HRM OBA AFOLABI OLADIMEJI ODIDIOMO v. JUWON SEMUDARA
(2019)LCN/12970(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/B/320A/2009(R)
RATIO
COURT OF APPEAL: THE COURT OF APPEAL IS ONE COURT ACROSS THE FEDERATION
Starting, with the arguments relating the form of the Affidavit and the venue of its been sworn and its validity, it is trite that the Court of Appeal is one Court and processes to be filed thereat, like Affidavits may be sworn to in any of its Divisions and filed in any Division. Arguments questioning that position herein is unavailing. The document affidavit is not worthless therefore. There is no defect let alone to be one bordering on substance. Reference to Section 115 of the Evidence Act is of no basis as it is in applicable.PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
HRM OBA AFOLABI OLADIMEJI ODIDIOMO
(For himself and on behalf of the Igbokoda (Igbokoda/Mahin/Ilaje) Comminity) Appellant(s)
AND
JUWON SEMUDARA Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Lead Ruling): The applicant herein had by his motion on notice dated and filed on the 18th day of May, 2018 sought for the following reliefs:
1. AN ORDER of this Honourable Court granting leave to the Applicant/Appellant to appeal the judgment in Suit No. HOK/71/2005 delivered on the 31st day of October 2008 by Hon. Justice S. A. Bola of the Ondo State High Court, Okitipupa Judicial Division as persons interested under Section 243(a) of 1999 Constitution as amended.
2. AN ORDER of this Honourable Court extending the time within which the Applicant/Appellant may apply for leave to appeal the said judgment in Suit N. HOK/71/2005 delivered on the 31st day of October, 2008 by Hon. Justice S. A. Bola of the Ondo State High Court, Okitipupa Judicial Division.
3. AN ORDER of this Honourable Court granting leave to the Applicant/Appellant to appeal the said judgment Suit No. HOK/71/2005 delivered on the 31st day of October, 2008 by Hon. Justice S. A. Bola of the Ondo State High Court, Okitipupa Judicial Division.
4. AN ORDER of this Honourable Court extending the time within
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which the Applicant/Appellant file his Notice and Grounds of Appeal.
5. AN ORDER of this Honourable Court permitting the Applicant/Appellant to use the Record of Appeal in Appeal No. CA/B/320/2009 which is before this Honourable Court pending.
6. AN ORDER of this Court deeming as properly filed and served the Applicant?s Notice of Appeal and the Appellant Brief of Argument necessary fees having been paid.
AND FOR SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstances.
GROUNDS OF THIS APPLICATION
1. The Applicant/Appellant is the Olu of Igbokoda who as the Traditional Ruler thereof now appeals on behalf of the Igbokoda Community as interested party.
2. The land in dispute is part of Igbokoda land being all the land situate between Rivers Oluwa and Orereara (Ofara) now in Ilaje Local Government of which Igbokoda is the Headquarters.
3. The said Igbokoda Community was part of the Mahin kingdom within the larger Ilaje tribe of the Yoruba ethnic group. Hence Igbokoda Community is also referred to and described as the Igbokoda/Mahin/Ilaje Community.
4. The present Olu of Igbokoda
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named Applicant/Appellant who ascended the throne in 2012 was only recently informed of the pending of this appeal through the activities of the Respondent who has used the judgment in HOK/71/2005 now on appeal as instrument of harassment of his Igbokoda people.
5. The people of Igbokoda only recently mandated the Olu of Igbokoda to appeal the said judgment as interested party.
6. The Applicant/Appellant now seeks the leave of this Honourable Court to appeal as interested party and other prayers contained on the motion paper.
It is instructive to note that it is a motion brought pursuant to Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, Order 6 of the Court of Appeal Rules, 2016 and under the inherent jurisdiction of this Honourable Court.
The said motion is supported by an affidavit of 28 paragraphs deposed to by one Olufemi Alvis Meduoye, Male Legal Practitioner in the Chambers of the Applicant?s counsel. For the avoidance of any ambiguity in the reasons for the application seeking the exercise of this Court?s judicious discretion in allowing the ventilation of a right of appeal in the
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Applicant I, herein, instant reproduce the entirety of the supporting affidavit;. I do this inspite of the drudgery or costs in paper parchment or/and judicial tedium because of the spirited vitriotic and seemingly tumultuous vehemence in which this application was fought at the hearing. Attached to the motion are Exhibit 1, i.e the judgment sought to be appealed and in respect of which leave to appeal is sought; Exhibit 2 is the Ruling granting an order of stay of execution in respect of the said judgment and by the lower Court because of an appeal pending then at the Court of Appeal, Benin Division in respect of the judgment.
Thirdly, there is also annexed to the Affidavit the proposed Notice and Grounds of Appeal to this Court to articulate and ventilate the appeal sought to be filed and argued as interested parties in respect of the same judgment already pending before this Court on appeal between the respondent and another person (Kola Ogoh); it is Exhibit 3.
In opposition, the Respondent filed a counter affidavit of 20 paragraphs, deposed to by Oloja Oluwajuwon Semudara, a legal practitioner and learned counsel for
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the respondents. The Respondent annexed to the two counter affidavits of 28- 6 – 2018 and 14- 5 – 2018 and number of other exhibits. Could the later affidavit be an intended further counter affidavit? Whatsoever, there is also a document annexed and titled ?certificate as Oloja relating to the deponent?s appointment as such; a Power of Attorney; record of proceedings in HOK/71/2006 of 5 6 2006 commencing from the opening of defence and ending abruptly and conclusively with the sentence Samudara the document sought to be tendered is not pleaded. It is Exhibit C. D being the copy of portions of proceedings in a Criminal charge no MOK/115/2009 of 8th February 2010. A letter of complaint and 3 copies of some inchoate witness statement of witness on oath before a commission of inquiry, with only 3 paragraphs thereof produced and not concluded as a competent statement on oath deposed before the commissioner for oaths.
The legal niceties which may not matter in the circumstances here-in may be jettisoned however without a reminder that documents
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intended to be used for legal argument in Courts of law must be seen to be such documents in law, unless it is intended to show that they were infact as filed and thus been used or challenged for their invalidity or legal in-efficacy. That was however, not the purport for which the document commented upon anon was intended to serve! The Courts must not be foisted with just any documents to grapple with. Consideration of time, tedium, scarce and over bogged human judicial resources are critical.
The parties herein had filed written addresses as their Briefs of Argument in support of this motion, as ordered by the Court. By its written address settled by Chief Ebiseni N. Olusola Esq. dated the 22nd day of October, 2018 and filed on the 23 ? 10 ? 2018 a solo or lone issue for determination whether the Applicant/Appellant is a person interested in the subject matter of this appeal and whether he has put sufficient materials before this Honourable Court to merit the order being sought. Arguing by adoption of the said written address, Applicant?s learned counsel submitted that the Applicant had shown in the supporting Affidavit his status and
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interest in the land and the judgment in respect thereof that is pending in this Court and which had also been determined by this Court and affirmed by the Supreme Court earlier.
The decisions of this Court and the Apex Court referred and urged that the Applicants? community had been adjudged the owner of the land covered by the relitigation which he seeks to join so that he may articulate what he claims to be his interest in the adjudged land of Agbokoda Community, of Ondo State, i.e the subject of an appeal pending between parties or persons he claims are trespassers or wrong claimants inter ? se.
Referring and relying on the case, Re: Senator Rashidi Adewole Ladoja Adeleke v. Oyo State House of Assembly, 10 NWLR (pt. 987) 50 wherein the Court stated ?the 1999 Constitution answers the question of who can exercise right of appeal in its Section 243(a); which state that any right of appeal to the Court can only be exercised by the following persons:
(a) A party to the proceedings; or
(b) A person who was not a party to the proceedings, but has an interest in the matter with the leave of Court.
Relies also on Olayioye
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v. Ajibike (2009) 1 NWLR (pt. 1123) 650; in Re Madaki (1996) 7 NWLR (pt. 459) 158 at 163 SC; in Re Ndayako (2003) 4 NWLR (pt. 809) 42 CA, Ngige v. Obi (2006) 14 NWLR (pt. 999) 1CA; Registered Trustees, Acts of Appostels Church V. Fatunde 2016 11 NWLR (pt. 1523) expression person interested as synonyms of ?A person aggrieved
?A person aggrieved? must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something.
The learned counsel argued further that leave to appeal and the appeal will put to rest the status of the land as adjudged by the Court of appeal and Supreme Court vis-a ? vis the parties herein.
The learned Applicant?s counsel contended that the Respondent had not specifically answered the affidavit in support but was only strenuously orbiting the point being made and hoisting a challenge or claim of chieftaincy as opposed to the unassailable application.
On whether, Applicant was tardy as suggested in the counter claim, the
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Applicant submitted that he was not in the country and only returned to be installed a leader and only knew of the abrasion against his community land and interest therein, lately and took immediate steps. ? in vindication.
The learned counsel for the Applicants caps his address in supplication for the judicious exercise of our undoubted judicial and judicious power and authority by contending that he had sought for leave as statutorily ordained to appeal as person interested and extension of time to appeal and for permission to rely on and use the Record of Appeal already transmitted in the appeal of the other person and the respondent, herein. That in the demonstration of readiness and good faith in prosecuting the appeal, he has filed his brief of argument with a prayer for an order of this Court deeming the same as properly filed. That the other appeal of the parties relating to the subject of this application and intended appeal has not got beyond the present stage where the Appellant is now. That no Briefs have been filed in that other appeal which still seeks to substitute an Appellant therein.
?The learned counsel relying further on
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Registered Trustees, Act of the Apostles Church supra: reiterated that the right of appeal as a person interested in guaranteed under the constitution subject to the leave of Court and not subject to time limitation, but at the Courts discretion.
Learned counsel urged that the application be granted as prayed.
The Respondent filed no written address in opposition or answer to the Applicant?s address, as the address is that annexed to the Counter Affidavit filed on 28/6/2018, earlier in time to the address. Ordinarily, it would have been taken that the points raised have been conceded and remain unchallenged on the point of law addressed. If however the Respondent?s brief of Argument dated on 11th April, 2018 and filed on the 17th April, 2018, is really what is sought to be relied upon to contend in the main that the Applicant had no interest in the subject of the Appeal and on the judgment rendered, as the cause of action therein (Trespass to land) did not survive the Appellant therein i.e Mr. Kola Ogoh, as to warrant any person to claim any right therefrom as a person interested; that the said Kola Ogoh was sued in his personal capacity
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as a trespasser and he defended as such and appealed as such. That such personal actions had abated upon his death.
Also refers to re Otuedon 1995 4 NWLR (pt. 395) 655 (CA) to the effect that inspite Section 15 of the Administration of Estates Law, the collection of stipends claim was a personal claim; Also referred to Governor of Cross River State v. Assam (2008) 5 NWLR (pt. 1081) 658 at 671 to contend that the surviver of a cause of action goes beyond personal acts and that abatement of action on death goes beyond the provisions of Section 15 of the Administration of Estate Law.
It was, therefore, submitted that the authorities referred to by the Applicants are only applicable where the cause of action survived the deceased and where the Applicants therefore have an interest to be protected. That indeed no material facts have been placed before the Court to warrant the grant of the application.
?That the Applicant has not shown how the judgment appealed and sought to be granted leave to appeal thereon has affected the Applicant?s right. That where it has not affected the right of a person seeking to be substituted as a party, the
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application shall not be granted and should be refused by this Court. He cites Arowolo v. Akapo (2007) ALL FWLR (pt. 345) 200 at 206.
That the Appellant sued in his personal capacity for trespass and not counter claim as the owner of the land and wondered how this will affect the right of the Applicant and his family. That ?It was grotesque to us?. That the application had to fail and should be dismissed as this Court cannot embark on a game of wizardry.
That there was no minutes of meeting exhibited in the application in proof of authorization by the Applicant?s family to bring the application. That the 10 paragraphs Affidavit did not bear that fact. That the affidavit was sworn to at the Court of Appeal Registry, Lagos State, whilst the appeal is at Akure Judicial Divison. That the appeal is worthless, though headed at the Akure Judicial Division. That the defect cannot be classified as described in Section 117 of the Evidence Act as it is one of substance.
Starting, with the arguments relating the form of the Affidavit and the venue of its been sworn and its validity, it is trite that the Court of Appeal is one Court and
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processes to be filed thereat, like Affidavits may be sworn to in any of its Divisions and filed in any Division. Arguments questioning that position herein is unavailing. The document affidavit is not worthless therefore. There is no defect let alone to be one bordering on substance. Reference to Section 115 of the Evidence Act is of no basis as it is in applicable.
As to the deposition not showing authorization by members of the family and annexture of minutes to that effect, it is sufficient to hold that a member of a family or community particularly the Head or even a principal Member who has deposed to his interest and status may even appeal to protect his own interest per se or even the community interest. The family not having countered or challenged his locus standi to do so, I fail to see how the Respondent can do that; particularly where he only challenges same in address without a counter averment in that respect. The Application is not one for substitution either as argued.
In the circumstance I do not see the application as grotesque, but rather one in which this Court may exercise judicial and judicious ?Wizardry? to
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entertain. Indeed, to urge this Court to strike out the appeal, not yet filed by the Applicant, is premature.
Having allowed reliance and adoption of that address at the hearing, this Court had regularized its filing as being filed post the Applicants? Address and adopted as such. Conceding to the position of the law, that an application for leave to appeal must be either by a person interested or a party whose right is affected by the judgment, the learned counsel furthered that ?by virtue of the grounds of the application proffered, particularly ground 6, the Applicant is applying as a party interested. Refers to Akande v. General Electric Co. (1979) 3 LRN 187 to submit that a person seeking leave to appeal must be named in the record or at least with an interest in the proceedings. That in Hon Justice Ademola v. Sodipo (1992) 7 SCNJ 417, the Supreme Court held that a person interested must show in what manner the judgment he seeks to question would or did affect his interest. That if a person, stands by and allows his battle to be fought to his knowledge by other members of his community and on his behalf and then applies because he does not
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like the judgment, he is not a person interested under the Provision of Section 243 1 (a) of the Constitution; Relies on Duru v. Onwumelu (2002) FWLR (pt. 89) 1198 and paragraphs 11, 12, 13, 17 and 18, also Exhibits C & D to the Counter Affidavit to contend that Applicants was guilty of standing by when they failed to join when Oba P. O. Ilara was still alive.
That he that comes to equity must come with clean hands. Refers to paragraphs 16 ? 19 of counter affidavit and Exhibit E.
Finally it is conceded that Respondent was not unmindful of the position of the law that there is no time limit within which an application for leave to appeal, as an interested party may be brought; cites Onukagha & Anr v. Okoroafor & Ors (2018) LPELR 44080 CA; that Applicant must justify the delay particularly where he has not come with clean hands, when as in this case, counsel said that the applicant lied that he was not aware of the judgment. That there were no good and substantial reasons to justify a delay in bringing an appeal having been seized of knowledge of same over 7 years.
That the application be dismissed with costs.
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The application herein is a straight forward one that ought not to have raised split hair or hoarse voices at all. Parties by their learned counsel are agreed on the right of a person interested to seek leave to appeal and who such a person is, in law.
Parties are at one on the law that no time is limited for the bringing of such an application under Section 243 (1) (a) of the Constitution.
The application needs only be within a reasonable time and shown not to be oppressive and fraudulent. The respondent has not shown that a delay of 7 years in the circumstances of the period of discovery of the judgment by the Applicant and the time of the accrual of legal capacity on him to represent his community warranting this application is undue or that there is fraud or oppression in this application.
The argument on standing by and delay is of no moment. This is no wonder that reference was made to Duru v. Onwumelu (supra) in appropriately as the Respondent had not shown that the judgment was in respect of a community land in which they defended in representative capacity and on behalf of the Applicant, who stood by. They had said it was not in respect of
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community land and they did not represent the community or the Applicant herein.
What an advocacy in sommersault in the positioned status of the respondent to invoke the ?standing by doctrine The application herein is of the nature that all that is required is the exercise of the discretion of this Court, which shall be exercised judicially and judiciously taking into consideration, the materials placed before it. In Stanbic IBTC Bank v. IGC Ltd. (2017) 18 NWLR (pt. 1598) 431, the Supreme Court, per Galinje, JSC stated in the exercise of judicial discretion thus:-
Now a grant or refusal of this application is purely within the discretionary power of this Court. The law is settled that the discretion of this Court must at all time be exercised not only judicially but judiciously on sufficient materials. See Udensi v. Odusote (2003) 6 NWLR (pt. 817) 545; Ogbuchi v. Governor of Imo State (1995) 9 NWLR (pt. 417) 53; University of Lagos v. Aigoro (1985) 1 NWLR (pt. 1) 143 at 148.
The applicant herein has annexed sufficient materials and deposed to recondite points on facts why he should be granted leave to appeal. The Respondent
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has not shown in the slightest what he will lose in the event that the Applicant is granted leave to appeal; and what prejudice will be occasioned him in appealing the decision which he has claimed was a violation of a vested declared right in him per the decisions of this Court and the Supreme Court. Will the appeal not stream line with finality the parties’ rights, as after all a different other Appellant is also appealing the same decision as stated by the respondent.
What makes the Applicant?s intended appeal scary and an anathema. Without delving into the substantive suit, the Applicant had shown good faith and proactively avoiding delay; has also sought for extension of time to appeal and annexed a Notice of intended Appeal and an Appellant?s intended Brief of Argument to be filed and deemed and requests an order of departure from the Rules to allow the reliance on the Record of Appeal in respect of an appeal involving another Appellant and the Respondent herein in respect of the same judgment of the Court being sought to be appealed.
Indeed, the existence of Exhibit 2 to the of Application i.e a Ruling staying the execution
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of that judgment is also a strong reason as rightly submitted that the Respondent is not in law enjoying or doing anything in respect of the land, the subject of the judgment. The application, therefore, is not stultifying anything, but will clear the coast for an appeal that would ultimately render the stay of execution otiose. Is that not enough for the Respondent
In any case, the Apex (Supreme) Court has clearly in Otti v. Ogah (2017) 7 NWLR (pt. 1583) page 36 held unequivocally that leave to appeal should be granted to the Applicant to appeal as an interested party because he has shown that he was affected by the decision and since he cannot appeal as of right, not being a party at the trial Court. His right of fair hearing was at stake. The right of fair hearing of the community represented by the Applicant and indeed; his right as their representative to appeal in ventilation of their communal right alleged to have been violated by the impugned judgment cannot be taken away by this Court or by any opposition. As Ogunbiyi, JSC stated in Otti v. Ogah (supra) it should not lie in the mouth of the respondent to seek to prevent such an
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aggrieved person/Applicant from seeking leave to appeal. It is his Constitutional right. He ought not to have been opposed.
In the recent contributory Ruling in this Court, per Danjuma, JCA this Court stated, in CA/AK/89M/2017 delivered on 16th November 2018,
Thus:-
The extension of time granted them to seek leave to appeal and leave to appeal was apt; as by the Affidavit evidence in support of the application, it is copiously deposed to that the rights and interests of the applicants will be jeopardised and adversely affected if they were not let in to appeal the Judgment as they have titles in respect of portions of the lis in litigation, which they needed to defend or protect. They have explained their non joinder in the suit at the trial Court and how they have been affected adversely. In Otti Vs Ogah (2017) 7 NWLR (Pt. 1583) page 36, the apex court of Nigeria, speaking through Akaahs JSC 29 years after the decision in Ezenwosu Vs Ngonadi (1988) 3 NWLR (Pt 81) 163 at 175, in a very proactive posture in allowing the ventilation of the right of Appeal by persons aggrieved and interested in a decision and who evince the desire
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to appeal or feel threatened or dissatisfied and show that they are affected or likely to be affected by that decisions has this to say:-
?the applicants have disclosed their interest in the appeal and Justice demands that they should be given the opportunity to ventilate their grievance where orders were made directly affecting their interest without their being afforded a hearing
C. Ogunbiyi, JSC (as he then was stated in the same Otti v. Ogahs case (supra) thus:-
In other words when the law expects the applicants to lay before a Court all materials necessary for the exercise of a discretion in his favour, the respondent is not to be subjective in his opposition but rather to allow the principle of law and objectivity to apply. This is more especially when regard is had to the submissions of made on behalf of the Appellants/Applicants that they cannot appeal against the lower Court?s decision in appeals No. CA/ 390A/2016 because they are not parties therein. The Applicants? application borders squarely on their right to be heard on a case that affects their interest.?
?I adopt and apply this
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same stand in this Ruling.
Accordingly I find merit in this application and hold that the Application is pregnant of Justice and is granted and in the following terms:-…………….I had reiterated same in Appeal No. CA/AK/190M/2017 between Dr. Charles Dumbiri Mekwunye v. Carnation Registered Limited (Substituted for Mainstreet Bank Registered Ltd. & Anr. which I delivered on 22nd January 2019.
For the aforesaid, I hold that the unavailing depositions in the counter affidavit and their inefficatious annextures have not, in law, surmounted the instant application anchored on the firma terra of the Constitution and the statutory instruments for their ventilation as provided.
Accordingly, the tenuous objection thereto, is without basis and the application therefore, succeeds and is granted.
In consequence:- I hereby, make the following orders:-
1. AN ORDER of this Honourable Court granting leave to the Applicant/Appellant to appeal the said judgment Suit No. HOK/71/2005 delivered on the 31st day of October, 2008 by Hon. Justice S. A. Bola of the Ondo State High Court, Okitipupa Judicial Division as persons
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interested under Section 243(a) of 1999 Constitution as amended.
2. AN ORDER of this Honourable Court granting leave to the Applicant/Appellant to appeal the said judgment in Suit No. HOK/71/2005 delivered on the 31st day of October, 2008 by Hon. Justice S. A. Bola of the Ondo State High Court, Okitipupa Judicial Division.
3. AN ORDER of this Honourable Court extending the time within which the Applicant/Appellant file his Notice and Grounds of Appeal.
4. The Notice of Appeal in the manner of Exhibit 3 shall be filed within 14 days from today.
5. AN ORDER of this Court deeming as properly filed and served the Applicant?s Notice of Appeal and the Appellant Brief of Argument necessary fees having been paid.
6. That the appeal shall be heard upon the deemed Notice of Appeal, deemed Appellant?s Brief of Argument and the Record of Appeal in Appeal No. CA/B/320/2009 without prejudice to the distinct Assigned Appeal No: CA/B/320A/2009 ascribed to the instant Appeal.
Application granted.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: My perusal of the Ruling just delivered by my learned brother, Mohammed Ambi-Usi
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Danjuma, JCA resulted in been convinced of the reasoning and conclusion reached therein. I am in agreement with the elucidation and adopt same as mine.
The application succeeds and granted as done in the lead Ruling.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the preview of the ruling just delivered by my learned brother, MOHAMMED A. DANJUMA, JCA. I am entirely in agreement with the reasonings and conclusions reached therein. I agree with him that the objection to this application for leave to appeal as interested parties is unfounded. Every person should have the right to ventilate his issues before the Court. To refuse this application may in my view tantamount to shutting out the applicant. This will amount to an infringement of their fundamental right to fair hearing. This runs contrary to the tenets of the Constitution and should be avoided.
?I also agree with my learned brother that this application has merit I accordingly grant it and I abide with all the orders made consequent thereto.
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Appearances:
Chief Ebiseni N. Olusola, Esq. with him, Olufemi Alris Meduoye, Esq. and Tunde Iwalokun, Esq.For Appellant(s)
Dr (Chief) Juwon SemudaraFor Respondent(s)
Appearances
Chief Ebiseni N. Olusola, Esq. with him, Olufemi Alris Meduoye, Esq. and Tunde Iwalokun, Esq.For Appellant
AND
Dr (Chief) Juwon SemudaraFor Respondent
