OBI & ANOR v. OKIKE & ANOR (2020)

OBI & ANOR v. OKIKE & ANOR

(2020)LCN/15391(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Wednesday, September 30, 2020

CA/OW/249/2014(R)

RATIO

APPEAL: WHETHER A PARTY TO A PROCEEDING MAY SEEK THE LEAVE TO APPEAL AGAINST THE DECISION

The above implies that the Applicant was not a party to the proceedings at the lower Court when Appeal No. CA/OW/249/2014 was heard and determined by this Court on 17th December 2018. This would be the state of the circumstances which would have made the Applicant to bring this application seeking leave of this Court to appeal to the Supreme Court. Therefore it is trite that when a party seeks leave to appeal against a judgment, it implies that such a person was not a party to the proceedings and did not participate therein at the lower Court. See SUMMERSET CONTINENTAL HOTEL LTD & ORS VS. OGUNGBE & ORS. (2019) LPELR–47293 pages 12–28 paras A–D; ACN & ORS VS. LABOUR PARTY & ORS (2012) LPELR–8003 (CA); SOCIETE GENERALEBANK LTD VS. AFEKORO & ORS (1999) LPELR–3082 (SC). PER IBRAHIM ALI ANDENYANGTSO, J.C.A.

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

1. H.R.H. EZE ALOYSIUS OBI 2. SIR BENSON ALEME APPELANT(S)

And

1. NZE J. C. OKIKE 2. ATTORNEY-GENERAL, IMO STATE RESPONDENT(S)

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering The Leading Judgment): By a motion on Notice brought under Order 6 Rules (1), (2) and (9) of the Court of Appeal Rules, 2016, Section 233 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the inherent jurisdiction of this Honourable Court, and filed on the 2nd day of July 2020, the Applicant, Prince I.K. Udeozor, seeks the following Reliefs:-
“1. An order extending the time within which the Applicant may seek leave to appeal to the Supreme Court as party interested in the subject matter of the judgment of this Honourable Court delivered on the 17th day of December 2018, in Appeal No: CA/OW/249/2014: H.R.H. EZE ALOYSIUS OBI & ANOR Vs NZE J.C. OKIKE & ANOR.
2. An order granting leave to the Applicant to appeal to the Supreme Court against the judgment of this Honourable Court delivered on the 17th day of December 2018, in Appeal No: CA/OW/249/2014: H.R.H. EZE ALOYSIUS OBI & ANOR Vs. NZE J.C. OKIKE & ANOR, in terms of the grounds of appeal shown on EXHIBIT B.

3. An order extending the time within which the Applicant may appeal to the Supreme Court as party interested against the judgment of this Honourable Court delivered on the 17th day of December 2018, in Appeal No: CA/OW/249/2014: H.R.H. EZE ALOYSIUS OBI & ANOR Vs. NZE J.C. OKIKE & ANOR.
4. An order of the Honourable Court granting leave to the Applicant/Party interested to appeal to the Supreme Court against the judgment of this Honourable Court delivered on the 17th day of November (sic)2018, in Appeal No: CA/OW/249/2014: H. R. H. EZE ALOYSIUS OBI & ANOR. Vs NZE J. C. OKIKE & ANOR in terms of the grounds shown on EXHIBIT B, the Notice of Appeal.
5. An order of the Honourable Court deeming the Notice of Appeal EXHIBIT B filed along with this application, as properly filed and served, the prescribed fees having been paid.
6. And for such order or orders as this Honourable Court may deem fit and proper to make in the circumstances.”
The Application is anchored upon the following grounds:-
“a. The Applicant is directly aggrieved by the said judgment of the Honourable Court in the Appeal NO: CA/OW/249/2014: H.R.H. EZE ALOYSIUS OBI & ANOR vs. NZE J.C. OKIKE & ANOR, and has been thereby wrongfully deprived of his right as a successor to the hereditary throne of OgbuehiOdu of Mgbidi.
b. The Applicant is one of the persons represented by the Plaintiffs in SUIT NO: HOU/14/2004: Dr. P.A.C Agwaramgbo & Ors Vs. Attorney General of Imo State & Ors, which resulted in Appeal NO: CA/OW/249/2014: H.R.H. EZE ALOYSIUS OBI & ANOR Vs. NZE J.C. OKIKE & ANOR, although his name was not expressly stated on the face of the writ of summons and other processes in SUIT NO: HOU/14/2004.
c. The Applicant is a member of the hereditary Odu Royal Dynasty, ImeohaMgbidi, Mgbidi Ancient Autonomous Community, Oru West L.G.A of Imo State, and the first son the Traditional Ruler of Mgbidi, His Royal Highness, Eze G.N. Udeozor, who ruled Mgbidi from the year, 1958 to 2001, when he died.
d. Upon the death of his father, His Royal Highness, Eze G.N. Udeozor, the Applicant, as the heir apparent to the hereditary throne, was proclaimed the successor to the said hereditary throne of OgbuehiOdu of Mgbidi, by members and elders of the Odu Royal Dynasty, ImeohaMgbidi.
e. The leave of this Hoourable Court is mandatorily required, to enable the Applicant appeal as a person having interest in the subject matter of Appeal No: CA/OW/249/2014.
f. The Applicants (sic)sole representative at the Court of Appeal NzeJ . C. Okike has joined their opponents and is no longer interested in pursuing their interest.
g. The Applicant is the only person who can pursue the interest of the Odu Royal Dynasty Imeoha Mgbidi.”

The Application is supported by an 18 paragraph Affidavit and 8 paragraph Further Affidavit with two Exhibits annexed thereto i.e. Exhibit B which is the NOTICE AND GROUNDS OF APPEAL and Exhibit 1 which is the Certified True Copy of the judgment to be appealed against respectively. (See paragraphs 14 and 3 of the Main Affidavit and Further Affidavit respectively). It should be noted that the Applicant omitted to exhibit the judgment to be appealed against referred to paragraph 11 of the Main Affidavit hence the necessity for the Further Affidavit in order to exhibit the Judgment in Appeal No. CA/OW/249/2014.

There was a Preliminary Objection filed by the 1st and 2nd Respondents which at the hearing of this application was withdrawn by Mr. Chukwuemeka Okoro, learned Counsel for the 1st and 2nd Respondents, which said Preliminary Objection was struck out.

Now, the Motion was heard on the 20/7/2020 on which date C. I. AsikaIlobi Esq. holding brief for O. A. Obianwu SAN, appeared for the Applicant, argued the application by relying on all the averments in the two Affidavits and the Exhibits therewith attached, and urged us to grant the Application as same was not limited by time, relying on the following authorities:-
(1) Order 6 Rules (1), (2) and (9) of the Court of Appeal Rules 2016;
(2) Section 233 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended);
(3) RE: MADAKI (1991) 4 NWLR (PT. 143) 266;
(4) DIBIAGWU VS. UZONWANE (2017) LPELR–43074 (CA) Pages 17–19;
(5) ONUKAGHA & ORS VS. OKOROAFOR & ORS (2018) LPELR–44080 (CA) page 21; and
(6) BI–COURTNEY LTD VS. A.G.F. (2019) 10 NWLR (PT. 1679) 112.

Chukwuemeka Okoro Esq. for the 1st and 2nd Applicants/Respondents relying on an 18 paragraph Counter Affidavit, filed on 15/7/2020 in opposition to the Application urged us to dismiss the same as the issue therein was not a contest for a traditional stool; that by the provisions of Section 233 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) this Court ceases to have jurisdiction over this matter having become functus officio; that one of the reasons for allowing the Appeal No. CA/OW/249/2014 was the issue of capacity which this Court is now being called upon to treat, thereby sitting on appeal over its own decision.

Messers S. N. Odinikpo and C. N. Akowundu, learned Counsel for the 1st and 2nd Respondents respectively informed the Court that they had no objection to the grant of the Application.

It is to be noted that parties did not file any written addresses and so no issues were formulated for determination in this application. I shall therefore determine this application based on the provisions of the relevant statutes, affidavit evidence and the law.
Order 6 Rules (1), (2) and (9) of the Rules of this Court 2016, provides thus:
“1. Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and ground for the relief sought.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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3. Any application to the Court for leave to appeal (other than an application made after the expiration of the time for appealing) shall be by notice of motion, which shall be served on the party or parties, affected.
9. – (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(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.”
Section 233 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides as follows:-
“233 – (1) —————
(2) —————
(3) —————
(4) —————
(5) Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Court of Appeal or the Supreme Court 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.”
The above provisions are the roadmaps for filing appeals from the Court of Appeal to the Supreme Court which provisions are to be obeyed and complied with otherwise the application for leave to appeal to the Supreme Court shall be incompetent and not grantable. See BI–COURTNEY LTD VS. A.G.F. (2019) 10 NWLR (PT. 1679) 112 at 129.

The Applicant seeks the leave of this Court as an interested party to appeal to the Supreme Court in the Appeal No. CA/OW/249/2014: H.R.H. EZE ALOYSIUS OBI & ANOR VS. NZE J. C. OKIKE & ANOR

in which judgment was delivered on 17th December 2018.

Now, ground (b) of the grounds upon which the application is anchored states:
“b. The Applicant is one of the persons represented by the Plaintiffs in SUIT NO: HOU/14/2004: DR. P.A.C. AGWARAMGBO & ORS VS. ATTORNEY–GENERAL OF IMO STATE & ORS which resulted in Appeal NO: CA/OW/249/2014: H.R.H. EZE ALOYSIUS OBI & ANOR Vs. NZE J.C. OKIKE & ANOR although his name was not expressly stated on the face of the writ of summons and other processes in SUIT NO: HOU/14/2004.”
Ground (e) states:-
“The leave of this Honourable Court is mandatorily required to enable the Applicant appeal as a person having interest in the subject matter of Appeal No. CA/OW/249/2014.”

The Applicant obviously brought this Application as a party interested in Appeal NO: CA/OW/249/2014: H.R.H. EZE ALOYSIUS OBI & ANOR Vs. NZE J.C. OKIKE & ANOR which is evidenced by his status indicated as a party to this Application, Relief 3, Ground (e) in support of the Reliefs sought and paragraphs 13, and 1 of the supporting affidavit and the Further Affidavit respectively.

However, it is not shown that the Applicant was not a party to the Suit No. HOU/14/2004: DR. P.A.C. AGWARAMGBO & ORS VS. ATTORNEY – GENERAL OF IMO STATE & ORS which generated the Appeal NO: CA/OW/249/2014: H.R.H. EZE ALOYSIUS OBI & ANOR Vs. NZE J.C. OKIKE & ANOR. I am supported in this view by Grounds“b” and “f” of the Grounds upon which the Application is brought and paragraphs 3, 7 and 8 of the Affidavit in support of the Application. For being germane to this application I hereby reproduce these averments thus:-
Ground b:-
“The Applicant is one of the persons represented by the Plaintiffs in SUIT NO. HOU/14/2004: DR. P.A.C. AGWARAMGBO & ORS VS. ATTORNEY GENERAL OF IMO STATE & ORS, which resulted in Appeal NO: CA/OW/249/2014: H.R.H. EZE ALOYSIUS OBI & ANOR Vs. NZE J.C. OKIKE & ANOR, although his name was not expressly stated on the face of the writ of summons and other processes in SUIT. NO HOU/14/2014.”
Paragraphs 3, 7 and 8 of the Affidavit are as follows:-
“3. I am one of the persons represented by the Plaintiffs in SUIT NO. HOU/14/2004: DR. P.A.C. AGWARAMGBO & ORS VS. ATTORNEY GENERAL OF IMO STATE & ORS, which resulted in Appeal NO: CA/OW/249/2014: H.R.H. EZE ALOYSIUS OBI & ANOR Vs. NZE J.C. OKIKE & ANOR, although my name was not expressly stated on the face of the writ of summons and other processes in SUIT NO. HOW/14/2004.”
“7. Consequently, in the year, 2004, members of Odu Royal Dynasty, ImeohaMgbidi, being aggrieved by the unlawful act of re-naming ImeohaMgbidi as Isi-Mgbidi Autonomous Community, commenced legal proceedings at the Imo State High Court, Oru Judicial Division, Holden at Mgbidi, wherein Dr. P.A.C. Agwaramgbo&ors being the Plaintiffs, sued in a representative capacity, which action spanned for upwards of ten years and was eventually determined on the 18th day of February 2014, when the Honourable Court declared that Imeoha village is the village rightly entitled to retain the name Mgbidi Autonomous Community.”
“8. We celebrated the said judgment of the Honourable Trial Court delivered on the 18th day of February 2014, in the said suit no: HOU/14/2004, but unfortunately, Dr. P.A.C. Agwaramgbo who was the person keeping as abreast of goings on in respect of the events, died shortly after the said judgment.”

From the foregoing, the Applicant was privy to the Suit No. HOU/14/2004, having been represented by Dr. P.A.C. Agwaramgbo & Ors as plaintiffs, who pursued the Appeal to this Court in Appeal NO: CA/OW/249/2014: H. R. H. EZE ALOYSIUS OBI & ANOR. VS. NZE J. C. OKIKE & ANOR.

In paragraph 9 of the Affidavit in support of the Application, the Applicant averred thus:
“9. I was not aware of the Appeal No. CA/OW/249/2014, neither was I aware of the judgment in respect thereof.”

The above averment was countered by 1st and 2nd Appellants/Respondents in opposition to this application in their Counter Affidavit deposed to by H.R.H.Eze Aloysius Obi in paragraphs 10 and 11 as follows:-
“10. The Applicant was fully represented both at the trial Court and at the appeal in this Court which fact the applicant admitted at paragraph 3 of his affidavit where he averred thus: “I am one of the persons represented by the Plaintiffs in Suit NO: HOU/14/2004: DR. P.A.C. AGWARAMGBO & ORS VS. ATTORNEY GENERAL OF IMO STATE & ORS, which resulted in Appeal NO: CA/OW/249/2014: H.R.H. EZE ALOYSIUS OBI & ANOR Vs. NZE J.C. OKIKE & ANOR, although my name was not expressly stated on the face of the Writ of Summons and other processes in Suit No. HOU/14/2004.”
“11. The Applicant was therefore being untruthful when he however, stated at paragraph 9 of his affidavit that, “I was not aware of the Appeal No: CA/OW/249/2014, neither was I aware of the judgment in respect thereof.”

I entirely agree with the 1st and 2nd Appellants/Respondents that the Applicant fully participated in the proceedings in this matter right from the trial Court in Suit NO. HOU/14/2004, to this Court in the Appeal No. CA/OW/249/2014 as he was “one of the persons represented by the Plaintiffs” in the Suit No. HOU/14/2004 and Appeal No. CA/OW/2014 which appeal has been determined and is now on further appeal to the Apex Court.

Flowing from the above, I hold the firm view that the Applicant does not carry the status of a party interested in the Appeal No. CA/OW/249/2014: H.R.H. EZE ALOYSIUS OBI & ANOR VS. NZE J. C. OKIKE & ANOR. as he was fully represented.

The reason why the Applicant has adopted this approach is not farfetched: it is in paragraph 16 of his affidavit thus:-
“16. Our former sole surviving representative in this Court Nze J. C. Okike has joined our opponents and is not interested in contesting the judgment of this Court.”

Consequent upon my holding above, to the effect that the Applicant is not a person interested in the appeal at the supreme Court, but a party who has participated in the proceedings from the trial Court through this Court albeit representatively, I find no merit in this application. Same is hereby refused and dismissed.
I make no order as to cost.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment, delivered by my learned brother, I. A. Andenyangtso, JCA, and I agree with his reasoning and conclusion that the Application lacks merit. I too dismiss it and abide by the consequential orders in the lead judgment.

Appearances:

I. Asika Ilobi for the Applicant/Party interested For Appellant(s)

Chukwuemeka Okoro for the Appellants/ Respondents For Respondent(s)