AIGBE & ORS v. KUTI & ORS (2020)

AIGBE & ORS v. KUTI & ORS

(2020)LCN/14632(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, September 11, 2020

CA/LAG/PRE/ROA/CV/1085M1/19(R)

RATIO

PLEADINGS: FAILURE TO FILE A COUNTER AFFIDAVIT MEANS ADMISSION

It is a practice of this Court to examine the grounds of the application and the facts deposed to in the supporting affidavit in order to determine whether the Applicants deserve a favourable exercise of the Court’s discretion. In other words, failure of the Respondents to challenge the application by way of a counter affidavit does not mean the Applicants will automatically be entitled to the exercise of the Court’s discretion to grant their application. The failure to file a counter affidavit only means that the Respondents admit all the facts deposed to by the Applicant and the Court is free to accept such facts as established. SeeStanbic IBTC V. LGC Ltd (2017) 18 NWLR (pt. 1598) 431 (SC), Societe Generale Bank (Nig.) Ltd Vs. Afekoro (1999) 11 NWLR (pt. 627) at 541 to 542, Nabore Properties Ltd V. Peace-Cover Nig. Ltd & Ors. (2014), Ikoli Ventures Ltd & Ors. V. SPDC (Nig.) Ltd (2008) LPELR-4300 (CA) and LPELR-22585 (CA). Per BALKISU BELLO ALIYU, J.C.A

RATIO

PLEADINGS: FILING AN APPEAL AS A “PERSON HAVING AN INTEREST”

This application was filed pursuant to Sections 243 (1)(a), of the Constitution of the Federal Republic of Nigeria 1999 as amended and Order 6 Rules 1 and 7 and Order 9 Rule 1 of the Court of Appeal Rules 2016. Section 243(1)(a) of the Constitution provides that:
“Any right of appeal to the Court of Appeal from the decisions of Federal High Court or a High Court conferred by this Constitution shall be-
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter….” The above provision allows a party who was not involved in proceedings of the lower Court that resulted in a judgment, which affected his interest to file an appeal against same as a “person having an interest” otherwise known as ‘interested party’ in the matter. However since he was not a party in the proceedings, his right of appeal is conditional upon his seeking the leave of the lower Court or the Appellate Court before which he intends the file the appeal. He must convince the Court by his application that he is indeed aggrieved by the judgment because he is affected or likely to be affected or his right of title to something is affected or threatened by the judgment which he seeks leave to appeal against. See IN RE: MADAKI (1996) 7 NWLR (pt. 459) 153, U. B. A. V. South Land Associates Ltd & Ors. (2019) LPELR-47121 (CA), Funduk Engineering Ltd & Ors. Vs. Mcarthur & Ors. (1996) LPELR-129 (SC). It is however observed that the Applicant prayed for “enlargement of time within which to seek leave to appeal as an interested party.” This is procedurally wrong because not being a party in the proceedings leading to the judgment against which they are seeking leave to appeal, time does not run against them. By this application, the applicants are seeking leave to be made parties in the proceedings, which will then enable them to appeal against the said judgment, with the backing of the provisions of Section 243(1)(a) of the Constitution. This position of the law has been stated and re-stated in uncountable decisions of this Court and the Apex Court, yet counsel continue to repeat this procedural mistake. See IN RE: Dago (2018) LPELR-45263 (CA), Ojora V. AGIP (Nig.) Plc. (2005) 4 NWLR (pt. 916) 515, Keystone Bank Ltd V. Embeco (Nig.) Ltd & Ors. (2018) LPELR- 46178 (CA) among others. Per BALKISU BELLO ALIYU, J.C.A

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

OLUDAYO DADA AIGBE 2. CONFIDENCE CARGO LTD 3. MAZI UDOCHUKWU CHIJIOKE 4. ARC CHIMA CHIJIOKE 5. ARC. TOKUNBO AKINSUMADE 6. MISS CHUKWU OKOLIE 7. MRS MULIKAT AMOPE ORULBAJA (FOR THEMSELVES AND ON BEHALF OF OTHER PROPERTY OWNERS AT ADEOLA AJAYI CRESCENT, & OLD EWU ROAD, MAFOLUKU, OSHODI, LAGOS, WHO DERIVE THEIR TITLES FROM THE ELEMOS, CHIEF AREAGO, CHIEF ASHAMU, OLORO, OGUNLOKO & NDAZURA FAMILIES OF MAGOLUKU) APPELANT(S)

And

HRM OBA SHAKIRUDEEN ADESHINA KUTI 2. HRM OBA AGBABIAKA KABIRU ORISEDEKO ELEMO (OSOLO OF ISOLO) 3. CHIEF HUSSAIN RAHEEM SHEKONI BELLO (BAALE MAFOLOKU/AJAO ESTATE) RESPONDENT(S)

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): The six Applicants filed a motion on notice before this Court on the 12th September 2019 by which they pray for the following orders on their behalf and on behalf of other property owners at Adeola Ajayi Crescent and Old Ewu Road, Mafoluku, Oshodi, Lagos who derive their titles of the properties from the Elemos, Chief Areoago, Chief Ashamu, Oloro, Ogunloko & Ndazura families of Mafoluku:
1. AN ORDER of the Honourable Court granting an enlargement of time within which INTERESTED PERSONS as Applicants herein may seek LEAVE TO APPEAL as Party Interested against the Judgment of the HONORABLE JUSTICE F. BANKOLE OKI of the Lagos High Court delivered on the 7th day of March, 2019 in SUIT No. ID/3831LMW/2016.
2. AN ORDER of the Honorable Court granting the Interested Persons/Applicants leave to appeal to the Court of Appeal as an interested party against the Judgment of the HONORABLE JUSTICE F. BANKOLE OKI of the Lagos High Court delivered on the 7th day of March 2019 in SUIT No. ID/3831LMW/2016.
3. AN ORDER of the Honorable Court granting leave to Interested Persons/Applicants to appeal as

a Party Interested in the Judgment of the HONORABLE JUSTICE F. BANKOLE OKI of the Lagos High Court delivered on the 7th day of March 2019 in SUIT No. ID/3831LMW/2016, in terms of the “Proposed Notice of Appeal” herewith attached as exhibit ADA9.
4. AN ORDER of the Honorable Court granting an enlargement of time within which the interested Persons/Applicants as Applicants herein may file and serve the Notice of Appeal in terms of the proposed Notice of Appeal attached as exhibits ADA9
5. AN ORDER OF INJUNCTION restraining the Respondents, their agents, servants or privies from disturbing or otherwise interfering with the Applicants’ possession, occupation and use of their properties situate at Nos. 6A, 6B, 7, 9, 13, 14, 16A& B, 18, 20, 22, 24A & B, 26, Adeola Ajayi Crescent and 110A & B Old Ewu Road, off International Airport Road, Mafoluku, Oshodi Lagos, pending the hearing and the determination of the Appeal.
6. AN ORDER of the Honorable Court granting interested Persons/Applicants leave to canvass fresh questions of Mixed Law and Facts in the appeal to be filed against the decision of HONORABLE JUSTICE F. BANKOLE

OKI of the Lagos High Court delivered on the 7th day of March 2019 in SUIT No. ID/3831LMW/2016.
7. AND for such further or other orders as this Honorable Court may deem fit to make in this circumstance.

The Application is predicated on ten grounds reproduced below:
1. That the judgment delivered by Honorable Justice F. Bankole Oki of the Lagos High Court on the 7th day of March 2019 in Suit NO. ID/3831LMW/2016, which judgment affected the Applicants’ Lands and buildings thereon situate at Nos. 6A, 6B, 7, 9, 13, 14, 16A& B, 18, 20, 22, 24A & B, 26, Adeola Ajayi Crescent and 110A & B Old Ewu Road, off International Airport Road, Mafoluku, Oshodi Lagos, of which, most of the Applicants herein have obtained certificates of occupancy and Governor’s consent thereon, constitutes a flagrant breach of the Applicants’ Right to fair hearing as guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as neither the Applicants who most had been on the land and erected buildings thereon since 1977s, 1978s, 2001s and 2012s respectively, whose predecessors-in-title acquired the title to

the land since 1977 was not made party to the proceedings leading to the judgment subject of the Appeal.
2. That the Applicants herein being in physical possession of the land situate at Nos. 6A, 6B, 7, 9, 13, 14, 16A& B, 18, 20, 22, 24A & B, 26, Adeola Ajayi Crescent and 110A & B Old Ewu Road, off International Airport Road, Mafoluku, Oshodi Lagos, of which most of the Applicants herein have obtained certificates of occupancy and Governor’s consent thereon and not having been made a party nor heard before the judgment was delivered makes the entire proceedings leading to the said judgment constitutes a flagrant breach of the Applicants’ fundamental right of fair hearing and consequently a nullity.
3. That the Applicants herein being in actual physical possession and by virtue in the above interest acquired in the land had erected massive buildings with total investments marker value of over N3,500,000,000.00(Three Billion, Five Hundred Million Naira) are parties affected by the judgment delivered by the Honorable Court on the 7th day of March 2019 hence this application seeking leave to appeal as an interested party.

4.That considering the fact that the issue in Suit No. ID/3831LMW/2016 was principally for the declaration of title, which suit allegedly relates to the land upon which the Applicants had individually erected massive buildings since they acquired the land from their predecessors in 1978, 1979, 2001, 2012 etc., respectively, and the deliberate failure to join the necessary parties to the said proceeding renders the entire proceedings and judgment obtained thereto a nullity.
5. That considering the nature of the issue in Suit No. ID/3031LMW/2016, the action instituted by the 1st Respondent against the 2nd and 3rd Respondents (which parties refused to defend the suit) and which parties were not in possession or occupation of any portion of the land occupied by the Applicants, the entire proceedings before the lower Court was tainted by fraud, and same targeted mostly at the Applicants with a view of extorting huge sums of money from the Applicants by way of request for ratification.
6. That considering the facts that the Applicants were not a party to the action before the lower Court, it would be in the interest of justice if granted leave to appeal as

a party interested and equally file Notice and Grounds of Appeal to raise issues of facts and mixed law which were not raised before the lower Court.
7. That consequent upon the above grounds it will be in the interest of justice if the 1st Respondent are (sic) restrained by way of injunction from interfering with the Applicant’s possession and occupation or further levying execution on the Applicants’ property situate at 6A, 6B, 7, 9, 13, 14, 16A& B, 18, 20, 22, 24A & B, 26, Adeola Ajayi Crescent and 110A & B Old Ewu Road, off International Airport Road, Mafoluku, Oshodi Lagos, of which most of the Applicants herein have obtained certificates of occupancy and Governor’s consents thereon.
8. That owing to the fact that appeals from the High Court to the Court of Appeal ought to be filed within three (3) months of the judgment complained against, the said period having expired since the 18th June 2019, the expiration of the time permitted by law constitutes special circumstances why the application has to be filed at the Court of Appeal in the first circumstance.
9. That despite that the Interested Parties/Applicants

have been in possession of the land for over 40 years that the 1st Respondent never deemed it necessary to join the Interested Parties as Defendants in the suit against the 2nd and 3rd Respondents, who are supposedly the Descendants, original Landlords of the large number of the Interested Parties/Applicants. The Applicants shall rely on the time tested cases of OKWU V. UMEH (2016) ALL FWLR Pt. 825 pg. 232 & MBANEFO V. MOLOKWU (2014) 6 NWLR pt. 1403 pg. 377 at 421 on the need to join necessary party in an action that affects the right of persons in possession.
10. That the judgment given by His Lordship, Hon. Justice Bankole Oki of the Lagos High Court on the 7th of March, 2019 over the purported land consisting of an area of 5329. 30 Acres and that covered by survey plan No. AP 2996/F dated 20.3.1081 made by surveyor A. B. Apatira of which the 1st Respondent has executed judgment affected the title and possessory rights of the Interested Parties/Applicants.

In support of the application is the affidavit of Abdulafiz Akinokun, a counsel in the law firm of Messrs Okoro & Associates, counsel of the Applicants. The deponent of the 9 paragraphed

affidavit stated inter alia that the Applicants who were in actual physical possession of the lands the subject of the judgment of the Lagos High Court had no notice of the suit filed by the 1st Respondent until the 9th August 2019 when the 1st Respondent with some police officers invaded and locked down the entire land including their properties aforementioned in attempted execution of the said judgment. Attached to the affidavit in support are the deeds of assignments in respect of the properties of the Applicants, (exhibits ADA1 to ADA7), the copy of the judgment of the Lagos High Court delivered on the 7th March 2019 (exhibit ADA9) against which the Applicants seek leave to appeal and their proposed Notice of Appeal containing seven grounds of appeal is also marked as exhibit ‘ADA10’.

During the hearing of the Application, learned counsel for the Applicants Kingsley Uche Okoro Esq. moved the application relying on the affidavit in support and urged the Court to grant the prayers of the Applicants.

Learned counsel for the 1st Respondent Mr. M. B. Jimoh Akogun did not file any counter affidavit in opposition to the application on behalf

of the 1st Respondent. He however urged upon the Court to refuse prayer 5 of the applicants on the ground that there is no appeal filed before the Court. In response to this contention, Mr. Okoro, learned counsel for the Applicants referred the Court to Order 1 Rule 5 of the Court of Appeal Rules 2016, which defines an appeal to include an application for leave to appeal.
The 2nd and 3rd Respondents were also served with the motion on the 13th September, 2019 as shown in the record of Court and notified of the date for the hearing. They chose not file any response to the Application and did not deem it fit to appear in Court to participate in the hearing of the application. The application is therefore not contested.
Though the Application is not contested, it is a practice of this Court to examine the grounds of the application and the facts deposed to in the supporting affidavit in order to determine whether the Applicants deserve a favourable exercise of the Court’s discretion. In other words, failure of the Respondents to challenge the application by way of a counter affidavit does not mean the Applicants will automatically be entitled to

the exercise of the Court’s discretion to grant their application. The failure to file a counter affidavit only means that the Respondents admit all the facts deposed to by the Applicant and the Court is free to accept such facts as established. SeeStanbic IBTC V. LGC Ltd (2017) 18 NWLR (pt. 1598) 431 (SC), Societe Generale Bank (Nig.) Ltd Vs. Afekoro (1999) 11 NWLR (pt. 627) at 541 to 542, Nabore Properties Ltd V. Peace-Cover Nig. Ltd & Ors. (2014), Ikoli Ventures Ltd & Ors. V. SPDC (Nig.) Ltd (2008) LPELR-4300 (CA) and LPELR-22585 (CA). I will therefore proceed to determine the application based upon the materials placed by the Applicant before us.
This application was filed pursuant to Sections 243 (1)(a), of the Constitution of the Federal Republic of Nigeria 1999 as amended and Order 6 Rules 1 and 7 and Order 9 Rule 1 of the Court of Appeal Rules 2016. Section 243(1)(a) of the Constitution provides that:
“Any right of appeal to the Court of Appeal from the decisions of Federal High Court or a High Court conferred by this Constitution shall be-
(a) exercisable in the case of civil proceedings at the instance of a party

thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter….”
The above provision allows a party who was not involved in proceedings of the lower Court that resulted in a judgment, which affected his interest to file an appeal against same as a “person having an interest” otherwise known as ‘interested party’ in the matter. However since he was not a party in the proceedings, his right of appeal is conditional upon his seeking the leave of the lower Court or the Appellate Court before which he intends the file the appeal. He must convince the Court by his application that he is indeed aggrieved by the judgment because he is affected or likely to be affected or his right of title to something is affected or threatened by the judgment which he seeks leave to appeal against. See IN RE: MADAKI (1996) 7 NWLR (pt. 459) 153, U. B. A. V. South Land Associates Ltd & Ors. (2019) LPELR-47121 (CA), Funduk Engineering Ltd & Ors. Vs. Mcarthur & Ors. (1996) LPELR-129 (SC).
The Applicants have stated in the

affidavit in support of their application that they were all in physical possession of the land, the subject matter of the judgment of the Lagos High Court, which they attached as exhibit ‘ADA9’. Also attached to the affidavit are the deeds of assignments in respect of the land in their favour and in favour of their predecessors-in-title dated since 1977. The parties reflected in the judgment of the High Court did not include the Applicants, but only the 1st Respondent as the claimant and the 2nd and 3rd Respondents as the Defendants were parties to that suit. I have also perused the seven proposed grounds of appeal contained in the proposed Notice of Appeal attached to the supporting affidavit as exhibit ADA10, which are substantial in my view. I am therefore satisfied that the Applicants deserve the exercise of this Court’s discretion to grant them permission to appeal the judgment of the High Court of Lagos State delivered on the 7th March, 2019 in respect of Suit No: ID/3831LMW/2016.
It is however observed that the Applicant prayed for “enlargement of time within which to seek leave to appeal as an interested party.” This

is procedurally wrong because not being a party in the proceedings leading to the judgment against which they are seeking leave to appeal, time does not run against them. By this application, the applicants are seeking leave to be made parties in the proceedings, which will then enable them to appeal against the said judgment, with the backing of the provisions of Section 243(1)(a) of the Constitution. This position of the law has been stated and re-stated in uncountable decisions of this Court and the Apex Court, yet counsel continue to repeat this procedural mistake. See IN RE: Dago (2018) LPELR-45263 (CA), Ojora V. AGIP (Nig.) Plc. (2005) 4 NWLR (pt. 916) 515, Keystone Bank Ltd V. Embeco (Nig.) Ltd & Ors. (2018) LPELR- 46178 (CA) among others.
Nonetheless, the application is granted in terms of the Applicants’ prayers 2, 3, 5, 6 and 7. The Applicants shall file their notice of appeal within 7 days from today.

MOHAMMED LAWAL GARBA, J.C.A.: After reading the unchallenged averments in supporting Affidavit of the Applicants, along with the copies of the Deeds of Assignment in respect of the land, subject of the judgment they seek

to appeal against, and hearing the learned counsel for the Applicants and 1st Respondent, I agree with the lead Ruling by my learned brother Balkisu Bello Aliyu, JCA that the application deserves to be granted for being meritorious.

The uncontroverted facts in the Applicants’ Affidavit, clearly show that they are persons having interest in the subject matter judgment of the High Court in question who are entitled, by dint of Section 243(1)(a) of the 1999 Constitution, to the right to appeal against same. See L.S.D.P.C. vs. Dakour (1992) 11/12 SCNJ, 217. Societe-General Bank vs. Afekoro (1999) 7 NWLR, 171, Ezeagu Local Government vs. Ufuanya (1996) 7 NWLR (Pt 459) 226
I join in granting the application in terms of the lead Ruling.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.

Appearances:

KINGSLEY UCHE OKORO ESQ. For Appellant(s)

B. JIMOH AKOGUN ESQ. FOR THE 1ST RESPONDENT
2ND& 3RD RESPONDENTS ABSENT For Respondent(s)