AGWU & ORS v. AGWU & ORS
(2022)LCN/16111(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, April 27, 2022
CA/PH/75/2019(R)
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
1. IBEJIRIKA AGWU 2. CHISA AGWU 3. IJEOMA AGWU 4. CHINYERE AGWU 5. MANUCHIM AGWU 6. IKACHIM AGWU APPELANT(S)
And
1. NSIRIMOVU AGWU AND 1. MRS MARY AGWU 2. LADY BLESSION AGBAMASILO 3. DR. (MRS) CHITURU DOREEN ANOSIRI RESPONDENT(S)
RATIO
THE POSITION OF LAW WHEN A PERSON BY VIRTUE OF AN EXISTING COURT JUDGMENT, DEED OR AGREEMENT, OR BY HIS DECLARATION, ACT OR OMISSION, INTENTIONALLY CAUSED OR PERMITTED ANOTHER PERSON TO BELIEVE A THING TO BE TRUE AND TO ACT UPON SUCH BELIEF
Section 169 of the Evidence Act, 2011 provides that when one person by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.
In the case of Mana Abuakwa v. Mana Adanze (1957) 3 All ER 559, the Privy Council re-stated the rule as to estoppels by conduct and held that a party who knew of, but took no part in, previous proceedings is bound by the decision in those proceedings. In the case of Oke & Anor. v. Atoloye & Ors. (1986) NSCC Vol. 17 (Pt. 1) 165, Nnamani J.S.C. stated that:
“It is trite law that estoppels stretches beyond estoppels per rems judication to estoppels in pais, estoppels by deed, estoppels by negligence etc more relevant to the present proceedings is estoppels by conduct. Again, and perhaps even more relevant to the present proceedings, if a party stands by and allows another to fight his battle in a litigation which touches on his interests he cannot be heard later on to complain.” PER ADEGBEHINGBE, J.C.A.
THE MEANING OF THE TERM “PERSON HAVING INTEREST”
When the Draftsperson of the 1999 Constitution (as amended) speaks of “person having interest” in the second clause of Section 243(1) (a) (supra), he uses the phrase synonymously with the phrase a “person aggrieved;” that is, a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has, wrongfully, deprived him or her of something or, wrongfully, refused him or her of something or wrongfully affected his or her title to something.”
It appears to me that the applicants are not persons aggrieved by the judgment of the lower Court. Applicants only benefited from the enforcement of a judgment of the lower Court and thus, they are not aggrieved. There is no provision in the Constitution to accommodate the type of interest the Applicants seek to canvass or project in this appeal. The joinder of the Applicants will place them in the position of claimants in the lower Court, in circumstances in which the Applicants did not have a prayer before the lower Court fashioned to accommodate their peculiar interest. In the case of Eyigebe v. Iyaji [2013] LPELR – 20522(SC), the Court warned that:
“The law is also trite and well settled that an appeal is a continuation of the case instituted at the trial Court. The final end result of an appeal cannot reflect or produce a relief different from that which originated at the trial inception.”
Per OGUNBIYI, J.S.C (PP. 20-21 paras. F). PER ADEGBEHINGBE, J.C.A.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): The application, which is the subject of this ruling, was filed by the applicants/parties seeking to be joined as interested parties, on 19/08/2021. They seek the following orders:
“1. An Order of the Honourable Court granting leave to the Applicants to apply to be joined as Interested Parties/Co-Respondents in this appeal.
2. An Order of the Honourable Court joining the Applicants as interested Parties/Co-Respondents in this suit in order to defend/protect their interest in the subject matter of this appeal.
3. An Order directing all parties in this appeal to amend their processes filed to reflect the joinder and serve same on the Applicants’ counsel.”
(Bold font for emphasis).
The grounds of the application are:
“i. The Applicants and 2nd & 3rd Respondents in this application are all children of Late Chief Emenike Solomon Agwu who died intestate and whose estate was subsequently partitioned amongst all his children including all the Applicants and the 2nd & 3rd Respondents in this motion.
ii. The estate of the Applicants and 2nd & 3rd Respondents’ late father, Chief Emenike Solomon Agwu is subject of an appeal pending in this Honourable Court.
iii. The Applicants were not parties in the litigation leading to the appeal pending in this Honourable Court.
iv. The Applicants are heirs to the Late Chief Emenike Solomon Agwu and have a subsisting and substantial interest in the estate of the Late Chief Emenike Solomon Agwu and have a right to protect and preserve their interest herein including the portion thereof partitioned to them.
v. The Applicants will be affected by any decision of this Honourable Court in the pending appeal in respect of the estate of the Late Chief Emenike Solomon Agwu including the portion thereof partitioned to them.
vi. The Applicants have a right of appeal given by Section 242(a) of the 1999 Constitution (as amended).
vi. The Applicants have a right of appeal given by Section 243(a) of the 1999 Constitution (as amended).
vii. This Application is pursuant to the right of appeal of the Applicants given by Section 243(a) of the 1999 Constitution (as amended).”
The application was argued on 01/03/2022. G. N. Okonkwo Esq. appeared for the parties seeking to be joined as interested parties. Learned counsel argued the application for joinder and relied on the further affidavit filed on 24/09/2021 and adopted the written address and reply written address, respectively, filed on 18/10/2021 and 05/11/2021. He urged the Court to grant the application.
Eberechi Adele (SAN) appeared for the Appellant (with C. A. Ijinda Esq., O. M. Olanrewaju Esq. and C. E. Weli Esq.). Learned Senior Counsel opposed the application by relying on the counter-affidavit filed on 15/09/2021. He adopted the written address filed on 29/10/2021. He urged the Court to refuse the application.
V. N. Opara Esq. appeared for the Respondents. He did not have any objection to the grant of the application.
The written address, filed by the Applicants/parties seeking to be joined, was settled by G. N. Okonkwo Esq. The two issues raised therein are:
a. Whether Applicants have adduced evidence to prove/show their interest in the subject matter of this appeal, to be entitled to the reliefs sought in this application?
b. Whether Applicants will be affected by the decision of this Court?
In the argument of the first and second issues, learned counsel relied on decisions in Bala v. Dikko [2013] 4 NWLR (Pt. 1343) 52; Yakubu v. Governor, Kogi State (1995) 8 NWLR (Pt. 414) 386 and Re: Yinka Folawiyo & Sons Ltd. [1991] 7 NWLR (Pt. 202) 237 to make the point that the Applicants have showed sufficient interest in the appeal for their application to meet with success. He urged the Court to grant the application.
In the written address, filed on behalf of the Appellant/Respondent, which Eberechi Adele (SAN) settled, learned senior counsel asked:
a. Whether the application is competent?
b. Whether the application has merit?
In respect of the first issue, learned counsel argued that Section 243(1)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999, only provides for a right of appeal and the Applicants are not appealing against the judgment of the lower Court.
Relying on the case of Ogembe v. Usman [2012] All FWLR (Pt. 613) 1844, where the Court insisted that it is a requirement of law that an applicant in the circumstances of the application under the identified section of the Constitution, must annex a proposed notice of appeal to the application, which the Applicants failed to do. He submitted that the application is incompetent.
In the opinion of learned counsel, the Applicants have not shown that they are persons having interest in the appeal, as demanded by Section 243 of the Constitution. The definition of “persons having an interest” in the matter given in decisions like Ojemaie Investment Ltd. v. A. G. Federation [2011] All FWLR (Pt. 582) 1738; SGBN v. Afekoro [1999] 7 SCNJ 171 and In Re: Eke [1993] 4 NWLR (Pt. 286) 176 is “a person aggrieved”.
Learned counsel also submitted that the fact that the Applicants failed to first make the application to the lower Court implies that it is incompetent, being contrary to Order 6 Rule 4 of the Court of Appeal Rules, without showing special circumstances. He cited the cases of Otapo v. Sunmonu [1986] 1 NWLR (Pt. 16) 344; Kalu v. Odili [1992] 5 NWLR (Pt. ?) 130; etc.
On the second issue, learned counsel maintained that the affidavit and further-affidavit filed by the Applicants are of no probative value and relevance to the application. He accused Applicants of colluding with the existing Respondents to execute the judgment of the lower Court during the pendency of the appeal and a motion for stay of execution of the judgment. He described the execution is lawyerly words, which included, the word “unlawful”. Learned counsel complained further that a party’s interest is not acquired after judgment but before judgment.
He urged the Court to refuse the application.
The Applicants’ reply on points of law was settled by G. N. Okonkwo Esq.
Learned counsel explained that the need to attach a proposed notice of appeal to an application in the circumstances is activated when an applying party is appealing against a judgment, which is not the case in this instant.
It is interesting to note that learned counsel for the Applicants/parties seeking to be joined, in paragraph 2.0.a. of his presentation, stated:
“… Clearly the Applicants are privies of the late Solomon Emenike Agwu being his children and beneficiaries of his estate and falling within the ambit of privies by blood and estate as defined in the locus classicus of COKER V. SANYAOLU (1976) 9-10 SC 203 at 233.”
It is the opinion of learned counsel that Order 6 Rule 4 of the Court of Appeal Rules is not applicable to this matter. He urged the Court to grant the application.
Resolution
“Respondent” in Order 1 Rule 5 of the Court of Appeal Rules, 2021 is defined as follows:
“Respondent” in a civil appeal means, any party (other than the Appellant or Applicant) directly affected by the appeal or application; and in a criminal appeal means the person who undertakes the defence of the judgment appealed against and includes a Legal Practitioner representing such a person in the proceedings before the Court; …”
I have examined and considered the prayers sought by the persons seeking to be joined as interested parties/co-respondents. I have considered the respective arguments presented in the written addresses and reply written address adopted at the hearing of the application by the parties. I have read and given consideration to all the decided cases and statutes referenced in the written addresses and the reply written address. The persons seeking to be joined pray for leave to seek to be joined and an order for joinder as co-respondents, simply. The judgment of the lower Court was delivered on 22/03/2018, while the application being considered in this ruling was filed, as already noted above, on 19/08/2021.
In all that was said, it seems parties to the application left out a very important aspect of the facts before the Court in their respective presentations. I need to draw attention to the fact that in paragraph 5(d) and (e) of the counter-affidavit deposed to by the Appellant/Respondent in this application, he testified thus:
“d) The Applicants have no interest in the subject matter of this appeal, hence they were not party at the trial Court, even when they are aware of the pendency of the suit which was filed in 2015.
e) The Applicants were of age during and after judgment of the trial Court but never applied to join in the matter since they claimed to have interest in the subject matter.”
In the further-affidavit filed by the parties seeking to be joined, which the 1st Applicant/party seeking to be joined deposed to, he testified:
“4. That my counsel has given me a copy of the counter affidavit filed by the Appellant/Respondent (our step-brother) in opposition to our motion for joinder.
…
12. That the property known as Woji (Woshi) street Akwaka Rumuodomaya, in Obio/Akpor Local Government Area of Rivers, which the Applicants and their mother are occupying belonged our late father, and was awarded to us by the Court, which is also contested by the Appellant/Respondent in the Appeal Court.
…
24. That contrary to the averments as contained in paragraphs 4d & 4e of the Respondent’s Counter Affidavit, the Applicants whose mother was married in 1993 were all minors when their father died in 2003.”
From page 2 of the record of appeal, it is apparent that the suit which brought parties to this Court was filed on 28/08/2015 and judgment delivered on 22/03/2018. The salient point in the exchange of evidence by the parties is whether the applicants (or at least their mother, who was married to their deceased father in 1999) knew about the suit before the lower Court when the Respondents on record filed same and during its pendency. While the Appellant/Respondent in this application accused the parties seeking to be joined in the appeal, frontally, of being aware of the pendency of the suit, the Applicants were mute and did not directly respond to the accusation. If the Applicants were aware of the suit, when it was pending before the lower Court and allowed the Respondents (on record) to fight their cause, it will be inequitable for this Court to grant this application. Section 169 of the Evidence Act, 2011 provides that when one person by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.
In the case of Mana Abuakwa v. Mana Adanze (1957) 3 All ER 559, the Privy Council re-stated the rule as to estoppels by conduct and held that a party who knew of, but took no part in, previous proceedings is bound by the decision in those proceedings. In the case of Oke & Anor. v. Atoloye & Ors. (1986) NSCC Vol. 17 (Pt. 1) 165, Nnamani J.S.C. stated that:
“It is trite law that estoppels stretches beyond estoppels per rems judication to estoppels in pais, estoppels by deed, estoppels by negligence etc more relevant to the present proceedings is estoppels by conduct. Again, and perhaps even more relevant to the present proceedings, if a party stands by and allows another to fight his battle in a litigation which touches on his interests he cannot be heard later on to complain.”
Apart from the above, the Applicants/parties seeking to be joined brought their application, to be joined as co-Respondents, under Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999. The provision is slightly different from what was provided in Section 222(a) of 1979 (which is the basis of the decisions relied upon by the Applicants). It seems that the provision of Section 243(1)(a) has attracted a different interpretation from what was available earlier than the 1999 Constitution. In the case of Charles Odedo v. PDP & Ors. [2015] LPELR–24738(SC), the Court (per Ogunbiyi, J. S. C.) stated regarding such an application, as follows:
“The Applicant from the content of his application is seeking to be joined as Co-Respondents and not as co-Appellant.
The provision of Section 243 creates a right which it vests in an intending Appellant and not in an intending Respondent. The reproduction of Section 243(1) states:-
“any right of appeal from the party thereto, or decisions of the Federal High Court or a High Court conferred by this Constitution shall be:
(a) Exercisable in the cause of any proceedings at the instance of a party thereto or…leave of the Federal High Court or the Court of Appeal at the instance of any other person having an interest on the matter.”
The right is to be exercised by a person who is aggrieved by the judgment and desires to appeal against it. The same benefit or right is not shown to extend also to any other person who was not affected by the judgment being appealed against to be joined for the purpose of defending the said judgment.
The Court, as rightly submitted by the 5th Respondent’s counsel, is given the power to interpret the provisions of the Constitution as it is expressed in clear terms. That power does not extend to legislation but is purely adjudicative. The right as sought by the Appellant/Applicant is novel and has no place as it neither comes under Section 243(1)(a) of the Constitution nor any other provision known to law.
It is unfortunate to say that the application is lacking grossly in merit and is an abuse of Court process; the totality is a bundle of confusion and is hereby dismissed.
Consequently, the Appellant has no standing in the appeal herein. He cannot possibly be a necessary party or a desirable party for the determination of the appeal before the Court below. The Appellant is a mere interloper and should go home and keep his peace.”
Nweze, J. S. C. in the above cited case elucidated on the point as follows:
“From the averment in paragraph (e) of the Grounds of his application, it is evident that the judgment in FHC/ABJ/CS/854/2014 inures in his favour. That being the case, his application under Section 243(1) (a) of the Constitution is not well-taken.
When the Draftsperson of the 1999 Constitution (as amended) speaks of “person having interest” in the second clause of Section 243(1) (a) (supra), he uses the phrase synonymously with the phrase a “person aggrieved;” that is, a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has, wrongfully, deprived him or her of something or, wrongfully, refused him or her of something or wrongfully affected his or her title to something.”
It appears to me that the applicants are not persons aggrieved by the judgment of the lower Court. Applicants only benefited from the enforcement of a judgment of the lower Court and thus, they are not aggrieved. There is no provision in the Constitution to accommodate the type of interest the Applicants seek to canvass or project in this appeal. The joinder of the Applicants will place them in the position of claimants in the lower Court, in circumstances in which the Applicants did not have a prayer before the lower Court fashioned to accommodate their peculiar interest. In the case of Eyigebe v. Iyaji [2013] LPELR – 20522(SC), the Court warned that:
“The law is also trite and well settled that an appeal is a continuation of the case instituted at the trial Court. The final end result of an appeal cannot reflect or produce a relief different from that which originated at the trial inception.”
Per OGUNBIYI, J.S.C (PP. 20-21 paras. F).
In the circumstances, it is my decision that there is no merit in the application, which is hereby refused.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the closely reasoned ruling prepared by my learned brother, Adegbehingbe, J.C.A., and wish to stress the point that by the decision of the Supreme Court in the case of Odedo V PDP & Ors (2015) LPELR-24738, an intending Co-respondent who was not a party in the case at the trial Court cannot be joined as a Co-respondent on appeal.
The same position was taken in 1929 by the High Court of Bombay’ India (then part of the Commonwealth as Nigeria) in the apt case of Monjiram Indrachandra V Maneklal Mansukhbhai Seth (1929) 31 Bomlar 672 which is a fascinating case with unusual and bizzare circumstances, as this case. There is an intending Co-respondent who was not a party in the proceedings at the trial Court applied to be joined as Co-respondent on appeal under the inherent general powers of the appellate Court equivalent to Section 15 of the Court of Appeal Act, 2004.
The Court (Baker, J.) following the cases of Shiam Lai, Joti Prasad V Dhanpat Rai(1925) I.L.R. 47 and Pachkauri Raut V Ram Khilawan Chanbe (1914) I.L.R. 37 held refusing the application that the Court had no power to implead a person who was no party to the original suit at all.
The Court (Baker, J.) also relied on the Lahore High Court case of Haliman V Nur Mohammed (1923) A.I.R. Lah 490 to hold that an appellate Court has power to implead only such persons as were parties in the trial Court and were not made parties to the appeal but not those who were complete strangers to the suit.
The Court (Baker, J.) expressed or entertained the founded fear that it would appear that very great complications would arise if third parties were added in appeals, as they would necessarily, in a large number of cases, raise points of fact which have never been considered by the trial Court.
The Supreme Court pointed out in express terms in the case of Associated Discount House Limited V The Hon. Minister of the Federal Capital Territory and Anor (2013) 8 NWLR (Pt.1357) 493 at 515, 517-518 and 519 following the cases of Nnaji v Aneke (1996) 2 NWLR (Pt430) 269, Odeleye V Adepegbe (2001) 5 NWLR (Pt.706) 330, Co-operative and Commercial Bank (Nig.) Ltd V Onwuchekwa (2000) 3 NWLR (Pt.621) 65, Kaduna Textiles Ltd. v Obi (1999) 9 NWLR (Pt.621) 138 that where the hearing of a suit has been concluded, the course of justice that is open to any party interested in or affected by the suit (who was not a party in the case) is to appeal against the existing decision of the Court as a party interested or affected, and not to apply for joinder in the concluded suit.
Accordingly, I too find the application unmeritorious and hereby refuse it and abide by the consequential order(s) contained in the lead ruling.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in draft, the lead ruling just delivered by my learned brother, Olabode A. Adegbehingbe, JCA and I agree that the application filed by the Applicants seeking to be joined as Co-Respondents in this appeal be refused.
Application is refused.
Appearances:
G. N. Okonkwo, Esq. For Appellant(s)
C.A. Ijinda Esq. – for appellant/respondent.
V. N. Opara Esq. for 1st – 3rd Respondents For Respondent(s)