MR. SAMUEL OLABANJO ADEDEJI & ANOR v. CHIEF ADEFIOYE ADEDEJI
(2018)LCN/11055(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of March, 2018
CA/AK/185AM/2015(R)
JUSTICES:
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
1. MR. SAMUEL OLABANJO ADEDEJI
2. MR. JOSHUA OYENIRAN ADEDEJI – Appellant(s)
AND
CHIEF ADEFIOYE ADEDEJI (RISAWE OF ILESHA) – Respondent(s)
RATIO
WHETHER OR NOT A PARTY’S RESOLVE TO CHALLENGE THE LEGALITY OF THE DECISION OF A COURT GIVEN WITHOUT JURISDICTION CAN BE TOO LATE
The Appellant herein seeks by his application to have access to this Court to challenge the legality of the decision of the Court given against him i.e the attachment wrongly made. It can neither be too late nor can he be denied that right or leave to appeal. In Buremoh v. Akande (Supra) M.D. Muhammed, JSC in his lead judgment of the apex Court said in part at page 98, paragraph F thus:
A partys resolve to challenge the legality of the decision of a Court given without jurisdiction cannot be too late. It is either the Court has jurisdiction or it does not.
In the case at hand, therefore, learned respondent counsels contention that the motion be refused because of the applicants failure to explain the inordinate delay for the application is accordingly legally incorrect.
Lastly, I am satisfied that the materials the respective parties require to argue and contest the issue the applicant seeks to raise in the appeal are readily available.
It is for all these reasons that I find merit in the application and grant same in terms………
In Otti v. Ogah (2017) 7 NWLR (pt. 1563) 1 at Page 36, Aka’ahs, JSC has this to say-
The applicants have disclosed their interest in the appeal and justice demands that they should be given the opportunity to ventilate their grievances against the judgment where orders were made directly affecting their interest without their being afforded a hearing…
In his leading Ruling, Ogunbiyi, JSC put the point poignantly thus:
In other words when the law expects the applicants to lay before a Court all materials necessary for the exercise of discretion in his favour, the respondent is not to be subjective in his opposition but rather allow the principle of law and objectivity to apply. PER DANJUMA, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
The issue in this application which is centred on the principle of fair hearing cannot be waved off as sought by the respondents.
It is of no moment that the matter had been decided and Applicants were not parties or that the judgment had been enforced or executed. As the apex Court per Ogunbiyi, JSC again stated in Otti v. Ogah (supra) at Page 33
Also in the recent case of Abubakar Audu v. FRN (2014) 53 NSCQR 456 @ 469, (2013) 5 NWLR (Pt. 1348) 397 at 410, Paragraphs G – H
This Court reiterated thus amongst others:
— the obligation to hear the other side of a dispute or the right of substantial matter in the intended appeal (which is deprecated) but has been able to address the entitlement of the Appellants as being persons that are prejudicially affected and interested in the suit (motion) which was still pending and therefore this application was not academic party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22…”PER DANJUMA, J.C.A.
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Lead Ruling): By this application, the Applicants herein for themselves and other children of Late Owoeye Adedeji have by a Motion on Notice brought pursuant to Order 7 Rule 10 of the Court of Appeal Rules, 2007 (Note that it ought to be under the 2016 Rules, being the extant Rule of Court, however the citing or reference to a wrong Rule of Court or non reference does not by that fact vitiate an application so long as the justice of the matter is satisfied. See Egbue v. COP 1975 (ECSLR).
The Applicants seek the following orders:
1. An order of this Hon. Court granting leave to the Applicants to appeal as interested parties against the ruling of High Court of Justice, Ilesha delivered by Hon. Justice A. O. Ogunlade on 4th March, 2011.
2. An order of this Honourable Court extending the time within which the applicants shall seek leave of this Honourable Court to appeal against the ruling of High Court Justice of Ilesha delivered by Hon. Justice A. O. Ogunlade on 4th March, 2011.
3. An order of this Honourable Court granting leave to
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Applicants to appeal against the ruling of High Court of Justice, Ilesha delivered by Hon. Justice A. O. Ogunlade on 4th March, 2011.
4. An order of this Honourable Court enlarging the time within which to appeal against the ruling of High Court of Justice, Ilesha delivered by Hon. Justice A. O. Ogunlade on 4th March, 2011.
The said application filed on 22- 2- 2017 is supported by a prolific affidavit of 69 paragraphs, deposed to by Oluwatoyin Okeni, a legal practitioner in the law firm representing the Appellants.
Attached to the motion is the judgment sought to be appealed against and sundry other exhibits.
The said motion is supported by an affidavit; whilst a counter affidavit in opposition has also been filed. Further affidavits were also filed. The gist of the matter leading to the instant application is that the present Respondent as a plaintiff at the customary Court Osu, Osun State had sued the Defendant thereat one Apostle Olatunji Adedeji and judgment was delivered against the said Defendant, in the said suit No. C59/99.
The Respondent took up the matter again after 9 years at the said Customary Court, Osu.
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That the defendant now late Apostle Olatunji Adedeji then filed at the High Court, Ilesha, an application for an order of prohibition against the president and members of the Customary Court.
It is the Appellants position that the Respondent was only an interested party at the application filed at the High Court Ilesha. Following the death of the said Applicant, the Respondent herein applied and was granted an order for the substitution of the present Appellant/Applicant in a representative capacity as against the personal capacity in which the deceased Applicant was sued and in which capacity judgment was given against him.
The Applicants herein feels aggrieved; hence this application. The parties filed their respective Brief of Argument thus:
The Appellants/Applicants Brief of Argument was filed on 8 – 12 -2017 while the Respondents Brief of Argument was filed on 31 – 1 – 2018 and the Appellant Reply Brief was filed on 11- 5 – 2017.
At the hearing of the application on the 13th day of February 2018, their respective counsel adopted their Briefs as filed and exchanged.
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The Applicant has formulated 6 (six) issues for the determination of this application as follows:
i. Whether the Appellants/Applicants can appeal as interested parties in this matter.
ii. What the Appellants/Applicants, as interested parties, must do and prove in order to be entitled to appeal against the ruling of High Court.
iii. Whether this application is competent having been filed after 14 days.
iv. Whether the Appellants/Applicants right to appeal is estopped by previous applications to the Court of appeal.
v. Whether this appeal is a mere academic exercise.
vi. Effect of the issue of lack of jurisdiction raised on the grounds of appeal by the Appellants/Applicants.
vii. Whether the High Court of Ilesha can alter the capacity of the parties in a subsequent proceeding after the trial Court concluded the suit and judgment has been delivered in the same matter.
viii. Whether execution of judgement can bar the Appellants/Applicants from appealing against the ruling of the High Court of Ilesha, Osun State.
The Respondent, formulated a sole issue to wit; whether the Appellants/Applicants have the locus standi to bring this application.
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A perusal of the motion on notice shows that the only relevant issue that is determinant of the motion at hand is issue No. 1 (one) of the Appellant whether, the Applicant can appeal as interested parties. All the other issues ie issues 2 -6 are composite of the main/real issue and in some instance, are issues to be determined at the substantive appeal in the event of the application sailing.
I have also looked at the Respondents lone issue and do not find it as an issue properly called as, it smarks of a nature of an objection to the competence of the application on the grounds of the locus standi of the Applicants but has not been so raised and with regularity, meaning that there is no counter issue to that raised from the substance of the Application. Arguing the relevant Issue Number One, the learned counsel contended that by virtue of Section 243 (a) of the 1999 Constitution, the right of appeal from the High Court to the Court of Appeal is exercisable in Civil Proceedings at the instance of a party to a suit or with the leave of the Court of appeal at the instance of any other person having an interest in the matter.
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That such a person must not only show that he has an interest but that the order made prejudicially affects his interest. Owena Bank Plc. v. N.S.E. Ltd (1997) 8 NWLR (pt. 151) pages 11 – 12 paragraph G-H, pages 18 – 19, Paragraphs H-B referred and C. P. C. & Anor v. Nyako & Ors (2011) 6 , 7 SC (pt. 11) 193.
In Ndulue v. Onyekwulunne (2002) 5 SC (Pt. 11) 125 parties have been defined to include not just those named in the record of proceedings, but also those who have direct interest in the subject matter of the dispute. E. F. P. Ltd. v. NDIC (2007) 9 NWLR 253 paragraphs G-H confirms that it is a constitutional right.
The learned counsel argues that from the averments in paragraphs 6,7, 8, 12, 23, 38, 39 of the Appellants/Applicants affidavit which were undenied/uncontroverted but admitted by respondent, Ruling of the High Court of Ilesha, Osun State on the application for substitution in representative capacity the levy of the execution of the judgment of the customary Court on the Appellants/Applicants who were neither parties to the suit nor in the judgment at the customary Court proves that
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they have been prejudicially affected by the order of the Court. That their right to appeal as interested party is constitutional and cannot be denied in this circumstance.
The Appellants issue 2 is an integral part of his issue No. 1 (one) argued above, i.e as to what an interested party needs prove to be allowed the right of appeal. All other issues are either inhibiting factors to such grant of the exercise of the right or an attempt to argue the merit of the grounds of appeal; this later scenario is a prejudicial and pre-emptive endeavour that is not allowed at the consideration of an interlocutory application pending the substantive matter.
In this vein and for the aforesaid reasons, therefore, I shall proceed to consider the Respondents reaction in his Brief of Argument.
Suffice it to state quickly, however that rather than reply to the claim for a right to appeal as an interested party the Respondent has only challenged the locus standi of the Applicants to bring the instant application and on the ground that Appellants were not parties at the trial or ruling culminating into the order of leave to substitute in a representative capacity.
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Their learned counsel by his Brief of Argument of 31 – 1 -2018 which was adopted on 13- 2- 2018 also contended that the Applicant had been guilty of undue delay in bringing the application.
RESOLUTION
There is no doubt that the Respondent has not positively and categorically controverted the reason for the leave to appeal sought.
On the contrary, he challenges the locus standi of the Appellants. It is the lack of locus standi; on the record of appeal that ignites and generates the conferment of a locus standi by the constitutional enablement vide Section 243 (a) of the 1999 Constitution for such an Applicant as the instant ones herein.
Accordingly, the issue or question of locus standi; cannot be raised as a valid ground of opposition to an application for leave to appeal as an interested party. It is the absence of locus standi and the desire/need to obviate same that is the reason or raison deter for Section 243 (a) of the 1999 Constitution; provided to enable such persons who are not parties; who have no locus standi to seek the Order of a
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Court of Law upon their showing facts/circumstances of their interest and prejudicial effect of the judgment/rulings complained about on them, to be allowed to be parties and to appeal.
In that scenario, therefore, the fact of delay in appealing will not arise; as it is the delay in bringing their application for leave to appeal that will be the relevant consideration. From the showing in the affidavit evidence and address of respondents counsel, it is obvious that there was no unjustifiable and undue delay in bringing the instant application, in the face of the motions, counter motions and orders of the various lower Courts.
On the merit of this application, I am satisfied that the motion has merit and ought to be granted as the Applicants have shown that the orders in the Ruling to the benefit of the respondents in a representative capacity had enabled them to execute judgment against the Applicants who were not parties at the trial Court nor in the judgment that decreed execution against them.
In Buremoh v. Akande (2017) 7 NWLR (Pt. 1563), page 74 the apex Court in the face of a motion seeking extension of time to compile and transmit record of
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appeal, raise fresh issue for the first time before the Supreme Court on the application of the limitation law to the case of the respondent pursuant to the provisions of Kwara State Limitation Law, Cap K 30, Laws of Kwara State, 2006; leave to amend Notice of Apeal and Granting Leave to the Applicant/Appellant to appeal His Lordships Aka’ahs, JSC had this to say-
Since the applicant has been able to satisfy this Court with the reasons for the delay in bringing the motion upheld with the issue which he intends to raise in the appeal which could have an effect on the jurisdiction of the Court, which heard the matter at the trial Court, the discretion ought to be exercised in favour of the applicants.
Peter Odilli, JSC in his contribution has this to say-
Indeed, the fact that the judgment sought to be appealed against is 15 years old is a situation that will overwhelm any argument to the contrary, such as the appellant/applicant is pushing forward. However, in this situation where the applicant is crying on the basis that substantial justice is the determinant factor and the matter of jurisdiction is raised in
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circumstances that cannot be safely ignored, it behoves this Court to take a second look at what is really at stake and if the 15 years plus delay is overriding.
The learned counsel for the Applicant had contended that the trial Court made an order of execution of judgment against the Appellants/Applicants when they were not parties to the case or judgment. While a Court must avoid the temptation of determining the merit of a decision at the stage of interlocutory applications, it must appreciate that applicants motion is an aid, a hand maid to aid the Courts in the ultimate goal of doing substantial justice between the parties in the real issues in the litigation between the parties.
See Consortium MC v. NEPA (1992) 6 NWLR (Pt. 246) 132; Senator Amange Mimi Barigha v. PDP & 2 Ors (2012) 12 SC (Pt. V) 1; (2013) 6 NWLR (Pt. 1349) 108.
The Appellant herein seeks by his application to have access to this Court to challenge the legality of the decision of the Court given against him i.e the attachment wrongly made. It can neither be too late nor can he be denied that right or leave to appeal.
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In Buremoh v. Akande (Supra) M.D. Muhammed, JSC in his lead judgment of the apex Court said in part at page 98, paragraph F thus:
A partys resolve to challenge the legality of the decision of a Court given without jurisdiction cannot be too late. It is either the Court has jurisdiction or it does not.
In the case at hand, therefore, learned respondent counsels contention that the motion be refused because of the applicants failure to explain the inordinate delay for the application is accordingly legally incorrect.
Lastly, I am satisfied that the materials the respective parties require to argue and contest the issue the applicant seeks to raise in the appeal are readily available.
It is for all these reasons that I find merit in the application and grant same in terms………
In Otti v. Ogah (2017) 7 NWLR (pt. 1563) 1 at Page 36, Aka’ahs, JSC has this to say-
The applicants have disclosed their interest in the appeal and justice demands that they should be given the opportunity to ventilate their grievances against the judgment where orders were made directly affecting
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their interest without their being afforded a hearing…
In his leading Ruling, Ogunbiyi, JSC put the point poignantly thus:
In other words when the law expects the applicants to lay before a Court all materials necessary for the exercise of discretion in his favour, the respondent is not to be subjective in his opposition but rather allow the principle of law and objectivity to apply. This is more so especially when regard to the submission made on behalf of the Appellants/Applicants that they cannot appeal against the lower Courts decisions in appeals No. CA/A/390/2016 and CA/A/390A/2016 because they were not parties therein. The applicants applications borders squarely on their right to be heard on a case that affects their interest.
It is the same situation in this application. The right to be heard in the circumstance cannot be denied on the ground of technicalities. See Abubakar v. Yar Adua (2008) 4 NWLR (Pt. 1078) P. 465 where the Supreme Court reiterated the need to do substantial justice without due regard to technicalities.
The issue in this application which is centred on the principle
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of fair hearing cannot be waved off as sought by the respondents.
It is of no moment that the matter had been decided and Applicants were not parties or that the judgment had been enforced or executed. As the apex Court per Ogunbiyi, JSC again stated in Otti v. Ogah (supra) at Page 33
Also in the recent case of Abubakar Audu v. FRN (2014) 53 NSCQR 456 @ 469, (2013) 5 NWLR (Pt. 1348) 397 at 410, Paragraphs G – H
This Court reiterated thus amongst others:
— the obligation to hear the other side of a dispute or the right of substantial matter in the intended appeal (which is deprecated) but has been able to address the entitlement of the Appellants as being persons that are prejudicially affected and interested in the suit (motion) which was still pending and therefore this application was not academic party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22…”
The applicants reply brief though went into the merit of the
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appeal, this Court had some times in its Rulings in Appeal No. CA/AK/180/2016 and Appeal No. CA/AK/76/2014 (all of 2017 emphasised the need to grant such applications that seek the discretion of the Court to be let in to be heard in an appeal where the applicants interest is shown to be clearly or imminently affected.
For the aforesaid reasons and fortified with the exhibits attached, the supporting affidavit and re-enforced by the law applicable as laid down by the apex Court, I hold that this application has merit.
The substantive case shall not be delved into at this stage.
Accordingly, leave is granted in terms and as prayed, thus: An order of this Court is granted:
1. Extending time till today to seek leave to appeal the ruling of 4th March 2011 in suit No. HIL/M85/2009 delivered by Ogunlade, J High Court of Justice Osun State Ilesha.
2. Leave to appeal as interested party
3. Enlargement of time to appeal as sought in the motion dated 9th February 2017 and filed 22 – 2 – 2017 is granted as prayed.
The notice of appeal shall be filed within 15 days from today. Application is granted.
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Parties to bear their costs of prosecuting and defending the application.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the Ruling just delivered by my learned brother Mohammed Ambi-Usi Danjuma, JCA. The Appellants/Applicants have alluded to the facts that they were not parties in the trial Court but the Judgment and Orders of that Court affected them.
I am always of the firm belief that everyone whose rights have been affected behind his back ought to be given an opportunity to be heard. He cannot be shut out as this will infringe on his constitutional right of fair hearing which borders on jurisdiction. No matter the time lag, a litigant is deserving to be heard.
For this and the more comprehensive reasoning in the lead Ruling, I also hold that the application is meritorious. It is granted per the orders in the lead Ruling.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I read in draft the lead ruling just delivered by my learned brother, MOHAMMED A. DANJUMA, JCA and agreed with the reasoning and conclusion therein.
I also granted leave in terms of the motion papers.
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No Order as to costs.
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Appearances:
Oluwatoyin Okeni, Esq. For Appellant(s)
N. O. Folorunso, Esq. For Respondent(s)
Appearances
Oluwatoyin Okeni, Esq. For Appellant
AND
N. O. Folorunso, Esq. For Respondent
