MOHAMMED & ANOR v. AKPA & ORS
(2022)LCN/17111(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, June 08, 2022
CA/ABJ/PRE/ROA/CV/641M/2021(R)
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
1. M. AUDU BIDA MOHAMMED 2. MURITALA RASAKI APPELANT(S)
And
1. DR. ALEX AKPA 2. THE FEDERAL GOVERNMENT OF NIGERIA 3. THE ATTORNEY GENERAL OF THE FEDERATION 4. MINISTER OF THE FEDERAL CAPITAL TERRITORY 5. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 6. MR. A. O. SOLE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON EXERCISING THE DISCRETION OF THE COURT
It is now trite that the discretion of the Court must be exercised judiciously and judicially, and a Court called to exercise its discretion cannot be fettered by extraneous facts or issues. The Court is to place reliance on the facts presented by the parties and to do justice thereupon. See Bello vs. Yakubu (2008) ALL FWLR (Pt. 429) 4 75. In United Bank for Africa Vs. GMBH & Co. (1989) 3 NWLR (Pt. 110) 374, Oputa JSC, goes further to state that:
“Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by the law or the equitable decision”. PER BARKA, J.C.A.
THE POSITION OF LAW ON PARTIES TO A CASE
It is trite law that anyone whose presence is crucial and fundamental to the resolution of a matter before the Court must be made a party to the proceedings. The reason which makes it necessary to make a person a party to an action is so that he could be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectively and completely settled unless he is a party. See Okelue Vs. Medukam (2011) 2 NWLR (Pt. 1230) p. 176. See also Rinco Construction Co. Ltd. Vs. Veepee Industries Ltd. (2005) 9 NWLR (Pt. 929) 85. PER BARKA, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgement): By this application dated the 9th of August, 2021, and filed on the 13th of September, 2021, applicant seeks for the following reliefs: –
i. An order of this Honorable Court granting leave to the Applicants to appeal as interested parties against the judgment delivered on 19th July, 2010 but signed on 14th October, 2010 by the High Court of the Federal Capital Territory, Abuja Judicial division Honorable Justice A. A. I. Banjoko in suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa v. The Federal Government of Nigeria & 4 Ors.
ii. AND for such further or other orders as this Honorable Court may deem fit to make in the circumstances.
The grounds for the application are as follows:-
i. The applicants became aware of the judgment delivered on 19th July, 2010 in suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa v. The Federal Government of Nigeria & 4 Or’s. By the Honorable Justice A. A. I. Banjoko of the High Court of the Federal Capital Territory Abuja judicial division in December, 2010 when the 1st Respondent sought to execute the judgment and the Applicants immediately filed a Motion on Notice on 16th December, 2010 to set aside the aforesaid judgment.
ii. In its ruling delivered on 12th April, 2011, the lower Court granted the reliefs sought by the Applicants and set aside the judgment delivered on 19th July, 2010 but signed on 14th October, 2010 in suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa v. The Federal Government of Nigeria & 4 Ors.
iii. The 1st Respondent thereafter appealed to this Honorable Court in appeal no. CA/A/405/2011: Dr. Alex U. Akpa v. M. Audu-Bida Mohammed & 3 Ors. Against the aforesaid ruling.
iv. The decision of this honorable Court in the said appeal no: CA/A/405/2011 Dr. Alex U. Akpa v. M. Audu-Bida Mohammed & 3 Ors. And consequently, set aside the ruling of the lower Court delivered on 12th April, 2011.
v. The decision of this Honorable Court in the said appeal no: CA/A/405/2011 was that the lower Court was functus officio and lacked the jurisdiction to entertain the Applicant’s motion on notice dated 16th December, 2010 which was granted on 12th April, 2011.
vi. Based on the aforesaid decision of this honorable Court, the applicants, through their erstwhile counsel, Femi Akinbunu, Esq., applied to this honorable Court for leave to appeal on 17th June, 2013 but due to incompetence of the application, same was withdrawn and accordingly struck out on 25th February, 2014.
vii. The aforesaid erstwhile counsel filed another application on 23/06/2015 before this honorable Court but it suffered the same fate on 12th April, 2016 to take over the prosecution of their appeal.
viii. The applicants briefed the firm of F. O. Fagbohungbe & Co. in March 2021.
ix. While making efforts to get the relevant Court processes relating to the matter, the Judiciary Staff Union of Nigeria (JUSUN) embarked on nationwide strike that lasted over 2 months.
x. The applicants’ new counsel was not able to obtain the relevant processes until 25th June, 2021 and immediately commenced the preparation of the application afterwards.
xi. The applicants are the bona fide owners of the property at No. 3 Kabwa Close off Constantine Street, Wuse zone 4, Abuja, the subject matter of suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa v. The Federal Government of Nigeria & 4 Ors. But were not joined all through the proceedings at the lower Court.
xii. The applicants are necessary and proper parties that should have been joined in the suit before the lower Court.
xiii. The non-joinder of the Applicants was highly prejudicial to the interest of the Applicants.
xiv. The applicants are interested in the subject matter of the suit no: FCT/HC/CV/143/2006 and dissatisfied with the decision of the lower Court delivered on 19th July, 2010 but signed on 14th October, 2010 in the suit.
xv. Leave of this honorable Court is required to appeal against the judgment of the High Court of the Federal Capital Territory, Abuja Judicial division, contained in the judgment of honorable Justice A. A. I. Banjoko delivered on 19th July, 2010 but signed on 14th October, 2010 in suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa v. The Federal Government of Nigeria & 4 Ors.
xvi. The proposed notice of appeal filed by the Applicants against the said judgment of the High Court of the Federal Capital Territory, Abuja Judicial Division, contained in the judgment of honorable Justice A. A. I. Banjoko, delivered on 19th July, 2010 but signed on 14th October, 2010 in suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa v. The Federal Government of Nigeria & 4 Ors. Contains grounds of appeal which are substantial, competent, recondite and arguable.
xvii. The present application is imperative to enable the Applicants challenge the decisions of the lower Court which was heard and determined without their joinder.
The application is predicated on Sections 36 and 243 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Sections 15 and 30 of the Court of Appeal Act, 2004, Order 6 Rule 1 and 9 of the Court of Appeal Rules 2016 and under the inherent jurisdiction of the Court. Also attached to the application is an affidavit of 40 paragraphs deposed to by one Muritala Rasaki, the 2nd Applicant in the application. Applicants also filed a written address on 7/12/2021.
Upon receipt of the 1st Respondents’ Counter-affidavit and written address, applicants filed a reply on points of law on 24/2/2022.
In opposing the Application, the 1st Respondent filed a counter-affidavit on the 29/10/2021 deposed to by Professor Alex U. Akpa, the 1st Respondent in person, and hinged on the counter affidavit is a written address filed on the 15th of October, 2021.
On the 14/3/2022, being the scheduled hearing date, parties duly represented by counsel identified the processes filed, adopted the same and urged the Court to grant their respective prayers. Whereas the applicants pray that they be granted leave to appeal the decision of the lower Court as interested parties, the respondents urged the Court to refuse the application being an abuse of the process of Court.
Moving the application, the learned counsel for the applicant, summarized the facts, and raised a sole issue for resolution, which is:
Having regard to the material facts before this honorable Court, whether the interested parties are entitled to be granted leave as interested parties against the judgment delivered on 19th July, 2010 but signed on 14th October, 2010 by the High Court of the Federal Capital Territory Abuja per Banjoko J, as he then was.
The hallmark of the applicant’s argument is that he was not joined as a party in the judgment delivered by the FCT High Court which judgment grossly affected his interest in the subject matter. Accordingly, applicant now prays that he be allowed to appeal the decision as a party interested. Contrariwise, the 1st respondent opposes the application on two fronts:
i. Whether considering the circumstances of this case the applicants could be held to be interested parties wherein the Court of appeal could grant leave to appeal judgment of the Court below, and
ii. Whether considering the circumstances of this case the applicants’ application for leave is not an abuse of the Court below.
The position of the 1st respondent is that the applicants have no interest whatsoever in the subject matter of the application, as they have no legal right in the subject matter of the application, and on the second leg, learned counsel states that the applicants’ application constitutes or is an abuse of the Court’s process having filed the same application seven times. He contends that the application was filed malafide and thereby lacking in merit.
I note that whereas the other respondents defaulted and/or have not filed any process, the applicants herein duly replied to the 1st respondent’s address on points of law.
My understanding of the present application is that applicants are seeking for the leave of this Court to appeal the judgment of the FCT High Court in suit with No. FCT/HC/CS/143/2006, said to have been delivered on the 19th day of July 2010 but signed on the 14th October, 2010.
The application is brought principally pursuant to Section 243 (1) (a) of the CFRN 1999, as amended which provides as follows:
243 “Any right of appeal to the Court of Appeal from the decision 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 the party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter…”
Clearly, the provision created two classes of persons who can exercise the right of appeal against the decision of a Federal High Court or a High Court, and they are:
(a) a party to the action; and
(b) any other person having an interest in the matter.
The applicants not being parties to the hearing of the matter before the Federal High Court, necessitated the applicants, having fallen into the second category requiring the leave of this Court to appeal, for which purpose this application has been brought before this Court as the condition precedent to the exercise of their right of appeal.
The term “Leave” simply means permission, and the consideration of an application for leave calls for the exercise of discretion as stated in the case of Olumegbon v. Kareem (2002) FWLR (Pt. 107) 1145 AT 1151 that:
“Whenever leave of the Court is a condition precedent for a right, the discretion of Court is implied. Hence, in an application for leave to appeal, the appellate Court is duty bound to look at the application of the “the person having interest in the matter” in order to confirm whether the appeal sought to be filed is frivolous or vexatious.”
It is now trite that the discretion of the Court must be exercised judiciously and judicially, and a Court called to exercise its discretion cannot be fettered by extraneous facts or issues. The Court is to place reliance on the facts presented by the parties and to do justice thereupon. See Bello vs. Yakubu (2008) ALL FWLR (Pt. 429) 4 75. In United Bank for Africa Vs. GMBH & Co. (1989) 3 NWLR (Pt. 110) 374, Oputa JSC, goes further to state that:
“Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by the law or the equitable decision”.
It is trite law that anyone whose presence is crucial and fundamental to the resolution of a matter before the Court must be made a party to the proceedings. The reason which makes it necessary to make a person a party to an action is so that he could be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectively and completely settled unless he is a party. See Okelue Vs. Medukam (2011) 2 NWLR (Pt. 1230) p. 176. See also Rinco Construction Co. Ltd. Vs. Veepee Industries Ltd. (2005) 9 NWLR (Pt. 929) 85.
In an effort to convince the Court that appellant qualifies as that party interested in the case, appellants filed an affidavit of 40 paragraphs deposed to by Muritala Rasaki the 2nd Interested Party/applicant, material to the application are the following paragraphs:
9. It was in December, 2010 that I became aware through one of my staff while on a business trip to Lagos, that Court officials and policemen had come into my premises at No. 3, Kabwe Close, Off Constantine Street, Wuse, Zone 4, Abuja, ostensibly to levy execution on the property in consequence of a Court judgment.
10. The above information came to me as a rude shock as neither me nor the former owner (1st Applicant) had any inkling of a Court action with regard to the property or any controversy with the title documents of the said property.
11. At my behest, my mother, who lives in Abuja, rushed to the property in issue on the day of the purported execution, only to be shown a writ of possession issued by the High Court of the Federal Capital Territory, Abuja, pursuant to a judgment delivered by the Honourable Justice A. A. I. Banjoko on 19/07/2010 but signed 14/10/2010. Now shown to me is a certified true copy of the aforesaid judgment which is attached hereto and marked as Exhibit F.
12. The 1st Respondent who is the judgment creditor is aware that the property in issue was not vacant at any time during the pendency of the suit at the High Court of Federal Capital Territory, Abuja and was equally aware that I was in effective possession of the premises.
13. In a further move to ensure that the 1st Applicant and I were blissfully unaware of the pendency of Suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa Vs. The Federal Government of Nigeria & 4 Ors. Before the lower Court in respect of the property in issue, the 1st Respondent deliberately sued the 6th Respondent herein as the person in possession of the subject property.
14. Contrary to the impression created by the 1st Respondent before the lower Court, I am the person in possession of the subject property.
15. The 6th Respondent herein, Mr. A. O. Sole, who was sued by the 1st Respondent at the lower Court was an illegal occupant of the premises long before the said suit was instituted at the High Court of the Federal Capital Territory, Abuja by the 1st Respondent and had been long properly evicted from the premises by the 1st Applicant.
16. The antics of the 1st Respondent in surreptitiously procuring the 6th Respondent as purportedly in possession of the premises several years after the said 6th Respondent, Mr. A. O. Sole, was evicted from the premises was merely aimed at achieving the sinister motive of getting judgment behind my back.
17. A minimal effort and/or even a solitary visit to the premises in issue would have immediately revealed the fact that I am in occupation of same as the premises has been converted into a guest house with a very bold sign board that reads: “Mimah Suite” conspicuously at the front wall of the property.
18. The 1st Respondent concealed material facts from the lower Court that the 1st Applicant was indeed the winner of the bid relating to the sale of the property.
19. The status of the 1st Applicant was revealed by DW1 in open Court when he testified that the 1st Applicant won the bid and the property was sold to him.
Appellants also exhibited documents, i.e. exhibits A, B, C, and D to show that the 1st interested party won the bid to the property in contention, commenced the necessary processes which he concluded on the 23rd of February, 2007 and thereafter transferred his interest to the 2nd interested party who had been in possession thereof. Applicants also depicted that the 1st respondent who filed the suit before the lower Court, but failed to join the interested parties, rather preferring to sue the 6th respondent who is a squatter on the property. Applicants also submitted that the 1st respondent was fully aware of the interest of the 1st interested party to the subject matter of the suit as indicated from the record, and relying on Okonkwo & Anor vs. Uba (2011) 47 NSCQR 33 AT 47, Oseni-Yekini & Anor vs. Otegbade (2014) LPELR-41101 (CA) and Asuquo vs. Asuquo (2009) 16 NWLR (pt. 1116) 225 of the position that applicant having satisfied the Court that he is an interested party, ought to be allowed to appeal the decision of the lower Court.
With respect to appeal with number CA/A/405/2011, the learned counsel for the applicants contended that that appeal was in respect to a ruling, whereas the instant application is to appeal the judgment. To the 1st respondent’s contention that 1st applicant had no legal interest in the subject matter in dispute, it was contended that, the 1st respondent had shown from the record that he won the bid to the property, and further that his application does not amount to an abuse of the process of Court.
I have therefore examined and accorded serious consideration to the submissions of the learned counsel on the issue in contention, and my understanding of the instant application is for the leave of this Court seeking for leave to appeal the judgment of the lower Court, consequent upon the ruling of this Court which set aside, the earlier ruling of the trial Court setting aside its decision on the grounds that proper parties were not before it. This Court had on the issue alluded to that fact at page 23 of its judgment, but being of the view that the trial Court was functus officio, and therefore could not rightly make the order setting aside its judgment for reasons stated therein, of the view that the rights claimed by the 1st and 2nd respondents, who are now the 1st and 2nd applicants could only be examined before a competent Court of law. To that extent, the submission by the 1st respondent to the effect that applicants had no legal interest in the matter in contention is to my mind premature at this stage as rightly contended, since that issue appears to be the bone and substance of the complaint upon which a competent Court ought to hear the parties, and to determine after hearing all the necessary parties on the issue.
Lastly, can we rightly say that the consideration of the instant application would amount to an abuse of the process of the Court? I am not inclined in so thinking. The history of the case shows that applicants on becoming aware of the judgment of the lower Court promptly applied for the setting aside of the said judgment on the ground that necessary parties were not joined. That the trial Court heard the application and granted the same, only to be turned back by this Court on appeal citing the lower Court’s lack of jurisdiction being functus officio in the determination of the application. That his erstwhile counsel failed to properly approach this Court with the application to appeal as interested parties, and thereby had to brief a different counsel who now perfected the instant application. All I am saying therefore is that owing to all the circumstances of the case, this present application cannot be said to qualify as an abuse, and the decision of my learned brother Pemu, JCA, in Lasaco Ass. Plc vs. Deserve Savings and Loans Ltd (2012) 2 NWLR (pt. 1283) 95 AT 117, relied upon by the learned counsel for the 1st respondent clearly inapplicable to the circumstance.
The net result is that I hold the view that the interest of justice dictates that applicants be allowed to appeal the decision of the lower Court being parties interested and I so hold.
In the event, order of this Court is hereby granted, granting leave to the applicants to appeal the judgment of Honorable Justice A.A.I. Banjoko in suit No. FCT/HC/CV/143/2006: Dr Alex Ukpa vs. The Federal Government of Nigeria & 4 Ors delivered on the 14th day of October, 2010 by the High Court of the Federal Capital Territory Abuja, 14 days granted to the applicant to file his Notice of Appeal.
Orders granted as prayed, and I make no order as to costs.
PETER OLABISI IGE, J.C.A.: I have had the privilege of reading the ruling just delivered by my learned brother BARKA, JCA.
I agree with the finding and conclusion of my noble Lord. I adopt them as mine. Order of this Court is hereby granted, granting leave to the Applicants to appeal the judgment in Suit No. FCT/HC/CV/143/200 delivered by Honourable Justice A. A. I. Banjoko on the 14th day of October, 2010 by the High Court of the Federal Capital Territory, Abuja.
There is no order as to costs.
MOHAMMED MUSTAPHA, J.C.A.: I read in advance, the draft of the ruling delivered by my learned brother, HAMMA AKAWU BARKA, JCA. I concur with the reasoning expressed and the conclusion reached in granting leave to the applicants to appeal the judgment of the Hon. Justice A. A. l. Banjoko in Suit No: FCT/HC/CV/143/2006: Dr. Alex Ukpa vs. The Federal Government of Nigeria & 4 Ors. delivered on the 14th day of October, 2010 by the High Court of the Federal Capital Territory, Abuja.
I agree with my learned brother that the application has merit and same is hereby granted. I abide by the consequential orders made in the lead ruling.
Appearances:
M.A. Oduwole For Appellant(s)
Isaac Ita, with him, L.O. Samuel – for 1st Respondent
Betty A. Umeobulem, with him, Cynthia C. Iwuagwu – for 4th and 5th Respondents For Respondent(s)
