Abuja was withdrawn upon the Minister of the Federal Capital Territory reinstating the Plaintiff/Respondent to the land after excision of 3600sqm from the land and leaving it with a reduced area of about 9200sqm which was acceptable to the Plaintiff/Respondent.
45. That after the letter of the Minister of the Federal Capital Territory exhibit RD21, the Plaintiff/Applicant had access to their portion of land measuring 9200sqm and have now clearly demarcated same from the remaining 3600sqm referred by the Minister for the Power Substation; and have taken effective possession/ownership of same.”

The Counter Affidavit of the 2nd Respondents (The FCT Minister) paragraphs

6 – 19 thereof are also germane and are as follows:-
“6. That the same plot No 552 cadastral Zone CO2 Gwarinpa I District Abuja revoked for overriding public interest was later reallocated to Husseb Ventures Nigeria Limited by the Minister of the Federal Capital Territory. The Right of occupancy, of Husseb Ventures Nigeria Limited is marked exhibit 2.
7. That Rough Diamond Telecom Limited successfully challenged the revocation of Plot 552 cadastral zone Co2 Gwarinpa 1 District Abuja, for overriding public purpose and the consequent reallocation of same to Husseb Ventures Nigeria Limited by the Honourable Minister of the Federal Capital Territory in the High Court.
8. That the Minister of the Federal Capital Territory being a law abiding person obeyed the judgement of the Court and reinstated Rough Diamond Telecom to the land. The high Court judgement and the letter of reinstatement are marked exhibits 3 & 4.
9. That prior to the judgement of the Court, the Federal Capital Territory Administration/Federal Capital Development Authority through its Engineering Department built a transformer/ substation in an area of about 1000sqn1 at the

foot of the plot 552, cadastral zone Co2, Gwarinpa 1 District Abuja and placed same under the management and operation of Power Holding Company of Nigeria (PHCN) Abuja Electricity Distribution company ltd (AEDC).
10. That the transformers/substation is the property of the FCTA/FCDA Engineering Department under the Minister of the Federal Capital Territory.
11. That before the reinstatement of Rough Diamond Telecom Limited to the land by the Hon. Minister, a meeting was held in the office of the Solicitor General of the Federal Capital Territory Administration at the Legal Services Secretariat to resolve the issue of the transformers/substation built on the land by the FCTA/FCDA on the implementation of the judgment. The meeting was attended by representatives of the Legal Services Secretariat (which included himself), Engineering Department, Urban & Regional Planning Department, Rough Diamond Telecom Ltd and their Lawyers.
12. That at the meeting it was discovered that the land use/purpose clause of plot 552 Cadastral zones CO2 Gwarinpa 1 District Abuja is residential medium density/private housing Estate

and had never changed; and that out of the total land area of 12847.10sqm what the Engineering Department wanted for use is only about 3,600 square. A memo to that effect is marked exhibit 5.
13. That based on exhibit 5, Rough Diamond Telecom Ltd agreed and waived his right and claim over the entire land area of 12847.10 sqm of the land and agreed to take the remainder after the excision of 3, 600sqm from the land.
14. That the Hon Minister on the above resolution and on the recommendation of the Legal Services Secretariat reinstated Rough Diamond Telecom Ltd to plot 552 cadastral zone Co2 Gwarinpa 1 District Abuja with the excision of 3,600 square from the land, leaving Rough Diamond with a smaller area of about 9245,28sqm. The letter of reinstatement and a new site plan showing this is marked exhibit 6a & 6b.
15. That sequel to a complaint by Rough Diamond Telecom Ltd that AEDC is preventing it from having access to the land, the Hon. Minister through the Deeds Registrar of the Federal Capital Territory Administration in a letter of 16th March 2017 wrote to Abuja Electricity Distribution Company Ltd to reaffirm Rough

Diamond Telecom Ltd as the owner of the new plot carved out from plot 552 cadastral zone CO2 Gwarimpa 1 District Abuja with a size of about 9200sqm and with new plot No 2463 Co2, while the remaining 3600sqn1 is for the proposed power injection substation to be known as plot 2462 (Co2). The acknowledged copy of the letter by Abuja Electricity Distribution Company limited is marked exhibit 7.
16. That on the 31st of July 2018 the Hon’ Minister of the Federal Capital Territory in the exercise of his powers under the Land Use Act gave Rough Diamond Telecomm Ltd a new Right of Occupancy over plot No 2463 Cadastral zone Co2 Gwarinpa 1 District Abuja with a size of about 9245sqm which Right of Occupancy Rough Diamond Telecomm accepted and acknowledged. A copy of the right of occupancy and its acknowledgment is marked exhibit 8a & 8b.
17. That all lands in the Federal Capital Territory Abuja whether given for private or public use is allocated by the Minister of the Federal Capital Territory with a plot number and evidenced by a right of occupancy issued by the Minister.
18. That he has gone through the policy/land file of plot 552 Cadastral Zone

CO2 Gwarinpa Abuja and through other land records in the Federal Capital Territory Administration, Land Department in the course of preparing this matter and discovered that there is no where it is shown that the said plot 552 cadastral zone CO2 Gwarinpa Abuja was given/allocated to PHCN/AEDC by the Minister of the Federal Capital Territory.
19. That he has read through the main affidavit and the two further and better affidavits of Chidinma Kalu Nwankwo in this matter and have not seen any right of occupancy exhibited by Abuja Electricity Distribution Company Ltd or any other document of title over the said plot 552 Cadastral zone Co2 Gwarinpa Abuja.
20. That I make this oath in good faith consequently believing same to be true and in accordance with the Oaths Act.”

The Further and Better Counter Affidavits filed by the Applicant merely deny the material assertion that the property in dispute in the judgment sought to appeal against was never vested in the Applicant and that the land was not given or allocated to the Applicant.

The weight of Affidavit evidence from the Respondents heavily militate against the exercise of

this Court’s discretion in Applicant’s favour. The Applicant has NOT made out any case for the grant of the leave sought.

I have also examined the Ruling dismissing Plaintiff/1st Respondent’s Suit No. FCT/HC/CV/2011/16 against the Applicant on 23/2/17, there is nothing in it in favour of Applicant as no Counter Claim was filed in the suit and no title was decreed in the Applicant’s favour. Though the judgment was referred to as Suit No. FCT/HC/CV/1771/16. There is nothing in KEKEMEKE J’s judgment interfering or which can be described as prejudicial to the interest of the Applicant.

The application dated 4th May, 2017 and filed on 5th May 2017 is quite unmeritorious and it is hereby dismissed in its entirety.

ABDU ABOKI, J.C.A.: I agree.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of a preview of the draft of the Ruling just delivered by my learned brother, Peter Olabisi Ige, JCA.

I am in agreement with the reasoning and the conclusion that the application is lacking in merit and should be dismissed.

I too find the application lacking in merit and I accordingly dismiss it.

Appearances:

Joy OnyekwulujeFor Appellant(s)

Obi C. Nwakor with him, C.N. Nwakor and K. Katkuk for 1st Respondent and also appears for 2nd RespondentFor Respondent(s)

Appearances

Joy OnyekwulujeFor Appellant

AND

Obi C. Nwakor with him, C.N. Nwakor and K. Katkuk for 1st Respondent and also appears for 2nd RespondentFor Respondent

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