MR. JOHN EMEKA OHAERI & ORS v. PRINCE ALEX T. ADELE & ORS
(2011)LCN/4684(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of July, 2011
CA/PH/284/2007
RATIO
EXTENSION OF TIME: DUTY OF A LITIGANT SEEKING TO APPEAL AGAINST A FINAL DECISION OF THE TRIAL COURT AFTER 3 MONTHS WITHIN WHICH IT WAS DELIVERED
It is trite law that, a litigant that wants to appeal against a final decision of the trial court, must come with an application on notice showing good and substantial reasons why the notice of appeal was not filed within 3 months when the decision was delivered. PER ISTIFANUS THOMAS, J.C.A.
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
MR. JOHN EMEKA OHAERI & ORS Appellant(s)
AND
PRINCE ALEX T. ADELE & ORS Respondent(s)
ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Ruling): The applicants filed on 11-07-2001 a motion on notice praying this court for leave to appeal as persons having interest in the judgment made by Denton West as he then was. The judgment was delivered on 24-03-1997. The other reliefs sought by the applicants is for a stay of execution of the judgment delivered in 1997, thus over a period of 10 years. The last relief is to deem that all processes filed in this court and in the court below were properly filed and served for themselves as representatives of Ohaeri family.
The application is supported by a forty one (41) affidavit evidence and also a further affidavit containing 21 paragraphs which was filed on 18th January, 2008.
At this stage, it is to be noted as averred by the 1st applicant is that, the present applicants were not parties in suit No. PHC/75/1994 at the lower court presided by the trial judge, Denton-West. When this application was served on the respondent, the 1st respondent named Prince Alext T. Adele, made a counter affidavit filed on 15-01-08. The counter-affidavit contains 28 paragraphs. The second set of respondents filed on 6-05-08, a seventeen counter affidavit against the motion. By perusing the applicant’s, affidavit deposed to by the 1st applicant and the counter affidavits, this court made an order that parties should write file and serve written addresses which have been complied with, The written addresses were adopted on 18-05-2011.
In my considered opinion, the applicants affidavit and further affidavit deposed to by the 1st applicant, are somewhat confused and have distorted the main aim of their application to appeal as interested persons. The voluminous 41 affidavit along with the further 21 affidavit look as pleadings or briefs of argument. The applicants written address filed on 04-02-08 is nothing more than a mere repetition of the affidavit and further affidavit in support of the motion. Learned counsel for the applicants, Mr. G. N. Eshue has argued that he was made the power of Attorney and also the caretaker of the premises in dispute. In paragraphs 2.6 and 2.7 of the written address of the applicants it is averred that the applicants never knew of any suit concerning the premises at No. 6 Nimo Street, Rumuomasi, Port Harcourt, and that 1st defendant/respondent never informed applicants of any suit or transaction between him and any other party in the said premises. But the same caretaker Mr. G. N. Eshue has stated in his paragraphs 2.6 [a],[b] and [c] of the written address as follows:-
”[a] That suit No. PHC/75/94 was pending between the parties in appeal filed on 2-2-94 in respect of the premises…illegally and without the knowledge or consent of the applicants.
[b] That judgment order was delivered in the court below by S. Denton-west (J) in favour of the plaintiff/respondent since 24-03-97 being Exhibit E in this application.
[c] That before Exhibit E was obtained, the 1st defendant/respondent had entered into, terms of settlement” with other parties in this appeal without the knowledge and consent of applicants as shown in Exhibit F.
In opposition to the application, the 2nd and 3rd respondents filed a counter affidavit, deposed to, by Fii Lebaton an executive Clerk in the Chambers of the Attorney General of Rivers State. In the counter, applicants affidavits in paragraphs 1-14, 18, 20, 21, 24 [a][f], to k, n, s, and 25-40 are vehemently denied. The 2nd and 3rd respondent, have stated in their counter that, No. 6 Nimo street was deemed as an abandoned property and was acquired and sold by the second defendant/respondent to the 1st respondent, and that at the time it was declared as abandoned property, the applicants did not protest to the acts of the 2nd respondents for the sale of the property to 1st respondent. In paragraphs 10 of the 2nd and 3rd respondents counter, it is further stated that the applicants paragraphs 24 [f],[g],[h],[i],[j] and [k], are not true as the applicants knew about suit No. PHC/75/4, but ignored or neglected or refused to apply to be joined as interested parties before Exhibit E. In paragraph 15 of the counter, it is stated that the applicants, did not exhibit any document to show that their father owned the subject matter or letters of administration to show how they inherited same or are administrator of their father’s estate. 2nd and 3rd respondents have urged the court not to grant the application.
Learned counsel to the 1st set of respondent is in line with the argument of the 2nd and 3rd respondents. Learned counsel in the written address, has referred to Exhibit B in the counter affidavit where it is stated that, in 1986, the 2nd respondent had published on page 11 of the Nigeria Tide Newspaper of August 1986, that the said premises was an abandoned property, and that the 1st respondent protested against the publication in the aforesaid Tide Newspaper.
The two sets of respondents in their written addresses, have stated that the applicants had earlier filed six (6) similar motions before this appellate court, asking similar prayers, but were either withdrawn or struck out for want of deligent prosecution and that the applicant’s have brought the 7th motion which is an abuse of court processes. Counsel urged the court to refuse the application being an abuse of court process and waste of time of this court.
I have carefully considered the parties arguments in their written addresses in support and in opposition to the applicants motion. To appreciate the written addresses, I had to scrutinize the applicants affidavit and further affidavit in support and the respondent’s counter affidavit.
It is trite law that, a litigant that wants to appeal against a final decision of the trial court, must come with an application on notice showing good and substantial reasons why the notice of appeal was not filed within 3 months when the decision was delivered.
In the instant application, the applicants are saying that they are asking leave to appeal as persons having interest in the judgment in suit No. PHC/75/94 delivered by Denton -West [J] as she then was. They are also asking for a stay of execution of the landed property on the land in dispute. In paragraph 4 of the affidavit, the 1st applicant is saying that their late father died on 19-04-94. But the applicant’s court processes have shown that their late father was still alive, when the matter in dispute was litigated upon at magistrate court and latter at the High Court. In Exhibit “C”, presented by the applicant is an agreement dated 30-11-1981 between Chief Ahamefula Raphael Ohaeri and his son Godswill Onwuegbucha Ohaeri. Exhibit D is also the power of Attorney which is irrevocable” made between prince Godswill R. Ohaeri, Mr. Josiah R. Ohaeri, Mr. J.E.R. Ohaeri and Mr. Godwin Nche Eshue Esq. In this document, the same 2nd applicant Miss Justina Ohaeri was a witness. Apart from these two documents, there is no other document to show that they had filed at the Land Registry, necessary documents to back their ownership. The applicants are merely saying that they were not served with the notice in suit in No PHC/75/94. It is the problem of the power of Attorney of the applicant that should have appeared for the family of Ohaeri since he was given the power to do so.
As earlier stated, the applicants have not shown sufficient reasons as to why they were not joined as a party in the lower court. In paragraph 20 [a] of the affidavit in support, it is averred that the Attorney of the applicants became aware of the suit in No. PHC/75/94 between the 1st respondent and 2nd and 3rd respondents. It is not sufficient as the applicants claim that they were not aware of the suit. They have to show the reason of their absence. The claim that Mr. G. N. Eshue was attacked, along with his children have no bearing on the application. As ably argued by all the respondents, the applicant’s affidavit in support has no bearing on the application. I entirely agree that paragraph 5,27[c],[d],[e] and [f], 23, 24[b],[c],[d] are irrelevant, and are discountenanced by me. It is not in doubt that learned counsel for the applicants, i.e. Mr. G. N. Eshue Esq, knew of the existence of suit No.PHC/75/74 but he neglected or refused to act timeously by asking the lower court to join the applicants as parties to the suit. It is only on record that Mr. G. N. Eshue, appeared on 17-01-2000 before the court asking leave to with draw the motion he had earlier filed on 16th July, 1999 which was struck out. It was the same counsel who informed the trial judge that, he was aware, the trial court was functus officio to hear the application as the suit had since been delivered and the trial court struck out the motion with costs.
In my considered opinion learned counsel, Mr. Eshue should have filed a notice of appeal on behalf of the applicants who have interest in the matter which he failed to do so.
Consequently, the applicants affidavit and further affidavit are not in compliance with Order 3 rule 2(3)and order 4 rule 1 and 2 of the Court of Appeal Rule 2002. The application for leave to appeal as interested party and for Order for stay of the execution of the judgment delivered on 24-03-1997 is hereby refused. There is no merit in the application.
Costs of N10,000.00 in favour of the 1st respondent Prince Alex T. Adele.
EJEMBI EKO, J.C.A.: I had the privilege of reading before now the ruling just delivered by my learned brother ISTIFANUS THOMAS JCA. I have nothing useful to add to the ruling, which I am in agreement with.
Consequently, I join my learned brother in dismissing the application and ordering the applicants to pay N10,000.00 as costs in favour of the 1st Respondent,
T. O. AWOTOYE, J.C.A.: I have had a preview of the judgment of my learned brother ISTIFANUS THOMAS, J.C.A.
I fully agree with the reasoning and conclusion therein. Clearly this application lacks merit and it is hereby refused.
I abide by the order on costs as made in the lead ruling.
Appearances
G. N. Eshue EsqFor Appellant
AND
Mrs. C. C. Anosike
2nd set of Respondents served.For Respondent
