OCHAL v. M. L. MANDE ENTERPRISES LTD & ORS (2021)

OCHAL v. M. L. MANDE ENTERPRISES LTD & ORS

(2021)LCN/15536(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, June 02, 2021

CA/A/709/M/2018(R)

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

BENJAMIN OCHAL APPELANT(S)

And

L. MANDE ENTERPRISES LTD & 3 ORS. RESPONDENT(S)

 

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an application brought pursuant to Section 243 of the Constitution of the Federal Republic of Nigeria, Order 6 Rule 1 of the Court of Appeal Rules and the inherent jurisdiction of this Court. It prays for the following orders:
1. AN ORDER of this Court extending time within which to seek leave to appeal against the judgment of the High Court of the Federal Capital Territory, by Hon. Justice Peter O. Affen, delivered on the 26th day of September, 2016, in suit No. FCT/HC/CV/2291/2013, M.L. MANDE ENT. LTD V REG TRUSTEES OF SEVENTH DAY ADVENTIST CHURCH IN NIG.& 2 ORS as interested party or person affected.
2. AN ORDER of this Hon. Court extending the time within which the Applicant herein, Mr. BENJAMIN OCHAI can seek leave to appeal under Section 243 of the Constitution of the Federal Republic of Nigeria, 1999, the judgment of the High Court of the Federal Capital Territory, Coram Hon. Justice Peter O. Affen delivered on the 26th day of September, 2016, in Suit No. FCTIHC/CV/2291/2013, M. L. MANDE ENTERPRISES LIMITED vs The Registered Trustees of Seventh Day Adventist Church in Nigeria and 2 Ors as a person having an interest in the case, and under the rules of Courts.
3. AN ORDER of this Hon. Court granting leave to the applicant herein Mr. BENJAMIN OCHAI to appeal under Section 243 of the Constitution of the Federal Republic of Nigeria, 1999, the judgment of the High Court of the Federal Capital Territory, Coram Hon. Justice Peter O. Affen delivered on the 26th day of September, 2016 in Suit No. FCT/HC/CV/229112013, M. L. MANDE ENTREPRISES LIMITED vs. The Registered Trustees of the Seventh Day Adventist Church in Nigeria and 2 Ors as a person having an interest in the case, and under the rules of Courts.
4. AN ORDER of this Hon. Court extending the time within which the applicant herein Mr. BENJAMIN OCHAI can appeal under Section 243 of the Constitution of the Federal Republic of Nigeria, 1999, the judgment of the High Court of the Federal Capital Territory, Coram Hon. Justice Peter O. Affen delivered on the 26th day of September, 2016 in Suit No. FCT/HC/CV/2291/2013, M. L. MANDE ENTREPRISES LIMITED vs. The Registered Trustees of the Seventh Day Adventist Church in Nigeria and 2 Ors as a person having an interest in the case, and under the rules of Courts.
AND FOR SUCH FURTHER ORDER or orders this Hon. Court may deem fit to make in the circumstances of this case.

The grounds for the application are as follows:
a) That the judgment of the trial Court was delivered on the 26th day of September, 2016, by Hon. Justice Peter O. Affen against of the Plaintiff in Suit No. FCT/HC/CV/2291/2013, M. L. MANDE ENTREPRISES LIMITED vs. The Registered Trustees of the Seventh Day Adventist Church in Nigeria and 2 Ors.
b) That the case before the Court below was a dispute over the ownership of Plot No. 2N70 (New Plot No.849) Durumi District, Abuja, wherein the Plaintiff in Suit No. FCT/HC/CV/2291/2013, M. L. MANDE ENTREPRISES LIMITED vs. The Registered Trustees of the Seventh Day Adventist Church in Nigeria and 2 Ors claimed that the said plot allocated to her and that she did not sell same to any person while the 1st Defendant in that suit claimed that she validly obtained title to the land and traced her root of title to the Applicant herein, who allegedly bought from the plaintiff.
c) That the Applicant was unaware of Suit No. FCT/HC/CV/2291/2013 before the High Court of the Federal Capital Territory, between M. L. MANDE ENTREPRISES LIMITED vs. The Registered Trustees of the Seventh Day Adventist Church in Nigeria and 2 Ors until after the judgment.
d)That the Applicant was not joined as a party to the suit before the Court below even though there was purported document that shows chain of transfer from the Plaintiff to the 1st Respondent’s key witness.
e) That the decision of the Court below delivered on 26th day of September, 2016, centered around the purported sale between the Applicant and the Plaintiff and the purported transfer from the Applicant to Mrs. Cecelia Onuiru, who testified for the 1st Defendant without the Applicant being heard at all and behind the back of the Applicant even though the Applicant was a necessary party to Suit No. FCT/HC/CV/2291/2013 before the High Court of the Federal Capital Territory, between M. L. MANDE ENTREPRESES LIMITED vs. The Registered Trustees of the Seventh Day Adventist Church in Nigeria and 2 Ors.
f) That the record of proceedings of the Court below as contained in the record of appeal in Appeal No. CA/A/637/2018, between M. L. MANDE ENTREPRISES LIMITED vs. The Registered Trustees of the Seventh Day Adventist Church in Nigeria and 2 Ors and in particular the 1st Defendant/2nd Respondent in the Court below showed that the Applicant was mentioned by name and that he bought the plot from the Plaintiff and sold same to the 1st Defendant’s key witness, Mrs. Cecelia Onuiru (DW2) yet Applicant was not heard or given opportunity to be heard at all.
g) The Court below made findings against the Applicant without hearing from the Applicant and behind his back and made findings which it used to enter judgment in the case.
h) The right of the Applicant to fair hearing which has been grossly undermined by the Court below will be perpetually undermined if this application is not granted.

The application is supported by twelve paragraph affidavit deposed to by Eke Joy Adah Esq., with exhibits A, B, C, D, E, F, G, H, I, J, K, L and M attached.

The 2nd Respondent filed a thirteen paragraph counter-affidavit in objection to the application deposed to by Esther Johnson on the 3rd of August, 2020, with exhibit A, the ruling of the High Court of the FCT in FCT/HC/CV/157/16 delivered on the 23rd of June, 2017, and exhibit B, the application for Fundamental Rights in CV/295/16 and exhibit C the ruling of the High Court of the FCT in FCT/HC/CR/56/16 delivered on the 17th of May, 2018; and the Applicant filed a six paragraph further affidavit deposed to by Eke Joy Adah on the 8th of October, 2020, in response to the counter-affidavit.

Both learned counsel for the Applicant, and that of the 2nd Respondent filed written submissions in support of their respective affidavits.

Ojonimi S. Appeh Esq., of counsel for the Applicant submitted that the Applicant has shown, by the affidavit in support and the further affidavit that he is affected by the judgment of the trial Court; without hearing or joining him in the suit;ODEDO V OGUEBEGO (2015) 13 NWLR part 1476 page 229; CHUKWU V INEC (2014) 10 NWLR part 1415 page 385; UNITY BANK PLC V OLATUNJI (2013) 15 NWLR part 1378 and ODEDO V PDP & ORS (2015) LPELR-24738-SC.

That the Applicant was a necessary party who was not joined, thus, denying him the right to fair hearing; NWABUEZE V THE PEOPLE OF LAGOS STATE (2018) LPELR-44113-SC and WAGBATSOMA V FRN (2018) LPELR-43722.

That there is no evidence that the Applicant was aware of the case to deny him the right to appeal as a person affected or grant him leave to appeal as prayed; JADESIMI V OKOLIE-EBOH in RE LESSEY (1989) 4 NWLR part 113 page 113.

It is submitted for the 2nd Respondent in response that, after having lost out at trial, the 1st Respondent resorted to gimmicks in the form of exhibits A, B and C attached to the 2nd Respondent’s counter-affidavit instead of appealing the judgment.

That the instant application is also one such gimmick, because this Court has no jurisdiction to hear and determine this application; as the application by Order 6 Rule 4 of the rules of this Court ought to have been made to the trial Court first; FBN LTD V RESORT INT’L LTD (2020) 5 NWLR part 1718 page 391; BI-COURTNEY NIG LTD V A.G FEDERATION & ANR (2019) part 1679 page 112 and KALU V ODILI (1992) 5 NWLR part 240 page 130.

That the affidavit supporting the application did not disclose any special circumstances; having been filed before this Court as if this Court were the trial Court; ANAMBRA STATE GOVT V NWANKWO (1995) 9 NWLR part 418 page 245.

​That also the Applicant needed to seek leave of Court before he can appeal against the decision of the trial Court; BI-COURTNEY LTD V A.G. FEDERATION (2019) 10 NWLR part 1679.

That the Applicant needed also to show sufficient interest in the judgment of the trial Court; APC V IKPEME (2017) ALL FWLR part 913 page 772; especially as the applicant has not shown or disclosed interest in his affidavit, except for the connection that the 2nd Respondent traced its title to 1st Respondent through the Applicant.

That the interest required to be disclosed is legal interest, which the applicant has not shown, nor possible loss, as a result of the judgment; CHUKWU V INEC (2014) ALL FWLR part 741 page 1531; especially as the Applicant has not shown any loss in the land in dispute; it is not enough that the 2nd Respondent’s title was traced through him.

That, as a consequence, the application lacks merit, for reasons of which the reliefs sought cannot be granted; Learned counsel contends that this application is a ploy by the 1st Respondent to again re-litigate issues settled by the trial Court in its judgment; OGUNTADE V OYELAKIN (2020) 6 NWLR part 1719 page 41.

​That also despite the nature of the instant application where the applicant claims he has interest to protect, he failed and refused to depose to the affidavit himself; instead, a counsel had taken it upon himself to depose to such a contentious affidavit; BALA V DIKKO (2013) 4 NWLR part 1343 page 52.

While referring to BELLO V INEC (2010) 8 NWLR part 1196 page 342 learned counsel contended that the Applicant was not a necessary party to the suit, as such cannot claim that he was denied fair hearing; ONAH V OKOM (2012) 8 NWLR part 1301 page 169 and ADAMU V FRN (2020) 2 NWLR part 1707 page 129.

That also the notice of appeal does not reveal any serious issue to be considered by this Court; because, the Applicant simply wants the judgment of the trial Court set aside and order a retrial, as the Applicant will have nothing to win or lose if a retrial is ordered.

That the application is merely an academic exercise because, the affidavit in support discloses no legal or material interest in the land in dispute; AGBAKOBA V INEC (2008) 18 NWLR part 1119 page 489.

​It is submitted in response that the contention that this Court lacks jurisdiction for failure to seek the leave at the trial Court first is misconceived; and that FBN LTD. V RESORT INT’L LTD. and BI-COURTNEY NIG. LTD. V A.G. FED & ANR all supra are against the 2nd Respondent and in favour of the Applicant.

That Order 6 Rule 4 is not cast in stone, because, an Applicant can bring the application to this Court of appeal in the first instance if he can show special circumstances which make it impossible to apply to the trial Court; ONWUGHALU V STATE (2007) 46 WRN 191.

It is further contended for the Applicant that he did in fact give special circumstances as to why this application was brought to this Court instead of the trial Court, one of which was that the judgment was delivered on the 26th of September, 2016, he only became aware on the 29th of November, 2016.

That also the Applicant not being able to follow up the case due to his ill health constitutes special circumstances upon which this Court should allow this application; AKINYEMI V SOYANWO (2006) 7 SC part 1 page 39; BAMIGBOYE V SARAKI (2009) 33 WRN page 109 and ADEDIGBA V OKWU (2005) 42 WRN 38.

It is further submitted that the Applicant has a legal right to seek leave, and a right to restore his dignity, provided by Section 34(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which was destroyed by the judgment of the trial Court.

That title to the land will not be fairly dealt with in the absence of the Applicant, who is linked to both the 1st and 2nd Respondents because title passed through him to the 2nd Respondent and that in the circumstances, the Applicant is a necessary party.

RESOLUTION:
It should be noted that an application for leave to appeal ought to be made first at the trial Court, unless special circumstances dictate otherwise. This is by virtue of Order 6 Rule 4 of the Court of Appeal Rules, 2016, which provides that:
“Wherever under these Rules, an application may be made either to the Court below or to the Court, it shall not be made in the first instance to the Court except where there are special circumstances, which make it impossible to apply to the Court below.”; see SUBURBAN TELECOMS LTD & ORS V SOLUTION PLUS LTD (2016) LPELR-40336-CA.

​The rules of this Court, and indeed that of every Court are important, they are not merely fanciful, they are meant to be obeyed. Learned counsel for the 2nd Respondent contends that this Court granted leave to the Applicant to appeal the judgment of the Federal High Court in FBN LTD V RESORT INTL LTD supra, and so the Applicant in this case deserves to be granted leave to appeal.

It is important not to lose sight of the fact that the exercise of discretion, more often than not, varies with facts and circumstances. Justice, as is often said, is a double edged sword that cuts both ways; and in the absence of ‘exceptional circumstances’, not least because the affidavit in support of the application, in spite paragraphs 4(xiii),(xx),(xxi), (xxiv), (xxv),(xxvi) and (xxii) put forward as proof by learned counsel for the applicant, still fell short; because the affidavit did not disclose any special circumstances of note to excuse the failure or refusal to file the application before the trial Court as required by Order 6 Rule 4.

Furthermore, for an application of this nature to succeed, the Applicant has to establish sufficient interest in the judgment of the trial Court. Section 243(a) of the Constitution recognizes two categories, parties who can appeal as, those who can do so as of right and those who can do so with leave of Court.

The applicant’s only interest apart from his ‘integrity’, as contended is the fact that title was traced through him; there is nothing apart from that to show that the Applicant lost anything in the land, subject of the suit at trial.

The claim of medical challenges without more on the part of the applicant cannot explain away why it took the applicant more than three years to bring this application, even though the Applicant was aware of the judgment. Leave to appeal or application for leave to appeal is not granted as a matter of course. The grant or denial of such application is subject to the judicious exercise of discretion by the Court; See OJORA V. ODUNSI (1964) 3 NSCL 34 AT 48.
To succeed in this application, the Applicant has to show, by his supporting affidavit, that he has good and substantial reasons for failure to appeal or apply for leave to appeal within the prescribed period, unfortunately, the reasons so far advanced have fallen short; See ADEOJO V. AWOTOREBO & ANOR (1975) 1 NMLR 54 AT 55.

On whether the Applicant is a necessary party or not, it is trite that a necessary party to a case is a person whose presence is necessary for the effectual and complete adjudication of the questions involved in the cause or matter; See: O.K. CONTACT POINT LIMITED VS. PROGRESS BANK PLC (1999) 5 NWLR (PT. 604) 631 (CA); B.O.N. LIMITED VS. SALEH (1999) 9 NWLR (PT. 618) 331 (CA); and MOBIL OIL PLC VS. D.E.N.R. LIMITED (2004) 1 NWLR (PT. 853) 142 (CA).
A necessary party to a suit is a party who is not only interested in the subject matter of the proceedings but also a party in whose absence the proceedings could not be fairly dealt with. Consequently, without his being a party to the suit, the Court may not be able to effectually and completely adjudicate upon and settle all questions involved in the suit; the Applicant cannot be said to be one of such parties by any stretch of imagination, at least not from the facts deposed to in the affidavit in support of the application; See: OJO VS. OGBE (2007) 9 NWLR (PT. 1040) 542 (CA); and BIYU VS. IBRAHIM (2006) 8 NWLR (PT. 981) 1 (CA).
​A necessary party is not just any person but must be one against whom a link relating to a cause of action must be sustained. In JIDDA VS. KACHALLA (1999) NWLR (PT. 599) 426 at 432, it was held that:
“A necessary party is a person, body or an institution who or which the Plaintiff or Petitioner must make a party in order to show cause of action and establish a nexus between him, and the complaint and the act complained of.”
In UNION BEVERAGES LIMITED VS. PEPSI COLA INTERNATIONAL LIMITED AND ORS. (1994) 3 NWLR (PT. 330) 1 at 17, it was held that:
“If a complaint is made against a person in an action and the questions or issues involved in the complaint cannot be effectually and completely determined or settled in the absence of the person, such a person is a necessary party and ought to be joined in the suit… the purpose of joining a particular person as a party is to ensure that person is bound by the result of the action. That is the only way in which the fundamental question in the action can be effectually and completely settled or determined.”
​The rule is that, persons against whom complaints are made in an action must be made parties to the suit. There is a duty to bring before a Court parties whose presence are crucial to the resolution of the case otherwise the action is liable to be struck out. See: ADISA VS. OYINWOLA (2000) 6 SC (PART 11) 47 and MOBIL OIL PLC VS. D.E.N.R. LIMITED (2004) 1 NWLR (PT. 853) 142.
It is the considered opinion of this Court that the Applicant is not a necessary party to the appeal he seeks leave to join; he is at best a desirable witness. So the question of denying him fair hearing does not arise in the least, because his rights or obligations were never up for determination.

In my considered view, there is no basis for assuming that leave to appeal is granted as a matter of course. The decision by this Court regarding whether or not leave to appeal is granted to an Applicant is always based on good and substantial reasons disclosed in the affidavit in support, for not appealing within the prescribed time, and grounds of appeal which prima facie show why the appeal should be heard.
Oftentimes, applicants saunter into this Court brandishing a motion whose affidavit is bereft of the barest requirements for the grant of leave to appeal, forgetting that leave to appeal is not a given. It is ridiculous for an Applicant who wastes valuable time fretting about other things to suddenly wake up from his slumber, expecting the Court to grant an application for leave as a matter of course, on account of entitlement. It does not work that way.
This application lacks merit, and it is accordingly dismissed.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now, the ruling just rendered by my learned brother, Mohammed Mustapha, JCA.
I agree that the application lacks merit and I also dismiss it.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

O. S. SPEH ESQ. For Appellant(s)

IBRAHIM IDAIYE ESQ. FOR THE 1ST RESPONDENT.
UGOCHUKWU ISIGUZO ESQ. FOR THE 2ND RESPONDENT
AKINTUNDE AJAYI ESQ FOR THE 3RD AND 4TH RESPONDENT. For Respondent(s)