EDWARD v. SPDC (NIG) LTD & ORS
(2022)LCN/16411(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Monday, July 04, 2022
CA/AS/09M/2022(R)
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
MisituraOmodere Bolaji-Yusuff Justice of the Court of Appeal
Abimbola OsarugueObaseki-Adejumo Justice of the Court of Appeal
Between
MR. NEWMAN EDWARD (Member And Representative Of The Entire Sawei Family Of Ojobo Community) APPELANT(S)
And
1. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED 2. SAIPEM CONTRACTING NIGERIA LIMITED 3. FIRST BANK OF NIGERIA PLC 4. INSPECTOR GENERAL OF POLICE 5. CHIEF THOMPSON BRISIBE 6. TITO EKOLO 7. NEWSTYLE OWEILAYEFA 8. MOSCO AKPOBO 9. ASIRO NISIMA 10. MAIK BENATEI 11. YOUSUFF AREPRESKUMOR 12. BEKEWEI WAREKROMOR 13. DAFE EKEREK 14. PERSONS UNKNOWN (As Members OfOjobo Community Executive) 15. ELDER J.O. SEIBAI 16. OWEIWARE S. BILAZU 17. AMAKAMA GODFREY 18. FELIX OWEIPADE 19. AMOS MOSES 20. EBIOWE ESEDE (For Themselves As Members & The Accredited Representatives Of The Entire Sawei Family Of Ojobo Community) RESPONDENT(S)
RATIO:
THE LAW ON WHAT IS OPENED TO A PARTY IN A SUBSEQUENT PROEEDING
See MOHAMMED V. HUSSEINI (1998) LPELR-1896 (SC) AT 58(A-G) where the Supreme Court Per ONU, J.S.C held as follows:
“It is trite law that it is open to a party in a subsequent proceeding to plead that the decision of a lower Court was given without jurisdiction and therefore a nullity (as the respondents sought to show in the instant case) and this notwithstanding that no proceeding had been taken to set the decision aside. See Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt.81) 129. Contrast the above Statement of the law with that which enunciates that once a Judge has arrived at a decision in the presence of the parties, which decision contains no fundamental defect pertaining the jurisdiction and competence of the Court amounting to the decision being a nullity, he becomes functus officio and has no right to set it aside. The only way open to any party dissatisfied is to go on appeal. See 1. Minister of Lagos Affairs v. Akin-Olugbade (1974) 11 SC. 11; 2. Sken-Consult (Nig.) Ltd. &; Anor v. Godwin Sekondy Ukey (1981) 1 SC. 6 at 35-39: 3. Grace Amanambu v. Alexander Okafor &; Anor (1966) 1 All NLR (Pt.1) 475; 4.Akporue&; Anor v. Okei (1973) 12 SC. 137 and 5. Chief Uku&; Ors. v. D. E. Okumagba &; Ors. (1974) 1 All NLR (Pt.1) 475.” MOHAMMED AMBI-USI DANJUMA, J.C.A.
THE SETTLED LAW ON THE MEANING OF POWER OF ATTORNEY AND ITS IRREVOCABILITY
The law on when a power of attorney is irrevocable is well settled. In UDE V. NWARA & ANOR. (1993) LPELR-3289 (SC) AT 32 (B-E) the Supreme Court Per NNAEMEKA-AGU, JSC stated the meaning of power of attorney as follows:
“A power of Attorney is a document, usually but not always necessarily under seal, whereby a person seised of an estate in land authorizes another person (the donee) who is called his attorney to do in the stead of the donor anything which the donor can do, lawfully usually clearly spelt out in the power of attorney. Such acts may extend from receiving and suing for rates and rents from, to giving seisin to, third parties. It may be issued for valuable consideration or may be coupled with interest, in either case it is usually made to be irrevocable either absolutely or for a limited period (see Ss. 8 and 9 of the Conveyancing Act of 1881 which is still applicable in the Rivers State under Section 15 of the High Court Law).“ MOHAMMED AMBI-USI DANJUMA, J.C.A.
THE DONEE OF A POWER OF ATTORNEY IS AN AGENT OF THE DONOR IN THE PRESENTATION OF A SUIT IN COURT
The law is settled that the donee of a power of attorney is an agent of the donor in the presentation of a suit in Court and must sue in the name of the donor. See VULCAN GASES LIMITED V. GESELLSCHAFT FUR INDUSTRIES GASVERWERTUNG A.G. (G.I.V.) (SUPRA). DIVAG HEALTH AND SANITARY SERV. LTD. & ANOR. V. KENUJ INV. LTD.(2018) LPELR- 45975(CA) AT 25-29 (F-A). By law, the fact that a donor has given a power of attorney does not extinguish the right of the donor to do the same act that the donee can do provided the donee has not exercised his power under the power of attorney. The family that donated the power of attorney which is the fulcrum upon which the appellant intends to appeal has discontinued the action at the lower Court. Is it possible for the appellant to continue to pursue a suit in which the donor is no longer interested. I say no more. MOHAMMED AMBI-USI DANJUMA, J.C.A.
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgement): The applicant herein instituted suit no. W/148/2020 in the High Court of Delta State, Warri Judicial Division as a member and representative of the entire Sawei Family of Ojobo Community against the 1st-14th respondents as defendants. By an application for joinder and substitution filed by the 15th-20th respondents which was opposed by the applicant, the 15th-20th respondents were substituted as claimants in place of the applicant via a considered ruling delivered by the lower Court on 2/11/2012 by V.O. AGBOJE, J.
By an application filed on 19/1/21, the applicant herein is seeking an order extending the time within which to seek leave to appeal, leave to appeal and an extension of time within which to file his notice and Grounds of Appeal against the said ruling of 2/11/ 2021.
The application is supported by a 15 paragraphs affidavit sworn to by Precious Ovie, a Litigation Secretary in the law firm of Apex Jural Legal Practitioners, and 17 paragraphs further affidavit sworn to by the applicant. The 1st-14th respondents did not oppose the application. The 15th-20 respondents filed a 12paragraphs counter affidavit sworn to by Loveth Ehorie, a Litigation Secretary in the law firm of Key Legal Practitioners to oppose the application. The applicant filed a written address and further written address in support of his application. The 15-20th respondents also filed a written address against the application.
The applicant formulated the following issue for determination:
“Whether the Applicant has placed sufficient materials before this Honourable Court to enable the Court to grant this Application as prayed”.
The 5th-20th respondents formulated the following issue for determination:
“whether from the facts and circumstances of the motion, this Honourable Court can grant the application of the applicant”.
The issues formulated by both parties are the same. The issues are adopted as one for the determination of this appeal.
The applicant’s counsel posited that by the virtue of Section 24(4) of the Court of Appeal Act Cap. C36, LFN 2004 and Order 6 Rules 1, 2, 6 of the Court of Appeal Rules, 2021, this Court has the power to grant the extension of time within which an application such as the one under consideration could be brought in case of any delay on the part of any party before this Court. He submitted that the Court has an unfettered discretion to grant or refuse an application but such discretion must be exercised judicially and judiciously. He referred to N.N.B. Plc V. Denclag Ltd (2005) 4 NWLR (Pt. 916) 459. On the conditions which the Court will consider in granting or refusing an application for extension of time to appeal, he referred to Amaechi V. Omehia (2013) 16 NWLR (Pt. 1381) 417. He stated that the applicant filed an application for leave at the lower Court within the 14 days stipulated for the applicant to appeal against the ruling but the application could not be heard, hence the instant application. He submitted that the applicant has a constitutional right of appeal which he is seeking to activate by this application. He further submitted that the facts contained in the affidavit in support of this application are good and constitute reasonable circumstances sufficient for the Court to exercise its discretionary powers in favour of the Applicant.
In his response, the respondents’ counsel stated that pursuant to the ruling delivered by the lower Court on 2/11/2021, the respondents amended the originating processes to reflect as the claimants and thereafter they filed a notice of discontinuance of the substantive suit. A copy of the said Notice of discontinuance is attached to the counter affidavit as Exhibit KEB 1. He argued that the applicant had all the chances legally to seek leave to appeal against the ruling of the lower Court now being complained about within time, but decided to go on a frolic of his own by abandoning this course and to pursue a rather frivolous application to set aside the judgment after his time to seek and obtain leave to appeal had elapsed. He stated that there is neither an appeal against the order dismissing the applicant’s motion nor the order discontinuing the substantive suit. The enrolment of Order discontinuing the substantive suit is attached as Exhibit KEB 4.
Counsel submitted that the purported notice and grounds of appeal attached to the supporting affidavit do not disclose any recondite grounds of appeal, no justification for the delay in bringing this application and the respondents will be greatly prejudiced bythe grant of this application as the substantive matter in this suit has been put to rest by the lower Court. He referred to EKPEMUPOLO VS. FEDERAL REPUBLIC OF NIGERIA (FRN) 2019, 78 NSCQR, 428. ELIAS VS. ECO BANK NIG.PLC (2019) EJSC.P. 156 AT 183 (D-F).
In his further address, the applicant’s counsel submitted that the applicant by the affidavit in support of the application fulfilled the requirements for granting an extension of time to appeal as stated EKPEMUPOLO VS. FEDERAL REPUBLIC OF NIGERIA (SUPRA) by showing (1) good and substantial reasons for failure to appeal within the time stipulated by law. (2) the grounds of appeal disclosed good cause why the appeal should be heard. He argued that the filing of an application to set aside the ruling of 2/11/2021 does not operate as a bar to prevent the applicant from subsequently appealing against the ruling.
RESOLUTION
Section 24 of the Court of Appeal Act provides that:
…
Order 6 Rules 4, 6 and 9 of the Court of Appeal Rules, 2021 provide that:
“4. Wherever under these Rules an application may be made either to the lower Court or to the Court, it shall not bemade in the first instance to the Court, except where there are special circumstances, which make it impossible or impracticable to apply to the lower Court.
6. Where an application for leave to appeal from a decision of the lower Court has been brought within the time prescribed by the Court of Appeal Act but has not been heard within that period, the Court, if satisfied that there has not been an unreasonable delay in bringing the application, may extend time to appeal and in proper case grant leave to appeal.
9.-(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the Order granting such enlargement or ruling shall be annexed to the Notice of Appeal.”
It is a settled by Order 6Rule 9(2)Supra and the plethora of decided cases that the conditions which must be satisfied by an applicant seeking an extension of time to appeal are as follows: (a) The application must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the time stipulated by law. (b) The grounds of appeal must prima facie show good cause why the appeal should be heard. See …
The applicant filed the application in the first instance at the lower Court as stipulated by Order 6 Rule 4 of the Court of Appeal Rules but could not be heard before the expiration of 12 days stipulated. By Section 24 (2) (a) of the Court of Appeal Act for filling an appeal against an interlocutory decision of the lower Court. Rather than file an application in this Court immediately after the withdrawal of the application at the lower Court, the appellant filed a motion and sought an order to set aside the ruling of the lower Court which application was dismissed. It was after the dismissal of that application that the applicant filed this application. I agree with the respondents’ counsel that the applicant was indeed on a frolicof his own when he filed an application to set aside the ruling of the lower Court on the grounds that the facts relied upon by respondents were deliberately fabricated and contrived to mislead the Court. The applicant had every opportunity to present his own facts and did in fact present his own facts and was properly heard before the lower Court delivered its decision. There is no doubt that the appellant is aggrieved by the ruling of the lower Court. The law is settled that the option open to a person who is aggrieved by a decision of the Court is either to apply to the Court to set aside the decision or appeal against the decision. See BABATUNDE & ANOR V. OLATUNJI & ORS (2000) LPELR-697 (SC) AT 13 (D-F). However, it is not in all cases that the two options are available to an aggrieved person. Where there is no allegation of fraud, illegality, genuine complaint of misrepresentation or mistake and the decision is not a default judgment rendered in the absence of a party or one rendered without jurisdiction, the option of seeking an order by an application to set aside the decision is not available to an aggrieved person. The only available means of seeking redress by a person who is aggrieved by a decision of the Court rendered after been given the opportunity of being heard and was in fact head as in the instant case, is an appeal not an application to vacate or set aside the decision of the Court on ground of imaginary misrepresentation. See MOHAMMED V. HUSSEINI (1998) LPELR-1896 (SC) AT 58(A-G) where the Supreme Court Per ONU, J.S.C held as follows:
“It is trite law that it is open to a party in a subsequent proceeding to plead that the decision of a lower Court was given without jurisdiction and therefore a nullity (as the respondents sought to show in the instant case) and this notwithstanding that no proceeding had been taken to set the decision aside. See Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt.81) 129. Contrast the above Statement of the law with that which enunciates that once a Judge has arrived at a decision in the presence of the parties, which decision contains no fundamental defect pertaining the jurisdiction and competence of the Court amounting to the decision being a nullity, he becomes functus officio and has no right to set it aside. The only way open to any party dissatisfied is to go on appeal. See 1. Minister of Lagos Affairs v. Akin-Olugbade (1974) 11 SC. 11; 2. Sken-Consult (Nig.) Ltd. &; Anor v. Godwin SekondyUkey (1981) 1 SC. 6 at 35-39: 3. Grace Amanambu v. Alexander Okafor &; Anor (1966) 1 All NLR (Pt.1) 475; 4.Akporue&; Anor v. Okei (1973) 12 SC. 137 and 5. Chief Uku &; Ors. v. D. E. Okumagba &; Ors. (1974) 1 All NLR (Pt.1) 475.”
In paragraph 7 of his further affidavit, the applicant stated that he was informed by his counsel that he had the option of applying to the lower Court to set aside its ruling due to misrepresentation and/or suppression of facts. It is therefore clear that the decision to file the application to vacate or set aside the ruling of the lower Court was a mistake of counsel. That mistake account for the delay in filling the instant application. Counsel persisted in that mistake even in his argument in the written addresses filed in support of this application. I therefore hold that the mistake of counsel which is a mistake of law constitutes good and substantial reasons for failure to appeal within the time stipulated by law. In EDE V. MBA (2011) 18 NWLR (PT. 1278)236 the Supreme Court held that that:
“It is not length of time that matters in explaining away a delay in an application for extension of time within which to comply with a requirement/condition stipulated by law, but whether there are reasons which are cogent, valid and convincing which can explain away the delay”.
The proposed grounds of appeal as contained in exhibit AJ4 attached to the application are:
…
The complaint of the applicant centers on right of the Sawei family of which he is a member and which he represented to revoke the power of attorney donated to him. First, the applicant instituted the suit as member and representative of the family. In OTAPO v. CHIEF R.O. SUNMONU & ORS (1987) 2 NWLR (PT.58) 587, (1987) LPELR-2822(SC) AT 29 (A-C), the Supreme Court held that:
“A representative plaintiff is the sole plaintiff and is Dominus litis until judgment, he can discontinue, compromise, submit to dismissal and other things as he decides during the course of the proceedings. If he falls out with the represented parties for any reason, the Court has power to add or substitute any person represented though unnamed in the representative action and to bring him in as at the date of the original writ Moon v. Atherton (1972) 2 QB 435; (1972) 3 WLR 57; (1972) 3 All ER 145 CA.
The law on when a power of attorney is irrevocable is well settled. In UDE V. NWARA & ANOR. (1993) LPELR-3289 (SC) AT 32 (B-E) the Supreme Court Per NNAEMEKA-AGU, JSC stated the meaning of power of attorney as follows:
“A power of Attorney is a document, usually but not always necessarily under seal, whereby a person seised of an estate in land authorizes another person (the donee) who is called his attorney to do in the stead of the donor anything which the donor can do, lawfully usually clearly spelt out in the power of attorney. Such acts may extend from receiving and suing for rates and rents from, to giving seisin to, third parties. It may be issued for valuable consideration or may be coupled with interest, in either case it is usually made to be irrevocable either absolutely or for a limited period (see Ss. 8 and 9 of the Conveyancing Act of 1881 which is still applicable in the Rivers State under Section 15 of the High Court Law).”
In AUGUSTA CHIME & ORS v. MOSES CHIME & ORS (2001) LPELR-849(SC) AT 48-49 (F-C) the Supreme Court Per IGUH, J.S.C stated the law when a power of attorney is irrevocable as follows:
“It is where a power of attorney is expressed to be irrevocable and is given to secure a proprietary interest of the donee or the performance of an obligation owed to the donee that it is irrevocable either by the donor without the consent of the donee or by the death, incapacity, bankruptcy, winding up or dissolution of the donor, so long as the donee has the interest or the obligation remains undischarged. See Reigate v. Union Manufacturing Co. (Ramsbottom) (1918) 1 K.B. 592, C.A. Where the authority of an agent is given by deed, or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. See Slatter v. Railway Commissioners (New South Wales) (1931) 45 C.L.R. 68. But it is not irrevocable merely because the agent has an interest in the exercise of it.”
See also VULCAN GASES LIMITED v. GESELLSCHAFT FUR INDUSTRIES GASVERWERTUNG A.G. (G.I.V.)(2001)LPELR-3465(SC) EJESHI AT 90(C), (2001) 9 NWLR (PT. 719) 610. OBI v. LUGARD OMENI NZEWUIHE & ANOR (2020) LPELR-49720(CA) AT 23-24 (C-C). EZEUZOR V. MBANUGO (2020) LPELR-50183(CA) AT 40(A). By law, a donee remains an agent of the donor even if the power of attorney is expressed to be irrevocable. It remains irrevocable if it is given as security for a proprietary interest of the donee or the performance of an obligation owed to the donee and the interest or the obligation remains undischarged. Even if a power of attorney is irrevocable, it is not irrevocable merely because the donee has an interest in the exercise of the power of attorney. In paragraphs 4-7 of his further affidavit, the applicant stated thus…
The law is settled that the donee of a power of attorney is an agent of the donor in the presentation of a suit in Court and must sue in the name of the donor. See VULCAN GASES LIMITED V. GESELLSCHAFT FUR INDUSTRIES GASVERWERTUNG A.G. (G.I.V.) (SUPRA). DIVAG HEALTH AND SANITARY SERV. LTD. & ANOR. V. KENUJ INV. LTD.(2018) LPELR- 45975(CA) AT 25-29 (F-A). By law, the fact that a donor has given a power of attorney does not extinguish the right of the donor to do the same act that the donee can do provided the donee has not exercised his power under the power of attorney. The family that donated the power of attorney which is the fulcrum upon which the appellant intends to appeal has discontinued the action at the lower Court. Is it possible for the appellant to continue to pursue a suit in which the donor is no longer interested. I say no more.
The point I am making is that the law governing the rights of a donor and donee of a power of attorney and the position of the law on a suit instituted in a representative capacity are not recondite or novel areas of law. Thus, the grounds of appeal have not raised any issue of general importance or novel points of law or show a prima facie arguable appeal. It is trite law that an application for leave to appeal is not granted as a matter of course. There must be a right and reason to appeal and that reason must be that the grounds of appeal show that the issues being raised are in the area in which the law is recondite or that it is a novel area of the law. Where the principle of law governing a particular issue is settled and it is obvious that an applicant merely intends to exercise his right of appeal just to make a pint or massage his ego, the appellate Court ought to refuse an application for leave to appeal. The Court must be vigilant and guard against abuse of the system or right of appeal. It is my view that the applicant has failed to fulfil the second condition for a grant of an application for leave to appeal.
Based on all that I have stated, this application fails. It is hereby dismissed. Parties shall bear their own costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: My Lord, MOHAMMED AMBI-USI DANJUMA, PJCA obliged me with the draft of the lead ruling in this appeal. I agree with the reasoning and conclusion therein that the applicant failed to fulfil the conditions for granting an application for leave to appeal. I too dismiss the application.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read in advance, the draft copy of my learned brother MOHAMMED AMBI-USI DANJUMA, JCA.
I agree with his reasoning and conclusion and wish to add that he has covered the field and I have nothing to add.
Appearances:
Felix E. Akpovwovwo, Esq. For Appellant(s)
C. O. Ugwor, Esq, – for 1st Respondent
K. E. Youkere, Esq, – for 15th-20th Respondents
E. G. Odia, Esq, – for 5th-14th Respondents
2nd, 3rd, 4th Respondents served hearing Notice through Counsel but absent For Respondent(s)
