BALA v. GWOMI & ANOR (2020)

BALA v. GWOMI & ANOR

(2020)LCN/14888(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/MK/36/2015

RATIO

JUDGMENT: EXTENT OF BINDINGNESS OF A JUDGMENT OR RULING

A judgment or ruling of a Court of law having the requisite jurisdiction no matter how incorrectly arrived at is valid, binding and subsisting until it is set aside by the same Court through a judicial review or by appellate proceedings. Authorities on this are a legion. It suffices to cite a few: Amida V Oshoboja (1984) 7 SC 68, Edilcon (Nig) Ltd V UBA Plc (2017) 18 NWLR (Pt 1596) 79, Ndayako V Dantoro (2004) 13 NWLR (Pt 889) 187 and Noeker V Executive Governor of Plateau State (2018) 16 NWLR (Pt 1646) 481. PER EYO EKANEM, J.C.A.

APPEAL: TIMEFRAME FOR AN INTERESTED PARTY TO APPLY FOR LEAVE TO APPEAL

There is no time prescribed for an interested party to apply for leave to appeal and so he does not require extension of time to apply for leave to appeal in that capacity. But when he is granted leave, he must appeal within the time prescribed for appeal. If he is out of time, he must apply for extension of time to appeal against the decision.
In Assams V Ararume (2016) 1 NWLR (Pt. 1493) 368, 388 Rhodes – Vivour, JSC, stated the law as follows:
“No period of time is prescribed within which an interested party may bring an application for leave to appeal as a person with interest in the matter but when a party obtains leave to appeal as an interested party he must appeal within the time prescribed by Section 25 of the Court of Appeal Act, 1976. Where the interested party fails to appeal within the stated time he could regularise his appeal by an application for extension of time to appeal.”
Though the pronouncement above is in respect of an appeal to the Court of Appeal, yet it applies with equal force to the instant matter as it was based on the general position of the law on the sanctity of time to appeal against decisions of Court. PER EYO EKANEM, J.C.A.

APPEAL: EFFECT OF FAILURE TO FILE AN APPEAL WITHIN THE STIPULATED PERIOD

Where there is failure to file an appeal within the stipulated period and no extension of time to file the appeal is obtained, the appeal is incurably defective and it deprives the appellate Court of jurisdiction to entertain the appeal. See Allanah V Kpolokwu (2016) 6 NWLR (Pt. 1507) 1. PER EYO EKANEM, J.C.A.

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

LIATU BALA APPELANT(S)

And

TANIMU AUDU GWOMI DANJUMA JAZHINBWA RESPONDENT(S)

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Customary Court of Appeal, Nasarawa State (the lower Court) sitting in Lafia in Appeal No. CCA/NS/11A/2003 delivered on 18th May, 2010. In the judgment, the lower Court (coram: Idrisu, PCCA, Ada and Osagede, JJCCA) set aside the decision of the Upper Area Court, Keffi (the trial Court) in suit No. VACK/91CV/2001 delivered on 22nd May, 2003 and remitted the case to that Court for hearing de novo.

The facts of the case leading to this appeal are that the late father of the appellant, Alhaji Adamu Alkali Fa’anyibwa, sued one Jazhibwa Zhignanisna at the trial Court, claiming a piece of farmland situate in Anekawulu in Karu Local Government Council of Nasarawa State. In the course of the proceedings, one Audu Gwomi, the father of the 1st respondent applied to be joined in the suit as a co-defendant on the basis that he had interest in the land in dispute. The trial Court dismissed the application for failure to adequately disclose Audu Gwomi’s interest in the land. The ruling was given on 22nd October, 2002. Audu Gwomi did not appeal

against the ruling but rather testified for the defendant.

The trial Court heard the case and entered judgment in favour of Alhaji Adamu Alkali Fa’anyibwa on 22nd May, 2003. The late Jazhibwa Zhignanisna was aggrieved by the decision and filed an appeal against it to the lower Court. The late Audu Gwomi applied in that Court for leave to appeal against the final decision of the trial Court as an interested party. One of the grounds of appeal was that the trial Court did not accord him fair hearing as it did not allow him to defend the matter. Inspite of the spirited objection by Alhaji Adamu Alkali Fa’anyibwa, the lower Court held that he (Audu Gwomi) was qualified to apply for leave to appeal. It dismissed the objection raised against the application. It should be mentioned that in the course of the hearing of the appeal at the lower Court, Alhaji Fa’anyibwa died and was substituted with the present appellant. Audu Gwomni also died and was substituted with the present 1st respondent.

The lower Court heard the appeal of Audu Gwomi, allowed the same and set aside the decision of the trial Court on the basis that he was denied fair

hearing by the trial Court in his application for joinder.

Aggrieved by the decision, the appellant appealed to this Court by means of a notice of appeal which was with the leave of this Court, amended on 26th September, 2017. During the pendency of the appeal Jazhinbwa Zhignanisna died and was substituted with the 2nd respondent.

Pursuant to the rules of this Court, appellant filed her amended brief of argument on 28th February, 2017 and it was deemed duly filed and served on 26th September, 2018. She also filed a reply brief on 17th November, 2020 and it was deemed duly filed and served on 18th November, 2020.

The respondents filed their brief of argument on 31st January, 2019 and the same was deemed duly filed and served on 19th March, 2020.

At the hearing of the appeal on 18th November, 2020, E.I. Irehovbude, Esq., for the appellant adopted and relied on the briefs filed on behalf of appellant in urging the Court to allow the appeal. N. B. Oyeniyi, Esq., for the respondent, adopted and relied on the brief filed on respondents’ behalf in urging the Court to dismiss the appeal.

In the amended appellant’s brief of

argument, the following issues have been formulated for the determination of the appeal:
“i. Whether it was not an error of law for the Lower Appellate Court to hold that the Judgment Creditor/Respondent was not given fair hearing by the Trial Upper Area Court Keffi and thereby occasion a grave miscarriage of justice.
ii. Whether it was not an error of law for the lower Appellate Court to hold that the defect in the failure to appeal against the ruling of the Trial Upper Area Court Keffi delivered on the 22/10/2002, refusing the application for the joinder of the Judgment Creditor/Respondent had been cured by his motion No: CCA/NS/3M/2006 and the ruling delivered on 17/07/2007 by the lower Appellate Court and thereby occasion a grave miscarriage of justice.
iii. Whether the Lower Appellate Court has the requisite jurisdiction to decide on the finding of a lower Court to which there is no appeal/ground of appeal.”

In the respondent’s brief of argument, the following issues have been distilled for the determination of the appeal:
“3.1 Whether the Lower Appellate Court was not right to have held that the judgment

Creditor/Respondent was not given fair hearing by the Trial Upper Area Court Keffi.
3.2 Whether the lower Appellate Court was right when it held that the defect in failing to appeal against the ruling of the Trial Upper Area Court Keffi delivered on the 22/10/2002 refusing the application for the joinder of the judgment creditor/Respondent had been cured by his motion No: CCA/NS/3M/2006 and the ruling delivered on the 17/7/2007 by the lower Appellate Court.
3.3 Whether the appeal brought by the Judgment Creditor/Respondent before the Lower Appellate Court clothed the Lower Appellate Court with the necessary jurisdiction to decide on the findings of the trial Upper Area Court Keffi.”

In arguing his issue 1, appellant’s counsel submitted that the father of the 1st respondent was given fair hearing at the trial Court as his application to be joined as a co-defendant was heard and a ruling delivered thereon. He further submitted that it is the duty of a litigant to appeal against the ruling of a Court if he is dissatisfied with it. He contended that it was an error for the lower Court to hold that the (1st) respondent was not given fair hearing.

In regard to his issue 2, counsel argued that where a party fails to appeal against a decision of a Court, the same is binding on him. It was his further argument that an appellate Court cannot make a finding on a ruling or a decision of a lower Court against which there is no appeal. It was therefore his contention that the lower Court erred in its reasoning that there was no need to appeal against the decision of the trial Court since the failure to appeal had been cured by the motion for leave to appeal. This, he posited, occasioned a miscarriage of justice since the trial Court ruled that the 1st respondent had no interest in the subject matter of the litigation and, without an appeal against it, the lower Court held that the 1st respondent has an interest in the land.

Arguing his issue 3, appellant’s counsel re-emphasized that in the absence of an appeal against the ruling of the trial Court, the lower Court erred in reaching the conclusion that the ruling was a grave miscarriage of justice.

Respondent’s counsel, in arguing her issue 1, submitted that the motion for joinder at the trial Court was a step

taken by Audu Gwomi to be heard, and that dismissing the application was a denial of fair hearing. He added that this is especially so as the judgment of the trial Court showed that the land of Audu Gwomi was part of the land declared by that Court to belong to appellant’s father.

As regards his issue 2, respondents’ counsel stated that the 1st respondent appealed against the ruling of the trial Court in his appeal against the final decision, leave for which was granted by the lower Court. He stated that the 1st respondent incorporated appeal against the interlocutory ruling refusing joinder in the appeal against the final decision of the trial Court.

In respect of issue 3, respondents’ counsel repeated her argument on issue 2 and submitted that the appeal filed by the 1st respondent clothed the lower Court with the necessary jurisdiction to pronounce on the finding of the trial Court.

In his reply, appellant’s counsel submitted that the 1st respondent’s application to appeal at the lower Court was in respect of the final decision of the trial Court delivered on 22nd May, 2003 whereas the ruling by the trial Court

refusing joinder was on 22nd October, 2002. He added that if he intended to appeal against the ruling, the 1st respondent ought to have applied for extension of time to do so. He contended that since the 1st respondent failed to appeal against the ruling, his attempt to appeal as an interested party could be an abuse of Court. He finally contended that it was an abuse of process for the 1st respondent to purport to incorporate the decision he was not given leave to appeal against.

It is my view that one issue arises for the determination of this appeal, to wit;
Did the lower Court have the jurisdiction to pronounce on the fairness or otherwise of the refusal of the trial Court to join the father of the 1st respondent in the suit before it?

It was the contention of appellant’s counsel that in the absence of an appeal by the 1st respondent against the ruling refusing joinder of Audu Gwomi, the decision was binding on him. A judgment or ruling of a Court of law having the requisite jurisdiction no matter how incorrectly arrived at is valid, binding and subsisting until it is set aside by the same Court through a judicial review or by

appellate proceedings. Authorities on this are a legion. It suffices to cite a few: Amida V Oshoboja (1984) 7 SC 68, Edilcon (Nig) Ltd V UBA Plc (2017) 18 NWLR (Pt 1596) 79, Ndayako V Dantoro (2004) 13 NWLR (Pt 889) 187 and Noeker V Executive Governor of Plateau State (2018) 16 NWLR (Pt 1646) 481.

Although the 1st respondent’s father did not immediately file an appeal against the ruling dismissing his application for joinder, he applied for and was granted leave to appeal against the final decision of the trial Court by way of motion No. CCA/NS/3M/2006. The leave was granted on 17th July, 2007 by the lower Court. The lower Court at page 167 of the record of appeal held as follows:
“The other submission of the respondent’s counsel that the appellant should have appealed against the ruling of the trial Court is of no essence at this stage because the defect was cured by his motion No. CCA/NS/3M/2006 and our ruling delivered on 17/7/2007.”
I am afraid that the “cure” applied by the lower Court was not comprehensive and efficacious enough to remedy what I consider a fundamental vice in ground 1 of the grounds of

the appeal of the 1st respondent at the lower Court. I shall explain. Even though the 1st respondent’s father was refused leave to join the suit as an interested party by the trial Court and he did not appeal against the ruling, the law allows him to appeal against the final judgment of that Court as a party interested. In Ojora V Agip (Nig) Plc (2005) 4 NWLR (Pt 916) 515, 534, Ogunbiyi, JCA (as he then was) referred to Obingwa L.G. V Muoma (2001) 18 NWLR (Pt 744) 71 and opined that:
“On the authority of Obingwa L.G. V Muoma supra… it was held that a person who has applied for joinder in a suit but whose application has been refused by the Court is entitled to leave to appeal against the final judgment that may ultimately be given in the suit, as a person having interest in the matter”.

Counsel for the appellant contended that where the 1st respondent failed to appeal against the ruling of the trial Court refusing joinder, his attempt at appealing as an interested party will be an abuse of Court process. He placed reliance on the case of Ladoja V Ajimobi (2016) 10 NWLR (Pt. 1519) 87. The case of Ladoja V Ajimobi supra does not

support his contention. The case only decided that it is an abuse of Court process for two joint petitioners in an election petition to file separate notices of appeal against the judgment of an election Tribunal. The issue under consideration did not come up and it was not pronounced upon in that case.

Nevertheless, the snag in the instant matter is that the application for leave to appeal at the lower Court as an interested party was to appeal against the final decision of the trial Court delivered on 22nd May, 2003. The lower Court granted leave to appeal against the final judgment of the trial Court.
In the notice of appeal to the lower Court, ground 1 reads:
“The Upper Area Court Keffi did not accord the interested party fair hearing which occasioned a miscarriage of justice.
Particulars:
(i) The Trial Court did not give the Interested Party the opportunity to defend the matter and to give evidence and call his witnesses.
(ii) The Trial Court did not allow the Interested Party to examine the Plaintiff’s witnesses when they testified.”
If it is taken that the above ground is a complaint against the

refusal by the trial Court to join the 1st respondent’s father as co – defendant to the suit, the position is that an appeal against the said ruling ought to be brought within thirty days of the ruling. Order 11 of the Nasarawa State Customary Court of Appeal (Appeals from Area Courts) Rules, 1988 prescribes that an appellant shall appeal (from a decision of an Area Court) within thirty days of the order or decision appealed against.
The ruling refusing the application for joinder was delivered on 22nd October, 2002, the final decision of the trial Court was delivered on 22nd May, 2003 while the motion for leave to appeal against the final decision of the trial Court was filed on 30/1/2007. Leave was granted on 17/7/2007. As at that date, the 1st respondent was many years out of time in appealing against the ruling of 22nd October, 2002. There is no time prescribed for an interested party to apply for leave to appeal and so he does not require extension of time to apply for leave to appeal in that capacity. But when he is granted leave, he must appeal within the time prescribed for appeal. If he is out of time, he must apply for extension of

time to appeal against the decision.
In Assams V Ararume (2016) 1 NWLR (Pt. 1493) 368, 388 Rhodes – Vivour, JSC, stated the law as follows:
“No period of time is prescribed within which an interested party may bring an application for leave to appeal as a person with interest in the matter but when a party obtains leave to appeal as an interested party he must appeal within the time prescribed by Section 25 of the Court of Appeal Act, 1976. Where the interested party fails to appeal within the stated time he could regularise his appeal by an application for extension of time to appeal.”
Though the pronouncement above is in respect of an appeal to the Court of Appeal, yet it applies with equal force to the instant matter as it was based on the general position of the law on the sanctity of time to appeal against decisions of Court.

Instance, since time to appeal against the ruling of the trial Court refusing joinder had expired and no extension of time to appeal was obtained, the lower Court had no jurisdiction to visit the ruling and hold that the refusal to join 1st respondent’s father was a gross miscarriage of justice and violation of the principle of fair hearing. That is why I stated earlier that the cure applied by the lower Court was not comprehensive and efficacious. Since the decision of the lower Court was wholly founded on the point above, it cannot be allowed to stand.

I therefore enter a negative answer to the issue for determination and resolve it in favour of the appellant.

The appeal has merit and I therefore allow it. I hereby set aside the decision of the lower Court. The appeal of the 2nd respondent which was pending at the lower Court shall be heard by the lower Court along with the complaint in ground 2 of the notice of appeal of the 1st respondent before the lower Court but before a differently constituted panel.

I assess the costs of this appeal at N100,000.00 in favour of the appellant and against the 1st respondent.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my Learned Brother, Joseph E. Ekanem, JCA, in which this appeal has been allowed. The resolution of the issue arising for determination has been fully considered and resolved, and I adopt same as mine.
I also allow this appeal and abide by the orders made in the lead Judgment including the order as to costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, Joseph E. Ekanem, JCA and I am in agreement with my Lord’s reasoning and conclusion. I concur therewith.

Appearances:

Irehovbude, Esq. For Appellant(s)

B. Oyeniyi, Esq. For Respondent(s)