DR. BASSEY ENUN v. MRS. ROSEMARY EKPO (2012)

DR. BASSEY ENUN v. MRS. ROSEMARY EKPO

(2012)LCN/5622(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of October, 2012

CA/C/124/2011

RATIO

“PERSON HAVING AN INTEREST IN A MATTER”: DEFINITION

” The phrase “person having an interest in the matter” used in the provisions of Section 243 (a) of the Constitution was not defined by the constitution but has luckily received several judicial pronouncements from the Supreme Court which have guided us in understanding its meaning. For instance in the case of L.S.D.P.C. v. DAKUR (1992) 11 – 12 SCNJ, 217 at 224, the apex court defined the phrase as follows:- “The expression “person having interest” is synonymous with “person aggrieved” A person aggrieved must be a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. A person aggrieved includes a person who has a genuine grievance because an order has been made which prejudicially affects his interests.” It went on to say at page 225 of the report that: “For a person to have locus standi either to institute an action or to prosecute an appeal, he has to show that he has special interest, that the interest is not vague, or intangible, supposed or speculative or that it is not an interest which he shares with other members of the society. He also has to show that such interest has been adversely affected by the act or omission which he seeks to challenge.” See also OJUKWU v GOVT. OF LAGOS STATE (1985) 2 NWLR (10) 806; “K” LINE INC. v K. R. INT’L (1993) 3 NWLR (292) 159; FUNDUK ENG. V. MACARTHUR (1990) 4 NWLR (143) 266; SOCIETY-GENERAL BANK v. AFEKERO (1999) 7 SCNJ, 171 at 187; EZEAGU v UFUANYA (1996) 7 NWLR (456) 226 at 231 – 2; CPC v. NYAKO (supra).” Per GARBA, J.C.A.

WORDS AND MEANING: “PROPRIETARY INTEREST”

“The term “proprietary interest” is defined as the interest held by a property owner together with all appurtenant rights, such as a stockholder’s right to vote the shares. See Blacks Law Dictionary, 8th edition p.829.” Per TUR, J.C.A.

APPEAL: LEAVE: WHETHER AN APPELLATE COURT CAN GRANT LEAVE TO APPEAL TO PARTIES THAT ARE NOT NECESSARY PARTIES AND DO NOT HAVE INTEREST IN THE SUBJECT MATTER

“Not been necessary parties in the suit below, I am not inclined to grant the applicants leave to appeal as they are no longer persons having any proprietary interest in the subject matter under consideration. See Green vs. Green (1987) NSCC (Pt.2) 1115 at 1123; Ngwu vs. Ozoukwu (1999) 11-12 SCNJ 1 at 15 and Onibudo vs. Akibu (1982) All NLR 207.” Per TUR, J.C.A.

INTERPRETATION OF STATUTE: SECTION 243(A) OF THE I999 CONSTITUTION: INTERPRETATION

“There is no doubt that the provisions of Section 243 (a) of the 1999 Constitution (as altered) gives to or vests in a person who was not a party to a decision in civil proceeding before any of the High Courts in the country and who has an interest in the matter, the right to appeal to this court against that decision with the leave of court, either the High Court or this court. The section provides thus: “243. Any right of appeal to the Court of Appeal from the decisions of the 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, and in the case of criminal proceedings at the instance of an accused person or subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.” These provisions have been in previous constitutions of the country, particularly the 1979 one which the courts had interpreted and recognized the right so vested in persons having interest, to appeal although they were not parties to a decision by the High Court. See KALU v ODILI (1992) 5 NWLR (240) 130; RE: IJELU (1992) 9 NWLR (266) 414; FBN (NIG) PLC v. AKPARABONG COMM. BANK LTD. (2006) ALL FWLR (319) 927 at 976.” Per GARBA, J.C.A.

Before Their Lordships

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

Between

DR. BASSEY ENUNAppellant(s)

AND

MRS. ROSEMARY EKPO – DEFENDANT/RESPONDENT

AND

IN THE MATTER OF AN APPLICATION FOR AN ORDER TO APPEAL AS PARTIES HAVING AN INTEREST IN THE CASE BY:

1) CHIEF EFFIOM OKON
2) CHIEF BASSEY EKANEM
3) CHIEF FELIX NSEMO
– APPLICANTS/PARTY INTERESTEDRespondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Lead Ruling): The Appellants brought this motion on the 16/6/2011 praying the court for the following reliefs.
a) Extension of time within which to seek leave to appeal as parties having an interest against the judgment delivered on 25/10/2006 by Hon. Justice E. E. Ita of High Court, Calabar in Suit No. HC/409/2005: DR. UKEH BASSEY ENUN vs. MRS. ROSEMARY EKPO.
b) Leave to appeal as parties having an interest against the decision of Hon. Justice E. E. Ita of High Court, Calabar in Suit No. HC/409/2005: DR. UKEH BASSEY ENUN vs. MRS. ROSEMARY EKPO delivered on 25/10/2006.
c) Extension of time within which to appeal as parties having an interest against the decision of Hon. Justice E. E. Ita of High Court, Calabar in suit No.HC/409/2005: DR. UKEH BASSEY ENUN vs. MRS. ROSEMARY EKPO delivered on 25/10/2006.
AND for such other order(s) as the court may deem fit to make in the circumstances.
An 18 paragraphs affidavit deposed to by the 2nd Applicant; as well as copies of the High Court judgment in respect of which leave is sought and of the Supreme Court judgment in Suit No.SC.92/2002, delivered on the 17/6/2005, were annexed to the motion.
After receipt of the motion papers, the Defendant/Respondent deposed to and filed a 20 paragraphs counter affidavit in opposition to the prayers sought by the Applicants. Attached to the counter affidavit were copies of an agreement made on the 9/9/93 between Chief Asuquo Mfon and the Plaintiff/Respondent, a deed of assignment between the Plaintiff/Respondent and Mr. Olugbemi Toba made on 20/3/2000, statement of defence in Suit No.C/88/76, an enrolled order dated 10/2/2003 in suit No. SC.92/2002 and newspaper reports.
On the order of the court, leaned counsel for the parties filed written addresses in the motion. The Applicants’ address written by Chief A. O. Mogboh, SAN, was filed on the 12/6/12, while the defendant/respondent’s address was written by Chief Orok I. Ironbar and filed on the 20/6/12.
Although the Plaintiff/Respondent was served with the motion papers and other processes in the motion, he did not file any process in reaction thereto. At the hearing of the motion on the 2/10/12, Mr. Essien H. Andrew, Esq. appeared for the Applicants and adopted their address, urging us to grant the motion as prayed.
Mr. Mba E. Ukweni, Esq., leading A. J. Arong and A. E. Afolarin, Esq., appeared for the Plaintiff/Respondent, who was in court and confirmed that no address was filed for the motion. He said he did not oppose the grant of the motion.
Orok Ironbar adopted the Defendant/Respondent’s address and urged us to refuse and dismiss the motion.
The learned silk had submitted in the Applicants’ address that the Applicants are persons having interest in the matter because the Supreme Court had in suit No.SC 92/2002 given judgment in favour of Ishie Community over a parcel of land which included the one subject of the case before the High Court. An extract of the Supreme Court judgment was set and it was said that the Ishie Community granted the Plaintiff/Respondent the portion of land in dispute. It was submitted that the High Court had held that the Supreme Court judgment gave nothing to any party which tends to interprete the said judgment adversely against the Applicants who only got to know about it in a subsequent case between them and the Kasuk people. According to the learned silk, the Applicants are necessary parties whose presence is essential for the effectual determination of the issue as to who owns the land in dispute pointing out that the claim before the High Court was for a declaration that the Plaintiff was entitled to the Certificate of Occupancy No.CA/4022/95. He then said the reason for the delay in bringing the application for leave has been shown in paragraphs 6, 7, 8, 9, 10, 11 and 12 of the Applicants’ affidavit which were set out.
In addition, it was submitted that the proposed grounds of appeal raise the issue of the High Court’s jurisdiction to make the type of pronouncement it made in respect of the Supreme Court judgment. The proposed ground of the appeal was set out and it was contended by learned SAN, that the High Court did not have the competence to start interpreting a Supreme Court judgment which it is bound to apply.
In the circumstance, the court may not inquire into the reason for the delay in bringing the application, relying on UKWU v BUNGE (1997) 8 NWLR (58) 684. On the requirements an applicant seeking leave to appeal has to show, the case of RE: MBAMALU (2001) 18 NWLR (744) 147 was cited and it was submitted that the court is not concerned whether the Applicants would succeed in the appeal and that the right approach is for the court to look at the whole case. In conclusion, we were urged to grant the motion as prayer.
For the Defendant/Respondent, the following issue was said to arise for decision in the motion:
“Whether in the circumstances of this matter the applicants are entitled to their application for extension of time to seek leave to appeal as parties having interest and leave to appeal as parties having on interest, etc.”
It was submitted that the interest the Applicants seek to defend must be interest in the cause of action in suit No.HC/409/2005 and that they have not exhibited the pleadings in that case in the present motion. The case of AKANDE v G. E. C. (1979) 12 NSCCJ 1 was relied on for the point and it was argued that the Applicants’ interest is not obvious from the motion since the law is that because an action for trespass was dismissed does not make the defendant the owner of the land, on the authority of EZEANI v ONWORDI (1986) 4 NWLR (33) 27. It was the further contention of learned counsel for the Defendant/Respondent that the extract of the Supreme Court judgment set out in the Applicant’s address was not the ratio of the decision but at best obiter dictum and reference was made to BUHARI v OBASANJO (2005) 13 NWLR (941) 1 at 98.
The case of C.P.C. v NYAKO (2011) 5 – 7 MJSC (Pt.II) 158 at 187 & 188 was cited on the requirement what an applicant seeking leave to appeal as an interested party must show that he is a person aggrieved and has suffered a legal grievance or against whom a decision has been pronounced which wrongfully deprived him of something or wrongfully affected his title to something. The case of OLAYIOYE v AJIBIKE (2009) 1 NWLR (1123) 650 at 670 was referred to on the same submission and it was argued that the Applicants have not done so in the motion.
In addition, it was submitted, reliance being placed on OGEMBE v. USMAN (2011) 17 NWLR (1277) 638 at 658, that the proposed notice of appeal is important in determining the Applicants’ interest in the case and that the lone ground therein only complains of the interpretation of the Supreme Court judgment by the High Court which the Applicants want the court to reverse. Furthermore, that the 5 years delay in bringing the motion and the reason for it were not supported by paragraph 5 of the Applicants’ affidavit which show that it was Chief Mfon who sold the land to the Plaintiff/Respondent, and the Applicants cannot claim ignorance of the matter. On the authority of RE YAR’ADUA (2011) 17 NWLR (1277) 567, it was submitted that the Applicants, aware of the matter, took no steps to join.
Cases on the requirements of an application of the Applicants nature, including IKENNA v BOSAH (1997) 3 SCNJ, 135; OYEGUN v. NZERIBE (2010) 16 NWLR (1220) 568 and ANPP v ALBISHIE (2010) 41 NSCQR, 688 at 709, were cited and it was said the Applicants have not shown the two (2) requirements in their motion. We were urged to resolve the issue in favour of the Defendant/Respondent and to dismiss the motion.
There is no doubt that the provisions of Section 243 (a) of the 1999 Constitution (as altered) gives to or vests in a person who was not a party to a decision in civil proceeding before any of the High Courts in the country and who has an interest in the matter, the right to appeal to this court against that decision with the leave of court, either the High Court or this court. The section provides thus:
“243. Any right of appeal to the Court of Appeal from the decisions of the 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, and in the case of criminal proceedings at the instance of an accused person or subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.”
These provisions have been in previous constitutions of the country, particularly the 1979 one which the courts had interpreted and recognized the right so vested in persons having interest, to appeal although they were not parties to a decision by the High Court. See KALU v ODILI (1992) 5 NWLR (240) 130; RE: IJELU (1992) 9 NWLR (266) 414; FBN (NIG) PLC v. AKPARABONG COMM. BANK LTD. (2006) ALL FWLR (319) 927 at 976.

Depending on when the application was brought or made, after the judgment or decision by the High Court, the leave has to be obtained first either in the High Court or this court. Where it was made within the time prescribed by the provisions of section 24 (2) of the Court of Appeal Act for the issuing or filing of the notice of appeal, then the application should ordinarily be made first to the High Court and not this court unless special circumstances exist for not doing so.
Order 7, Rule 4 of the Court of Appeal Rules 2011, provide that:-
“4. Wherever under these Rules an application may be made either to the court below or to the court, it shall not be made in the first instance to the court except where there are special circumstances, which make it impossible or impracticable to apply to the court below.”
See also RE: EKE (1993) 4 NWLR (286) 176; AKANKE v ALAO (2005) 11 NWLR (937) 620 at 628-9; C. A. GROUP DANONE v VOLTIC (NIG) LTD. (2008) 7 NWLR (1087) 632 at 660 & 661 – 2.

Where however an application was made outside or after the expiration of the time limited by the Court of Appeal Act for the filing of an appeal, then it has to be made to this court and not to the High Court since it has no jurisdiction to extend or enlarge the time to file the appeal. The jurisdiction to do so was vested in this court by the provisions of Section 24 (4) of the Court of Appeal Act. See MOHAMMED v OLAWUNMI (1990) 2 NWLR (133) 455.

An applicant seeking leave to appeal who brings the application after the expiration of time prescribed for the appeal or within which to appeal, must also apply for extension of the time to seek leave to appeal, leave to appeal and then lastly, extension of time to appeal. For our purposes here, the applicants require what have popularly become known in judicial practice, as the “trinity prayers” in their motion. See CBN v OGWURU (1993) 3 NWLR (284) 630; IN RE MADAKI [1996) 7 NWLR (451) 153; OWENA BANK PLC v N.S.E. LTD. (1997) 8 NWLR (515) 1 at 5; IDRIS v AUDU (2005) 1 NWLR (908) 612.
In addition to the general requirements that an applicant for the trinity prayers must show that there are good and substantial reasons for the delay in seeking leave to appeal and that there are grounds which prima facie show good cause why the appeal should be heard, a party seeking leave as a person having interest in the matter owes the duty to show real interest in the matter to the satisfaction of the court.

The phrase “person having an interest in the matter” used in the provisions of Section 243 (a) of the Constitution was not defined by the constitution but has luckily received several judicial pronouncements from the Supreme Court which have guided us in understanding its meaning. For instance in the case of L.S.D.P.C. v. DAKUR (1992) 11 – 12 SCNJ, 217 at 224, the apex court defined the phrase as follows:-
“The expression “person having interest” is synonymous with “person aggrieved” A person aggrieved must be a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. A person aggrieved includes a person who has a genuine grievance because an order has been made which prejudicially affects his interests.”
It went on to say at page 225 of the report that:
“For a person to have locus standi either to institute an action or to prosecute an appeal, he has to show that he has special interest, that the interest is not vague, or intangible, supposed or speculative or that it is not an interest which he shares with other members of the society. He also has to show that such interest has been adversely affected by the act or omission which he seeks to challenge.”
See also OJUKWU v GOVT. OF LAGOS STATE (1985) 2 NWLR (10) 806; “K” LINE INC. v K. R. INT’L (1993) 3 NWLR (292) 159; FUNDUK ENG. V. MACARTHUR (1990) 4 NWLR (143) 266; SOCIETY-GENERAL BANK v. AFEKERO (1999) 7 SCNJ, 171 at 187; EZEAGU v UFUANYA (1996) 7 NWLR (456) 226 at 231 – 2; CPC v. NYAKO (supra).

I should also say that the conditions or requirements identified and set out by the courts in the above authorities are to be established or met to the satisfaction of the court form the record of appeal and the affidavit evidence supporting the application. However a party interested is required to show and demonstrate the interest in the matter from the record of the appeal and not statements in affidavits in support of the application because the appeal if leave was granted, would be determined on the record of the appeal. See OMOTESHO v ABDULLAHI (2008) 2 NWLR (1072) 526 at 543.
In the case of ADEMOLA v. SODIPO (1992) 7 NWLR (253) 257 at 260, it was held that:-
“The interest which will support an application under the provisions of section 222(a) of the 1979 constitution must be a genuine and legally recognizable interest in respect of a decision which prejudicially affects such an applicant.”
The provisions of the constitution mentioned in the decision are im pari material with those of Section 243 (a) of the 1999 Constitution. So in the present application, the first task of the applicants is to show that the decision of the High Court which they seek leave to appeal against has indeed prejudicially affected their genuine and legally recognizable interest in the sense that it had wrongly deprived them of something or wrongfully affected their title to something.
The question that needs be asked and answered at this stage is “what was the case before the High Court and its decision therein against which the Applicants seek leave to appeal as persons having interest?
The writ of summons and pleadings in the case before the High Court have not been exhibited in the present application by the Applicants and so it is quite difficult if not impossible to say what the precise claims were before that court in the case. All that can be garnered from the judgment of the High Court attached to the supporting affidavit is the statement therein at page 4 that:-
“Both the plaintiff and defendant want declaration that the one or the other is entitled to certificate of occupancy over the land in dispute.”
From the above statement by the High Court, it is clear that the claim and counter claim by the plaintiff and defendant respectively, was as to who between the two of them was entitled to a declaration of certificate of occupancy in respect of the land in dispute in the case, in his favour. That was the case before the High Court.
What then was the decision by that court in the case? The answer can be found at page 18 of the High Court judgment. In respect of the claim by the plaintiff, the High Court had held thus:-
“That returns us to one of the recognized ways of proving title to land. Plaintiffs vendor, Chief Mfon, said he was conveying as beneficial owner of fee simple absolute in possession. There is no magic in the words “beneficial owner”. A person who asserts has the duty of tracing his title to the radical owner of the land. I have held that the land in dispute here was part of the land in dispute in HC/88/76. Chief Mfon was not a party to that suit nor did he link himself to one of the parties therein. Even if he did not get it through any of the nine (9) defendants in HC/BB/76, he did not tell me how he got the land otherwise. In that wise, I have not been placed in a position to say how the beneficial ownership of Chief Mfon came about. I cannot also in the same vein categorically pronounce on the title of the plaintiff derived from Chief Mfon.
The plaintiffs claim therefore fail and are hereby dismissed having not been proved.”
On the counter claim by the defendant, the High Court had decided that:-
“The counter claim of the defendant is based on her grant from Kasuk. I had earlier held that the land in dispute formed part of the land in dispute in HC/88/76 in which Kasuk failed to prove that the land belonged to them. Having thus failed to prove that the land in HC/BB/76 belonged to them, this claim, over a portion of that land they failed to prove must necessarily fail and it is hereby dismissed.”
Simply put, the reason why the plaintiffs claims failed and were dismissed, as can be discerned from the above decision, is that he failed to trace his title to the radical owner of the land in dispute. The Plaintiff in that case; the Plaintiff/Respondent in this application, had averred in his pleadings that he bought the land in dispute from Chief Asuquo Mfon as stated at the beginning of the High Court judgment. The counter-claim also failed because Defendant, now Defendant/Respondent failed to prove the title of person/s from who she bought the land and through whom she claimed title. As can easily be seen, none of the parties in the case before the High Court claimed that the land in dispute belonged to the Applicants as the founders or radical owners through whom his title was traced. As rightly observed by the High Court, the Plaintiff/Respondent did not claim that the person from whom he bought the land in dispute, Chief Asuquo Mfon had traced his own title to or that he acted for the Applicants in the agreement for the sale of the land. For that reason, there appears to be no link between the Applicants and the decision by the High court that the parties had failed to prove their respective claims before it. Apparently, that decision did not in any reasonable way wrongly deprive the Applicants of something or wrongfully affected their title to something and they cannot in my view, be said to have a genuine and legally recognizable grievance against the decision.
The interest claimed by the Applicants in the decision or the case is with respect, vague and speculative or supposed and is not such as would entitle them to the grant of leave to appeal against it. The Applicants are complete strangers to that decision which has not adversely affected any interest of theirs in respect of the land, the subject of the case before the High Court. For that reason, my finding is that the Applicants have failed to convince me that from the record of the judgment of the High court and their affidavit evidence, they are persons having interest or persons who suffered a legal grievance against whom a decision was pronounced which wrongfully deprived them of something or wrongfully affected their title to something.
With the above finding, it is unnecessary to go into a consideration of whether the other requirements of reasons for the delay and grounds which show good cause why the appeal should be heard since the effect is that the Applicants lack the locus standi to prosecute appeal against the High Court decision in question. This is one of the clearest of cases in which the duty to consider the other two (2) issues above, abate. See F.M.H. v CSA LTD. (2009) 9 NWLR (1145) 193 at 220.
In the final result, I find no merit in the Applicant’s motion and it is hereby dismissed. Parties to bear their respective costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal of Garba, JCA. I am in total agreement with his reasons and final conclusions in the lead judgment. I am also inclined to refuse this application, it lacking in merit. I also abide by all the consequential orders in the lead judgment.

JOSEPH TINE TUR, J.C.A.: Having read in advance the ruling of my Lord, Mohammed Lawal Garba, JCA and considered the materials placed before this Court as the basis for seeking leave to appeal as parties having an interest in the subject matter of the judgment of the High Court of Justice, Calabar, Cross River State in suit No.HC/409/2005 delivered by Ita J., on 25th October, 2006 between Dr. Ukeh Bassey Enun vs. Mrs. Rosemary Ekpo, I am also of the opinion that it is not worth granting the application.
The power to grant leave to enable a party having an interest to appeal from a judgment of the Federal High court or High Court of any state or of the Federal Capital territory Abuja to the Court of Appeal is governed by the provisions of Section 243(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which reads as follows:
“243. Any right of appeal to the Court of Appeal from the decisions of the 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 Court of Appeal at the instance of any other person having an interest in the matter…”
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”
The applicant was not a named party in suit No.HC/409/2005 viz Dr. Ukey Bassey Enum vs. Mrs. Rosemary Ekpo delivered on 25th October, 2006 by the High Court of Justice, Calabar, Cross River State by Ita J., hence the necessity to have brought this application before that Court seeking leave to appeal to the Court of Appeal as any other person having an interest in the matter under Section 243(1) of the Constitution supra. The applicant will from the materials before the lower Court if leave was not granted or in this Court show clearly and convincingly how, when and the nature or kind of interest which will necessitate the Court below or the Court of Appeal to exercise the judicial discretion to grant applicant leave to appeal.
In the consideration of the application to grant leave to appeal as a party having an interest in the matter determined by a lower Court that Court or the Court of Appeal shall exercise the discretion in accordance with the provisions of any Act of the National Assembly and the rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
Order 7 rule 10(1) and (2) of the Court of Appeal Rules, 2011 provides as follows:
“7(1) Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.
(2) Any application to the Court for leave to appeal (other than an application made after the expiration of the time for appealing) shall be by notice of motion, which shall be served on the party or parties affected.
The reasons for bringing this application for leave to appeal as parties having an interest in the matter adjudicated upon by the trial Court are set out in the affidavit of Chief Bassey Ekanem, described as “the 2nd party interest/Appellant/Applicant on record”, deposed to on 16th June, 2011 to wit:
4. That suit No.HC/409/2005 affected the proprietary interest of Ishie Town in the land in dispute which formed part of the land disputed in an earlier Suit No.C/89/1976 that was eventually resolved in our favour by the Supreme Court in Appeal No.SC.92/2002.
5. That the proprietary interest of Ishie Town was affected in the said suit No.HC/409/2005 because it was Ishie Town who granted the land in dispute in that suit to late chief Asuquo Mfon of Ishie Town who sold it in turn to the plaintiff in suit No.HC/409/2005.
6. That Ishie Town Council was not joined as a party in the said suit No.HC/409/2005 and the Council was not even informed nor invited as a witness in the suit by the plaintiff whose interest was derived from Ishie Town. Consequently Ishie Town Council was not aware of that suit.
7. That we only became aware of suit No.HC/409/2005 and the judgment delivered therein recently when the people of Kasuk Qua Clans, Calabar, instituted Suit No.HC/378/2010 against us and some other persons.
8. That when we were served with the processes in suit No. HC/378/2010, we briefed our counsel, Chief A. O. Mogbon, SAN to handle the case on our behalf, and while he was going through the pleadings in that case he came across the averment that a judgment had been delivered in suit No.HC/720/2008 against one Rev. Akpanika whom we had given land.
9. That on going through the judgment in that suit No.HC/120/2008 our solicitor also came across a statement of in that judgment that another judgment had earlier been given in suit No.HC/409/2005 against Dr. Enun who also got his land from Ishie Town Council.
10. That our Counsel drew our attention to these adverse judgments and asked us to look for the judgment in HC/409/2005, which we did not have, so we applied for and obtained a Certified True Copy of the judgment which was delivered on 25th October 2006. A copy of the judgment is here marked Exhibit “A”.
11. That our Counsel after going through the judgment drew our attention to the Comment by Hon. E. E. Ita of the High Court, Calabar in the judgment where he said concerning the supreme court judgment in Appeal No.SC.96/2002 that: “The Supreme Court judgment gave nothing to anybody and took nothing from anybody”
12. That we were perplexed as to that finding by the learned judge since he had hitherto understood the Supreme Court judgment in Appeal No.SC.96/2002 as being in favour of Ishie Town Council and against Kasuk Qua Clans in so far as title to the land in dispute in that suit was Concerned. A Copy of that judgment is here marked Exhibit “B”
13. That I believe it is because of the interpretation given in suit HC/409/2005 to the Supreme Court judgment in Appeal No.SC.96/2002 that instigated the people of Kasuk Qua Clans to institute a fresh suit No.HC/378/2010 against our Ishie Town people over the same land, a copy of the Writ of Summons and Statement of Claim in that suit is here marked Exhibit “C”.”
A composite reading of the above paragraphs of the affidavit will show that the whole land covered by the judgment in C/88/1976 which went to the Supreme as Appeal No.SC.96/2002 is the property of Ishie Town. But part of this land was granted by Ishie Town to late chief Asuquo Mfon of Ishie Town who in turn sold it to the plaintiff Dr. Ukeh Bassey Enun. This was the portion in dispute in suit No.HC/409/2005. The legal effect then was that Ishie Town had by grant to late Chief Asuquo Mfon of Ishie Town divested herself of any proprietary interest in the portion granted Chief Mfon who sold to a third party, namely, Dr. Ukeh Bassey Enun. In my humble judgment, Ishie Town no longer had any proprietary interest in that portion of land granted to Chief Asuquo Mfon which Dr. Ukeh Bassey Enun bought.
There was no legal obligation on either Dr. Ukeh Bassey Enuh, Mrs. Rosemary Ekpo or the learned trial judge, Ita J., to have informed Ishie Town of the pendency of the suit, served them with the processes or joined them as parties when suit NO.HC/409/2005 was being litigated in the lower court. The term “proprietary interest” is defined as the interest held by a property owner together with all appurtenant rights, such as a stockholder’s right to vote the shares. See Blacks Law Dictionary, 8th edition p.829. There is nothing from the supporting affidavit to this application to show that Ishie Town reserved a reversionary interest in part of the land granted late Chief Asuquo Mfon of Ishie Town which he sold to Dr. Ukeh Bassey Enun for the applicants to seek to reclaim as parties having an interest in the land, subject of adjudication in suit No.HC/409/2005
The trial court could have determined the issue in controversy without the joinder of Ishie Town as a party since their proprietary interest in that portion of land had already been divested to Chief Asuquo Mfon by grant who sold to Dr. Ukeh Bassey Enun. See Akintola vs. Aderemi (1962) 1 All NLR (Pt.3) 461.
To grant this application will open a flood gate of similar applications involving the applicants in seeking leave to interfere whenever there are adverse judgments against any person or body of persons to whom portions of the land belonging to Ishie Town have been adjudicated upon, example Rev. Akpanika in suit No.HC/120/2008. The real reasons for bringing this application are to be found in paragraphs 14-18 of the affidavit of Chief Bassey Ekanem notwithstanding the absence of any proprietary interest in the subject matter adjudicated upon by the learned trial Judge in the Court below to wit:
“14. That it is now our desire to appeal against the interpretation given by the learned Judge in suit No.HC/409/2005 to the Supreme Court judgment in Appeal No.SC.92/2002 as it has proved to be detrimental to the interest of our community and will cause intolerable hardship on our community who had fought the previous case successfully to the Supreme Court
15. That our Counsel Chief A. O. Mogboh, SAN, informed me and I verily believe him that since we were parties to the Supreme Court judgment in SC.92/2002 which we believe the learned misinterpreted in suit HC/409/2005 and the land the subject matter of that suit is a portion of our land the Ishie Town people have a sufficient interest in the subject to appeal as interested parties.
16. That our Counsel further informed me and I verily believe him that we need to ask for an extension of time within which to seek leave to appeal and to file Notice and Grounds of Appeal as the time allowed for the appeal had long expired.
17. That our Counsel has prepared a Notice and Grounds of Appeal and has informed me that same disclose arguable and substantial -grounds from which real issues for determination may be distilled on appeal. A copy of the said Notice and grounds of Appeal is attached as Exhibit “D”.
18. That I make this affidavit believing same to be true to the best of my knowledge, belief and information and in accordance with the oaths Act.”
Communal proprietary interest by Ishie Town in the portion of land covered by suit No.HC/409/2005 no longer exists for the reasons I have already given. Not been necessary parties in the suit below, I am not inclined to grant the applicants leave to appeal as they are no longer persons having any proprietary interest in the subject matter under consideration. See Green vs. Green (1987) NSCC (Pt.2) 1115 at 1123; Ngwu vs. Ozoukwu (1999) 11-12 SCNJ 1 at 15 and Onibudo vs. Akibu (1982) All NLR 207. This appeal lacks merits. I also dismiss same and abide by the orders of my Lord.