BOLU AGBAJE AKADRI v. ALHAJI BUKAR KOLO & ANOR
(2019)LCN/12919(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/J/365M/2018(R)
RATIO
COURT AND PROCEDURE: WHEN A CASE IS STRUCK OUT
“In the light of the foregoing it is my candid view that when an application is struck out as in this matter at hand, it has no adverse consequence on the Applicant because such order of striking out is not on its merit. It gives the Applicant a two window option i.e. to refile similar application or to seek for an order relisting the application struck out. It appears the learned Counsel to the 1st Respondent choosed to close his eyes to one of the options and continued to hammer on the other. That is the option to relist. There are numerous decided authorities by the apex Court and this next Court to the Apex Court on this point. See PEOPLE DEMOCRATIC PARTY & ANOR. V. HON DR. PATRICK O. ASADU & ORS (2016) LPELR, NDIC V. OKEKE (2010) LPELR ? 14597, MOHAMMED V. HUSSEINI (1998) 14 NWLR (PT.584) 108, CHIEF GREAT OVEDJE OGBORU & ANOR V. DR EMMANUEL EWETAN UDUAGHAN & ORS. (2013) LPELR ? 20805, AEROBELL NIGERIA LTD V. N.D.I.C. (2018) ALL FWLR (PT.947) P. 1229 AT 126.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
COURT AND PROCEDURE: MEANING OF DISCRETION
“The word discretion in my view simply means quality of being discreet, prudence and liberty to act unrestricted, hence it makes it possible for cases to be individualized or personified in the light of their peculiar facts. A Court will be said to have exercised its discretion only when it has exercised such discretion according to law. In the contrary it will seize to be a discretion if it is exercised based on sentiments or premeditated or pet ideas, or completely outside the dictates of the law and general jurisprudence. Where these happen, the opposite of justice which is injustice will happen. See the following cases ALHAJI ABDULRAUF OLUMEGBON & ORS V. AMIDA ADEDEJU KAREEM & ORS (2002) 5 SC (PT. 1) 101, UNION BANK OF NIG. PLC V. ASTRA BUILDERS (W.A) LTD (2010) 5 NWLR (PT. 1186). 1. Also my learned brother Onyemenam JCA in the case of VIOLET N. THAVE V. THE DIRECTOR GENERAL/PERMANENT SECRETARY BUREAU OF LAND & SURVEY MAKURDI BENUE STATE & ORS. (2011) LPELR ? 5088 said thus on exercise of discretion.
A judicious and judicial discretion is that power of a Judge directed by sound judgment in determining the right of a litigant when such right is not absolute. It is the liberty of a judge to decide and act in accordance with that which is fair and equitable under the peculiar circumstance of the given case guided by the spirit of the law.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
BOLU AGBAJE AKADRI Appellant(s)
AND
1. ALHAJI BUKAR KOLO
2. FIRST BANK OF NIGERIA LIMITED Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A.(Delivering the Lead Ruling):
This Ruling is predicated on the application by BOLU AGBAJE AKADRI as an interested party Appellant /Applicant brought by way of a motion on notice pursuant to Order 6 Rules 1, 2, 7 and 10 of the Court of Appeal Rules, 2016 Section 25 of the Court of Appeal Act, 2010 (as Amended) and Section 6 (6) (a), 242 (1) & (2) and 243 (a) of the Constitution of the Federal Republic of Nigeria, 1999. (As Amended) as well as the inherent jurisdiction of the Court seeking for the following Orders.
(1) AN ORDER granting leave to BOLU AGBAJE AKADRI party interested Appellant/Applicant to file an appeal against the judgment of the High Court of Justice Borno State, Maiduguri Judicial Division delivered by Honourable Justice Kashim Zannah, the Honourable, the Chief Judge of Borno State on 31st day of May 2016 in Suit No. BOHC/MG/CV/49/2015 as a party interested.
(2) AN ORDER granting extension of time to BOLU AGBAJE AKADRI party-interested Appellant/Applicant within which to apply for leave (or seek Leave) to Appeal against the judgment of the High Court of Justice Borno State, Maiduguri Judicial Division delivered by Honourable Justice Kashim Zannah, the Honourable Chief Judge of Borno State on 31st day of May, 2016 in Suit No. BOHC/MG/CV/49/2015 as a party-Interested.
(3) AN ORDER granting leave to BOLU AGBAJE AKADRI, Party-Interested/Appellant/Applicant within which to Appeal against the judgment of the High Court of Justice Borno State, Maiduguri Judicial Division delivered by Honourable Justice Kashim Zannah the Honourable Chief Judge of Borno State on 31st day of May, 2016 in Suit No. BOHC/MG/CV/49/2015 as a Party-Interested.
(4) AN ORDER granting extension of time to BOLU AGBAJE AKADRI, Party-Interested/Appellant/Applicant within which to appeal against the judgment of the High Court of Justice Borno State, Maiduguri Judicial Division delivered by Honourable Justice Kashim Zannah, the Honurable the Chief Judge of Borno State on 31st day of May 2016 in Suit No. BOHC/MG/CV/49/2015 as a Party-Interested.
(5) AN ORDER granting leave to BOLU AGBAJE AKADRI, Party-Interested/Appellant/Applicant to raise and argue fresh points inter-alia boardering on jurisdiction which were not raised in the Court of first instance
And for such further Order or other Orders that this Court may deem fit to make in the circumstances.
The following are the grounds upon which the application is anchored.
(1) The Party-interested/Appellant/Applicant is the Revenue of STARCOMMS PLC (IN RECEIVERSHIP) whose appointment has duly lodged with the Corporate Affairs Commission.
(2) The subject matter of the judgment delivered by the Honourable Chief Judge of Borno State, Hon. Justice Kashim Zannah on 31st day of May, 2016 in Suit No. BOHC/MG/CV/49/2015 to wit the landed property known as No 76 Damboa road, opposite NTA Maiduguri covered by Certificate of Occupancy NO/2833 is one of the properties comprised in the charged assets upon which the Party- Interested/Appellant /Applicant was appointed as the Receiver to deal with as prescribed in the instrument of appointment.
(3) The judgment delivered by the Honourable Chief Judge of Borno State, Hon. Justice Kashim Zannah on 31st day of May 2016 in Suit No. BOHC/MG/CV/49/2015 has negatively impacted on the powers bestowed on the Party-Interested/Appellant/Applicant in the instrument of appointment and by extension the entire Receivership processes.
(4) The Party-Interested/Appellant/Applicant in his capacity as Receiver aforesaid is the only person legally and lawfully empowered to deal with the said property by virtue of the instrument of appointment inter alia.
(5) By reason of the foregoing the Party-Interested/Appellant/Applicant is desirous of filing an appeal against the judgment delivered by the Honourable Chief Judge of Borno Stae, Hon. Justice Kashim Zannah on 31st day of May 2016 in Suit No. BOHC/MG/CV/49/2015.
(6) The time within which to file Notice of Appeal against the said judgment has since expired hence leave of this Honourable Court is required.
(7) The leave of this Court is required before the Party-interested/Appellant/Applicant can file its Notice of Appeal against the judgment in question.
(8) The leave of this Honourable Court is equally required before the Party-Interested/Appellant/ Applicant can raise and argue fresh pints bordering on jusrisdiction of the lower Court which were not raised at the Court of first instance.
AND further Take Notice that THE Party- interested/Appellant/Applicant shall at the hearing of this Application use and rely on the Affidavit in support of this Application as well as the Exhibits here to attached.
The application is supported by an affidavit of 11 (eleven) paragraphs and 6 (six) annextures marked Exhibit ?APP1? to ?APP 6?. They are:
1). Exhibit ?APP1?
Letter by FBN Trustees dated 17th December 2014 Notifying the Corporate Affairs commission of the appointment Mr. BOLU AGBAJE AKADRI of the firm of PINHEIRO & COMPANY as receiver.
2). Exhibit ?APP2?
Letter Reference No. RC 276160 dated 15th January 2015 with the caption ?A DEED OF APPOINTMENT OF RECEIVER/MANAGER IN RESPECT OF STARCOMMS PLC?
3) Exhibit ?APP3?
Certified True Copy of Ruling High Court of Justice Maiduguri Borno State in Suit No. BOHC /MG/CV /49/2015. Delivered on 31st day of May 2016 by Hon. Justice Kashim Zannah. Chief Judge.
4) Exhibit ?APP4?
Certified True Copy of Ruling High Court of Justice Maiduguri Borno State in Suit No. BOHC/MG/CV/55m/2016. delivered on 27th day of January 2017 by Hon. Justice Kashim Zannah. Chief Judge.
5) Exhibit ?APP5?
Deed of assignment and supplemental security dated 18th day of April 2008 among Starcomms Nigeria Limited. As Borrower and The Banks Listed in schedule 1 As Lenders and First Trustees Nigeria Limited As Security Trustee.
6) Exhibit ?APP 6?
Proposed Notice of Appeal dated 5th day of October, 2018.
Further to the foregoing, the Party-Interested/Appellant/Applicant also filed a further and better Affidavit dated 16th day of November, 2018 on the same date. The said affidavit is of 7 (Seven) paragraphs. Along with this process, he also filed his written address on the same day and a written Reply on point of Law in Response to the 1st Respondent?s written address on 15th January, 2019.
In response to the foregoing, the 1st Respondent filed a counter affidavit of 7 (seven) paragraphs. Attached to it are the following Exhibits marked ?ABK ? ? ?ABK 6?.
(1) Exhibit ?ABK 1
Letter reference CAM/EIU dated June 3, 2015 by First Bank and addressed to the Managing Director, MS, Shehu & Brothers Ltd Kano with the caption.
APPOINTMENT AS SALES AGENT IN RESPECT OF PROPERTY LOCATED NO: 76 DAMBOA ROAD, OPPOSITE NTA MAIDUGURI BORNO STATE?
(2) Exhibit ?ABK 2?
Letter reference CAM/EIU dated June 3, 2015 by First Bank DATED June 29, 2015 addressed to the Managing Director Miss Shehu & Brothers Ltd Kano with the heading.
OFFER FOR PURCHASE OF PROPERTIES LOCATED AT 76, DAMBOA ROAD, OPP. NTA MAIDUGURI, BORNO STATE.
(3) Exhibit ?ABK 3?
Letter reference CAM/EIU dated June 3, 2015 by First Bank DATED June 29, 2015 addressed to the Managing Director KONTO SAJE MASU & COMPANY BORNO Maiduguri with the heading.
RE OFFER FOR PURCHASE OF PROPERTIES LOCATED AT 76 DAMBOA ROAD OFF NTA MAIDUGURI BORNO STATE?
(4) Exhibit ?ABK 4?
Enrolled Court Order of High Court of Justice, Maiduguri Borno State, dated 15th day of September 2012 signed by Hon. Justice Kashim Zannah Chief Judge.
(5) Exhibit ?ABK 5?
Deed of Assignment between STARCOMMS PLC (in Receivership) (ASSIGNOR)
AND
BAMS INVESTMENT LIMITED
(ASSIGNPE)
Dated 14th August, 2015
(6) Exhibit ?ABK 6?
Motion on Notice by Interested Party ?BAMS INVESTMENT LTD in appeal No: CA/J/415/M/2017, Suit No. BOHC/MG/ CV/49/2015 dated 5th October 2018.
Further to the foregoing the 1st Respondent filed in addition a further Counter Affidavit of 5 (five) paragraphs. Attached to the said affidavit are the following Exhibits:
(1) Exhibit ?ABK 7?
Hand written letter on KONTO SAJE MUSA & Company dated 29/6/2015 addressed to the Head, classified Assets Management; First bank Plc. 35 Marina Lagos, Lagos State with the Caption:
OFFER OF THE SUM OF N25, 000,00.00 TO PURCHASE THE PROPERTY LOCATED AT NO. 76 DAMBOA ROAD MAIDUGURI BORNO STATE.
(2) Exhibit ?ABK 8?
Defendant?s Answer to the Pre Trial Questions in Suit No: BOHC/MG/CV/49/2015 dated 29th day of October 2015.
(3) Exhibit ?ABK 9?
Ruling of the High Court of Justice of Borno State of Nigeria in Suit No: BOHC/MG/CV/55/2016 delivered by Hon. Justice Kashim Zannah C.J. on 27th day of January 2017.
Based on the foregoing parties filed and exchanged their written address. The Applicant?s written address authored by P. A. AKubo SAN, FCI Arb, dated and filed on 16th of November 2018. He also filed a written Reply on point of Law to the 1st Respondent written address on 15th January, 2019.
The 1st Respondent?s written address by S.M. Konto Esq. was filed on 17th December 2018.
Respective Counsel from inner and Outer bar adopted their address. While the Applicant?s Senior Counsel urged the Court to grant all the prayers in his application, the learned Counsel representing the 1st Respondent urged the Court to refuse and dismiss the application. The 2nd Respondent did not file any process.
The Applicant?s sole issue for determination is as follows:
Whether having regard to the entire circumstance of the application, this Honourable Court should exercise its discretion in favour of the interested ? Party/Appellant/Applicant by granting the application?.
On his own part, the Respondent distilled the following two issues for determination:
1) ?Whether the interested Party/Appellant/Applicant application is competent.
2) Whether having regard to the affidavit evidence and the material before this Honourable Court, the interested Party/Appellant /Applicant is entitled to be granted the reliefs sought?.
After a careful reading of the issues formulated by respective Counsel from inner and outer bar, it is my humble view that both the lone issue by the Applicant and issue 2 by the Respondent are similar, same and designed to achieve the same goal. However issue one of the 1st Respondent is challenging the competence of the application. Be that as it may, I will adopt issue one by the 1st Respondent and the lone issue by the Applicant. On that note, the issues for determination of this application will be as follows.
1) Whether the interested party Appellant/Applicant application is competent.
2) Whether having regard to the entire circumstances of the Application, this Honourable Court should exercise its discretion in favour of the interested Party/Appellant/Applicant by granting the application.
The brief fact leading to this application as stated by parties in their respective affidavit and the written address is that consequent upon the advertisement by the 2nd Respondent calling for offer for purchase of the landed property situate at No. 76 Damboa Road Opposite NTA Maiduguri Borno State and covered by Certificate of Occupancy No.NE/2833, the 1st Respondent claimed he offered to buy the said landed property at the advertised rate. He said he paid the sum of N25,000,000.00 for the purchase of the said property. After payment of the said amount, the 2nd Defendant again demanded that he should pay an additional amount of N25,000,000.00 for the same property. He refused to pay the said amount and hence he filed Suit number BOHC/MG/ CV/49/2015 at the Borno State High Court Maiduguri seeking for declaration of title of the property in question, delivery of possession and an order directing the 2nd Respondent to execute Deed of Assignment in his favour regarding the said property and N50,000,000.00 as damages for trespass and injunctive orders against the 2nd Respondent.
On the other hand, the defence of the 2nd Respondent to the Suit was that STARCOMMS PLC which was under Receivership owned the landed property, the subject matter of the Suit and that only the Receiver could sell the property.
The 2nd Respondent maintained that it only solicited buyer like any other creditor bank and had informed the 1st Respondent that the transaction was not to be consummated until a Deed of Assignment transferring title was executive. It was also the position of the 2nd Respondent that the offer of N25, 000,000.00 (Twenty five Million Naira) by the 1st Respondent for the said property was ultimately rejected because there was a better offer of N50,000.000.00 (Fifty Million Naira) and even an earlier one of N70,000,000.00 (Seventy Million Naira). He further maintained unequivocally that the property was sold to a Third party when the 1st Respondent refused to match the N50,000,000.00 (Fifty Million Naira). The 2nd Respondent volunteered the information before the lower Court regarding the identity of the Receiver as well as the Third party that purchased the property vide paragraphs 6, 14 and 15 of its statement of defence before the trial Court. Regardless of the foregoing, the trial Court did not join the Interested party Appellant/Applicant as a necessary party to the Suit. Further to this, the said interested party Appellant/Applicant was never served with the Originating processes in the suit let alone being aware of the pendency of suit No. BOHC/MG/ CV/49/2015, before the Trial Court.
The suit by the 1st Respondent proceeded to hearing and in the end, the trial Court entered judgment in favour of the 1st Respondent in the terms earlier on reproduced in this judgment. The Applicant in this application claimed lack of knowledge of the action by the 1st Respondent until after judgment. He applied to the trial Court for leave to Appeal against the judgment as an interested party and for extension of time to Appeal and leave to Appeal. The application was turned down and dismissed by the trial Court. See exhibit ?APP 4? annexed to the application. This informed the application by the interested party Appellant /Applicant to this Court and upon which thus Ruling is predicated.
On this note, I will proceed to consider the two issues for determination.
ISSUE ONE
Whether the interested party/Appellant/Applicants application is competent
The contention of the learned Counsel representing the Respondent on this issue, is that the application is incompetent. He referred to Section 243 and 243 (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and submitted that both the High Court and this Court has the jurisdiction to entertain and grant such application by virtue of the constitutional provisions under reference. He again conceded to the position of the law, that the grant or refusal of such application is appellable. He cited the case of OTTI V. OGAH (2017) ALL FWLR (PT. 8867) p. 2075 at P 2113. He argued that pursuant to the said provision of the 1999 Constitution of the Federal Republic of Nigeria, the Applicant applied to the Trial Court for leave to Appeal as an interested party but the Court refused and dismissed the application based on the reason that the Applicant was aware of the pendency of the Suit but deliberately stood by and allowed his battle to be fought by the 2nd Respondent. He contended that the only option opened to the Applicant was to Appeal against the Ruling refusing his application and not to file another application in this Court for the same order and which step the Applicant has rightly taken. He identified the incompetence of the application by the Applicant on the fact that the first application by the Applicant in this Court NO. CA/J/365/M/2018 was withdrawn and struck out on the 11th day of October 2018. He submitted that the motion No. CA/J/365/M/2018 having been withdrawn and struck out cannot come before this Court for the second time unless an order to relist it is sought and obtained. He relied on the case of AEROBELL NIGERIA LTD V. N.D.I.C. (2018) ALL FWLR (PT.947) P.1229 at P 1267 where this Court held thus:
the effect of withdrawing and consequent striking out of the process is that the process would be as it was never filed at all.
Based on the foregoing he urged the Court to resolve the issue in his favour.
Responding, the learned Senior Counsel representing the Applicant in his reply on point of Law filed on 15th January, 2019 on the competence or other wise of the application referred to Order 6, Rule 3 of the Court of Appeal Rules which is to the effect that where an application has been refused by the Lower Court, an application for a similar purpose may be made to this Court within (15) days after the date of refusal. Based on this provision, he submitted that the application is competent.
He contended further that both the Ruling of the Lower Court delivered on 27th January, 2017 and the judgment delivered on 31th May 2016 are appellable decisions, hence the relief in the application seeking for leave to appeal as an interested party Appellant. The Applicant is not in any way estopped from filing fresh application in this Court.
In the light of the foregoing arguments for and against, the pertinent question is whether or not the application is competent?
Under Order 6 Rule 3 of the Court of Appeal Rules 2016 provision is made for situations such as this at hand. I herein under reproduce the said provision.
ORDER 6 RULE 3
Where an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal.
By the foregoing, it is clear as crystal water that where an Application is made to a trial Court and refused, the Applicant can make similar application to this Court within 15 days commencing after the date of the refusal. From the averment contained in the supporting affidavit, the Applicant took advantage of the first opportunity opened to him by applying to the trial Court vide his motion number BOHC/MG/CV/55M/2016 for leave to Appeal as an interested party. The application was refused by the trial Court. See the Ruling by the learned trial Judge (Chief Judge) delivered on 27th day of January 2017 marked as Exhibit ?APP 4? annexed to the application. Consequent upon that refusal the Applicant opted for his second option under Order 6 Rule 3 of the Rules of this Court. It is not in dispute that the Applicant?s first application was struck out by this Court. The said motion is annexed to the further counter affidavit by the 1st Respondent marked Exhibit ?ABK 9.
In the light of the foregoing it is my candid view that when an application is struck out as in this matter at hand, it has no adverse consequence on the Applicant because such order of striking out is not on its merit. It gives the Applicant a two window option i.e. to refile similar application or to seek for an order relisting the application struck out. It appears the learned Counsel to the 1st Respondent choosed to close his eyes to one of the options and continued to hammer on the other. That is the option to relist. There are numerous decided authorities by the apex Court and this next Court to the Apex Court on this point. See PEOPLE DEMOCRATIC PARTY & ANOR. V. HON DR. PATRICK O. ASADU & ORS (2016) LPELR, NDIC V. OKEKE (2010) LPELR ? 14597, MOHAMMED V. HUSSEINI (1998) 14 NWLR (PT.584) 108, CHIEF GREAT OVEDJE OGBORU & ANOR V. DR EMMANUEL EWETAN UDUAGHAN & ORS. (2013) LPELR ? 20805, AEROBELL NIGERIA LTD V. N.D.I.C. (2018) ALL FWLR (PT.947) P. 1229 AT 126. It is my ardent view in the light of the forgoing that the application by the applicant is competent and permissible under the Rules. I answer the question positively and hence the issue is resolved against the 1st Respondent.
ISSUE 2
Whether having regard to the entire circumstance of the Application this Honourable Court should exercise its discretion in favour of the interested party/Appellant/Applicant.
The argument of the learned Senior Counsel representing the Applicant is that in an application of this nature, it is settled law that the Interested party/Appellant/Applicant is obliged to seek leave of Court as a precondition for filing an Appeal. He referred to the case of EKANEM EKPO OTU V. A. C. B. INTERNATIONAL BANK PLC & 1 OR (2008) 3 NWLR (PT. 1073) 179, PARA F-H, THE REGISTERED TRUSTEES CHRIST APOSTOLIC CHURCH NIGERIA V. UFFIEM (1998) 10 NWLR (PT. 569) 312, IN RE WILLIAMS (NO 1) (2001) 9 NWLR (PT. 718) 329, IN RE OJUKWU (1998) 5 NWLR (PT.551) 673. He submitted that the above authority underscores the essence of prayer 1 sought by the interested ? Party/Appellant Applicant in his application. He referred to paragraph 8 of the Affidavit in support of the application which he said is directly relevant to the need to seek leave. Further to this, he also referred to paragraphs 3 (a), (b), (c), (T) (k), 4(a), (b), (c), (d) (e), (f), (g), and (h) of the affidavit in support of the application and submitted that all encapsulate the interest of the Applicant with respect to the subject matter of the judgment delivered in Suit No. BOHC/MG/CV/49/2015, against which the Applicant is seeking the leave of this Court to Appeal. After reproducing the paragraphs of the Affidavit in support listed above, he also relied on the following exhibits ?APP1? and ?APP 2?, certified true copies of the Instrument of Appointment as well as evidence of its lodgement at the Corporate Affairs Commission in favour of the Interested ?party/Appellant/Applicant, Exhibit ?APP 3?, certified True Copy of the Judgment sought to Appeal against, Exhibit ?APP 5? certified True Copy of the Deed of Assignment and Supplementary Security executed between starcomms Nigeria Limited, FBN TRUSTEES Ltd and the creditor Banks. He argued that what is discernible from the aforementioned paragraphs of the Affidavit in support and the exhibit is that the interested party-/Appellant /Applicant is the Receiver empowered to deal with the property known as No.76 Damboa Road Opposite N.T.A Maiduguri and covered by Certificate of Occupancy No.NE/2833, the subject matter of Exhibit ?APP 3? sought to Appeal against. He submitted that an Appeal is a Constitutional right of an aggrieved party and which right ought not to be unnecessarily encumbered. He referred to the case of ANI v. OUT (2017) 12 NWLR (PT. 1578) 30 at 62 PARA, A.
He submitted that the Receiver is the only appropriate person to deal with the property under Receivership as in this case. He relied on Section 390 (1), 393 (3) & (4) of the Companies and Allied Matter Act, CAP 1 C 20, LAWS of the Federation of Nigeria, 2004 and the cases of FADEYIBI V. I.H. (BEVERAGES) LTD. (2013) 4 NWLR (PT.1344) 353 at 374, PARAS B-D, JUKOK INT?L LTD V. DIAMOND BANK PLC (2016) 6 NWLR (PT.1507) 55 at 96, PARA ?A? .
Conceding to the requirement of the law that an Applicant in a situation of this nature is expected to meet the conditions precedent for the grant of application for extension of time within which to file an Appeal out of time, which condition are:
1) There are good and substantial reasons for not filing Appeal timeously
2) That he has good, substantial and arguable grounds of Appeal.
He submitted that these conditions must co-exist. He relied on the case of MOBIL OIL (NIG) LTD V. AGADAIGHO (1988) 2 NWLR (PT. 77) 383. Further to this, he contended that the application must be supported by:-
a) An affidavit which must give sufficient reasons to explain delay.
b) The judgment or ruling of the Court against which an applicant is seeking to Appeal and
c) The proposed ground of Appeal against the said judgment or ruling.
He referred to Order 6, Rule 7 and 9 (1) & (2) of the Court of Appeal Rules 2016 and the case of EMMANUEL V. GOMEZ (2009) 7 NWLR (PT. 1139) 1 at 11 PARAS C-D.
He submitted that in meeting the first leg of the two conditions for application for extension of time within which to appeal, the Applicant has given sufficient reasons and sustained efforts made to file Appeal against the judgment in exhibit ?APP 3?. He referred to paragraphs 3 (d), (e), (f), (g), (h), (i) and (J) of the affidavit in support of the application.
On the second precondition to be met by an Applicant he said it is important to stress that the certified True Copy of the judgment sought to Appeal against is attached to the Affidavit in support of the application as exhibit ?APP 3? and the certified True copy of the Ruling of the lower Court refusing the application of the Applicant for leave to Appeal is also attached as exhibit ?APP 4? and that the proposed notice of Appeal is attached as exhibit ?APP 6? which contains 12 grounds of Appeal.
He relied on paragraphs 5 & 6 of the affidavit in support. He submitted that exhibit ?APP 6? contains substantial grounds of Appeal inter alia bordering on jurisdiction as well as denial of fair hearing. He added that grounds 2 and 3 are on jurisdiction while grounds 12 impugns on denial of fair hearing and which in gross violation of Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999. (as amended). He contended that one of the absurdities in the proceeding of the lower Court is that the 1st Respondent testified as CW1 and in Kanuri language without an interpreter. He argued that Kanuri language is not the language of the Court but English language. He cited the case in MAITUMBI V. BARAYA (2017) 2 NWLR (PT. 1550) 347 at 415 PARAS E ?F. He therefore, submitted that the proposed Grounds of Appeal which contains grounds on jurisdiction and denial of fair hearing provides justifiable reason for this Court to grant the application particularly prayers 1, 2, 3 and 4. He relied on the following cases: UKWU V. BUNGE (1997) 7 SCNJ 262 at 274 PARAS H-A. Lines 21 -27, FEDERAL COLLEGE OF EDUCATION OKENE & 3 ORS V. MRS. IRENE ADANA
OGBONNA & 8 ORS (2006) 7 NWLR (PT.979) 282 at 299, PARA F-G.
On the issue of leave to raise and argue fresh point an appeal bordering on jurisdiction of the lower Court which was not raised at the Court below and borne out of prayer 5, he submitted that it is settled law that before a party can seek to file and argue any fresh issue in the Appellant Court, he must first seek and obtain leave of the Court. He relied on the cases of ALHAJI RAJI AKINWALE V. BANK OF THE NORTH (2001) 4 NWLR (PT.704) 448 at 456., EDISON AUTOMOTIVE INDUSTRIES LTD & 2 ORS V. NATIONAL ECONOMIC RECONSTRUTION FUND (NERFUND) (2009) 8 NWLR (PT. 1144) 535 at 536 PARAS. G-H, PRINCE ADEWUYI AKIN TARO V. MR. J. EGUNGBOHUN & 3 ORS (2007) 9 NWLR (PT. 1038) 103 at 125. PARAS G-A. He contended further that grounds on jurisdiction can be raised on Appeal without leave but what the Applicant has done vide prayer 5 is to merely err on the side of caution ? ex abundanti cautela. He relied on the case ofISAAC GAJI & ORS V. EMMANUEL D. PAYE (2003) 8 NWLR (PT.823) 583 at 599 -600 PARAS H ?A, ROE LTD V. U.N.N.(2018) 6 NWLR (PT.1616) 420 at 435, PARA D ?F, ETSAKO WEST L.G.C. V. CHRISTOPHER (2014) 14 NWLR (PT.1426) 73 at 91 PARA F-H.
He argued that in exhibit ?APP 3? the learned Chief Judge repeatedly acknowledged the involvement of the Applicant in the subject matter of the Suit when he confirmed the defence of the 2nd Respondent to the effect that STARCOMMS PLC which was under Receivership owned the property and that only the Receiver who managed it for the 2nd Respondent and other creditor bank could sell it (page 4, line 10-13 of Exhibit ?APP 3?, Page 5, line 12-20, Page 5, lines 21-28 of Exhibit ?APP 3?, Also, the learned trial Judge confirmed that in exhibit C6 dated the 5th day of August, 2015 from the 2nd Respondent to the 1st Respondent?s Counsel, the property was not only under receivership but that the sale can only be concluded by the Receiver to the highest bidder. He submitted that all these goes to show that the Applicant is indisputably an interested party in his case.
He urged the Court to resolve the issue in favour of the Applicant and grant all the prayers in the application.
In response, the 1st Respondent contended that by virtue of Section 243 (a) of the 1999 Constitution (as amended) this Court has the power to grant leave to the interested party. But however in seeking leave to Appeal as an interested party the Applicant must show to the Court that he is a person having an interest in the matter. He submitted that the term a ?person having interest? under Section 243 (a) of the 1999 Constitution (as amended) means person aggrieved or person who has suffered legal grievance against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something. He referred to theE.F.P.C. LTD V N.D.I.C. (2007) ALL FWLR (PT. 36) P. 793, OWENA BANK (NIG) PLC. V. NIGERIAN STOCK EXCHANGE LTD (1997) 7 SC. P. 160., CHUKWU V I.N.E.C. (2014) ALL FWLR (PT.741) P. 1551 at p. 1554. He posed the question whether the interested party Applicant can after disposing and or sold the property to BAMS INVESTMENT Ltd can still be a person having interest? His answer to the question is in negative. He referred to paragraphs 4(f), 4 (g) and (4h) of his further and better affidavits. He submitted that where a party sold out property to a third party his proprietary interest is extinguished. He has no subsisting interest worthy of protection in law. He relied on the unreported decision of this Court in Appeal No.CA/J/31/2017 between ALHAJI ABUBAKAR GONIMI V. MUSTAPHA ABDULRAHMAN. Delivered on 19th January, 2018 by Hon. Justice H. A. O. Abiru, JCA.
Further he argued that the Courts have held that the phrase ?at the instance of any person having an interest in the matter? is clearly not intended to apply to a person who stood by and allowed his battle to be fought by parties having the same interest. He relied on the case of ADEMOLA V. SODIPO (1992) 7 SCJ 417 at P. 428. He argued that the Applicant was very much aware of the case before the trial Court but decided to stand by. He referred to paragraphs 3 (i), 3 (J), 3 (K), 3 (l) and 4 (i) of the Counter Affidavit and paragraphs 3 (e) of the further Counter affidavit.
He argued that at the trial Court, the 1st Respondent obtained order of injunction (Exhibit ABK 4) on the 15th September, 2015 and pasted same on the property in dispute at several places and the property remained under lock and key till judgment but the Applicant decided to fight through the 2nd Respondent. He added that the Applicant attempted to join in the proceeding through his surrogate the 2nd Respondent on 29th October 2015 after the injunctive order had been pasted on the property in dispute (See exhibit ?ABK 8?). He submitted that the current position of the law is that where parties with the same interest in a subject matter had judgment given against one of them, all of them will not be allowed to file separate Appeal. He relied on the case of P.D.P. V. PETERSIDE (2016) 7 NWLR (PT. 1512) P. 574 at P. 581. He argued that BAMS INVESTMENT LTD and the 2nd Respondent share same interest over the subject matter in dispute. He added that the 2nd Respondent who had already filed Appeal against the judgment of the trial Court in this Court with Appeal No. CA/J/270/2016 and brief of argument already filed and exchanged. Also BAMS INVESTMENT Ltd to whom the Applicant sold the property have filed before this Court its application vide. Motion No. CA/J/415/2017 seeking leave to Appeal as an interested party. Exhibit ?ABK.6?. He contented that by Section 390 of the Company and Allied Matters Act, (CAMA) a receiver Manager is an agent of the person on whose behalf he is appointed. Therefore, the principal can take action on behalf of the agent. He relied on the case of UNIBIZ (NIG) LTD v. C. B.C.L Ltd (2003) FWLR (PT.152) P.71 at P.86.
On the relief for extension of time to file appeal, he argued that the Applicant has not proffered any reason for the delay other than that, in paragraphs 3 (i) and 3 (J). He submitted that the Applicant could not give sufficient and good reason for the delay from 27/1/2017 till 27/11/2017. He submitted that the grounds of the condition for the exercise of discretion but the ground of Appeal borders on technicality; rather than the substance of the case.
He urged the Court to resolve the issues in favour of the 1st Respondent and dismiss the application with substantial cost.
I have carefully read the submissions of respective Counsel from inner and outer bar the fact leading to this application as can be gleaned from the record of Appeal and the exhibits attached to the respective process. I have equally examined the provision of the rules of this Court under which the application is channeled.
The question that readily comes to mind is whether or not the Court can exercise its discretion in the circumstances of this application.
The word discretion in my view simply means quality of being discreet, prudence and liberty to act unrestricted, hence it makes it possible for cases to be individualized or personified in the light of their peculiar facts. A Court will be said to have exercised its discretion only when it has exercised such discretion according to law. In the contrary it will seize to be a discretion if it is exercised based on sentiments or premeditated or pet ideas, or completely outside the dictates of the law and general jurisprudence. Where these happen, the opposite of justice which is injustice will happen. See the following cases ALHAJI ABDULRAUF OLUMEGBON & ORS V. AMIDA ADEDEJU KAREEM & ORS (2002) 5 SC (PT. 1) 101, UNION BANK OF NIG. PLC V. ASTRA BUILDERS (W.A) LTD (2010) 5 NWLR (PT. 1186). 1. Also my learned brother Onyemenam JCA in the case of VIOLET N. THAVE V. THE DIRECTOR GENERAL/PERMANENT SECRETARY BUREAU OF LAND & SURVEY MAKURDI BENUE STATE & ORS. (2011) LPELR ? 5088 said thus on exercise of discretion.
A judicious and judicial discretion is that power of a Judge directed by sound judgment in determining the right of a litigant when such right is not absolute. It is the liberty of a judge to decide and act in accordance with that which is fair and equitable under the peculiar circumstance of the given case guided by the spirit of the law.
The foregoing view tends to agree with my notion of judicial discretion. Therefore, and bearing in mind the circumstance of this application, and the fact presented by the Applicant and the 1st Respondent, it is not in dispute that the Applicant is the appointed receiver of the said property. The 1st Respondent took steps to purchase the property described as No 76 Damboa Road, Opposite NTA Maiduguri covered by Certificate of Occupancy No NE/2033, based on the notice calling for offer to that effect and emanating from the 2nd Respondent. From the affidavit evidence of the 1st Respondent there is disagreement on the price of sale. Still from him is the fact that after paying the sum of N25,000,000.00 he was asked to pay an additional sum of N25,000,000.00. This warranted his resort to litigation and the filing of the Suit BOHC/MG/CV/49/2015. at the High Court of justice, Maiduguri Borno State. Judgment was entered in his favour.
The Applicant claimed lack of knowledge, of the pendency of the action till after judgment and at the stage of execution. In order to defend his position as an appointed receiver of the property in issue and the part he played in the process of selling the property to BAM INVESTMENT LTD, hence his application to the trial Court for leave to Appeal as an interested party. His application met a brick wall. See exhibit ?APP 4? Ruling of the trial Court on the application of the Applicant as an interested party before the trial Court. This position led to this application under consideration. At this stage the question that comes to mind is who is an interested party? In the case of HARRY AKANDE V. GENERAL ELECTRIC CO. & ORS (1979) 3-4 SC 115. Aniagolu JSC (as he then was) has this to say. Hear him.
a party or person interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings?. See also the case of FUNDUK ENGINEERING LTD V. JAMES MCARTHUR & ORS (1990) 4 NWLR (PT.143) 266, OJUKWU V. GOVERNOR LAGOS STATE (1985) 2 NWLR (PT. 10) 807, EFP CO. LTD V. NDIC (2007) 3 SC (PT.1) 178. Going by the foregoing definition of an interested party and the fact I expressed herein before wherein the Applicant claimed to be the appointed receiver of the property in dispute and an agent of the 2nd Respondent, tend to suggest prima facie the interest of the Applicant in the subject matter of the Suit decided by the trial Court. The Respondent to the Contrary argued that the Applicant is aware of the pendency of the Suit and decided to stand by and watch the outcome. He supported this argument with the order of injunction granted in favour of the 1st Respondent and which was pasted at several places on the property in dispute. Agree this might be so. In my view, one cannot conclusively say that the order of injunction has been directly brought to the knowledge of the Applicant. I say this, because it has not been shown that the Applicant was a party in the application for an injunctive orders. It makes the position dicey. It leaves the position to the realm of speculation which Courts are enjoyed not to act upon. On issue of delay the reason expressed in Exhibit ?APP 3? and as averred in paragraphs 3 (e), (f), (g), (h), (i), and (k) of the affidavit in support of the application are of convincing and reasonable weight to tilt the mind of the Court not to apportion blame to the Applicant for delay.
Looking at the proposed ground of Appeal and in particular, those grounds complaining of lack of fair hearing which is guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, and the challenge to the jurisdiction of the Court, they are prima facie recondite issues of law. They are complaints against non compliance with the provisions of the grundnorm i.e. the Constitution of the Federal Republic of Nigeria 1999. Not this alone, complaints bordering on the jurisdiction of a Court can be raised at any stage even for the first time at the Apex Court of the land. There are numerous authorities on this. See ETSAKO WEST L.G.C. V. CHRISTOPHER (2014) 14 NWLR (PT.1426) 73., ROE LTD V. U.N.N. (2018) 6 NWLR (PT.1616) 420 at 435. Based on this, I have no hesitation in holding that there are recondite and arguable ground of Law in the proposed ground of Appeal to support the application.
I refuse the temptation posed by the learned Counsel representing the Respondent in his argument on issue of 1st purchaser in Law and the agency relationship between the Applicant and STARCOMM Plc. Commenting on these issues will lead the Court delving into the substantive issue at stake between the parties at this Preliminary stage.
?In the light of the foregoing and considering the position that in the exercise of discretionary powers, the Courts are called upon to reconcile two competing interest and which will require all the tact, caution and precaution, it will become difficult to lay down an acid test. What I am saying is that the whole idea of exercise of discretionary power is to do substantial justice in the matter except where injustice will arise from the possible exercise of the discretionary power. In the circumstance of the facts of this application, it is my considered humble view that interested party Applicant can access the discretionary power of this Court having regard to the fact and circumstance of this application. This will allow all parties to ventilate their grievance and for justice to take its course. I therefore, answer the question in the affirmative and resolve the sole issue against the 1st Respondent.
Accordingly the application is granted and the objection thereto is overruled and dismissed.
In that regard, I make the following orders.
(1) Leave is granted to BOLU AGBAJE AKADRI as an interested party to file an Appeal against the judgment of the High Court of Justice Borno State, Maiduguri in Suit No. BOHC/MG/CV/49/2015 delivered on 31st day of May 2016.
(2) Time is extended for BOLU AGBAJE AKADRI as an interested party to apply for leave to Appeal against the judgment of the High Court of Justice, Maiduguri, Borno State, delivered on 31st day of May 2016 in Suit No: BOHC/MG/CV/49/2015.
(3) Leave is granted to BOLU AGBAJE AKADRI as party interested to Appeal against the judgment of the High Court of Justice Maiduguri Borno state delivered on 31st day of May 2016 in Suit No. BOHC/MG/CV/49/2015.
(4) Time is extended for BOLU AGBAJE AKADRI as party interested within which it will appeal against the judgment of the High Court of Justice Maiduguri Borno State delivered on 31st day of May 2015 in Suit No. BOHC/MG/CV/49/2015.
(5) Leave is granted to BOLU AGBAJE AKADRI as party interested to raise and argue fresh point bordering on jurisdiction in the manner and as contained in exhibit ?APP 9?, the proposed Notice of Appeal.
(6) The interested party Applicant BOLU AGBAJE AKADRI should file and serve his notice of Appeal in the manner and as contained in the proposed Notice of Appeal marked exhibit ?APP 9?, within 15 days from today.
Parties to bear their cost.
UCHECHUKWU ONYEMENAM, J.C.A.: I have had the advantage of reading in draft copy, the Ruling delivered by my learned brother MUDASHIRU NASIRU ONIYANGI, JCA. I agree with his conclusion reached thereat in granting the application.
I abide by all the consequential orders made therein, including the order as to costs.
TANI YUSUF HASSAN, J.C.A.: I read in draft the Ruling just delivered by my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA. The application is also granted by me and the objection is overruled and dismissed. I abide by the orders made.
Appearances:
P. A. Akubo, SAN with him, S.Y. Tsok, Esq., A. J. Adudu, Esq. and G. S. Orshio (Miss)
For Appellant(s)
S. M. Konto for the 1st Respondent.
S. G. Oyatemi holding the brief of Y. G. Bello for the 2nd RespondentFor Respondent(s)
