MR. LINUS CHINEDU OGOKE & ANOR v. EZE ? ELECT CHUKWUMA GREG NDUKA & ORS (2018)

MR. LINUS CHINEDU OGOKE & ANOR v. EZE ? ELECT CHUKWUMA GREG NDUKA & ORS

(2018)LCN/11459(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of May, 2018

CA/OW/294/2016(R)

 

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

MR. LINUS CHINEDU OGOKE & ANR. Appellant(s)

AND

EZE – ELECT CHUKWUMA GREG NDUKA & ORS. Respondent(s)

RATIO

RIGHT OF APPEAL TO THE COURT OF APPEAL FROM DECISIONS OF THE FEDERAL HIGH COURT OR A HIGH COURT

S. 243(1)(a) of the 1999 Constitution provides as follows:
S. 243. ? (1) Any right of appeal to the Court of Appeal from the decisions of 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 a 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, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or person as may be prescribed. Appeals lie to this Court from decisions of the Federal or State High Courts. The right of appeal is exercisable by parties to those decisions. S.318(1) of the 1999 Constitution defines the word ?decision? to mean, in relation to a Court, any determination of the Court and includes judgment, decree, order, conviction, sentence or recommendation. The appellants were the applicants in the motion for joinder wherein the trial Court refused their prayers. The said ruling created a right to appeal. In Otti vs Ogah(2017) 7 NWLR (pt. 1563)1 the Supreme Court held that the refusal of an application to appeal as an interested party was a final decision which creates a right of appeal. PER AGBO, J.C.A.

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Lead Ruling): By motion filed on 11-10-17, the appellants are seeking extension of time to file the appellant?s brief and a deeming order. The application was supported by an affidavit deposed to by Mike Onyekachi of counsel which bears reproduction: –
?1. That I am a Legal Practitioner in the Law firm of Livy Uzoukwu SAN & Co. of counsel to the Applicant?s.
2. That by virtue of my position, I am conversant with the facts deposed hereto which are based on my personal knowledge of same.
3. That I have the consent, mandate and authority of the Applicants to depose to this affidavit on their behalf and on behalf of my employers.
4. That the Applicants compiled Record of Appeal and transmitted same within time.
5. That the writing of the Brief was assigned to Abiodum Kolawole Esq., of counsel in our firm.
6. That in the course of writing the Brief, he took ill and could not complete the Brief within 14 days.
?7. That the period of 14 days stipulated under the Rules to file and Brief has expired hence the Appellants need leave of Court for extension of time.

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?8. That in the interim, the Respondents filed a process in the Court below which referred to a process which was also filed in the Court below.
9. That the said process according to the 1st Respondent is dated 15/2/2016 and filed on 29/2/16.
10. That the Appellant?s applied for the said process to use it in the compilation of an Additional Record.
11. That till date the Registry of the lower Court has provided certified true copies of two processes to the Appellants but the one referred to by the 1st Respondent could not be found. Hence we had to move on and we have filed our Brief out of time.
12. That the Respondents will not be prejudiced if this application is granted.
13. That it is in the interest of justice to grant this application.
14. That I make this deposition in good faith believing same to be true and correct in accordance with the oaths Act.?

The Respondents did not counter this affidavit. However, at the hearing of the motion, Mr. O. A. Obianwu of counsel for the 1st Respondent opposed the motion on the ground that

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there is no appeal before the Court as the appellants were not parties in the suit at the trial Court and the appellants were challenging the ruling of the trial Court refusing to join them as parties to the suit. He relied on S. 243(1)(a) of the 1999 Constitution.

I find the objection and the reason behind it as preposterous. The applicants had by a motion on notice sought to be joined as defendants in suit no. HME/68/2013 pending at the High Court of Imo State sitting at its Etiti Division. By a ruling delivered on 31-10-16 the Court refused the said application for joinder. Dissatisfied with the said ruling, the appellants filed this appeal. They are now out of time hence this application.
S. 243(1)(a) of the 1999 Constitution provides as follows:
S. 243. ? (1) Any right of appeal to the Court of Appeal from the decisions of 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 a 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

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interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or person as may be prescribed.?

Appeals lie to this Court from decisions of the Federal or State High Courts. The right of appeal is exercisable by parties to those decisions. S.318(1) of the 1999 Constitution defines the word ?decision? to mean, in relation to a Court, any determination of the Court and includes judgment, decree, order, conviction, sentence or recommendation. The appellants were the applicants in the motion for joinder wherein the trial Court refused their prayers. The said ruling created a right to appeal. In Otti vs Ogah(2017) 7 NWLR (pt. 1563)1 the Supreme Court held that the refusal of an application to appeal as an interested party was a final decision which creates a right of appeal.

This appeal is properly pending before this Court and the appellants have properly made out a case for the

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grant of the application sought. Time is extended until today for the appellants to file their brief of argument. The appellant?s brief filed on 11-10-17 is deemed properly filed and served. Appeal set down for hearing 29-10-18.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have been privileged to have had a preview of the ruling just delivered by my learned brother, Hon. Justice Raphael Chikwe Agbo, JCA. I am in complete agreement with the reasoning and conclusions reached therein, I also subscribe to the orders made therein, inclusive of the order made with regard to costs.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree

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Appearances:

Dr. Livy Uzoukwu, with him, C. K. UbaFor Appellant(s)

P. O. Ori, with him, K. C. Eke, C. A. Obianwu and J. E. Oguike for the 1st Respondent.
2nd to 4th Respondents served hearing notice on 9-2-18.For Respondent(s)

 

Appearances

Dr. Livy Uzoukwu, with him, C. K. UbaFor Appellant

 

AND

P. O. Ori, with him, K. C. Eke, C. A. Obianwu and J. E. Oguike for the 1st Respondent.
2nd to 4th Respondents served hearing notice on 9-2-18.For Respondent