IKUMESOMI & ORS v. ALELE & ANOR
(2022)LCN/16901(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, December 22, 2022
CA/B/480/2019
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Sybil Onyeji Nwaka Gbagi Justice of the Court of Appeal
Between
1. HON. CHARLES IKUMESOMI 2. HON. OBALO LUKE 3. PASTOR ESIHORAMHE 4. ELDER JAMES ABU 5. MR. IKEGWE INNOCENT 6. ELDER MIKE BALOGUN 7. MR. FESTUS INABEFO 8. MR. ENIGIE JULIUS ORO 9. MR. AFEMIKHE ESHIOMONU 10. CHIEF IKORO EBUNU 11. MR. OKUN JONATHAN 12. MR. PAUL EKINEMOYA (Suing For Themselves And On Behalf Of The Ukhumuyio Community Of Afokpella) APPELANT(S)
And
1. MR. SILVA O. ALELE 2. THE REGISTERED TRUSTEES OF UKHOMUNYIO COMMUNITY DEVELOPMENT UNION RESPONDENT(S)
RATIO
THE POSITION OF LAW ON “LEAVE” OF COURT
Now Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999 confers on a person the right of appeal only upon leave or permission of the Court. Leave is the permission it takes to activate or infuse life into an appeal that is hitherto dormant.
The prior application for leave of Court and its grant by the Court amounts to a condition precedent to the validity or competence of the appeal. This constitutional requirement for leave of Court being obtained prior to the filing of the appeal confers jurisdiction on the appellate Court to entertain the appeal. A notice of appeal filed without leave of Court in circumstances required is incompetent, a nullity and there is in effect no appeal. See LINUS AGI ITOR V. MATTHEW EFFA IGBAGRI (2014) LPELR – 23371 CA. See also WILLIAMS V. GREGORY MOKWE (2005) 7 S.C. (Pt. 11) 153.
The law is trite that where condition precedent is necessary but has not been fulfilled, the appeal filed is illegal and incompetent. See N.I.W.A. V. S.P.D.C. (NIG) LTD (2007) 1 NWLR (Pt. 1015) Pg. 305.
In our instant appeal, the Appellant has failed to obtain leave of Court to appeal against this interlocutory decision. I cannot but agree with the submission of the Respondents’ counsel that this Court has been robbed of its jurisdiction to entertain the interlocutory appeal. PER GBAGI, J.C.A.
WHETHER OR NOT THE COURTS CAN EXERCISE DISCRETIONARY POWERS WHERE IT DOES NOT HAVE JURISDICTION IN THE MATTER BEFORE IT
On Issue No. 2, there is no doubt that the power to grant an interim or interlocutory order of injunction is one of the inherent powers of a Court of law for the enhancement of the administration of justice. However, Courts of law can only exercise their discretionary powers where they have jurisdiction in the matter. Any party who seeks the indulgence of a Court for the exercise of its discretion in his favour must place sufficient necessary materials before the Court to sway its mind to the exercise of the discretion. Court’s discretion must be exercised judicially and judiciously based on the facts and circumstances made available to it from which it will arrive at a conclusion relying on the applicable law. See ALHAJI SAIDU, SANUSI DONGARI & ORS V ALHAJI SAHEED SA’ANUN (2013) LPELR – 22084 (CA) Per Akeju JCA –
“It is obvious that the prayers of the Appellants before His Lordship, the Hon. Chief Judge call for the exercise of the Courts’ discretionary powers and it is a basic principle that a Court must exercise its discretion judicially and judiciously according to law and not whimsically or arbitrarily.” PER GBAGI, J.C.A.
THE PRINCIPLE OF LAW ON PROVING A CASE
It is trite that he who asserts must prove. See OKON V. OFFEIDEH (2013) LPELR – 21189 CA. The burden and proof of compensation being paid rests squarely on the Respondents who have not shown good faith. PER GBAGI, J.C.A.
SYBIL NWAKA GBAGI, J.C.A. (Delivering the Leading Judgment): The Appellants commenced a civil action against the Respondents in respect of a sum of money paid as compensation by Dangote Group of Companies to individual in Ukhumuyio Community of Afokpella for their crops or improvements on their land impacted by the actions of Dangote Group of Companies which sum was received by the 1st Respondent on behalf of the Appellants Community. During the pendency of the suit, the Appellants filed an application for an order of interlocutory injunction to restrain the 1st Respondent from disbursing the said sum of money pending the determination of the substantive suit.
Hon. Justice S.A. Omonua of the High Court of Justice, Edo State, holden at Agenebode, after hearing arguments for and against the said application, declined to grant the interlocutory injunction whereupon the Appellants have appealed to this Honourable Court.
Appellants’ brief was filed on 10th February, 2020 but deemed as properly filed and served on the 18th January, 2022. Respondents’ brief was filed on the 15th June, 2020 but was deemed as properly filed and served on 3rd November, 2022.
Ibrahim Amuset Esq, counsel for the Appellant raised a sole issue for determination namely:-
(1) Whether the learned trial Judge was right in declining to grant the interlocutory injunction sought by the Appellants.
Counsel submitted that the learned trial Judge based his refusal to grant the interlocutory injunction due to the fact that the money due to the Appellants’ community had long been disbursed under the supervision of the Edo State Government and the Ukhomunyio Council of Village Heads. Counsel argued that no time was the Edo State Government nor the Ukhomunyio Council of Village Heads included in any form in the process for the payment of the compensation payable to the affected individuals. Counsel argued that the failure of the 1st Respondent to give an account of his stewardship to the Appellants’ Community which failure led to the pending case in Court and for this reason the trial Judge ought not to have glossed over it.
Counsel submitted that either the 1st or 2nd Respondents had the onus to prove the manner of disbursement. It is counsel’s argument that the trial Judge fell into a great error of law when he held that the Appellants were the persons to prove that the money had not been disbursed. Learned counsel submitted that the law is settled that he who asserts must prove. See IMONIKHE V. UNITY BANK PLC (2011) 5 SCNJ 73 at 79.
Learned counsel added that the learned trial Judge failed to exercise his discretion judicially and judiciously in accordance with the law. See UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (Pt. 1) 143.
Counsel finally urged the Court to allow the appeal and set aside the ruling of the learned trial Judge.
H.A. Aboloje Esq, learned counsel for the Respondents raised two issues for determination namely:-
(1) Whether the Appellants having failed to obtain the leave of Court before filing this appeal, this appeal is competent.
(2) Whether the lower Court’s discretionary power was properly exercised in the instant case.
On Issue No. 1, learned counsel submitted that the Appellants failed to file a notice for leave to appeal against an interlocutory decision. See Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).
Counsel argued that leave is a condition precedent to the bringing of an interlocutory appeal and the absence of the requisite leave of Court robs the appellate Court jurisdiction to hear the interlocutory appeal. Counsel submitted that the failure of the Appellants to obtain or seek the requisite leave before filing this appeal renders this appeal incompetent and thus robs the Honourable Court of the jurisdiction to hear and determine this appeal. See EKEMEZIE V. IFEANACHO (2019) All FWLR (Pt. 1007) at 764.
On Issue No. 2, counsel submitted that an appellate Court will not in principle interfere with the exercise of discretion by the trial Court unless that discretion is shown to have been exercised upon wrong principles, illegality or substantial illegality. See ABDULLAHI V. ADETUTU (2019) All FWLR (Pt. 1005) 349 at 376.
Counsel argued that failure of the Appellants to present adequate material before the Court to enable it exercise its discretion in his favour, this Court cannot interfere with the lower Court’s exercise of its discretion.
Counsel finally urged the Court to dismiss this appeal and uphold the ruling of the learned trial Judge.
Now, I have raised two issues for determination which are:-
(1) Whether failure of the Appellants to obtain leave of Court before filing this appeal makes this appeal to be incompetent.
(2) Whether the lower Court’s discretionary power was properly exercised in the instant case.
Now Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999 confers on a person the right of appeal only upon leave or permission of the Court. Leave is the permission it takes to activate or infuse life into an appeal that is hitherto dormant.
The prior application for leave of Court and its grant by the Court amounts to a condition precedent to the validity or competence of the appeal. This constitutional requirement for leave of Court being obtained prior to the filing of the appeal confers jurisdiction on the appellate Court to entertain the appeal. A notice of appeal filed without leave of Court in circumstances required is incompetent, a nullity and there is in effect no appeal. See LINUS AGI ITOR V. MATTHEW EFFA IGBAGRI (2014) LPELR – 23371 CA. See also WILLIAMS V. GREGORY MOKWE (2005) 7 S.C. (Pt. 11) 153.
The law is trite that where condition precedent is necessary but has not been fulfilled, the appeal filed is illegal and incompetent. See N.I.W.A. V. S.P.D.C. (NIG) LTD (2007) 1 NWLR (Pt. 1015) Pg. 305.
In our instant appeal, the Appellant has failed to obtain leave of Court to appeal against this interlocutory decision. I cannot but agree with the submission of the Respondents’ counsel that this Court has been robbed of its jurisdiction to entertain the interlocutory appeal.
Provision of the Constitution without the blink of an eyelid must be obeyed. A breach of the Constitution is so fundamental and which cannot be remedied. When the Constitution has stated steps that must be taken before an action can proceed then omitting to do so would render such act one made in futility.
That having been said I resolve this first issue in favour of the Respondent.
On Issue No. 2, there is no doubt that the power to grant an interim or interlocutory order of injunction is one of the inherent powers of a Court of law for the enhancement of the administration of justice. However, Courts of law can only exercise their discretionary powers where they have jurisdiction in the matter. Any party who seeks the indulgence of a Court for the exercise of its discretion in his favour must place sufficient necessary materials before the Court to sway its mind to the exercise of the discretion. Court’s discretion must be exercised judicially and judiciously based on the facts and circumstances made available to it from which it will arrive at a conclusion relying on the applicable law. See ALHAJI SAIDU, SANUSI DONGARI & ORS V ALHAJI SAHEED SA’ANUN (2013) LPELR – 22084 (CA) Per Akeju JCA –
“It is obvious that the prayers of the Appellants before His Lordship, the Hon. Chief Judge call for the exercise of the Courts’ discretionary powers and it is a basic principle that a Court must exercise its discretion judicially and judiciously according to law and not whimsically or arbitrarily.”
In this present appeal, the Respondents have not shown cogent evidence that the money received from Dangote Group of Companies have been paid as compensation to individuals in Ukhumuyio Community of Afokpella for their land impacted by the company. It is to be expected that persons must have signed for monies received. There must be evidence to show that money have been received by persons who are genuinely to be compensated. Word of mouth is not enough. Moreso, records ought to be kept by the government who the Respondents said were involved in the process of this compensation. However, the Appellant has debunked this claim by the Respondents and according to the Appellants were never part of the process. The Respondents have not shown any form of transparency. This action of the Respondents is highly condemnable.
It is trite that he who asserts must prove. See OKON V. OFFEIDEH (2013) LPELR – 21189 CA. The burden and proof of compensation being paid rests squarely on the Respondents who have not shown good faith.
In all, I hold that the Court has not exercised its discretion judicially and judiciously. The behoves of the learned trial Judge to be presented with more facts as to whether or not the members of the community had been compensated in order to ascertain that the monies have not fallen into the wrong hands.
In all, I resolve Issue 2 in favour of the Respondents.
As said earlier, the failure of the Appellants to obtain the leave of the Court to appeal against the interlocutory decision of the trial Court tainted the entire proceedings and rendered same nullity.
This appeal is hereby struck out.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
TUNDE OYEBAMIJI AWOTOYE, J.C.A.: I had the opportunity of reading before now the draft of the judgment just delivered by my learned brother SYBIL NWAKA GBAGI, JCA.
I agree leave ought to have been sought and obtained by the appellant before filing this instant appeal. Failure to obtain such leave has left this Court without jurisdiction to hear this appeal. In the circumstance, this appeal fails for want of jurisdiction. It is accordingly struck out.
Appearances:
James Ogboriefor For Appellant(s)
H.A. Aboloji For Respondent(s)
