FIRST TRUSTEES (NIG) LTD & ORS v. INTELS (NIG) LTD & ORS
(2022)LCN/16682(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Tuesday, March 15, 2022
CA/PH/295M/2019(R)
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
1. FIRST TRUSTEES NIGERIA LIMITED (Now Known As FBNQUEST TRUSTEES LIMITED) 2. FIRST BANK OF NIGERIA PLC 3. FIDELITY BANK PLC 4. UNION BANK OF NIGERIA PLC 5. FIRST CITY MONUMENT BANK APPELANT(S)
And
1. INTELS NIGERIA LIMITED 2. OES TEAMWORK 3. OES INTEGRITY 4. OES PASSION 5. OANDO ENERGY SERVICES LIMITED (Also Known As OES ENERGY SERVICES LIMITED) 6. OANDO MARKETING PLC 7. OANDO PLC RESPONDENT(S)
RATIO
THE CONDITIONS UPON WHICH THE COURT CAN EXERCISE JURISIDICTION
A Court has and can only exercise jurisdiction when:
(a) it is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another; and
(b) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of the Court’s jurisdiction. See Madukolu v. Nkemdilim [1962] 2 SCNLR 341.
A Court is not only entitled but it is bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent; and it can do so on its own initiative, even though the parties may have consented to such void action. See Ogar v. Igbe [2019] 9 NWLR (Pt. 1678) 534 at 552-553. PER ADEGBEHINGBE, J.C.A.
THE POSITION OF LAW ON ABUSE OF COURT PROCESS
Abuse of process of Court simply means that the process of Court has not been used bona-fide and properly. For an action to be declared frivolous, vexatious, oppressive and an abuse of the process of Court, it must be shown quite clearly that there are two or more actions between the same parties in respect of the same subject matter in one or more Courts at the same time.
See Ikine v. Edjerode [2001] 18 NWLR (Pt. 745) 446 at 479. At this point, there has been no abuse of the process of Court. It is only appeal no. CA/PH/523/2019, which is in existence. There is no other appeal pending. It is the grant of the application brought by the applicants, which will ensure possibility of collision of the outcomes of two appeals, arising from the same ruling, dated 02/07/2019. The prayers intended to be sought in the appeal being proposed by the applicants, as shown in the proposed notice of appeal (Exhibit MN6), may be different from that being sought in Appeal No. CA/PH/523/2019, however, there is no process exhibited before this Court, bearing the appeal number mentioned, which should guide this Court on the issue. PER ADEGBEHINGBE, J.C.A.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgement): The five applicants in this matter, jointly filed a motion on notice on 08/11/2019, in which, they pray this Court to make the following order, in their favour:
“A. AN Order granting leave to the Applicants to appeal as interested parties against the ruling of the Federal High Court, Port Harcourt (“the lower Court”) in Suit No: PHC/PH/CS/102/2017 delivered by Honourable Justice J. K. Omotosho on 02.07.19 (“the ruling”) delivered on 02 July, 2019 ordering the judicial sale of the 4th Respondent.”
The grounds given for the application are:
“1. This honourable Court has the jurisdiction to grant leave to the Applicants to appeal as interested parties against the decision of this honourable Court.
2. In consideration of loan facilities granted to the 5th Respondent by the 2nd to 5th Applicants, the 5th respondent by means of a security deed created a first fixed charge over its rigs, inclusive of the 4th Respondent.
3. The 1st Applicant acted as the Security Trustee on behalf of the 2nd to 5th Applicants in relation to security deed.
4. By virtue of the transaction narrated in para. 2 and 3 above, the Applicants have subsisting and enforceable security in the 4th respondent which remains in force until the payment and discharge in full of the secured obligation of the 5th Respondent to the Applicants.
5. The Applicants were not parties to this suit but during the pendency of the suit on 05 March, 2019, the Applicants brought an application for leave to (a) intervene in the proceedings and (b) file processes with respect to the 1st Respondent’s motion on notice dated 07.01.19 for the judicial sale of the 4th Respondent.
6. On 02 July 2019 this honourable Court delivered its ruling (“the ruling”) dismissing the Applicants’ motion for leave to intervene and further made an order for the Judicial sale of the 4th Respondent
7. The Applicants filed a motion on notice dated 04.07.19 and filed 05.07.19 at the lower Court seeking leave to appeal as interested parties. The lower Court refused the application on 30.10.19 on grounds that time had run out for the application to be heard at the lower Court.
8. The Applicants therefore require the leave of this honourable Court to appeal against the ruling, to protect their security interests in the 4th Respondent and also to preserve the legal priority status of the said security interests.
9. It is in the interest of justice to grant this application in order for the Applicants to exercise their legal rights to appeal as interested parties to assert and protect their security interests.”
The application was accompanied to Court, by an affidavit, deposed to by one Makana Nria, a legal practitioner. The same legal practitioner deposed to a further-affidavit, on 05/11/2020 and a reply affidavit, on 23/02/2021.
In opposing the application, the 1st respondent filed a counter-affidavit, on 10/11/2020, which one Ikaye Mabiaku Esq., deposed to. He is also a legal practitioner.
The application was argued on 20/01/2022. Michael Amadi Esq. (with Makana Nria Esq.) appeared for the 1st-5th applicants/parties seeking leave to appeal. He adopted the applicants’ written address, filed on 09/03/2021 and reply written address, filed on 16/06/2021, as argument of the application, which he urged the Court to grant. O. U. Ulasi Esq., appeared for the 2nd-7th respondents. He confessed that he had no objection to the grant of the application.
A. A. Briggs Esq., appeared for the 1st respondent. He adopted the 1st respondent’s written address, filed on 24/03/2021, as argument of opposition to the grant of the application.
The written address, filed in argument of the application, by the applicants, was settled by Michael Amadi Esq. Learned counsel’s sole question for answer is: whether the applicants made a case for this Court to grant leave to the applicants to appeal, as interested parties, against the ruling.
The attention of the Court was drawn to Section 243(1) of the 1999 Constitution, which makes provision for right of appeal, with leave of Court, for persons having interest in a matter. The point was made that there is a fair hearing component in the application, which is provided under Section 36(1) of the 1999 Constitution, which forbids a Court from making any order, affecting a person, without his being given opportunity to be heard. With the submission that such a decision is liable to be set aside, the attention of the Court was drawn to decisions in Makarfi v. Poroye [2017] 10 NWLR (Pt. 1574) 419 and Okadigbo v. Chidi (No. 1) [2015] 10 NWLR (Pt. 1466) 171 at 197. He explained that the applicants brought the application before the Court to protect their interest in the 4th respondent, on the ground that the applicants were not heard before the order for the judicial sale of the 4th Respondent was made.
Learned counsel relied on the case of Re: Mbamalu [2001] 18 NWLR (Pt. 744) 143 at 158, on the conditions to be fulfilled for the grant of leave to appeal, as an interested party. He pointed at paragraph 5 of the “MN affidavit”, where applicants disclosed their interest in the 4th Respondent, to the tune of USD 168, 001, 591.82 (One hundred and sixty-eight million, one thousand, five hundred and ninety-one dollars, eighty-two cents), as a result of facility advanced to the 5th Respondent. As security for the facility, a security interest was granted in favour of the Applicants over the 4th respondent, the subject of the order of judicial sale made by the lower Court, in the ruling. He pointed out that these facts were not denied by the 5th respondent.
Learned counsel is of the view that the judicial sale of the 4th respondent will wipe out the interest of the applicants in the 4th respondent, due to the provisions of Sections 73, 74 and 75 of the Merchant Shipping Act, 2007.
Learned counsel stated that good cause should be shown for the grant of the application. That is all that is necessary to be shown. It is not necessary to establish that the appeal will be successful. This Court should not make a finding on the success of the appeal. He relied on the case of Onwuka v. Ediala [1989] 1 SC (Pt. 1) 132. He described the grounds of appeal in Exhibit MN 6 as arguable. Prima facie, a ground of appeal arising from breach of right to fair hearing ought to be heard. He relied on the case of Skye Bank Plc v. Gumau & Ors. [2017] LPELR – 43114(CA).
Learned counsel submitted that the application is not an abuse of the process of Court, especially, because the 1st respondent did not provide particulars of the alleged abuse of Court process. He relied on the cases of African Reinsurance Corp. v. JDP-Cons. Ltd [2003] 13 NSCQR 226 at 248, Ude Ubaka & Sons. Ltd v. C. C. Ezekwem & Co. [2000] FWLR (Pt. 1) 7 (CA), International Bank for West Africa v. Sasegbon [2007] 16 NWLR (Pt. 1059) 195 at 214 and Kolawole Ind. Co. Ltd. v. A. G. Federation [2012] 14 NWLR (Pt. 1320) 221. He explained that the issues in the pending appeal (CA/PH/529/2019) between the parties are not same with those in the intended appeal. He cited the cases of Dalyop v. Oradiengwu [2000] 8 NWLR (Pt. 669) 421 and Olorunfemi & Ors v. Asho & Ors. [1999] 1 NWLR (Pt. 585) 1 at 9, on the need to provide particulars of abuse of process of Court.
His argument, on the question of abuse of the process of Court, is that the applicants did not participate in the application which led to the order of judicial sale of the 4th respondent and thus, required leave to file appeal against the decision, whereas, they filed an appeal against the order refusing their joinder as interveners, as a matter of right. The Court’s attention was drawn to the cases of Ogoejeofo v. Ogoejeofo [2006] 3 NWLR (Pt. 996) 205, Okafor v. Attorney-General of Anambra State [2001] FWLR (Pt. 58) 1127 and Agwasim v. Ojichie [2004] 18 NSCQR (Pt. 1) 359 at 367, on abuse of process of Court. He also pointed out that the existing appeal and the one sought to be filed do not seek the same relief, which excludes them from qualification as abuse of process of Court.
He urged the Court to grant the application.
The written address of the 1st respondent has Ama Etuwewe Esq. (SAN) as signatory to the process. Learned senior counsel asked whether applicants made out a case for the grant of leave to appeal as interested parties, against the ruling of the lower Court, delivered on 02/07/2019.
He pointed at paragraphs 7-8 and 19 of applicants’ written address in support of the application and argued that the lower Court having afforded the applicants opportunity to be heard before it, applicants cannot validly allege denial of fair hearing. This is because applicants failed to disclose their interest in the 4th respondent before the order for the judicial sale of the 4th respondent was made, on 02/07/2019. He cited the case of Ukwuyok v. Ogbulu [2019] 15 NWLR (Pt. 1695) 308 at 324-326 on the submission.
In the face of the lower Court’s ruling, dated 02/07/2019, which held that applicants have no interest in the 4th respondent, it is the opinion of 1st respondent’s counsel that the applicants’ application, being determined in this ruling, is an abuse of the process of the Court, because, it is an attempt to hoodwink this Court to determine the appellants/applicants’ appeal in CA/PH/529/2019, which challenges the entire ruling dated 02/07/2019. He explained that the Courts are enjoined not to make interlocutory orders which have a dire impact of determining substantive issues before them. The case of Duwin Pharmaceutical and Chemical Co. Ltd. v. Beneks Pharmaceuticals and Cosmetics Ltd. & Ors [2008] 4 NWLR (Pt. 1077) 376 at 401 was relied on, for the proposition. The implication of the grant of the application, herein, is to pre-determine the pending appeal between the parties, which questions the entire ruling of the lower Court, dated 02/07/2019. He insisted that the applicants have exercised their right of appeal as of right, in the pending appeal, in which they participated and should not be seen to be asking for leave to appeal as interested parties, in the application before the Court. The attention of this Court was drawn to the case of Bi-Courtney Ltd. v. A. G. Federation [2019] 10 NWLR (Pt. 1679) 112 at 125, 130, 135. He explained that, to ask for leave to appeal as interested party, such a person has to be one who did not participate in the decision being complained about.
It was pointed out that the decision leading to the appeal in CA/PH/529/2019 arose out of the lower Court’s ruling that the applicants lacked interest in the 4th respondent, while the same applicants seek to be allowed to appeal as parties interested in the application being determined. He cited the case of Ibulubo v. Tomoniaro [2017] 6 NWLR (Pt. 1562) 426 at 435.
He insisted that there is a case of abuse of process of the Court in this application because the pending appeal seeks to set aside the ruling of the lower Court, which declared that the applicants do not have interest in the 4th respondent, which is the same purpose of the appeal sought to be filed by the applicants.
He urged the Court to dismiss the application.
Applicants filed a reply written address, on points of law, on 16/06/2021, which Michael Amadi Esq., signed. The content of the process merely rehashed, in more flowery terms, what was argued in the applicants’ written address, already captured above.
DETERMINING THE APPLICATION
With an application for leave to appeal, as a party interested, an applicant is urging the Court to exercise its discretionary power in his favour. As with all exercise of discretion, the Court is expected to discharge that duty judicially and judiciously. Acting judiciously means, (a) proceeding from sound judgment; (b) having or exercising sound judgment; (c) marked by discretion, wisdom and good sense. Acting judicially is also said to import the consideration of the interests of both sides and weighing them in order to arrive at a just or fair decision. See Agbenyi v. Abo [1994] 7 NWLR (Pt. 359) 735 at 747 and Adejumo v. State [2006] 9 NWLR (Pt. 986) 627 at 643. The discretion is therefore to be exercised so as to do what justice and fair play may require having regard to the facts and circumstances of the particular case. See Alsthom S.A. v. Saraki (2000) 4 NWLR (Pt. 687) 415.
In that wise, the applicant has a duty to make available all relevant materials in the application to enable the Court to exercise its discretion judicially. Where, therefore, relevant materials are not made available to the Court, the application will be refused, as leave is not granted as a matter of course. See Tabai & Anor v. The Vice Chancellor, R. S. U. S. and T. & Ors [1997] 11 NWLR (Pt. 529) 373.
It is in regard of the principles enumerated above that the application brought by the applicants, which is being considered in this ruling, may have a fatal end. The composition of the application presented to the Court by the applicants lacks a fundamental component, which this Court is not in a position to overlook. The applicants’ application is specifically demanding that leave should be granted to enable them appeal against the ruling of the lower Court, delivered on 02/07/2019, as parties interested. The application, basically, concedes that there was prior proceedings before the lower Court, which is the Federal High Court, sitting in its Port Harcourt Division, in suit no. FHC/PH/CS/102/2017, which resulted in the ruling, dated 02/07/2019, which made the applicants antsy.
The applicants have admitted that they were not parties in the proceedings leading to the order of judicial sale of the 4th respondent, against which they seek leave to appeal in their application. It is a requirement of the law that where a party seeks to appeal against a decision, as an interested party, the record of appeal, from the proceedings, leading to that decision, should be presented to this Court. It is from the record of appeal that this Court will be able to verify the contention of the applicants on the issue of whether they have sufficient interest in the matter from which the decision arose. As it occurred in this matter, it was wrong for the applicants to recreate contents of processes filed before the lower Court and evidence adduced before the lower Court, in the affidavit filed in support of the application. A good example of what is being pointed out here is found in paragraphs 4 and 5 of the affidavit in support of the application, where the deponent, a legal practitioner, testified (in recall) on proceedings in the lower Court, as follows:
“4. By a motion on notice dated 4.03.2019 and filed on 5.03.2019, the Applicants prayed the lower Court for leave to intervene in the proceedings and for leave to file processes with respect to the 1st Respondent’s motion on notice dated 07.01.19 for the judicial sale of the 4th Respondent.
5. In support of the application to intervene was an affidavit deposed to by Christiana Lamai, stating the following facts:
5.1 That by virtue of an Amended and Restated Facility Agreement (Amended and Restated Facility Agreement) which was further amended by the Further Amended and Restated Facility Agreement dated 23.12.15 (both referred to as the Facility Agreements) between the 2nd-5th Applicants and the 5th respondent, the Applicants granted a medium term credit facility to the 5th Defendant to the tune of USD168,001,591.82 (One Hundred and Sixty-Eight Million, One Thousand, Five Hundred and Ninety-Two Dollars and Eighty-Two Cents;
Now shown to me and marked “Exhibits MN1 and MN2” are the Amended and Restated Facility Agreement and the Further Amended and Restated Facility Agreement dated 23.12.15.
5.2 That in consideration of the Facility, the 5th Respondent, by a Security Deed between the lenders and the judgment debtor, charged all its assets, inclusive of the 4th Respondent, in favour of the 2nd-5th Applicants;
5.3 That as a continuing security for the payment, repayment, satisfaction, performance and discharge of all secured obligation of the 5th Defendant under the Loan Facility to the 2nd-5th Applicants, the 5th Defendant via the Security Deed, created a first fixed charge over the 4th Respondent in favour of the 1st Applicant on behalf of 2nd and 5th Applicants;
Now shown to me and marked “Exhibit MN3 and MN4 are the certified true copies of the duly registered Security Deed at CAC and the Certificate of Registration of the Security Deed, respectively.
5.4 That following the execution of the facility agreements, advancement and disbursement of the loan facility to the 5th Respondent and the creation of a security interest in the 4th respondent, the Applicants have subsisting and enforceable security interest in the 4th Respondent which remains in full force until the payment and discharge in full of the secured obligations of the 5th Respondent to the 2nd-5th Respondents.”
Another example of the deponent testifying about recorded proceedings (in recall) before the lower Court is to be found in paragraphs 8-10 of the reply affidavit, filed by the applicants, where the deponent testified, thus:
“8. Contrary to the deposition in paragraph 7 of the IM Affidavit, the Applicants disclosed their security interest in the 4th Respondent as shown in paragraph 5 of the MN Affidavit but the lower Court, despite the Applicants’ evident interest in the 4th Respondent, proceeded to order the judicial sale of the 4th Respondent, hence this Application.
9. In specific response to the depositions in paragraph 8 of the IM Affidavit, on page 15 of Exhibit MN5 (the ruling of the lower Court delivered on 02 July 2019), the lower Court formulated 2 issues for determination, thus:
9.1 Whether the Interveners/Applicants are entitled to leave in the circumstances.
9.2 Whether in the circumstances, the honourable Court can order the judicial sale of the 3rd Defendant.
10. Having formulated 2 (two) issues, the lower Court proceeded to make 2 (two) orders: one dismissing the Applicants’ application for leave to intervene and another, ordering the judicial sale of the 4th Respondent.”
The above identified sins, committed in both the affidavit in support of the application and the reply affidavit, both filed by the applicants, offend the provisions of Section 128 of the Evidence Act, 2011, which provides, inter alia, that when a judgment of a Court or any other judicial proceeding has been reduced to the form of a document or a series of documents, no evidence may be given of such judgment or proceeding except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the Evidence Act, 2011. Contents of any such document may not be contradicted, altered, added to or varied by oral evidence.
The law is settled that a Court can only act upon evidence that is legally admissible. It cannot, and it has no discretion to admit and act upon evidence which is legally inadmissible, even with the consent of the parties. See Kale v. Coker [1982] 12 SC 252. Paragraphs 4-5 of the affidavit in support and paragraphs 8-10 of the applicants’ reply affidavit offend the provision of Section 128 of the Evidence Act, 2011, since what they portray are subject of a record of proceedings/appeal, and all the offensive paragraphs should be struck out. With their being struck out, the application of the applicants becomes handicapped and incapable of flying to success.
Furthermore, instead of deposing to facts, purportedly, establishing interest in the subject matter of the decision sought to be appealed against, exactly as the facts allegedly played out before the lower Court, as the applicants did in this matter, applicants were required to file the record of proceedings/appeal along with the application filed in this Court. The firm position of the law on the point being made, above, is clearly expressed in the case of Omotosho (Omotesho) v. Abdullahi (2008) 2 NWLR (Pt. 1072) page 526 at 542-543, where Salami, JCA. (as he then was) stated thus:
“The learned Judge, Idowu, J. could not hesitate to spare a thought for the condition precedent for granting the application. He ought to have tarry a little to consider whether the applicants before him have interest in the subject matter. His approach respectfully was lackadaisical which is best suited for a Court of summary jurisdiction. Before a person who was not a party can be permitted to appeal under this provision of the Constitution, such a party ought to show that he is interested or aggrieved by the decision sought to be appealed against. His interest must be shown from the record before the Court and not material garnered from affidavit in support of the application for leave to appeal as an interested party itself. The appeal would not be heard and determined on extraneous matters but on the record of appeal. The applicant or appellant must demonstrate his interest from the record of appeal.” (Bold font for emphasis).
The position of the law, as stated in the case of Omotosho v. Abdullahi (supra) and quoted above, received positive affirmation from the Supreme Court in the case of Chukwu v. INEC [2014] 10 NWLR (Pt. 1415) 385 at 415, where the Supreme Court stated:
“The Court of Appeal in Omotosho v. Abdullahi (2008) 2 NWLR (Pt. 1072) page 526 at 543, has also decided that in a matter of application for leave to appeal by an interested party, his interest must be clear from the record of proceedings and not from the affidavit he filed in support of his application as per Salami, JCA. The Supreme Court did not overrule same.”
It is therefore my view that the application brought before this Court by the applicants is incomplete, incompetent and incapable of being granted.
In addition to the above, from the narration of facts by the applicants, the ruling they seek leave to appeal against, as interested parties, was delivered on 02/07/2019. The application being considered in this ruling was filed in this Court on 08/11/2019. It thus means that the application being determined in this ruling was filed outside the three-month period allowed by law. Section 243(1)(a) & (b) of the 1999 Constitution provides:
“243. (1) 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 of 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.
(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.”
Section 24(2)(a) of the Court of Appeal Act, 1976, which is referenced in Section 243(1)(b) of the 1999 Constitution, quoted above, provides:
“(2) The periods for the giving of notice of appeal or notice of application for leave are:-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”
Where a party seeking leave to appeal, as a party interested, fails to appeal within the statutory period prescribed for notice of appeal to be filed, as shown above, there should be, at least, four prayers in the application brought to Court, to initiate the process of appeal to be brought. To drive the point home, there is need to quote extensively from the decision of the Supreme Court, in the case of Chukwu v. INEC [2014] 10 NWLR (Pt. 1415) 385 at pages 407-410, where the Supreme Court set out what should be done by a person seeking to appeal as an interested party, outside the time limited for appealing, as follows:
“It is also not in dispute that the application of the applicant in the Court of Appeal sought the following reliefs:
“(1) An order granting enlargement of time within which to seek leave to appeal as an interested party against the judgment of the Federal High Court, Abuja Division, delivered by the Hon. Justice A. Abdul Kafarati on the 7th October, 2010 between Chief Cyprian Chukwu as plaintiff and Independent National Electoral Commission, Governor Rotimi Amaechi and Peoples Democratic Party (PDP) as defendants.
(2) An order granting leave to the applicant to appeal as an interested party against the said judgment of the Federal High Court, Abuja Division, delivered by the Hon. Justice A. Abdul Kafarati on 7th October, 2010 in Suit No. FHC/ABJ/CS/656/2010 between Chief Cyprian Chukwu as plaintiff and Independent National Electoral Commission, Governor Rotimi Amaechi and Peoples Democratic Party as defendants.
(3) An order extending the time limited by Section 24(2) of the Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria for filing the notice of appeal against the said judgment; and
(4) An order for the accelerated hearing of this motion on notice.”
That being the case, it is my view that the applicant in the Court below (Celestine Omehia) ought to first ask for leave to appeal only as an interested party under Section 243(1)(a) of the Constitution. However, since it is not in dispute that he was seeking leave to appeal as an interested party and the time within which he should have appealed had expired, Section 243(1)(b) of the Constitution comes into play.
By Section 243(1)(b) of the Constitution, leave is only granted and the right of the applicant is only exercisable in accordance with the Act of the National Assembly and the rules of Court. In this regard, applicant needs to consider the provisions of the Section 24(2) of the Court of Appeal Act which prescribes the time for appealing. In this connection, the decision of this Court in Ezenwosu v. Ngonadi cited by Fagbemi, SAN applies. In that case, this Court had the opportunity to pronounce on a similar provision to the present Section 243(1)(a) of the 1999 Constitution as amended. And just as in this case, the matter dealt with an application for leave to appeal out of time by an interested party. In interpreting the provisions of Section 222 of the then 1979 Constitution, this Court held thus:
“In the instant case, the applicant ought to have brought an application asking for:
(a) Leave to be made a party in the case;
(b) Leave to appeal against the decision of the High Court.”
Now by Section 25(2) of the Court of Appeal Act, No. 43 of 1976, an appellant or any person desirous of appealing shall give notice of his appeal within 3 months of the date of final decision, and by several decisions of this Court, a person applying for leave to appeal must do so within the statutory period of 3 months. If he is out of time he would need to apply for extension of time within which to apply for leave to appeal, otherwise, the leave sought will be refused. In the instant case, the applicant/respondent is hopelessly out of time in applying for leave to appeal. He is seven years late and what he ought to have done was first to apply for:
(i) Leave to appeal under Section 222 of the 1979 Constitution as a person having an interest in the case, and under the rules of Courts.
(ii) Extension of time within which to apply for leave to appeal.
(iii) Leave to appeal, he may, of course, add other prayers, as for instance.
(iv) Extension of time within which to file notice and grounds of appeal.
It is necessary to point out that the last three prayers are wholly dependent on the first prayer. The other prayers cannot succeed unless the applicant is first made a party in the case. The applicant/respondent has in fact not asked for this first prayer and the lower Court was, in my view, wrong to have given the respondent leave to appeal.
As can be deduced from the above authorities, the first relief for a new party to seek is leave to appeal.
As submitted by Fagbemi, SAN, it is clear from the foregoing that the first prayer a person seeking leave to appeal as an interested party must seek is for leave to be made a party in the case, pursuant to the relevant section of the Constitution. So it is not just the trinity prayers that the applicant should seek. His first prayer should be for leave to be made a party in the case or it may be couched as prayer one in the above quotation i. e. for leave to appeal under Section 243(1)(a) of the 1999 Constitution (as amended) as a person having an interest in the case.
The other three prayers in the above quotation will now follow, if the application is made outside the time prescribed for appealing under Section 24(2) of the Court of Appeal Act, 2004.
The leave prescribed by Section 243(1)(a) of the 1999 Constitution (as amended) is not rendered unnecessary by the fact that the grounds of appeal are on questions of law alone. Again, the nature of the grounds of appeal is not part of the complaint of the appellant in this appeal. The gravamen of the appellant’s issue 1 is that the lower Court acted without jurisdiction in granting the application of the 1st respondent to appeal as a person interested when the prayer she sought did not include, one seeking leave to be made a party to this case pursuant to Section 243(1)(a) of the 1999 Constitution.
This Court again in In Re: Madaki (1996) 7 NWLR (Pt. 459)153 at 164D, H and 165, emphasized the need for a person seeking to appeal as an interested party to first obtain leave under Section 222 of the 1979 Constitution (now Section 243(1)(a), “to become a party to the case”. This Court restated the point that after such a person has obtained leave to be made a party to the case, he should file his notice of appeal within the time prescribed by Section 25 of the Court of Appeal, Act, 1976.
“If the prescribed time expired before such application was made, then it becomes necessary to apply:
(i) For enlargement of time to seek leave to appeal.
(ii) Leave to appeal; and
(iii) Extension of time within which to appeal.”
This statement of the Court is clear enough. The first relief to be sought by a person seeking to appeal as an interested part is to be made a party to the case. The three other prayers above will then follow if the application is made outside the three months prescribed by Section 24(2) of the Court of Appeal Act, 2004 for filing notice of appeal. The case of Adeleke v. Oyo State House of Assembly (2006) 10 NWLR (Pt. 987) 50 at 69; does not purport to overrule this Court and cannot do so on the interpretation handed down in In Re: Madaki and in Ezenwosu v. Ngonadi (supra). I think the 3rd respondent in SC.111/2012 but 4th respondent in SC.336/2012 has simply misread and mis-understood the decision in Adeleke v. Oyo State House of Assembly (supra) and In Re: Madaki (supra) Ezenwosu v. Ngonadi (supra).
This Court went further to hold in Odofin v. Agu (1992) 3NWLR (Pt. 229) 350 at page 373 A-C as follows:
“The further submission that because appellant failed to raise the issue until now he cannot raise it now, in my view, he has lost sight of the nature of the issue. It raises, as I have said, a serious issue of jurisdiction of the Court to have made the order at all as well as the competence of the proceedings. Jurisdiction is a threshold issue in that a Court must have jurisdiction before it can enter into the cause or matter at all, or before it can make a binding order on it. Where the statutory period to appeal has expired, the appellate Court loses jurisdiction to hear an appeal on the matter. It requires a proper application under Order 3 Rule 4 of the Rules as well as a prayer and a valid order for an extension of time to restore that jurisdiction. In the absence of these, a condition precedent to exercise of jurisdiction would be lacking.”
In the foregoing premises, it is obvious that the respondent clearly misunderstood the thrust of the appellant’s appeals in both SC.111/2012 and SC.336/2012 on the 1st issue.
In view of the forgoing, I hold that issue 1 above is resolved in favour of the appellants. As a result, I hold that the application of Omehia to the Court below was incompetent.”
In my view, the applicants’ application, which seeks only leave to appeal, is again incomplete, incompetent and incapable of being granted, as constituted. See also the decision of the Port Harcourt Division of this Court in appeal no. CA/PH/279M/2019: Ollor & Anor. v. Obelle & Ors., delivered on 02/12/2021 (per Ridwan Maiwada Abdullahi, JCA.), now reported as [2021] LPELR – 56388(CA).
A Court has and can only exercise jurisdiction when:
(a) it is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another; and
(b) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of the Court’s jurisdiction. See Madukolu v. Nkemdilim [1962] 2 SCNLR 341.
A Court is not only entitled but it is bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent; and it can do so on its own initiative, even though the parties may have consented to such void action. See Ogar v. Igbe [2019] 9 NWLR (Pt. 1678) 534 at 552-553.
The point needs to be reiterated, at this point in the ruling, that legal practitioners who depose to affidavits, as it happened in this matter, endanger the cases they are meant to advance on behalf of their clients, especially, in contentious matters, like the one in this matter, where lawyers deposed to facts which oppose each other. Makana Nria Esq., who deposed to the three affidavits relied upon by the applicants, even appeared, as counsel, at the hearing of the application. Counsel to both applicants and the 1st respondent fell afoul of the simple admonition of the Courts, over the years.
Ikanye Mabiaku Esq., in his affidavit, testified about the affidavit evidence of Makana Nria Esq., his professional colleague, as follows:
“3. That I have seen and read the Applicants’ fourteen (14) paragraph affidavit in support of their application dated and filed on November 8, 2019, with its attached documents.
4. That I know as a fact that paragraphs 6, 7, 8, 9, 10, 11, 12, 13 and 14 thereof are incorrect.”
Not to be outdone, Makana Nria Esq., deposed in the reply affidavit, about the counter-affidavit of his colleague, Ikanye Mabiaku Esq., as follows:
“5. In response to the Application, the 1st Respondent filed a Counter-Affidavit deposed to by Ikaye Mabiaku (“IM Affidavit”) on 10.11.20. I have read the IM Counter-Affidavit and depose to this affidavit in response thereto.
6. I admit the depositions in paragraphs 5, 6, 9, 10, 11, 12, and 13 of the IM Affidavit.
7. The depositions in paragraphs 7, 8, 14, 15, 16, 17 and 18 of the IM Affidavit are incorrect.”
The implication of the above quoted paragraphs is a suggestion that legal practitioners who are expected to be gentlemen, swore to affidavits, containing inappropriate, unseemly, incorrect, wrong facts. This is not right. Lawyers have to stop inserting themselves into litigations, beyond their calling as legal practitioners. The penalty for a legal practitioner (and we have two named in this matter) deposing to affidavits on behalf of their client in contentious matters, is recorded in the case of Akinlade v. INEC [2020] 17 NWLR (Pt. 1754) 439 at 457 (per Eko, J. S. C.), where the Court stated as follows:
“The 2nd respondent’s motion was contentious. The appellants, through one Mubarak Imam who describes himself as “a Legal Practitioner in the Law Firm of Ahmed Raji & Co; Counsel to the appellants” filed a counter-affidavit wherein they supposedly joined issues with the 2nd respondent on his objection to grounds 14 and 18. The counter-affidavit, clearly res ipso loquitur, offends paragraph 20(4) Rules of Professional Conduct for Legal Practitioners, 2007 that forbids a lawyer from being a witness for his client in a matter that is contentious. The point is so basic and fundamental that the total disregard or lack of it by either this lawyer deponent or his principal in office cannot be condoned. Any conduct that is a direct affront or infringement of the express Rules of Professional Conduct can only be regarded as a conduct unbecoming. The counter-affidavit being so brazenly offensive shall be and is hereby discountenanced.”
For the reasons advanced above, the motion on notice filed by the applicants on 08/11/2019, seeking leave to appeal as interested parties, against the ruling of the Federal High Court, dated 02/07/2019, in suit no. FHC/PH/102/2017 is struck out, for being incompetent.
For the Record
This is a penultimate Court and it is required to record, for the record, its opinion, if it were to determine the application, based on available materials, on the merit.
In the case of Waziri v. Gumel [2012] 9 NWLR (Pt. 1304) 185 at 212, the Court decided that an applicant seeking leave of Court to appeal as an interested party must make detailed depositions in his affidavit in support of the application to show:
(a) his interest in the matter;
(b) why he was not a party in the trial Court;
(c) good reasons for delay in filing the application.
In the sixth ground listed for the application, applicants stated that the ruling they intend to appeal against is the one delivered by this Court of Appeal. The sixth ground states:
6. On 02 July, 2019, this honourable Court delivered its ruling (“the ruling) dismissing the Applicants’ motion for leave to intervene and further made an order for the Judicial sale of the 4th Respondent.
In paragraph 8 of the affidavit in support of the application, the deponent stated:
“8. The Applicants require the leave of this honourable Court to appeal as interested parties against the ruling of this honourable Court delivered on 02.07.19.”
The two statements, one on oath and the other from counsel who signed the motion on notice filed by the applicants, appear to contradict the prayer on the motion paper. There appears to be no explanation offered for the appearance of this statement and evidence, in the applicants’ processes, since this Court did not deliver any ruling on 02/07/2019 and nothing of such has been brought to our notice. It is not the place of this Court to interfere with the prayer or the affidavit evidence placed before it, without the prompting of any of the parties. Thus, as there is no statement or affidavit evidence appropriately identifying the ruling to be appealed against, which should match the sole prayer in the application, this Court may not find its way to granting the application, due to inexplicable statements embodied therein.
Even if this Court will allow the apparent mismatch identified, immediately above, to stand and to activate consideration of the motion on merit by this Court, this Court would still have refused the application.
It is a fact, admitted by the applicants, that the lower Court’s ruling of 02/07/2019, determined two separate motions, one each, filed by applicants and the 1st respondent. This fact is captured in paragraph 7 of the affidavit in support of the application, which reads thus:
“7. On 06.06.2019, the lower Court heard both the Applicants’ motion and the 1st Respondent’s motion for the judicial sale of the 4th Respondent dated 07.01.19. And on 02.07.19, the Court delivered its ruling dismissing the Applicants’ motion to intervene and file processes in respect of the application for judicial sale of the 4th Respondent. The lower Court also made an order for the judicial sale of the 4th Respondent without hearing or giving the Applicants the opportunity to be heard on the judicial sale.
Now shown to me and marked “Exhibit MN5” is the certified true copy of the ruling of the lower Court delivered on 02.07.19.”
At page 15 of the ruling of the lower Court, attached to the motion on notice as Exhibit MN5, that Court held:
“To determine the two applications, the Court formulates two issues for determination as follows:
1. WHETHER THE INTERVENERS/APPLICANTS ARE ENTITLED TO LEAVE IN THE CIRCUMSTANCES
2. WHETHER IN THE CIRCUMSTANCES, THE HONOURABLE COURT CAN ORDER THE JUDICIAL SALE OF THE 3RD DEFENDANT
The two applications filed in this suit are more or less competing applications. The interveners on one hand are praying the Court to grant an order joining them in the suit so as to protect their interest in the 3rd Defendant while the Plaintiff is urging the Court to grant an order for the judicial sale of the 3rd Defendant on the ground that a period of over 6 months have passed since the 3rd Defendant vessel was arrested and no bail had been paid by neither the Defendants nor any other party having interest in the vessel. It must be borne in mind that the ruling of the Court of 28th November, 2018 granting the admitted sum to the Plaintiff is still pending at the Court of Appeal.
The interveners/Applicants filed their application claiming that their interest will be affected if the 3rd Defendant is sold as prayed by the Plaintiff. The fundamental objective of arresting a vessel or ship is to obtain satisfaction of a judgment in in rem.”
At pages 17-18 of the ruling, the lower Court stated, in finding, thus:
“There is however no evidence before the Court to show that the 4th Defendant is still indebted to the Interveners/Applicants. The Interveners/Applicants must exhibit the bank accounts of the 4th Defendant showing clearly that the loan facilities remain unpaid to be able to establish a prima facie need for joinder.”
At page 19 of the ruling, the lower Court stated:
“The interveners failed to establish the amount that has been paid out of the $20,000,000.00 (Twenty Million US Dollars). Not mentioning whether the 4th Defendant has paid any part of the loan sum or whether it remains unpaid is not a mistake, it is rather a deliberate act on the part of the interveners to frustrate the judgment creditor from reaping the rewards of the judgment. The interveners have not also deemed it necessary to move against the other assets of the 4th Defendant, 1st and 2nd Defendants inclusive but opted to be a party in respect of the 3rd Defendant. It is more interesting to note that the interveners did not appear or file an application until after the motion dated 30th November, 2018 for stay of execution and enforcement of judgment was refused on 7th March, 2019. The interveners are not oppose to the arrest of 3rd Defendant but opposed to the sale of the 3rd Defendant and the money kept in an interest-yielding account till the determination of this suit. The opposition is strange. Moreso, when the interest of the Interveners is in monetary terms if any and not ownership of the 3rd Defendant. It is even in the best interest of the interveners if the 3rd Defendant is sold and the money kept in interest-yielding account than to allow 3rd Defendant depreciate or sink.
The interest of the interveners/Applicants in the 3rd Defendant is premised on the loan facilities it granted to the 4th Defendant company to which its assets were charged as security for the loan facilities. This Honourable Court is a Court of law and facts and must be sure of the case of a party before reaching a decision in his favour. The interveners/Applicants in this case have not laid sufficient evidence before the Court to show that the 4th Defendant is indebted to it as to be entitled to be joined in this suit and if indebted the effect of the sale of the 3rd Defendant on them. Consequently, the application for leave to intervene is hereby refused.”
In effect, the lower Court, in the portion of its ruling of 02/07/2019, held that the applicants do not have interest or sufficient interest in the matter before it and thereby refused their request to be joined as interveners. The applicants have filed an appeal against the portion of the ruling in Exhibit MN5 and that appeal is pending, having been entered, before this Court under the appeal number CA/PH/529/2020. In paragraphs 10-12 of the 1st respondent’s counter-affidavit, it is deposed thus:
“10. That I know as a fact that the Applicants on July 5, 2019, filed a Notice of Appeal against the ruling of the trial Court delivered on July 2, 2019. A copy of the Applicants’ Notice of Appeal filed on July 5, 2019, is herewith attached and marked as EXHIBIT INL1.
11. That I know as a fact that the appeal has been entered as Appeal No. CA/PH/529/2019: FIRST TRUSTEES NIGERIA LIMITED AND OTHERS v. INTELS NIGERIA LIMITED & ORS, before this Honourable Court, challenging the trial Court’s order dismissing their application to intervene as interested parties.
12. That I also know as a fact that the Applicants have filed their brief of argument on January 20, 2020, before this Honourable Court.”
In paragraphs 14.1-14.2 of the reply affidavit, the applicants deposed in admission of the appeal already filed, as follows:
“14.1 The appeal sought to be commenced by this application and Appeal No.: CA/PH/529/2019: First Trustees Nigeria Limited & Ors v. Intels Nigeria Limited & Ors, are against two different orders of the lower Court. While this application seeks the leave of this honourable Court to appeal against the lower Court’s order of judicial sale of the 4th Respondent, Appeal No.: CA/PH/529/2019: First Trustees Nigeria Limited & Ors v. Intels Nigeria Limited & Ors, is an appeal against the lower Court’s order dismissing the applicant’s application for leave to intervene in the suit.
14.2 An appeal commenced following the grant of this application will not be prejudicial to Appeal No.: CA/PH/529/2019: First Trustees Nigeria Limited & Ors v Intels Nigeria Limited & Ors as both appeal are premised on different issues.”
It must be noted that, in the ruling of the lower Court, Exhibit MN5, it was after the lower Court had taken a decision that the applicants did not depose to sufficient evidence to establish their interest in the matter before it, and refused to join the applicants, that, that Court proceeded to determine the application filed by the 1st respondent for order of judicial sale of the 3rd respondent (now 4th respondent before us) before it. At that stage of the proceedings, the applicants were not entitled to participate, not being parties to the matter. Thus, it is misplaced argument for the applicants to argue or contend that the lower Court denied them fair hearing, in the proceedings, regarding 1st respondent’s application for judicial sale of the 4th respondent, in which the applicants were not parties and their request to be joined, as parties, had been judicially determined, as required by law. Denial of fair hearing, in the circumstances of the applications before the lower Court will be a complaint due from a party, not from a person or persons who had been, judicially, determined to be disentitled to participate in the proceedings by a judicial process. The right to complain about or against the ruling of the lower Court must be directed at reversing the portion of the ruling of the lower Court, judicially determining that the applicants were not entitled to be joined in the matter before the lower Court. It is my view that the proposed grounds of appeal displayed in the proposed notice of appeal, marked Exhibit MN6, are not arguable, even if they mentioned the familiar complaint about denial of fair hearing. It will be a complaint without foundation, as the applicants were not parties to that proceeding or matter. That is the reason for their having to request for leave to appeal as interested parties.
Appeal No. CA/PH/529/2020 is pending in this Court and is yet to be heard. It is to determine whether the applicants ought to have been joined to the proceedings before the lower Court, by the lower Court. They were not so joined, due to the fact that they did not show sufficient interest in the matter. By their being refused joinder, applicants seek to complain that they were thereby denied fair hearing, in the subsequent order, made by the lower Court, permitting sale of the 4th respondent and for the money realized from the sale to be kept in an interest-yielding account. It is in the same course of thought, that the applicants hope that this Court should determine that they are interested parties, who should be allowed to appeal. It means, implicitly, that a finding by this Court that the applicants are interested parties entitled to appeal will be contrary to or be directly opposed to the clear decision of the same lower Court who previously held that they are not so interested in the matter before it. The facts in support of the application, taken along with the existence of appeal no. CA/PH/523/2019, demands or advises this Court to refuse the application.
The appeal filed by the applicants, in CA/PH/523/2019, which is pending, is an appropriate and sufficient vehicle to protect the interests of the applicants, as demonstrated in the decision of the Supreme Court, in the case of Biocon Agrochemicals (Nigeria) Ltd v. Kudu Holding (Pty.) Ltd [1996] 3 NWLR (Pt. 437) 373 at 381, where the facts are presented and considered by the Court, as the law may permit. Applicants do not have to file another application, as they have sought to do, herein, or this Court does not have to grant leave for another appeal to be filed, thus setting up the possibility of abuse of the process of Court.
Abuse of process of Court simply means that the process of Court has not been used bona-fide and properly. For an action to be declared frivolous, vexatious, oppressive and an abuse of the process of Court, it must be shown quite clearly that there are two or more actions between the same parties in respect of the same subject matter in one or more Courts at the same time.
See Ikine v. Edjerode [2001] 18 NWLR (Pt. 745) 446 at 479. At this point, there has been no abuse of the process of Court. It is only appeal no. CA/PH/523/2019, which is in existence. There is no other appeal pending. It is the grant of the application brought by the applicants, which will ensure possibility of collision of the outcomes of two appeals, arising from the same ruling, dated 02/07/2019. The prayers intended to be sought in the appeal being proposed by the applicants, as shown in the proposed notice of appeal (Exhibit MN6), may be different from that being sought in Appeal No. CA/PH/523/2019, however, there is no process exhibited before this Court, bearing the appeal number mentioned, which should guide this Court on the issue.
Apart from all stated above, going by the three sources of affidavit evidence filed by the applicants, the 5th respondent is supposed to be indebted to the 1st-5th applicants, yet the applicants have not individually or collectively shown the existence of any debt owed or the sum owed to each or all of them, at the time the applicants brought this application, to entitle the applicants to enforce any collateral security they may lay claim to, against the 5th respondent, especially, a right to security in the 4th respondent. It is my determination that the applicants have not shown any cogent reason for us to exercise the discretionary power of this Court in their favour.
The application of the applicants for leave to appeal as interested parties against the ruling of the Federal High Court in suit no. FHC/PH/CS/102/2017, filed on 08/11/2019, is refused and consequently dismissed.
Conclusion
The final order made in this ruling, as remarked above, is that the application filed by the applicants on 08/11/2019 is struck out, for being incompetent.
Applicants shall pay cost in the sum of N250,000.00 (Two hundred and fifty thousand Naira) to the 1st respondent.
TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading in draft the lead ruling of my learned brother, OLABODE ABIMBOLA ADEGBEHINGBE, JCA. I agree that the application should be refused. Leave to appeal is not granted as a matter of course. There must established cogent reason for the Court to exercise its discretion in favour of the applicant. I also refuse the application and dismiss same.
PAUL OBI ELECHI, J.C.A.: I read in draft the leading ruling of my learned brother Olabode Abimbola Adegbehingbe, JCA just delivered.
I am in total agreement with the reasoning and conclusion reached in the resolution of the issues canvassed before coming to the conclusion in dismissing the appeal.
I adopt same as mine and join his Lordship in dismissing the appeal as being unmeritorious.
Appeal dismissed.
Appearances:
Shekina Wokoma, Esq. (holds M. Nria Esq.’s brief) For Appellant(s)
All respondents were served hearing notice For Respondent(s)