EMMANUEL MBA V. SPRING BANK PLC & ORS
(2012)LCN/5385(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of May, 2012
CA/L/838M/2009
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
EMMANUEL MBA Appellant(s)
AND
1. SPRING BANK PLC
2. FRAMAN ENTERPRISES LIMITED
3. MR. EMEKA F. MBA Respondent(s)
RATIO
THE FUNDAMENTAL RIGHT TO APPEAL AGAINST THE DECISION OF A HIGH COURT TO THE COURT OF APPEAL
By virtue of the provisions of Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the fundamental right to appeal against the decision of a High Court to the Court of Appeal 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 on 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 discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
(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.
It’s trite, that by virtue of the said section 243(a) of the 1999 Constitution (supra), the party appealing must have been aggrieved by the decision of the court below. Thus, he cannot appeal against a decision passed in favour thereof. See the notorious case of PROFESSOR AWOJOBI V. DR. OGBEMUDIA (1983) 8 SC 92. See also AKANDE V. GENERAL ELECTRIC COY (1979) 3 LNR 187, wherein the apex court was recorded to have, inter alia, aptly held that the person who exercises the right of appeal to the Court of Appeal under section 243(a) (supra) ” must be one named in the record” or, with leave having “an interest in the proceedings,,. And that the phrase ‘a person having an interest in the proceedings’, includes a person affected or likely to be affected, aggrieved or likely to be aggrieved by the proceedings. The phrase, thus, excludes a total stranger, (a busy body) who is neither named in the record, nor has any interest therein.
It is a well settled principle, that the interest deposed to in an application for leave to appeal as an interested party under section 243(a) of the 1999 Constitution (supra) must not only be genuine (cogent), but also a legally recognizable interest regarding a decision which prejudicially affects the applicant. The person or party interested must specifically depose in an affidavit and establish in what manner the decision he seeks to appeal or challenge would or did affect the interest thereof. See RE UGADA (1988) 5 NWLR 188 at 203; HON. JUSTICE ADEMOLA VS. SODIPO (1992) 7 SCNJ 417 at 428; IKONNE VS. COP (1986) 4 NWLR 473; USANGA & ANR VS. OKACHI & ANR (1964) ALL NLR; IN RE AFOLABI (1984) 4 NWLR 18; AG GAMBIA VS. NIJE (1961) 2 ER ALL ER 504; OJOGBO OSAJA IRI & ANR VS. ITSEKIR COMMUNAL LAND TRUSTEES & ORS (1973) 1 ALL ANLR (PT.2) 272 AT 281; SGBN VS. AFEKORO (1999) 7 SCNJ 171 at 187; OWENA BANK VS. STOCK EXCHANGES (1997) 7 SCNJ 160. PER SAULAWA, J.C.A.
THE PRINCIPLE OF LAW ON THE GRANT OF AN APPLICATION FOR LEAVE TO APPEAL
Indeed, it’s a trite principle that an application for leave to appeal as a party (person) interested in an appeal, is not usually granted as a matter of course or routine. The court has onerous duty not to resort granting a leave to appeal merely to avoid an impression that it’s unwilling to entertain the appeal or upon the belief that the decision of the lower court is right. See OJORA VS. ODUNSI (1964) 1 ALL NLR 55; EX PARTE GILCHRIST IN RE ARMSTRONG (1886) 17 QB 521 at 528. PER SAULAWA, J.C.A.
CONDITION PRECEDENT TO BE SATISFIED TO JUSTIFY THE EXERCISE OF THE COURT’S DISCRETION TO ENLARGE TIME WITHIN WHICH TO APPEAL
By virtue of order 7 Rule 10(2) of the Court of Appeal Rules (supra), there are two conditions precedent which must be satisfied by the Applicant to justify the exercising of the court’s discretion to enlarge time within which to appeal against the decision of the lower court. The two conditions are:
(d) Good and substantial reasons for [the applicant’s] failure to appeal, within the stipulated time limit; and
(b) Grounds of appeal, which prima facie show good cause why the appeal should be heard.
It has to be reiterated, that the two conditions in question must coexist to justify the court to grant the application enlarging time within which to appeal.
Thus, where only one of the two conditions is satisfied by the applicant, the application cannot be granted. See ANPP VS. ALBISHIR (2010) 9 NWLR (pt. 1198) 118 at 146 E – H: 149 – 150 F – C Per Tabai, JSC. PER SAULAWA, J.C.A.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Lead Ruling): By the instant application, which was filed on 19/10/11, the Applicant has prayed the court for the following reliefs:
1. AN ORDER for extension of time for the Interested Party/Applicant to seek leave to appeal against the judgment of the High court of Lagos State delivered by Honourable Justice A. Olateru-Olagbegi in suit No. LD/M/609/206, on the 1st day of November, 2007.
2. AN ORDER for leave to appeal against the Judgment of the High Court of Lagos state delivered by Honourable Justice A. Olateru-Olagbegi in Suit No. M/609/2006, on the 1st day of November, 2007.
3. AN ORDER tor extension of time to file his Notice and Grounds of Appeal.
4. AND for such further Order or Orders as this Honourable Court may deem fit to make in the circumstances of this case.
The application is supported by a 18 paragraphed affidavit, deposed thereto on 19/10/11 by one Dr. Godwin Chiago Moemenam. Attached thereto are various documents, marked as exhibits GCM1 – GCM 11, viz:
(i) Exhibit GCM1: regarding the power of Attorney dated 29/8/11 created by the Applicant in favour of Dr. Godwin Chiago Moemenam of Messrs G.C. Moemenam & Co. Solicitors & Advocates.
(ii) Exhibit GCM2: The certificate of occupancy No. 95/95/1986 dated 27/6/86 in respect of property plot No. 10 Block 4 Lekki peninsula residential scheme (1533, 55 sq meters. (iii) Exhibits 3 & 4: The two boarding passes of Delta (Airlines bearing the name of Moemenam Godwin Chiago, dated 08/9 en route Los Angeles – Atlanta – Lagos.
(iv) Exhibit 5: The proposed notice of appeal, dated 19/10/11.
(v) Exhibit GCM 6: The originating summons dated 20/12/06.
(vi) Exhibit GCM 7: Affidavit in support, dated 20/12/06.
(vii) Exhibit 8: Certificate of Occupancy dated 79/6/86.
(viii) Exhibit GCM 9. Counter Affidavit in opposition to the originating summons, dated 27/02/07.
(ix) Exhibit GCM 70: Record of proceedings of pre-trial conference in suit no. M/609/2006, dated 01/11/07.
(x) Exhibit GCM 11: A memorandum of Deposit of title Deed, dated 15/11/99, respectively.
Apart from the aforementioned affidavit, the Applicant had equally filed a further affidavit, deposed thereto by one Albeit Nnamuka on 14/11/11. Attached thereto, are copies of the originating summons, dated 20/12/06 and affidavit in support thereof, marked as exhibits GCM 12 and 13, respectively.
On the part thereof, the Respondent has filed a 33 paragraphed counter affidavit on 27/10/11, objecting to the application. Attached to the said counter affidavit are eight exhibits, to wit:
(i) Exhibit D1: regarding the memorandum of Deposit of title Deed, dated 15/11/99.
(ii) Exhibit D2: The enrolment of judgment in suit No. M/609/06, dated 20/12/06.
(iii) Exhibit D3: the ruling of the lower court in suit No. M/609/ 2006, dated 15/9/2009.
(iv) Exhibit D4: The second ruling in M/609/06, dated 19/01/10.
(v) Exhibit D5: The notice of appeal filed on 17/9/09 in suit M/609/06 against the ruling of 15/9/09-
(vi) Exhibit D6: A copy of hand written power of Attorney dated 24/8/?
(vii) Exhibit D7: The writ of summons and statement of claim in suit No. LD/2170/09 dated 12/12/09.
(viii) Exhibit D8: The motion on notice in suit No. LD/217/09 dated 10/6/11.
On 13/3/12, the application came up for the last time for hearing. Unfortunately, however, only the Applicant and the 1st Respondent were represented by the respective counsel thereof on that date. Regrettably, the 2nd and 3rd Respondent were unrepresented. It was, however, on record that the counsel to the 2nd and 3rd Respondents, Chuks Nwachukwu Esq. was in court on 15/12/11 when the application last came up and adjourned to 13/3/12 in question for hearing. Not unexpectedly, he deemed it expedient to proceed with the hearing of the application as scheduled.
In the submission thereof, the Applicant’s learned Senior counsel, Mr. GN. Uwechue, SAN, contended that the test is whether the Applicants as interested parties, have established sufficient grounds to warrant the court to grant the application. For that submission, the learned silk cited and relied upon EFP COY LTD VS. NDIC (2007) 9 NWLR (PT. 1039), 216 AT 251 A-C.
Alluding to the various paragraphs of the affidavit in support and the exhibits attached thereto, the learned SAN contended, that the Applicant has shown interest as a party, thus ought to be joined in the case (appeal). He, however, conceded to the fact that paragraphs 13 & 14 of the affidavit raised issues of law [and not facts] thus should be struck out.
Regarding the requirement of order 7 Rule 10, of the Court of Appeal Rules, 2011, the learned silk submitted that paragraphs 4, 5, 7, 8 & 11 of the affidavit are to the effect that the Applicant is not resident in Nigeria. He was not aware of the suit in question until [sometime in] June 2011, when the solicitor thereof informed him about it. That, the said solicitor had to travel to the United States of America (USA) to confer therewith, and returned [to Nigeria] in Nigeria with an instruction to challenge the said suit.
At the conclusion of the submission, the learned silk urged upon the court to grant the application.
on the part thereof, the 1st Respondent’s learned counsel, S. Oghemoh Esq., vehemently opposed the application. He alluded to the counter affidavits and the exhibits attached thereto, filed on 27/10/11. According to 1st Respondent’s learned counsel, such an application as the instant one is not granted as a matter of routine. The Applicant must satisfy two conditions: (i) Good and substantial reasons for the delay; and (ii) grounds of appeal that prima facie show good cause why leave to appeal should be granted. See order 7 Rule 10(2) Court of Appeal Rules, 2011.
According to the learned counsel, the present application is based on falsehood and designed to obtain an undue advantage. Thus it ought to be refused. See ANPP V. ALBISHIR (2010) 8 NWLR (pt.1198) 118 at 139 – 145.
It was equally contended, that the application has constituted an abuse of court process. Thus, it must be dismissed with substantial cost. See DINGYADI V. INEC (2010) 18 NWLR (pt.1224) 154 at 194 – 222; ORDER 7 RULE 1 COURT OF APPEAL RULES, 2011 (supra).
Conclusively, it was contended that the application has raised the issue of jurisdiction.
I have accorded an amply critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the application, the averments contained in the affidavit, the counter affidavits, and the exhibits annexed therewith vis-a-vis the eloquent submissions of the learned counsel to the Applicant and 1st Respondent.
By virtue of the provisions of Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the fundamental right to appeal against the decision of a High Court to the Court of Appeal 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 on 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 discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
(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.
It’s trite, that by virtue of the said section 243(a) of the 1999 Constitution (supra), the party appealing must have been aggrieved by the decision of the court below. Thus, he cannot appeal against a decision passed in favour thereof. See the notorious case of PROFESSOR AWOJOBI V. DR. OGBEMUDIA (1983) 8 SC 92. See also AKANDE V. GENERAL ELECTRIC COY (1979) 3 LNR 187, wherein the apex court was recorded to have, inter alia, aptly held that the person who exercises the right of appeal to the Court of Appeal under section 243(a) (supra) ” must be one named in the record” or, with leave having “an interest in the proceedings,,. And that the phrase ‘a person having an interest in the proceedings’, includes a person affected or likely to be affected, aggrieved or likely to be aggrieved by the proceedings. The phrase, thus, excludes a total stranger, (a busy body) who is neither named in the record, nor has any interest therein.
It is a well settled principle, that the interest deposed to in an application for leave to appeal as an interested party under section 243(a) of the 1999 Constitution (supra) must not only be genuine (cogent), but also a legally recognizable interest regarding a decision which prejudicially affects the applicant. The person or party interested must specifically depose in an affidavit and establish in what manner the decision he seeks to appeal or challenge would or did affect the interest thereof. See RE UGADA (1988) 5 NWLR 188 at 203; HON. JUSTICE ADEMOLA VS. SODIPO (1992) 7 SCNJ 417 at 428; IKONNE VS. COP (1986) 4 NWLR 473; USANGA & ANR VS. OKACHI & ANR (1964) ALL NLR; IN RE AFOLABI (1984) 4 NWLR 18; AG GAMBIA VS. NIJE (1961) 2 ER ALL ER 504; OJOGBO OSAJA IRI & ANR VS. ITSEKIR COMMUNAL LAND TRUSTEES & ORS (1973) 1 ALL ANLR (PT.2) 272 AT 281; SGBN VS. AFEKORO (1999) 7 SCNJ 171 at 187; OWENA BANK VS. STOCK EXCHANGES (1997) 7 SCNJ 160.
Most particularly, the case of OWENA BANK VS. STOCK EXCHANGE (supra) is instructive. The Bank sued the Stock Exchange. In the interim, the lower court granted an exparte order of injunction restraining the stock Exchange from preventing the trading of the Banks securities on the floors of the Defendant. Thereupon, the Securities And Exchange Commission applied to the Court of Appeal for leave to appeal against the exparte order of interim injunction as a person interested, under Section 243(a) of the 1999 Constitution. The said application was granted.
Not unexpectedly, however, the Bank appealed to the Supreme Court, which overruled the decision of the Court of Appeal. The Supreme Court thereby held, inter alia, that the Securities And Exchange Commission could not be a person interested; because having exercised the only power it had in the case under the law, there was no other interest of it therein.
With particular regard to the instant application, the provisions of order 7 Rules 1 & 10 of the Court of Appeal Rules 2011 are most imperative. By virtue of the provisions of Rule 10(2) of the order 7 of the Court of Appeal Rules (supra) –
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…
7. The application for leave to appeal from a decision of a lower court shall contain copies of the following items, namely –
(a) notice of motion for leave to appeal (Form 5);
(b) a Certified true copy of the decision of the court below sought to be appealed against;
(c) a copy of the proposed grounds of appeal; and
(d) where leave has been granted by the lower court, a copy of the order refusing leave…
10(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 shall be annexed to the notice of appeal.
Having set out the prayers as contained in the application in question, it’s rather obvious that the applicant has failed to set out the grounds for the reliefs being sought in the application. Thus, the failure to set out the grounds has amounted to a flagrant violation of Rule 1 of order 7, Court of Appeal Rules (supra), which may result in rendering the application incompetent.
Essentially, where the ground for seeking leave (or extension of time) to appeal are predicated on issues of law, such grounds must be specifically stated in the face of the application. In the instant case, paragraphs 10, 13 and 14 of the affidavit in support of the application raised issues of law. Thus, in my view paragraphs 10, 13 & 14 of the affidavit in question ought to have been incorporated as grounds supporting the application. Not surprisingly, the learned silk, in the course of the oral submission thereof urged upon the court to strike out the said paragraphs 13 & 14 of the affidavit.
Without any hesitation, for having been withdrawn the said paragraphs 13 & 14 of the affidavit are hereby struck out.
Indeed, it’s a trite principle that an application for leave to appeal as a party (person) interested in an appeal, is not usually granted as a matter of course or routine. The court has onerous duty not to resort granting a leave to appeal merely to avoid an impression that it’s unwilling to entertain the appeal or upon the belief that the decision of the lower court is right. See OJORA VS. ODUNSI (1964) 1 ALL NLR 55; EX PARTE GILCHRIST IN RE ARMSTRONG (1886) 17 QB 521 at 528.
However, notwithstanding the above observation, it’s evident from the depositions, contained in the affidavit and further affidavit and the annextures thereto, that the Applicant has succeeded in establishing that his interest would be affected (prejudiced) by the judgment of the lower court in question. There is no doubt about that.
Regarding the requirements of order 7 Rule 10(2) of the Court of Appeal Rules (supra), paragraphs 4, 5,7,8 & 11 of the affidavit have the combined effect of establishing that the Applicant was not resident in Nigeria but in the United State of America. He was (allegedly) not aware of the filing and pendency of the suit in question until sometime in June 2011. Exhibits GCM3 & GCM4 are the boarding passes showing that the Applicant’s solicitor left Nigeria to USA and returned in September with an instruction to challenge the said suit.
Contrariwise, the learned counsel to the Respondent vehemently objected to the application. The depositions in paragraphs 24, 25, 26 & 27 of the counter affidavit and 1 paragraphs 3 -7 of the further counter affidavit, as well as exhibits GCMS; paragraphs 23, 24 & 25 showing that the Applicant was aware of the fact that the suit was Pending.
By virtue of order 7 Rule 10(2) of the Court of Appeal Rules (supra), there are two conditions precedent which must be satisfied by the Applicant to justify the exercising of the court’s discretion to enlarge time within which to appeal against the decision of the lower court. The two conditions are:
(d) Good and substantial reasons for [the applicant’s] failure to appeal, within the stipulated time limit; and
(b) Grounds of appeal, which prima facie show good cause why the appeal should be heard.
It has to be reiterated, that the two conditions in question must coexist to justify the court to grant the application enlarging time within which to appeal.
Thus, where only one of the two conditions is satisfied by the applicant, the application cannot be granted. See ANPP VS. ALBISHIR (2010) 9 NWLR (pt. 1198) 118 at 146 E – H: 149 – 150 F – C Per Tabai, JSC.
As aptly, and rather authoritatively, pontificated by the apex court –
The relief derivable under Order 7 rule 10 of the Court of Appeal Rules is only available to persons who through inadvertence or some importunity are unable to promptly file their appeals within the time frame set under the Court of Appeal Act. It is not created as an alternative route of appeal to persons who have tried and failed through other procedures. It is not for gamblers or speculators.
See ANPP VS. ALBISHIR (supra) at 143 – 144 G – B. per Oguntade, JSC. See also KOTOYE VS. SARAKI (1995) 5 NLWR (pt. 255).
In the instant case. There is every reason for me to believe that the Applicant has been a medical Doctor and Clinical professor of obstetrics & Gynaecology at the University of Southern California, Los Angeles, United States of America (paragraph 1 of the affidavit). It was equally deposed to in paragraph 4 of the said affidavit
4. That the interested Party/Applicant was not aware of the proceedings that gave rise to the judgment of the court below dated the 1st day of November, 2007 until the 1st of June, 2011 when I held a meeting with Mr. Emmanuel Ekweonu, the in-house solicitor to the 1st defendant/respondent at “Chicken Republic” Restaurant, at Marina, Lagos on behalf of the interested Party/Applicant.
In the absence of any cogent reason to the contrary, the above averment in my view, constitutes a good cause for the delay in filing the appeal within the statutory time limit.
As alluded to above, the second requirement under order 7 Rule 10(2) of the Court of Appeal Rules 2011 (supra) relates to the proposed grounds of appeal being prima facie good and substantial. Having critically perused the four proposed grounds of appeal vis-a-vis the particulars thereof, there is every cogent reason for me to appreciate that they are, prima facie, good and substantial.
What’s even more compelling, is the fact that both grounds 1 & 2 of the proposed notice of appeal in question (Exhibit GCM5) raise the fundamental issues of jurisdiction, thus:
“GROUND ONE
The lower court erred in law when it assumed jurisdiction to grant the reliefs sought in the originating summons of the claimant/Respondent dated 20th December, 2006 without determining the question sought to be determined by the originating summons or making an order for the question to be determined otherwise, than by originating summons if, in its opinion, the question ought not to be determined by originating summons as required by Order 3 rule 7 of the High Court of Lagos State (Civil Procedure) Rules, 2004, which governs the originating summons procedure…
GROUND TWO
2. The learned trial judge erred in law in assuming the jurisdiction to grant the reliefs in the originating summons, which was fundamentally and incurably in competent and irregular, having not sought any declaratory relief to provide answers to the questions sought to be determined.
Instructively, it is a well settled fundamental doctrine, that where it’s established, as in the instant case, that the proposed grounds of appeal prima facie raise the fundamental issue of jurisdiction, the court may not deem it expedient or necessary to inquire into the reasons for the delay in filing the appeal within the statutory time limit. See UKWU VS. BUNGE (1997) 8 NWLR (pt. 518) 527 at 542 B – D. per Ogwuegbu, JSC. In UKWU VS. BUNGE’S case (supra), the Supreme Court found that the proposed ground of appeal had raised a constitutional and fundamental issue of jurisdiction. Thus, the apex court held that it might not be necessary to inquire into whether there were good and substantial reasons for not appealing within the prescribed period. The reason for the Supreme Court’s lenient approach in UKWA VS. BUNGLE’S case (supra) is not far-fetched. Undoubtedly, the issue of jurisdiction goes to the competence of the court to entertain a case before it. Any defect in the competence of a court to adjudicate a matter is fatal for the proceedings thereof. Thus, the proceedings tantamount to a nullity, no matter how well conducted. See MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587 at 595: (1962) SC NLR 341: OBIKOYA VS. REGISTRAR OF COMPANIES & ANOR (1975) 4 SC 37 at 34 – 35: EZOMO VS. OYAKHRE (1985) NWLR (pt. 2) 195: NWAFIA VS. UKUBA (1965) NWLR 219 at 221.
Hence, in the light of the foregoing reasoning, I would want to appreciate that the instant application has merits, thus ought to be granted by this court.
The application is accordingly hereby granted by me, as prayed.
Consequentially, it’s hereby ordered as follows –
1. Time is enlarged to the Applicant to seek leave to appeal against the judgment of the High Court of Lagos State, delivered by the Honourable Justice A. Olateru-Olagbegi in Suit No. LD/M/609/2006 on November 1, 2007.
2. Leave is granted to the Applicant to appeal against the said judgment referred to in paragraph 1 above.
3. Time is extended for 14 days from today to enable the Applicant to file the notice and grounds of appeal thereof against the judgment in question
K. B. AKAAHS, J.C.A.: I was privileged to read the draft ruling of my learned brother, Saulawa, JCA. I agree with his reasoning and conclusion that the Applicant is a person having an interest in the proceedings in Suit No. LD/M/609/2006 which he is seeking leave to appeal against as an interested party.
Dr. Godwin Chiago Moemenam, a legal practitioner deposed to the following facts in paragraph 3 of the affidavit in support of the motion to which was annexed Exhibit GCM2 (the copy of the Certificate of Occupancy) that –
“3. That I was informed by the interested Party/Applicant and I truly believe him as follows:
(a) In 1986 the interested Party/Applicant was issued a Certificate of Occupancy registered as number 95 at page 95 in volume 1986 G of the Lagos State Lands Registry Office at Ikeja dated 27th June, 1986;
(b) ……
(c) now shown to me and marked Exhibit GM2 is a copy of the said Certificate of Occupancy given to me by the Interested Party/Applicant.
(d) I sighted the original Certificate of Occupancy which is still in the possession of the Interested Party/Applicant who is prepared to produce it if it becomes necessary in the course of these proceedings;
(e) the Interested Party/Applicant did not at any time deliver the said original Certificate of Occupancy to the Claimant/Respondent or any of the Defendants/Respondents;
(f) the Interested Party/Applicant did not at any time authorise the use of any document relating to his said property for the purpose of securing any loan or banking facilities from the Claimant/Respondent nor did he authorise the Defendants/Respondents to use the documents for such a transaction;
(g) the Interested Party/Applicant did not authorise the Defendants/Respondents or anyone to apply for a Certified True Copy of the Certificate of Occupancy of the said property for any purpose whatsoever.”
Also in paragraph 4, the Deponent stated that –
“4. That the Interested Party/Applicant was not aware of the proceedings that gave rise to the judgement of the Court below dated the 1st day of November, 2007 until the 1st of June, 2011 when I held a meeting with Mr. Emmanuel Ekweonu the in-house solicitor to the 1st defendant/respondent at “Chicken Republic Restaurant, at Marina, Lagos. The Applicant showed in paragraph 3 that he was a party whose interest was affected by the judgement in Suit No. LD/M/609/2006 and since he was not resident in the country but in the United States, he could not be fixed with knowledge of the case. He therefore satisfied the requirements of Section 243(a) of the 1999 Constitution of a person interested and as interpreted in Owena Bank PLC v. Nigerian Stock Exchange (1997) 8 NWLR (Pt. 575) 1; (1997) All NLR 137 and also order 7 Rules 1 and 10 of the Court of Appeal Rules 2011 as to why he could not appeal within time. The proposed grounds of appeal are arguable grounds.
I am therefore in total support with the conclusion reached that the application has merit and the prayers should be granted namely: –
1. The Applicant is granted enlargement of time within which he can seek leave to appeal as a Party Interested against the judgement of the High Court of Lagos State delivered by the Hon. Justice A. Olateru-Olagbegi in Suit No. LD/M/609/2006 on 1st November, 2007.
2. Leave to appeal against the said judgement is granted.
3. Time is extended by 14 days from today within which he may appeal against the said judgement.
R.N. PEMU, J.C.A.: I had read in draft the Ruling of my learned Brother I.M.M. Saulawa JCA, and I am entirely in agreement with him.
I adopt his reasoning and conclusions. Moreso I abide by the consequential order made by him.
Appearances
G.N. Uwechue SAN with G.C. Utedmenem Esq., and J.C. Halim (Miss) Esq.For Appellant
AND
S. Ogwemoh Esq. with N.G. Osuotta (Mrs) Esq. and M. Ashaolu Esq.For Respondent
