EYEKPIMI & ORS v. DEMEYIN & ORS
(2022)LCN/16503(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Wednesday, February 23, 2022
CA/AS/601M/2019(R)
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1. PRINCE JOSEPH EYEKPIMI 2. JOHNBULL ODIMAH 3. ANTHONY ALATHAN 4. JOHN BOYO (For Themselves And On Behalf Of Bobi Community) APPELANT(S)
And
1. PA. AKOMA DEMEYIN 2. MICHAEL OGBITEN TEMISANRE 3. PA. STEPHEN AKUYA 4. MR. SUNDAY ATUM 5. MR. SUNNY A. TUOYO (For Themselves And On Behalf Of Lye Family Of Deghele) RESPONDENT(S)
RATIO:
THE LAW FROWNS ON A COURT TAKING ON SUBSTANTIVE ISSUES FIT ONLY FOR THE APPEAL
I am fortified in this view by the admonition of the Supreme Court in RE: ABDULLAHI (2018) LPELR-45202 (SC); BRIGADIER GENERAL JAMES OMEBIJE ABDULLAHI v. NIGERIAN ARMY & ORS. (2018) LPELR-45202(SC) AT 24-25 (F-C) where AUGIE, J.S.C stated that:
“the law frowns seriously on a Court taking on substantive issues fit only for the appeal, when hearing interlocutory applications. In other words, care must be taken to avoid making observations in its Ruling on that application, which might appear to pre-judge the main issue in the proceedings relative to the said application – see Mortune V. Gambo (1979) LPELR-1913(SC) and Buremoh V. Akande (2017) LPELR-41565(SC), wherein M. D. Muhammad, JSC, aptly observes –
“A Court must avoid the determination of a substantive issue at the interlocutory stage. It is never proper for a Court to make pronouncement in the course of interlocutory proceedings on issues before the Court.”
See also OKWARA AGWU & ORS v. JULIUS BERGER NIGERIA PLC (2019) LPELR-47625(SC) AT 12-13 (D-E), 21-23 (C-E), 23-24 (A-F); CIL RISK & ASSET MANAGEMENT LIMITED v. EKITI STATE GOVERNMENT & ORS (2020) LPELR-49565(SC) AT 8-85 (F-D). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A
THE EFFECT OF THE FAILURE OF THE PARTY TO ACT WITHIN TIME WHEN CAUSED BY AN OMISSION OR ACT
In NWORA & ORS V. NWABUEZE & ORS (SUPRA), (2011) LPELR-8128 (SC) AT 40-41(A-A), the Supreme Court Per ADEKEYE, J.S.C held that:
“The Supreme Court will normally exercise its discretion judicially and judiciously. It will exercise its discretion in favour of the appellant where failure to file on time was due to the negligence of the counsel or excusable or pardonable error of counsel. The failure of the party to act within time when caused by an omission or lapse of the counsel will not be taken out on an appellant. Ahmadu v. Salawu (1974) All NLRpg.822 at pgs.826- 827; Shanu v. Afribank (Nig.) Plc (2000) 13 NWLR (pt.684) pg. 392; Doherty V. Doherty (1964) 1 All NLR pg. 292; Bowaje v. Adediwura (1976) 6 SC pg.143 at pg.147. This is extended to error of judgment or inadvertence on the part of the counsel’s clerk or failure of communication at the crucial time between him and the plaintiff/appellant/applicant particularly where the mistake or inadvertence is in respect of procedural matters. The Court will usually lean towards accommodating the party in the interest and a determination of the case on the merits. The Court will also grant the application where his being out of time is due to lack of appreciation of the judgment. Though the Court will however take into consideration the length of time in exercising its discretion, the length of time between the judgments appealed against and the application for extension of time is immaterial so long as the applicant can show good cause for the delay. The list of factors to be taken into consideration are in-exhaustive each case has to be decided on its own peculiar facts and circumstances.” MISITURA OMODERE BOLAJI-YUSUFF, J.C.A
THE GROUNDS OF APPEAL RAISING SUBSTANTIAL AND ARGUABLE ISSUES OF LAW
Where it appears to the Court that a judgment or order is void or a nullity having been given without jurisdiction, it could never be too late to appeal against it. The delay in appealing against the said judgment would cease to be a relevant factor to be taken into consideration in an application for extension of time within which to appeal against the judgment. See R. LAUWERS IMPORT-EXPORT v. JOZEBSON INDUSTRIES COMPANY LIMITED (1988) LPELR-2934(SC) AT 35-37 (E-B). The grounds of appeal definitely raise substantial and arguable issues of law which show prima facie good cause why the appeal should be heard. I, therefore, find that the applicants have fulfilled the second condition for a grant of the application. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): By a motion filed on 9/10/19, the applicants herein are praying this Court for an order extending the time within which to file an appeal against the final judgment of the Delta State High Court delivered on 22/9/1994 in Suit No. W/231/1990: between I. Akpaemaguwatan Edema and another (for themselves and on behalf of the following towns and villages, namely: Orere, Ajusobo, Ajaye, Orubu, Yanagho, Zion, Bobi, Ajujon and Atsuran, all of Orere Town) as Plaintiffs and Warri South Local Government Council and others as defendants, the time within which to appeal having expired.
The grounds upon which the application is predicated are as follows:
1. The judgment which the applicants want to appeal against was delivered in September, 1994.
2. This Honourable Court has the power to enlarge time to appeal notwithstanding the inordinate delay where the lower Court is shown to have acted without jurisdiction or where the party seeking to appeal did not immediately appreciate the purport of the judgment.
The motion is supported by a thirty (30) paragraph affidavit sworn to by the 2nd applicant and the exhibits attached thereto. The respondents filed a six (6) paragraph counter affidavit sworn to by Lawrence Ekeanya, a secretary. In compliance with the directive of this Court, parties filed and exchanged written addresses which they adopted as their arguments for and against the motion.
In their written address titled applicants’ brief of argument, the applicants formulated the following issue for determination:
“Whether the applicants have made out a case for the grant of extension of time to file an appeal in this action.”
The respondents’ filed their written address on 18/9/ 2020. The issue formulated by them is the same as that formulated by the applicants.
On the conditions that an applicant seeking an extension of time to appeal must meet, the applicants’ counsel referred to OYEGUN V. NZERIBE (2010) 6 SCNJ 74; CHUKWU V. OMEHIA (2012) 6 SCNJ 596. According to counsel, the applicants did not appreciate the enormity and full purport of the judgment in exhibit A until the respondents successfully pleaded same as res judicata in Suit No. W/319/94 between Sunday Omagene&Ors. V. Pa Akoma Demeyin& Ors.wherein the lower Court held that the issue of title to applicants’ claim for declaration of title to the land of the towns, villages or quarters of Orere, Ajusobo, Ajaye, Orubu, Yanagho, Zion, Bobi, Ajujon, Atsuran and Ataran had been settled in suit no. W/231/90 in favour of lye family. The applicants’ claim for title to those areas was struck out for being caught by the principle of issue estoppel. He referred to NWORA V. NWABUEZE(2011) 6 SCNJ 437 AT 463 wherein the Supreme Court held that the Court will grant an application for extension of time to appeal where the applicant being out of time is due to lack of appreciation of the judgment. Counsel contended that the proposed three grounds of appeal are arguable grounds of appeal since they are raising an issue of jurisdiction of the Court to grant the relief granted in favour of the respondents herein in suit no. W/231/90. He submitted that the appellants having adduced good and substantial reasons for the failure to appeal within the prescribed time and having proposed substantial and arguable grounds of appeal, the applicants have satisfied the conditions for a grant of their application. On the inordinate delay, he submitted that there is no time limit for challenging a judgment which is given without jurisdiction and therefore, a nullity. He referred to THE MINISTER V. EXPO- SHIPPING (2010) 4SCNJ 155 AT 176; NWORA V. NWABUEZE (SUPRA) AT 464; CHUKWU V. OMEHIA (2012) 6 SCNJ 596; OGUNDIMU V. KASUMU (2006) 6 SCNJ 142 AT 148; and DOMINIC EDE V. NWAGBARA MBA (2011) 12 SCNJ 147.
In response to the applicants’ submissions, the respondents’ counsel referred to NGERE V. OKURUKET (2014) LPELR-22883 AT 23-25 on the conditions that an applicant must fulfill before an application for extension of time to appeal is granted. He made elaborate submissions on his contention that the lower Court was not functus officio when it made the pronouncement that the lands mentioned in exhibit A belong to the respondents’ Iye family. He submitted that the applicants’ contention that their proposed appeal is founded on lack of jurisdiction is misconceived and should be discountenanced. It is the contention of the respondents’ that the excuse that the applicants did not appreciate the judgment they want to appeal against cannot avail them because the ruling in exhibit C was delivered on 22/3/2016 but the applicants did not bring this application until 9/10/19. He submitted that the further delay is fatal to their application. He referred to IROEGBU & ANOR. V. OKWORDU & ANOR. (1990) LPELR-539 (SC) AT 39 (D-F); A.G. RIVERS STATE V. UDE & ORS. (2006) LPELR-626 (SC) 20 (C-F).
In their reply on points of law filed on 24/9/20, the applicants submitted that the proposed grounds of appeal are challenging the jurisdiction of the lower Court to grant a relief not prayed for by any of the parties. He referred to GEGELE V. LAYINKA (1993) 3SCNJ 39; UNTHMB V. NNOLI (1994) 8 NWLR Pt.363 page 376. On the issue of delay, counsel submitted that the applicants have adduced good reasons for the delay in filing an appeal within the prescribed time and judgment given without jurisdiction remains a nullity and can be set aside at any time, more so, when the applicants have not been shown to have acted mala fide. He referred to OLUFEAGBA V. ABDUR RAHEEM (2009) 12 SCNJ 349 AT 374; ISEOGBEKUN V. ADELAKUN (2012) 4 SCNJ 100.
RESOLUTION
In the consideration of an application for extension of time to appeal, this Court is guided by Order 6 Rule 9 of the Court of Appeal Rules, 2021 which provides that:
“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 shall be annexed to the notice of appeal.”
It is clear from the above rules that for an application for extension of time within which to appeal to succeed, the applicant must by his affidavit present: 1) good and substantial reasons for failure to appeal within the prescribed period. 2) Grounds of appeal which prima facie show good cause why the appeal should, be heard. The two conditions must co-exist. Where an applicant is unable to satisfy the two conditions conjunctively, the application must be refused.
See LAFFERI NIGERIA LIMITED & ANOR V. NAL MERCHANT BANK PLC & ANOR (2015) LPELR-24726(SC) AT 48-49 (E-E); OWUNARI LONG-JOHN & ORS V. CHIEF CRAWFORD N. BLAKK & ORS (1998) LPELR-1791(SC) AT 14-15 (E); STANBIC IBTC BANK PLC V. LONGTERM GLOBAL CAPITAL LIMITED & ANOR (2017) LPELR-42764(SC) AT 14 (A).
The explanation for the delay of more than twenty five (25) years in filing an appeal against the judgment in suit no. W/231/90 are stated in paragraphs 2- 26 of the affidavit in support of the application. The summary of the depositions therein is that the applicant did not appreciate the enormity and purport of the judgment they want to appeal against until it was successfully pleaded as res judicata in Suit No. W/319/94.
The response of the respondents to the above depositions is in paragraph 3 of their counter affidavit. They alleged that the parties understood the judgment and the applicants consciously, negligently and recklessly slept on their right of appeal. Both parties argued extensively on the propriety of awarding a relief not claimed by a party, whether the Court was right to enter judgment or make any order in favour of the respondents when they had no counterclaim before the Court, whether or not the lower Court was functus officio when it made the order in contention and whether the order is a consequential order.
I have considered the arguments of both parties. I have no doubt that the above issues and controversies are substantial issues fit for determination in an appeal. The Court has a duty to refrain from deciding substantive issues at interlocutory stage no matter the temptation. I will therefore not succumb to the temptation of deciding those issues in the consideration of this application. I am fortified in this view by the admonition of the Supreme Court in RE: ABDULLAHI (2018) LPELR-45202 (SC); BRIGADIER GENERAL JAMES OMEBIJE ABDULLAHI v. NIGERIAN ARMY & ORS. (2018) LPELR-45202(SC) AT 24-25 (F-C) where AUGIE, J.S.C stated that:
“the law frowns seriously on a Court taking on substantive issues fit only for the appeal, when hearing interlocutory applications. In other words, care must be taken to avoid making observations in its Ruling on that application, which might appear to pre-judge the main issue in the proceedings relative to the said application – see Mortune V. Gambo (1979) LPELR-1913(SC) and Buremoh V. Akande (2017) LPELR-41565(SC), wherein M. D. Muhammad, JSC, aptly observes –
“A Court must avoid the determination of a substantive issue at the interlocutory stage. It is never proper for a Court to make pronouncement in the course of interlocutory proceedings on issues before the Court.”
See also OKWARA AGWU & ORS v. JULIUS BERGER NIGERIA PLC (2019) LPELR-47625(SC) AT 12-13 (D-E), 21-23 (C-E), 23-24 (A-F); CIL RISK & ASSET MANAGEMENT LIMITED v. EKITI STATE GOVERNMENT & ORS (2020) LPELR-49565(SC) AT 8-85 (F-D).
The reliefs sought by the applicants in Suit No. W/231/90 are as follows:
“1. A declaration that the sum of #295,599.95 (Two Hundred and Ninety- Five Thousand, Five Hundred and Ninety Nine Naira, Ninety-Five Kobo) being an ex-gratia payment from an oil spillage at Orere Town paid to the 1st defendant by the Ministry of Petroleum Resources for the re-development of Iye Primary School 11, Orere Town, Benin River, on or about March 1990, at Warri within the jurisdiction of this Honourable Court is a bonafide property of the plaintiffs.
2. Order that the 1st defendant pay the said sum of #295,599.95 to the plaintiffs.
3. 5% (five percent) interest on the said sum of # 295,599.95 from the Month of March 1990, until the said sum is paid to the plaintiffs or any other higher interest that might accrue.”
The lower Court entered judgment as follows:
“For the foregoing reasons, the claim of the plaintiffs fails in its entirety and it is accordingly dismissed.
The only question now left for me to consider is whether the Court can rightly order that the money be paid to the 2nd – 4th defendants as the accredited representatives of the community when they did not counterclaim or claim for same. There is overwhelming evidence that the #295,599.95 paid to the 1st defendant is an ex-gratia payment made to the communities affected by the oil spillage. There is also overwhelming evidence that the affected land as mentioned in the claim belongs to the Iye family of Deghele of which the 2nd-4th defendants are the accredited representatives. Bearing in mind that the object of the Court is to do justice, it is my considered view that it will not be in the interest of justice to deprive the community of its entitlement merely because it did not counterclaim or claim by way of a writ of summons for the money which obviously is meant for it.
In the circumstances, I hereby order that the sum of #295,599.95 paid to the 1st defendant as ex-gratia payment for the Deghele Community together with any accrued interest be paid forthwith to the 2nd-4th defendants who are the accredited representatives of the community on behalf of the said community. It is also ordered that the said amount shall be used for the purpose for which it was paid. That is, implementation of development projects in the affected area.”
As stated earlier in this ruling, the applicants’ explanation for the delay in filing an appeal against the judgment in suit no. W/231/90 delivered on 22/9/94 is that they did not appreciate the enormity and purport of the judgment they want to appeal against until it was successfully pleaded as res judicata in Suit No. W/319/94. I have also read the ruling by which the judgment was held to constitute issue estoppel. Considering the claim before the Court and the dismissal of the claim, one may not immediately appreciate or even totally miss the effect and thelegal implication of the above pronouncement of the lower Court on the ownership of the lands mentioned in the judgment.
One may be tempted to reject the claim of the applicants that they did not appreciate the depth of the effect of the pronouncement that the lands mentioned in the judgment belong to the respondents because they were represented by a counsel and it was the duty of counsel to peruse the judgment and advise the applicants on the purport and effect of the judgment in all its ramifications. It is obvious that their counsel failed to so do. Hence, they found themselves in this predicament. In NWORA & ORS V. NWABUEZE & ORS (SUPRA), (2011) LPELR-8128 (SC) AT 40-41(A-A), the Supreme Court Per ADEKEYE, J.S.C held that:
“The Supreme Court will normally exercise its discretion judicially and judiciously. It will exercise its discretion in favour of the appellant where failure to file on time was due to the negligence of the counsel or excusable or pardonable error of counsel. The failure of the party to act within time when caused by an omission or lapse of the counsel will not be taken out on an appellant. Ahmadu v. Salawu (1974) All NLRpg.822 at pgs.826- 827; Shanu v. Afribank (Nig.) Plc (2000) 13 NWLR (pt.684) pg. 392; Doherty V. Doherty (1964) 1 All NLR pg. 292; Bowaje v. Adediwura (1976) 6 SC pg.143 at pg.147. This is extended to error of judgment or inadvertence on the part of the counsel’s clerk or failure of communication at the crucial time between him and the plaintiff/appellant/applicant particularly where the mistake or inadvertence is in respect of procedural matters. The Court will usually lean towards accommodating the party in the interest and a determination of the case on the merits. The Court will also grant the application where his being out of time is due to lack of appreciation of the judgment. Though the Court will however take into consideration the length of time in exercising its discretion, the length of time between the judgments appealed against and the application for extension of time is immaterial so long as the applicant can show good cause for the delay. The list of factors to be taken into consideration are in-exhaustive each case has to be decided on its own peculiar facts and circumstances.”
Based on the foregoing, I hereby found that the applicantshave satisfied the first condition for the grant of an application for extension of time to appeal.
In a bid to satisfy the second condition, the applicants have proposed the following grounds of appeal:
1. “The learned trial judge erred in law when without jurisdiction the Court found and declared that the lye Descendants Union are the founders and/or owners of Bobi Community land when there was no such claim or counterclaim before the Court.
2. The learned trial judge erred in law and acted without jurisdiction when the Court after holding that: For the foregoing reasons, the claim of the plaintiffs fails in its entirety and it is accordingly dismissed. Still proceeded to find and hold that land belongs to lye family of Deghele.
3. The learned trial judge erred in law when the Court denied the appellants the opportunity to be heard before the ownership of their Bobi Community land was awarded to the respondents’ family.”
The complaint of the applicants in the proposed grounds of appeal is that the lower Court granted the respondents a relief not sought by them and they were not heard before the relief was granted. These arefundamental issues touching on the validity of the order made by the lower Court after dismissing the applicants’ claim. The respondents’ counsel strenuously argued that these are not issues of jurisdiction. However, it is settled by a plethora of cases that the Court has no jurisdiction or the vires to grant a substantial relief not specifically sought by a party. Where a Court grants a relief not sought by a party, it is an order on a lis not raised by the parties. It will be an order made without jurisdiction and therefore a nullity. See OWENA BANK NIGERIA PLC V. NIGERIAN STOCK EXCHANGE LIMITED IN RE-SECURITIES AND EXCHANGE COMMISSION (1997) LPELR-2843(SC) AT 27-28 (A-A); THE NIGERIAN AIR FORCE V. SHEKETE (2002) LPELR-3193(SC) AT 23 (C-G); OKOKO V. DAKOLO (2006) LPELR-2461(SC) AT 38 (C-G); AWODI & ANOR V. AJAGBE (2014) LPELR-24219(SC) AT 41-42 (B-B); AISHA JUMMAI ALAHASSAN & ANOR v. MR. DARIUS DICKSON ISHAKU & ORS (2016) LPELR-40083(SC) AT 65(C-G).
Where it appears to the Court that a judgment or order is void or a nullity having been given without jurisdiction, it could never be too late to appeal against it. The delay in appealing against thesaid judgment would cease to be a relevant factor to be taken into consideration in an application for extension of time within which to appeal against the judgment. See R. LAUWERS IMPORT-EXPORT v. JOZEBSON INDUSTRIES COMPANY LIMITED (1988) LPELR-2934(SC) AT 35-37 (E-B). The grounds of appeal definitely raise substantial and arguable issues of law which show prima facie good cause why the appeal should be heard. I, therefore, find that the applicants have fulfilled the second condition for a grant of the application.
The applicants having fulfilled the two conditions stipulated by Order 6 Rule 9(2) of the Court of Appeal Rules, 2021, their application for extension of time to file an appeal against the judgment of the High Court of Delta State delivered on 22/9/94 in Suit No. W/231/1990: Between Akpaemagwatan Edema & Anor. (for themselves and on behalf of Orere, Ajusobo, Ajaye, Orubu, Yanagho, Zion, Bobi, Ajujon and Atsuran villages all of Orere Town) as Plaintiffs and Warri South Local Government Council & 3 others (for themselves and on behalf of the lye descendants Union) as defendants is hereby granted. The notice of appeal shall be filedwithin 21 days from today.
JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance the ruling of my learned brother, BOLAJI-YUSUFF, JCA, which has just been delivered.
In an application for extension of time to appeal, the application must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed time and by grounds of appeal which prima facie show good cause why the appeal should be heard. See Order 6 Rule 9 (2) of the Court of Appeal Rules, 2021 and Ngere v. Okuruket XIV (2014) 11 NWLR (Pt. 1417) 147, 176. The requirements are cumulative and must be satisfied before such an application can be granted.
As has been demonstrated in the ruling of my learned brother, the applicants have shown good and substantial reasons for the delay in filing the appeal, to wit: failure to appreciate the enormity and purport of the judgment they seek to appeal against. Therefore, the length of the delay becomes immaterial. Furthermore, the proposed grounds of appeal prima facie raise arguable issues. Whether or not they will succeed is a different matter which cannot be considered at thisstage. So prima facie good cause has been shown why the appeal should be heard.
It is on account of the foregoing that I find merit in the application. I, therefore, join my learned brother in granting the same. I abide by the consequential orders made in the ruling of my learned brother.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read in advance, the draft judgment of my learned brother MISTURA OMODERE BOLAJI-YUSUF JCA, and I fully agree with the reasoning and conclusions reached therein and adopt them as mine.
My lord has admirably captured the meat of the appeal and simplified the issues involved in the grant of leave to appeal. I agree that the application is grantable.
I too grant the application and abide by consequential orders made therein.
Appearances:
Ojo Abidogun For Appellant(s)
H.O. Aiyegbeni For Respondent(s)
