MR. GODWIN JOHN & ORS v. ALFA BUREMOH AYINLA & ANOR
(2014)LCN/7588(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of December, 2014
CA/IL/M.63/2014
RATIO
APPEAL: LEAVE TO APPEAL; WHEN IS LEAVE GRANTED AND AND THE EXERCISE OF THE RIGHT OF THE APPLICANT
Since it is not in dispute that the applicants were seeking leave to appeal as an interested party and the time within which they should have appealed had expired, Section 243(b) of the said Constitution comes into play. This sub Section provides:
“Sec. 243 (b) 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) …………………………………………………………….
…………………………………………………………….
(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.”
By the above provision, 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, the applicants need to consider the provisions of Section 24(2) of the Court of Appeal Act 2011 which prescribes the time for appealing. SEE EZENWOSU VS. NGONADI (1988) 3 NWLR (PT.81) 163 AT 175. In that case this Court dealt with an application, just as in this case, for leave to appeal out of time by an interested party. per. MOHAMMED LADAN TSAMIYA, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria
Between
1. MR. GODWIN JOHN
2. MRS. VICTORIA F. RAPHEAL
3. MR. ABOLARIN A. AJAYI
4. MRS. OLUWAYEMISI AJAYI
5. SURVEYOR JUWON OGUNBAIYEJE
6. MRS. JUWON OGUNGBAIYE
7. ABDULKADIR OLAREWAJU SULTAN
8. OLUKAYODE EJIYOOYE
9. ENGR. SULAIMAN ABIODUN ALABI
10. EKWEMUKA BENEDICT CHUKS Appellant(s)
AND
1. ALFA BUREMOH AYINLA
(JUDGMENT CREDITOR/RESPONDENT)
2. TOYIN ABDULKAREEM
(JUDGMENT DEBTOR/RESPONDENT) Respondent(s)
MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Lead Ruling): Pursuant to the provisions of Section 243(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 24(4) of the Court of Appeal Act 1976 (as amended) Order 7 Rule 10(1) and (2) of the Court of Appeal Rules of 2011 and the inherent power of this Court, the applicants by motion on notice dated 18/8/2014 and filed in this Court on 28/8/2014, sought for the following orders:-
1. AN ORDER of this Honourable court extending the time within which the Applicants may file their application for leave to appeal as interested parties against the judgment of the High court of Justice of Kwara State, Ilorin Judicial Division in suit No.KWS/138/2007 between ALFA BUREMOH AYINLA, and MR. TOYIN ABDULKAREEM delivered on 18th, December, 2012 as parties affected and having an interest in the matter.
2. AN ORDER of this Honourable court granting leave to the applicants to appeal as interested parties against the judgment of the High court of Justice of Kwara State, Ilorin Judicial Division in suit No.KWS/138/2007 between ALFA BUREMOH AYINLA and MR. TOYIN ABDULKAREEM delivered on 18th December, 2012 as parties affected and having an interest in the matter.
3. AN ORDER of this Honourable Court extending the time within which the applicants may file notice and grounds of appeal as parties affected/interested in the matter against the judgment of the High Court of Justice of Kwara State, Ilorin Judicial Division in Suit No.KWS/138/2007 between ALFA BUREMOH AYINLA and MR. TOYIN ABDULKAREEM delivered on 18th December, 2012.
4. SUCH FURTHER ORDERS(S) (Sic) as this Honourable Court may deem fit to make in the circumstances of this matter.
The grounds of bringing the application are:-
1. The Applicants have various buildings on the land which they presently occupy on the adjudged lands.
2. The Applicants have constructed their respective buildings and occupied same at various time since 2006.
3. The Applicants are not aware of the pendency of the matter at the Lower Court and were not served with any of the court processes.
4. The Applicants only became aware of the matter when the judgment creditor/Respondent, brought bulldozer to demolish their houses in execution of the Judgment of the Kwara State High Court, Ilorin Judicial Division in Suit No.KWS/138/2007 between ALFA BUREMOH AYINLA and MR. TOYIN ABDULKAREEM delivered on 18/12/2012.
5. An application for leave to appeal as interested parties has been made to the trial court, but same was refused.
6. The Applicants were unable to collect the ruling of the Kwara State High Court refusing their application within the time prescribed by Rules of this Honourable Court in order to file similar application before this Court.
7. The lands claimed by the Judgment creditor is (sic) different from the land of the Applicants.
8. The Applicants did not derive their title from the Judgment debtor.
The application is supported by a 31 paragraph affidavit deposed on 28/8/2014 to which various processes including the Notice of Appeal and the Ruling of Kwara State High Court (herein referred to as the Lower Court) refusing leave to appeal as interested parties were exhibited as Exhibits A – F, and a further and Better affidavit dated and filed 25/9/2014 contained 10 paragraphs but no Exhibits attached.
In opposing the motion, the 1st Respondent filed a counter affidavit of 19 paragraphs through his learned Counsel on 15/9/2014 and in which various processes were also exhibited as Exhibits 1 – 8. In the same vein, the 2nd Respondent also opposes this application through its counter affidavit of 11 paragraphs.
Arguing the application, learned Counsel for the applicants submitted that the application was brought pursuant to Section 243(a) of the said 1999 Constitution (as amended) for the applicants who were not parties in the case at the Lower Court to be given leave to appeal against the decision of the Lower Court delivered on 18/12/2012 as parties having interest in the matter.
Relying on paragraphs 6, 7, 12, 15, 29, 24, 25, 26, 27, 28 of the original affidavit in support, and Exhibits ‘E’ (the Notice of Appeal) ‘D’ (the C. T. C. of the Judgment of the Lower Court), learned Counsel urged this Court to find that the applicants have satisfied the requirements of the law that they are parties having interest in the matter to justify granting the application. He also submitted that the applicants have shown sufficient reason for their delay in filing this application.
Learned counsel for the 1st Respondent, however, in opposition, pointed out that the judgment of the Lower Court relates to the ownership of the identified land belonging to the 1st Respondent and which was not part of the land the applicants claimed to have built on their respective houses. See part 12 of the original affidavit in support of the motion. Therefore, the applicants have no interest whatsoever in the land in issue between 1st and 2nd Respondents. He urged this court to refuse the application.
As for the 2nd Respondent, it’s learned counsel is also of the view that the applicants have no business coming into this matter at this stage, the matter being purely a dispute between 2nd Respondents on the ownership of the land in dispute the 1st and 2nd Respondents on the ownership of the land in dispute and urged this Court to dismiss the application.
From the submissions and counter-argument exchanged by the Counsel, parties are ad-idem that an application was filed before the Lower Court, seeking extension of time to apply for leave to appeal, leave to appeal and extension of time to file Notice of Appeal as an interested party. However, the bone of contention, in my view, will be whether the said application before the Lower Court, in view of the fact that ‘leave’ at first was not sought within the time allowed to appeal (as provided in Section 24(4) of the Court of Appeal Act 2004 as amended) contained the “trinity prayer” as enunciated in the case of OWENA BANK PLC VS. N.S.E. LTD. (l997) 8 NWLR (PT.515) and in RE: MADAKI (1996) 7 NWLR (PT.459) 153.
I think it is useful to start by saying that the following points are not in dispute in this case. They are thus:-
1. That the original parties to this case at the Lower Court were Alfa Buremoh Ayinla (as plaintiff) AND Toyin AbdulKareem (as Defendant).
2. That the applicants were not parties to the said Suit before the Lower Court.
3. That judgment of the Lower Court was delivered on 18/12/2012.
4. That the applicants, thereafter, brought an application for extension of time to seek leave to appeal, leave to appeal, and extension of time to file notice of appeal.
5. That the Lower Court refused the application, hence this application.
That being the case, it is my view that, the applicants ought to have, first asked before the Lower Court, for leave to appeal only as an interested party under Section 243(a) of the said Constitution. This is because the 1st prayer sought by the applicant before the Lower Court through their Counsel is misconceived in that no law prescribes any period within which an interested party may bring his application for leave to appeal as interested party in a matter. SEE IN RE: MADAKI (1996) 7 NWLR (PT.459) 153 AT 164 and OJORA VS. AGIP PLC (2005) ALL F.W.L.R. (PT.267) 1433.
Having refused to grant the said applicants’ application, by the Lower Court, the applicants pursuant to Order 7, Rule 3 of the Court of Appeal Rules 2011 filed in this Court a similar application for a similar purpose after the time prescribed for appeal expired.
Since it is not in dispute that the applicants were seeking leave to appeal as an interested party and the time within which they should have appealed had expired, Section 243(b) of the said Constitution comes into play. This sub Section provides:
“Sec. 243 (b) 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) …………………………………………………………….
…………………………………………………………….
(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.”
By the above provision, 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, the applicants need to consider the provisions of Section 24(2) of the Court of Appeal Act 2011 which prescribes the time for appealing. SEE EZENWOSU VS. NGONADI (1988) 3 NWLR (PT.81) 163 AT 175. In that case this Court dealt with an application, just as in this case, for leave to appeal out of time by an interested party. In interpreting the provisions of Section 222 of the then Constitution of Nigeria, 1979, which is similar to Section 243 of the Constitution of Nigeria, 1999, this Court held thus:-
In the instant case, the applicant ought to have brought an application 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) (a) of the Court of Appeal Act No.43 of 1976 (as amended) an appellant or any person desirous of appealing shall give notice of his appeal within three (3) months of the date of final decision, and by several decision of this Court, a person applying for leave to appeal must do so within the statutory period of 3 months prescribed. If he is out of time, he must apply for extension of time within which to apply for leave to appeal, otherwise, the leave sought will be refused. In this regard, the Lower Court was right in refusing the applicants’ application before it, having failed to seek first, leave to appeal as interested party i.e. leave to be made a party.
In the present case, the applicants are hopelessly out of time in applying for leave to appeal, and what then ought to have been done by the present applicants was first to apply for:-
1. Leave to appeal under Section 243 of the 1999 Constitution of Nigeria (as amended) as persons having an interest in the case, and under the rules of this Court. In other word, the applicants must first ask for leave to be made a party in the case. Then,
2. Extension of time within which to apply for leave to appeal.
3. Leave to appeal; and
4. Extension of time within which to file notice and grounds of appeal.
I wish to point out here that the last three prayers (i.e. 2, 3, and 4 prayers) are wholly dependent on the first prayer. That the other prayers cannot succeed unless the applicants are first made party in the case, pursuant to the relevant section of the Constitution. So it is not just the ‘trinity’ prayers that the applicants should seek. Their first prayer should be for ‘leave to be made a party in the case or for leave to appeal under Section 243(a) of the said Constitution as persons having an interest in the case. Then the other ‘trinity’ prayers in the above quotation will follow if the application is made outside the time prescribed for appearing under Section 24(2) of the Court of Appeal Act 2011. But the applicants did not ask first for that prayer. Failure to seek and obtain firstly, such prayer, the other prayers cannot succeed.
In view of the foregoing, I hold that this application lacks merit and is hereby dismissed. I order no costs.
CHIDI NWAOMA UWA, J.C.A.: I had the advantage of reading in advance the draft copy of the Ruling of my learned brother, Mohammed Ladan Tsamiya, JCA. I agree with the decision in holding that the application lacks merit and the order dismissing same.
I would only add that S. 243 (a) of the 1999 Constitution of the Federal Republic of Nigeria only grants to an interested party a right to appeal against a decision of a court which he was not a party. This right can only be enjoyed only on application, if granted, the beneficiary could then be made a party in this case, a party in the appeal before this court. In the present case, no such leave was granted to the applicant to be made a party before seeking the orders in the present application, including leave to appeal as an interested party amongst others.
For the fuller reasons given in the leading Ruling, I also dismiss the application for lacking in merit and abide by the order awarding, no costs.
MUSA HASSAN ALIKALI, J.C.A.: I had the privilege of reading the advance ruling of my learned brother, Mohammed Ladan Tsamiya, (JCA) (PJ) with which I entirely agree. For the reasons so eloquently and compressively set out by my learned brother Justice Mohammed Ladan Tsamiya JCA, I too hold that this application lacks merit and is hereby dismissed accordingly.
No order as to costs.
Appearances
Hammed T. A. Esq. with him F. F. Salman (Mrs.) and I. S. DurosinlohunFor Appellant
AND
Dr. D. A. Ariyoosu, Esq. with him A. O. Saka and A. O. Zakariya for the 1st Respondent
Kamaldeen Quadri Esq. for the 2nd Respondent.For Respondent
