MR. VICTOR NENGAK DIMKA v. STEPHEN GOTOM KUPT ONG & ORS
(2019)LCN/13856(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2019
CA/A/781/M/2017(R)
RATIO
whether the materials placed before this Court can make this Court to exercise its discretion to grant this application.
The counsel’s address no matter how eloquent does not represent the facts or the evidence in support of the application. See the cases of Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Niger Construction Ltd v. Okugbeni (1987) LPELR – 1993 (SC);Lateef Adegbite & Anor v. Aminu Amosu LPELR ? 40655 (SC). PER STEPHEN JONAH ADAH, J.C.A
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
MR. VICTOR NENGAK DIMKA
(Suing as next friend of Solmwa Abigail Dimka) Appellant(s)
AND
1. STEPHEN GOTOM KUPT ONG
(Executive Trustee of the Estate of Filibus Suwa Dim Deceased)
2. MRS. EVELYN DIM
(Guardian ad-litem of Gerald Koji Dim)
3. THE PROBATE REGISTRAR, FCT HIGH COURT, ABUJA Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Lead Ruling): The applicant Mr. Victor Nengak Dimka suing as Next of Friend of Sokmwa Abigail Dimk has brought this application praying for the following reliefs: –
1. An Order of this Honourable Court extending time within which the appellant/applicant may seek leave to appeal to the Court of Appeal of Nigeria as an interested party against the judgment of the High Court of the FCT delivered in Suit No: FCT/HC/CV/571/2014 (kuptonq V. Dimka) on the 21st of June, 2017.
2. An Order of this Honourable Court granting the appellant/applicant leave to appeal as an interested party against the judgment of the High Court of the FCT delivered in Suit No: FCT/HC/CV/571/2014 (kuptonq V. Dimka) on the 21st of June, 2017.
3. An Order of this Honourable Court extending time within which the appellant/applicant will file Notice of Appeal against the judgment of the High Court of the FCT delivered in Suit No: FCT/HC/CV/571/2014 (kuptonq V. Dimka) on the 21st of June, 2017.
4. An Order of this Honourable Court staying Execution of the judgment of the FCT High Court delivered in Suit No: FCT/HC/CV/571/2014 (kuptonq V. Dimka) on the 21st of June, 2017, pending the hearing and determination of the appeal lodged by the appellant/applicant.
5. And for such further orders as this Honourable Court may deem fit to make in the circumstance.
The grounds upon which the application was laid as listed on the fact of the motion papers are as follows:
1. That by virtue of Section 243 of the 1999 Constitution (as amended) the applicant requires the leave of this Honourable Court to appeal against the judgment of the trial Court as an interested party.
2. That Grounds 1 and 2 of the appellant/applicant’s Proposed Notice of Appeal appear to be grounds of law or mixed law and facts or grounds of fact which require leave of this Honourable Court.
3. That the appellant/applicant has demonstrated in the supporting affidavit cogent reasons why this Honourable Court should grant him leave to appeal against the judgment of the High Court afore described.
4. That the appellant/applicant has disclosed in the Proposed Notice of Appeal good and substantial grounds of appeal as additional reason as to why the application should be granted.
5. That the appellant/applicant was not heard by or in the High Court of the FCT in the course of hearing the substantive suit and truly desires that the appeal be heard and determined on its merit with his input.
6. The execution of the judgment will render nugatory whatever decision is reached by the Court of Appeal.
7. That the supporting affidavit shows special and exceptional circumstances necessitating the grant of the reliefs sought.
The motion was supported by an affidavit of 18 paragraphs deposed to by the applicant on record. There are two documentary exhibits annexed to the affidavit.
The 1st Respondent filed a counter affidavit of 5 paragraphs deposed to by one M.K. Fidelis, a legal practitioner in the firm of Solicitors for the 1st Respondent. There are two documentary exhibits annexed to the counter affidavit.
The 2nd Respondent filed in response a 3 paragraph counter affidavit. Written addresses were ordered by this Court. The applicant filed his written address on 22/10/2018 but it was deemed on 13/11/2018 as properly filed and served.
The written address of the 1st respondent was filed on 26/10/2018 but also deemed 13/11/2018 while that of the 2nd respondent was filed on 29/10/2018 but deemed on the 13/11/2018 as duly filed and served.
On the hearing of the application, the applicant withdrew relief four and it was struck out by this Court.
The parties adopted their written addresses as their arguments in this application.
The applicant formulated a sole issue for determination.
This is:
“Whether having regard to the materials placed before this Honourable Court the Appellant/Applicant is entitled to the exercise by this Honourable Court of its discretion to grant leave to appeal as an interested party against the judgment of Honourable Justice A.M. Talba (as he then was) delivered on the 21st of June, 2017.”
The 1st Respondent in his own address identified two issues namely:
1. Whether the application is not an abuse of Court process.
2. Whether the applicant has made out any case to entitle him to be granted any of the reliefs sought.
The 2nd respondent however distilled four issues for determination. These four issues were couched as follows:
1. Whether the grounds of appeal raised by the applicant are grounds of law, grounds of fact and/or grounds of mixed law and fact.
2. If issues one above is in affirmative, whether the applicant ought not to seek leave of the Court before filing his notice of appeal.
3. Whether the Court ought not to strike out the application of the applicant for failure on the part to abide by the proper procedure required for initiating such proceeding.
4. Whether the application of the applicant to be joined as an interested party is not dubious and ought not be granted by the Honourable Court.
This application is a very simple one. The focus is as to whether the applicant has placed before this Court sufficient or satisfactory materials to justify his failure to appeal within the specified time and to show also that he has grounds of appeal which prima facie show good cause why the appeal should be heard. The rules of this Court in Order 6 Rule 9(2) specifically provide:
“(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.”
The Court is enjoined in an application of this nature to scrutinize the evidence filed by the applicant to see if the application is such as this Court could grant. I shall therefore use the sole issue submitted by the applicant for the consideration of this application.
This issue is whether the materials placed before this Court can make this Court to exercise its discretion to grant this application.
The applicant in the affidavit in support of the application deposed at paragraphs 4, 5, 6, 7, 8, 9 as follows:
4. That I am the liaison between my family and the Executor with respect to requesting that he applies for probate and administer my late brother’s estate without delay to ensure Sokmwa is adequately taken care of.
5. That the Testator, my younger brother acknowledged Sokmwa as his child and took responsibility of her during his lifetime.
6. That while my family expected the Executor to apply for probate, to give effect to the Testator’s Will, the Executor 1st Respondent proceeded to file Suit No. FCT/HC/CV/571/2014 before the High Court of the FCT.
7. That the sole purpose of the suit was to determine the rights of my ward as a beneficiary of the Will, particularly whether she was covered by the clause “any other children born to me” and therefore entitled to inherit under his Will.
8. That she was neither made a party to the suit nor given any form of representation throughout the conduct of proceedings and even until judgment.
9. That on Wednesday 21st June 2017, the High Court of the Federal Capital Territory Abuja per Hon. Justice A.M. Talba J., delivered judgment in suit No: FCT/HC/CV/571/2014 which directly affected my ward Sokmwa Abigail Dimka by excluding her from her late father’s Will. A certified true copy of the Judgment is attached herewith as “Exhibit A?.
From Exhibit A which is the Judgment of the trial Court, it is very clear that the object and the subject of the suit was the applicant. None of the respondents controverted in any from the allegation that although the matter was all about the applicant the applicant was not joined or made a party to the suit. All that this Court requires to take a decision on whether to exercise its discretion in favour of the applicant is the evidence placed before it. The counsel’s address no matter how eloquent does not represent the facts or the evidence in support of the application. See the cases of Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Niger Construction Ltd v. Okugbeni (1987) LPELR – 1993 (SC);Lateef Adegbite & Anor v. Aminu Amosu LPELR ? 40655 (SC).
I have gone through the submissions of all the counsel for the parties to this application and having also gone through the evidence placed before us, I am of the firm view that there is merit in this application.
The application is therefore granted and I order as prayed.
The applicant in consequence shall file his appeal within 14 days from today.
ADAMU JAURO, J.C.A.: I have read before now the ruling just delivered by my learned brother, Stephen Jonah Adah, JCA, and I am in full agreement with the conclusion therein to the effect that the application is meritorious.
I adopt the ruling as mine, in granting the application in terms of prayers 1, 2 and 3. I abide by all consequential orders made.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the ruling just delivered by my Learned brother, Lord Justice Stephen Jonah Adah, JCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
P. B. Daudu, Esq. with him, I.G. Oknji, Esq., K. Ojelade, Esq. and
L.S. Mamman, Esq.For Appellant(s)
Felix Tyokase, Esq. for the 1st Respondent.
Tolu Babaleye, Esq. with him, Oby Alex-Ukweze, Esq. for the 2nd Respondent.
3rd Respondent-served but not in CourtFor Respondent(s)
