PASTOR (PRINCE) BERNARD NWABILOR OHANS & ORS v. MRS. HANNAH BENNETH & ORS
(2019)LCN/12540(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of January, 2019
CA/PH/587M/2017(R)
RATIO
FUNDAMENTAL RIGHTS: RIGHTS TO FAIR HEARING
“Cited the authority of DR. UMAHARDO V I.N.E.C. & 5 ORS (2017) 13 NWLR {Pt. 1683} at 495 – 496 where the Court held on Fair Hearing thus: –
“Fair Hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. Fair Hearing in relation to a case means a trial of a case or the conduct of the proceedings therein in accordance with relevant laws, rules of Court and principles of natural justice. Fair Hearing is that process which is conducted in accordance with the relevant laws or rules. It is a judicial or administrative hearing conducted in accordance with due process.'” PER BITRUS GYARAZAMA SANGA, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
1. PASTOR (PRINCE) BERNARD NWABILOR OHANS
2. MPAISINBA PRINCEWILL
3. MRS. BLESSING EGEJURU
4. ELDER DAVID EYO EKPE
5. CHIEF LESIE A. FINECOUNTRY
6. RICHARD NDUBUEZE ONWUDEBE
-APPELLANTS SEEKING LEAVE TO APPEAL AS INTERESTED PARTIES Appellant(s)
AND
MRS. HANNAH BENNETH
-1st set of respondent
AND
1. CHIEF NYECHE AMADI OKOCHAMAT
2. MR. CHIMENEM NYECHE AMADI OKOCHAMATI
-2nd set of respondents
AND
3. MR. NZENYELE NWAGBARA
4. MR. NYESOM NWAGBARA
5. MRS. NNENDA NWAGBARA
-3rd set of respondent Respondent(s)
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Lead Ruling):
The Applicants are seeking leave to appeal as interested parties. They filed this motion on 2nd November, 2017 seeking for the following reliefs: –
1: An Order extending time within which the Applicants may seek leave to appeal against the judgment of Rivers State High Court in Suit No. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOR V MR. NZENYELE NWAGBARA & 3 ORS that gave rise to this application, presided over by Honourable Justice B. A. Georgewill on the 29th day of July, 2013.
2: An Order granting leave to the Applicants to appeal as interested parties against the judgment of the Rivers State High Court delivered by Honourable Justice B. A. Georgewill on the 29th day of July, 2013 in Suit No. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOR -V- MR. NZENYELE NWAGBARA & 3 ORS.
3: An Order extending time within which to appeal as interested parties against the judgment of the Rivers State High Court delivered by Honourable Justice B. A. Georgewill on the 29th day of July, 2013 in Suit No. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOR V MR. NZENYELE NWAGBARA & 3 ORS.
4: An Order extending time within which the interested Parties/Applicants shall file Notice and Grounds of appeal.
5: An Order granting leave to the Applicants to compile and transmit record of Appeal to this Honourable Court.
6: And for such further or other orders as the Honourable Court may deem fit to make in the circumstances.
The grounds on which the application is based are as follows: –
1. The Applicants are in possession of the subject matter in issue by virtue of purchase from the Appellant (MRS. HANNAH BENNETH) who in turn purchased from 1ST AND 2ND SETS OF RESPONDENTS? father.
2. The Applicants have interests in Ohia Apa Ekwu Nkpor/Ovuvu Land subject matter of SUIT NO. PHC/1073/2009 BETWEEN CHIEF NYECHE AMADI OKOCHAMATIC & ANOR V MR. NZENYELE NWAGBARA & 3 ORS that gave rise to this application.
3. That the 1st and 2nd Sets of RESPONDENTS? father sold to the Appellant who equally sold to the Applicants the subject matter of this Appeal, have no basis in law or fact to file action against the Appellant in respect of the subject matter of this application.
4. That the Appellant, the 1st and 2nd sets of Respondents knew and have always known that the Applicants had substantial interest in the subject matter yet they were not joined in the lower Court to give them fair hearing and protect their interests in respect of the subject matter.
5. That SUIT NO. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOR V MR. NZENYELE NWAGBARA & 3 ORS that led to this application was found on fraud, which ought to vitiate the entire proceedings of the lower Court.
6. That the Judgment in SUIT NO. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOR Vs MR. NZENYELE NWAGBARA & 3 ORS was delivered without jurisdiction as the case was statute barred.
7. That this application will not prejudice any of the parties and ought to be granted in the interest of justice.
To support the application is a 30 paragraphs affidavit deposed to by Mr. DAVID EYO EKPE the 4th Applicant. The paragraphs I found relevant to the instant application are as follows: –
9: That both the Applicants and 1st and 2nd sets of Respondents knew and had always known that the Applicants are in actual possession of the land in dispute and failed, refused and/or neglected to join them as necessary parties at the trial Court?.
10: That there is an active fraudulent connivance between the Appellant and the 1st and 2nd sets of Respondents to secure judgment at the back of the Interested Parties (Applicants), chase the Interested Parties (Applicants) out of the land, re-sell same and share the proceeds among themselves. The 1st set of Respondents got judgment through fraudulent misrepresentation of facts to the Court?.
Attached to the affidavit are the following documents: –
1: Deed of Conveyance between Revd. Mrs. Hannah Bennethh AND Engr. Mpaisinba Mpakaboari Princewill Marked as Exhibit ‘A1’.
2: Deed of Conveyance between Mrs. Hannah U. Benneth (Vendor) AND Mrs Blessing Egejuru (Purchaser). Marked as Exhibit ‘A2’.
3: Deed of Conveyance between: Rev. (Mrs) Hannah Ukachi Benneth (Vendor) AND Mr. Leslie Acheson Finecountry (Purchaser). Exhibit ‘A3’.
4: Deed of Conveyance between Pst. Mrs. Hannah U. Benneth (Vendor) AND Mrs. Joy C. Ekpe (Purchaser). Exhibit ‘A4’.
5: Deed of Gift between: Engr. Emmanuel Kafene Jedo (The Grantor) AND Pst. Prince Bernard N. Ohans (the Grantee) AND a Deed of Conveyance between: Rev. Hannah Benedict (Vendor) AND Engr. Emmanuel Kafene Jedo (Purchaser). Exhibit ‘A5’.
6: Deed of Conveyance between: 1 Chief Nyeche Jonah Amadi; 2: Mr. Kinikanwo Confidence Wobo J. Amadi (Principal Members of Amadi Family) AND Pastor Mrs. Hannah Ukachi Benneth. Exhibit ‘B’.
7: Deed of Conveyance between: Chief Anderson Nwokekoro (vendor) AND Mrs. Hannah U. Benneth (purchaser). Marked as Exhibit ‘C’.
8: Copy of letter dated 27th August, 2013 from chambers of Wome Moses O. & Co. (Barristers and Solicitors of Supreme Court of Nigeria) addressed to ‘All Occupiers/tenants, Nkpovu Land, Mgbuakara Village Rumuorlumeni, Port Harcourt’. Titled: ‘RE: THE LAND YOU ARE STAYING IS OUR CLIENT?S PROPERTY AS PER THE JUDGMENT IN SUIT NO. PHC/1073/2009 BETWEEN CHIEF N. A. OKOCHAMANTI -Vs- MRS. HANNAH BENNETH & ORS.”
The letter reads thus:-
We act as lawyers to the claimants in the above suit which judgment was delivered on 29/7/2013. See Exhibit ‘A’ judgment order, meaning that the land by law is our clients’ land not Mrs. Hannah Beneth?s Land.
Please Pack out within 7 days or the Court will soon throw you out of the premises or you see us in Chambers as per our letter head.
Act now or you have yourself to blame.
Yours faithfully,
Sgd.
Barrister Wome Moses
(Advocate of Supreme Court of Nigeria)
Copy of Judgment Order Marked Exhibit ?A? is attached to the letter.
9: Another letter dated 17th Dec., 2013 addressed to the parties as above, but headed thus: –
“RE: UNLAWFUL OCCUPATION OF OUR CLIENT?S LAND. PACK OUT WITHIN 2 (TWO) DAYS OR FACE FORCEFUL EVICTION BY THE COURT AS PER THE JUDGMENT IN PHC/1073/2009.”
The letter reads inter alia as follows: –
We are advocates to the plaintiffs in the above suit which we had earlier written letter to you to pack out.
It could be recalled that after our first letter of 27/8/13, the lawyer to Mrs. Hannah Benneth filed a process to set aside the judgment. Mrs Hanna Benneth’s lawyer’s application was struck out on 11/12/13, meaning that the judgment of our clients is confirmed.
Please if you do not pack out within 2 (two) days you will be forcefully removed by the Court. Any further dealings with Mrs. Hannah Benneth over the land is at your own risk as by the said judgment the land belongs to our clients, you are warned seriously to comply no further notice will be given to you. The letter is marked as Exhibit ?D2?.
10: Document marked as Exhibit ‘D3’ is a copy of letter from the Chambers of Wome Moses dated 30/12/13 addressed to: ‘S. C. Eze Esq., No. 44 Ikwere Road, Port Harcourt’. It is title: ‘RE: UNLAWFUL OCCUPATION OF OUR CLIENT’S LAND’. It states thus: –
‘As per your reply on the above subject, we herewith attach the judgment order as Exhibit ?A? if you want the full judgment you may approach our chambers, but we shall no longer wait for you as we shall take the necessary steps.”
11: Several processes reflecting Suits/Applications by the Applicants before the lower Court are also attached and marked as Exhibits ?E1 ? E2? respectively.
Also attached to the application is the proposed Notice of Appeal containing four grounds of appeal.
On being served with the Applicants? processes, learned counsel to the 1st set of Respondents filed a counter affidavit deposed to by one David Onyema Esq., a legal practitioner in the firm of Chukuka and Chukuka containing 15 paragraphs. The kernel of the 1st set of Respondents? defence is in paragraphs 12 ? 14 wherein they deposed thus: –
12: That the reasons adduced by the applicants in paragraphs 13 ? 19 of applicants affidavit in support of their motion on notice filed on 2-11-2017 are not good and substantial reasons for failure to appeal within the prescribed period of 90 days.
13: That the said applicants reasons for failure to appeal within the prescribed period of 90 days are not in compliance with Order 6 Rule 9(2) of Court of Appeal Rules 2016.
14: That the applicants Exhibits E.1 and E.2 were not filed within 90 days provided by the Court of Appeal Act, for filing an appeal against the judgment of the trial Court.
A certified true copy of a counter affidavit deposed to by the 3rd applicant is attached to the 1st set of Respondents counter affidavit and marked as Exhibit ‘A’.
On 31st January, 2018, the Applicants filed a Further Affidavit in Support of the Application for Leave to Appeal as Interested Parties. It was deposed to by AKPA JOSEPH the purpose of filing the said further affidavit as reflected in paragraph 3 is thus: –
3. That in the course of compiling the Exhibits accompanying the Motion on Notice filed on 2/11/17, I, in advertently omitted to attach a copy of the judgment in Suit No. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOR V MR. NZENYELE NWAGBARA & 3 ORS to the affidavit in support of the said application. A Certified True Copy of the said judgment is hereby annexed and marked Exhibit ‘PA1’.”
The Applicants filed a Further Affidavit in Response to 1st set of Respondents Counter Affidavit filed on 14/2/2018 in opposition to Application for Leave to Appeal as Interested Parties. The 6 paragraphs affidavit was also deposed to by the 4th Applicant. The Kernel of the said further affidavit is in paragraph 4 which deposed thus: –
4: That in further response to the said counter affidavit, I state as follows:
(i) That the Applicants, inclusive of the 3rd Applicant were never aware of the proceedings in Suit No. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOR V MR. NZENYELE NWAGBARA & 3 ORS leading to its judgment.
(ii) That even paragraph 16(i) – (vii) of Exhibit ‘A’ relied upon by the 1st set of Respondent in her counter affidavit clearly shows that the 3rd Applicant was not aware of the said judgment, she sought to set aside the said judgment which also occasioned the delay in appealing against the said judgment within the time as required by law.
(iii) That the Applicants cannot be aware of the pendency of SUIT NO. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOR V MR. NZENYELE NWAGBARA & 3 ORS and decide not to contest the said Suit when they are in fact in possession of the land and have all developed permanent structures on the land individually.
(iv) That the Applicants could have individually or collectively contested or applied to have been joined in the said SUIT NO. PHC/1073/2009 if any of the Applicants was aware of the said Suit.”
The 2nd set of Respondents filed what they termed ‘Counter Affidavit of the 2nd and 3rd sets of Respondents to the motion for leave to appeal filed on 2/11/2017?. However, learned counsel to the 3rd set of Respondents S.C. EZE Esq., informed this Court on 28th February, 2018 that they did not filed any counter affidavit as they are not opposing this application. Having pulled the rug from under them the 2nd and 3rd sets of Respondents’ Counter Affidavit is now an orphan having been abandoned, it is hereby discountenanced by this Court.
On 28th February, 2018 during hearing this Court ordered parties to file written addresses having considered the conflicts in the facts deposed to in the various affidavits. The Applicants written address was filed on 9th March, 2018. After giving a brief summary of the facts that led to filing this application learned counsel raised one issue for determination as follows: –
Whether this Honourable Court is entitled to and can exercise its jurisdiction to grant the Applicants? application in all the circumstances of this case.
While making his submission on this issue, K. U. Obayi Esq., of counsel to the Applicants stated that in order to resolve this issue, it is necessary to consider the trite position of the law that fraud vitiates proceedings. That the applicants alleged fraud and deposed to the particulars in paragraphs 10 – 11 of their supporting affidavit. Learned counsel submitted that the law is well settled that where a judgment is entered against a necessary and desirable party behind his back, such judgment cannot be allowed to stand. Cited: N.U.R.T.W. V R.T.E.A.N. (2012) 10 NWLR {Pt. 1307} 170 at 187; GREEN V GREEN (1987) 3 NWLR {Pt. 61} 480; UKU V OKUMAGBA (1974) 1 All NLR {Pt. 1} 475. He submitted further that the right to Fair Hearing is a fundamental constitutional right guaranteed by Section 36 of the 1999 Constitution (as amended). That fair hearing is a hearing which is fair to all the parties to the suit, giving each side an opportunity to be heard. A trial conducted in breach of fair hearing vitiates such proceedings, rendering same null and void. Cited: IDAKWO V EJIGA (2002) FWLR {Pt. 119} 1499; SAMBAPET. LTD V IMB PLC (2010) 5 – 7 {Pt. 1} MJSC 103; OGBESHE V IDAM (2004) All FWLR {Pt. 728} 992 at 1014 – 1015. That the Applicants only became aware of Suit No. PHC/1073/2009 when an attempt was made to evict them from their legitimately purchased property. Learned counsel urged the Court to grant this application and allow the Applicants to present their own case.
In reply to 1st set of Respondent’s counter affidavit, learned counsel submitted that all that the 1st set of Respondent is alleging is that the Applicants reasons for not filing their motion on time ‘are not good and substantial reasons for failure to appeal within the prescribed period of 90 days’. Learned counsel submitted that it does not lie in the mouth of the 1st set of Respondent to determine whether the reasons adduced by the Applicants are cogent to warrant the grant of their application by this Court. That the 1st set of Respondent should not usurp the function of this Court.
On the deposition by 1st set of Respondent that the Applicants ‘were aware of pendency of Suit No. PHC/1073/2009 and were also aware of delivery of the judgment in Suit No. PHC/1073/2009’.
Learned counsel to the Applicants replied that the 1st set of Respondent did not state through the length and breath of her Counter Affidavit how the Applicants became aware of the said Suit. That he who assert must prove. Cited Section 123 of the Evidence Act. That the 1st set of Respondent did not “frontally attacked the germane issues of fraud, statute barred of Suit No. PHC/1073/2009 raised by the Applicants.”
That in an application like the instant one, the Applicant must satisfy the Court that he has a legal grievance in the matter and the decision bring challenged has wrongfully and prejudicially deprived him something which he had a right to demand. Cited: C.P.C. V NYAKO (2011) ALL FWLR {Pt. 587} 625 at 632 – 633. That the Applicants have established sufficient interests that vests them with the right of appeal as interested parties. That the Court should consider the reasons given by the Applicants for the delay which gave rise to this application. That however, where the issue of jurisdiction is raised, as in the instant case, it is not necessary for the Court to inquire into the reason for the delay in bringing the application because a challenge to the jurisdiction of a Court is a good ground for hearing the appeal. Cited: BRAITHWAITE V DALHATU (2016) All FWLR {Pt. 846} 202 at 220 – 22. That inspite of jurisdictional issues of fraud, statute barred and locus standi in their propose Notice of Appeal the Applicants have gone further to deposed, in their affidavit in support, an explanation on the reasons for their delay in filing this appeal, which were not denied by the Respondents. Learned counsel urged the Court to grant this application.
FRANK A. CHUKUKA Esq., learned counsel to the 1st set of Respondent submitted, in their written address filed on 23/03/2018, that the sole issue for the determination of this application by this Court is:-
Whether applicants have placed good and substantial reasons before this Court to warrant the exercise of Court’s discretion in their favour.
Learned counsel cited and quoted Order 6 Rule 9(2) of the Court of Appeal Rules, 2016 and the Supreme Court authority of PETGAS RESOURCES LIMITED V LOUIS N. MBANEFO (2018), NWLR {Pt. 160} 442 where the apex Court pronounced upon Order 2 Rules 31(1) of the Supreme Court Rules which is in pari materia with Order 6 Rule 9(2) of the Court of Appeal Rules, 2016. That the two reasons given by the Applicants for their failure to appeal within time are: –
1: Applicants became aware of the judgment delivered on 27/8/2013 when they received a letter from Wome Moses Esq.
2: Applicants did not appeal within the prescribed period because of the pendency of Exhibits E1 – E2 filed before the lower Court.
Learned counsel opined that these reasons are not good and substantial for the applicant’s failure to appeal within the prescribed period of 90 days. Learned counsel gave six reasons for this assertion in paragraphs 3.04 of the written address. He submitted that the 3rd applicant admitted to the facts of her personal knowledge in the affidavit she deposed to at the High Court Registry Isiokpo that the applicants are aware of the pendency of Suit No. PHC/1073/2009 as well as the judgment delivered by that Court on 29th July, 2013. That the Applicants failed to apply to be joined at the trial Court as co-defendants or to appeal to this Court as party interested. That the applicants cannot be allowed to approbate and reprobate. Cited the authority of FOLKSKN THESIS LTD. V GAPUMA UK LTD. (2017) 8 NWLR {Pt. 1566} 150.
Learned counsel also cited and quoted from the decision of this Court in MR. KWASI KARIKARI ADUSEI V MR. TOYIN ADEBAYO (2012) 3 NWLR {Pt. 1288} 534 at page 558 as follows:
‘Admission is a concession or voluntary acknowledgement made by party of the existence of certain facts a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence and of the truth of certain facts which are inconsistent with his claims in an action.”
That the facts deposed to by the 4th applicant in their further affidavit in response to the 1st set of Respondent’s counter affidavit on 21/2/2018 are incompetent as he cannot deny the facts earlier deposed to by the 3rd Applicant on 16/4/2016. That the submission by learned counsel to the applicants in paragraphs 4.5 – 4.7 of the written address is a misconception of the law since 1st set of Respondent need not prove facts admitted by the 3rd applicant in her affidavit.
Cited MR. KWASI KAKARI ADUSEI V MR. TOYIN ADEBAYO (Supra) at 558. That by paragraphs 13 and 14 of Exhibits E1 – E2 relied upon by the applicants as good and substantial reasons why they failed to appeal within time cannot avail them ‘as the judgment in Suit No. PHC/1073/2009 was delivered on 29/7/2013, applicants became aware of the judgment on 27/8/2013 and failed to appeal within the time prescribed’. That as at the date applicants filed Exhibits E1 and E2 the period prescribed within which to appeal had elapsed. That the rules of this Court provides that applicants shall deposed to good and substantial reasons for their failure to appeal within time which they failed to do. That it was held in RT. HON. UDUIMO ITSUELI V SECURITIES AND EXCHANGE COMMISSION (2016) 6 NWLR {Pt. 1507} at pages 173 – 174, that for an applicant for extension of time to appeal to succeed he must satisfy two conditions which must co-exist as follows: –
(a) There must be good and substantial reasons why a discretion should be exercised in favour of the application; and
(b) Secondly, that the grounds of appeal sought to be introduced are arguable.
On issue of fraud as alleged by the applicants, learned counsel to the 1st set of Respondent submitted that the Applicants failed to depose to the source of their information relating to the fraud deposed to in their affidavit in support of the application. Cited: HUSSAINI ZAKIRAI V SALISU DANAZUMI MUHAMMAD & 3 ORS (2017) 17 NWLR {Pt. 1594} at page 243.
Learned counsel submitted further on issue of fraud that all the averments by the applicants on issue of fraud are not in compliance with Section 115(3) and (4) of the Evidence Act. That the facts deposed to by the deponent are not within his personal knowledge. That ‘it is ridiculous’ that while the applicants are alleging fraud against the 1st and 2nd sets of Respondents, the 1st set of Respondent is ‘diligently prosecuting her appeal against the judgment of the trial Court in appeal No. CA/PH/636/2016’. Learned counsel urged the Court to take judicial notice of that appeal.
On the submission by the Applicants on Fair Hearing, learned counsel to the 1st set of Respondent submitted that, that argument cannot avail the Applicants as they “are merely waving the flag of fair hearing.”
Cited the authority of DR. UMAHARDO V I.N.E.C. & 5 ORS (2017) 13 NWLR {Pt. 1683} at 495 – 496 where the Court held on Fair Hearing thus: –
“Fair Hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. Fair Hearing in relation to a case means a trial of a case or the conduct of the proceedings therein in accordance with relevant laws, rules of Court and principles of natural justice. Fair Hearing is that process which is conducted in accordance with the relevant laws or rules. It is a judicial or administrative hearing conducted in accordance with due process.”
Learned counsel finally submitted that the applicants were aware of the pendency of Suit No. PHC/1073/2009 but failed to apply to be joined in the suit. That they are also aware of the judgment delivered by the trial Court on 27/8/2013 but failed to appeal within the prescribed period. Learned counsel urged the Court to dismiss this application.
I have noted the Applicants reply on points of law to the written address of 1st set of Respondent and will refer to it in my ruling.
The 2nd set of Respondents (wrongly referred to as 1st set of Respondent) on their written address filed on 16/3/2018 by M. A. DAGOGO-HARRY Esq., raised two issues for determination as follows: –
1. Whether the interest of the Applicants in this application is not subsumed in the Appellant/ Respondent’s interest in Appeal No. CA/PH/636/2009 already before this Court.
2. Whether documents exhibited in the applicant?s motion having been made during the pendency of Suit No. PHC/1073/2009, which judgment is now a subject of Appeal before this Court has any evidential value or relevancy in law.
In his argument on issue one learned counsel submitted that were an appeal already exist from a judgment of a High Court pending before this Court on which an application seek to also appeal, then the Court can conveniently refuse the leave seeking to appeal the same judgment already before it. That there is a judgment by the Hon. BOMA G. DIEPIRI J., of the High Court Port Harcourt Judicial Division in Suit No. PHC/2828/2016 Between: MR. TROTSKY E. N. UZUZU – Claimant V 1. MRS. HANNAH BENNETH; 2: CHIEF ANDERSON NWOKEKORO; 3: CHIEF NYECHE AMADI OKOCHAMATI; and 4: MR. CHIMENEM NYECHE OKOCHAMATI -Defendants delivered on 16th May, 2017 wherein the learned trial Judge held inter alia, that the interests of the Applicants in Suit No. PHC/1073/2009 is subsumed in the interest of the 1st set of Respondent’s in Appeal No. CA/PH/636/2016. Learned counsel quoted the judgment in Suit No. PHC/2828/2016 by the learned trial Judge where he held thus: –
“The title of the Claimant is subsumed in the 1st Defendant’s title. He either swim or sink with the 1st Defendant his vendor.”
That this decision is the subsisting law as it is yet to be set aside. Cited the Supreme Court holding in POROYE MAKARFI (2018) 1 NWLR {Pt. 1599} 91 at 154 paragraphs E – G; and IYOHO V EFFIONG (2007) 11 NWLR {Pt. 1044} 31. Learned counsel urged the Court to resolve this issue in favour of the 2nd set of Respondents by holding that the interest of the applicants is subsumed in that of the 1st set of Respondent in CA/PH/636/2016 which is an appeal against the judgment in Suit No. PHC/1073/2009.
On issue 2 canvassed by the 2nd set of Respondents, learned counsel submitted that by the provision of Section 83(3) of the Evidence Act, the documents exhibited by the Applicants in their motion waere made during the pendency of Suit No. PHC/1073/2009, the judgment of which they seek to appeal and thus has no evidential value or relevancy before this Court. Learned counsel cited the case of OMEGA BANK NIG V O.B.C. LTD (2005) 8 NWLR {Pt. 928} 547 and 576 where the Court affirmed the worthlessness of an unsigned document such as the documents exhibited by the applicants in this application.
Learned counsel finally submitted that the documents exhibited by the applicants were ?horridly and fraudulently made to deceived and hoodwink this Court in other (sic) to allow the applicant appeal a judgment already before this Court and ultimately frustrate and delay the hearing of the substantive appeal in CA/PH/636/2016?. Learned counsel urge the Court to refuse this application as it is made in bad faith.
I have also noted the Applicants? Reply on points of law to the 2nd set of Respondents written address and may refer to it if necessary.
FINDINGS:
Before making my pronouncement on this motion, I have to consider the facts (as can be deduced from the affidavit in support of the motion) that led to filing this application.
The applicants deposed that they have a common interest as bonafide purchasers for value of the land they are now occupying (the subject matter of this appeal) by virtue of purchase from the 1st set of Respondent. Some of them were in possession and occupation of their portions since 2009 and have put the said portions of land to good use. While the 4th Appellant built his family residential house, the 3rd Applicant built a school called ‘Peculiar Child Education Centre’, other applicants variously developed their lands. The Applicants exhibited the Deed of Conveyance evidencing purchase from the 1st set of Respondent (Mrs. Hannah Benneth) by the Applicants at various times which are marked as Exhibits ‘A1’ – ‘A6’ respectively.
That the 2nd set of Respondents (who sued the 1st set of Respondent in Suit No. PHC/1073/2009) no longer has any interest in the land in dispute because their parents had conveyed their rights and interests over the said land to Mrs. Hannah Benneth who subsequently, by sale at various times, transferred the interest to the said land to the Applicants. For example, the father of the 2nd set of Respondents Chief Nyeche Jonah Amadi and the principal members of the Amadi Family (which include Mr. Kinikanwo Confidence Wobo J. Amadi) had by a Deed of Conveyance dated 16th January, 2003, sold and conveyed their interest in the land to Mrs. Hannah Benneth at the purchase price of N4,500,000.00. The vendors acknowledged receipt of payment from the purchaser and signed the Deed of Conveyance which was front loaded by Mrs. Benneth in Suit No. PHC/1073/2009 among the documents she relied upon during trial. That document was however omitted in the record of appeal compiled and transmitted by Mrs. Benneth to this Court in Appeal No. CA/PH/636/2016.
That sometimes in 2005 when Mrs. Benneth attempted to take possession of the land she purchased in 2003 from late Chief Nyeche Jonah Amadi and the principal members of the Amadi family she was prevented from doing so by Chief Anderson Nwokekoro the late father of the 1st Respondent in the 3rd set of Respondents (Mr. Nzenyele Nwagbara). Mrs. Benneth was therefore forced to re-negotiate with Chief Anderson Nwokekoro whereupon she again paid to him the sum of N7000,000.00. Chief Nwokekoro conveyed his rights and interests in the same land to Mrs. Hannah Benneth through a Deed of Conveyance dated 5th March, 2005. This document was also frontloaded by Mrs. Benneth at the trial Court during hearing Suit No. PHC/1073/2009. But it was also not transmitted together with the record of appeal in this appeal.
That the late parents of 2nd and 3rd sets of Respondents sold the land in dispute to the 1st set of Respondent before she sold it to the Appellants. That before paying for the land the appellants conducted a diligent search and confirmed that Mrs. Benneth is the bonafide owner before the transactions were signed, sealed and delivered. That the 2nd set of Respondents filed Suit No. PHC/1073/2009 under the false belief that they are still the owners, when to their knowledge, their late parents had conveyed their interests in the land to Mrs. Hannah Benneth. That all the Respondents knew and had always known that the Applicants are in actual possession of the land in dispute, but they failed, refused and/or neglected to join the said Applicants as necessary parties at the trial Court.
That there is ‘an active fraudulent connivance’ between Mrs. Benneth and the 2nd set of Respondents to secure judgment behind the backs of the Applicants. The 2nd set of Respondents got judgment through fraudulent misrepresentation of facts to the lower Court. Thus this motion by the Applicants.
These facts were not effectively countered by the 1st and 2nd sets of Respondents in their respective counter affidavits. I have carefully considered the written addresses filed by the parties as ordered by this Court on 28th February, 2018 and I also find the submission by the 1st and 2nd sets of Respondents to be a futile attempt to prevent the applicants from applying against the judgment of Rivers State High Court in Suit No. PHC/1073/2009. This Court being a Court of justice cannot prevent a party from ventilating his grievance against a judgment especially where allegations of fraud, locus standi and the suit being statute barred are raised.
I have judicially noted that the Applicants filed a motion on notice before us on 2nd November, 2016 seeking for leave to join appeal No. CA/PH/636/2016 as interested parties.
We struck out the motion on 19th October, 2017 because there is no provision for joinder of appeal already filed in the Rules of this Court. The Applicants then filed this motion for leave to appeal against the said judgment as parties interested.
I have considered the provisions of Order 6 Rule 9(2) of the Court of Appeal Rules, 2016. I then considered the reasons for failure to appeal within the prescribed period as contained in the deposition of Mr. David Eyo Ekpe in the supporting affidavit. I also considered the Proposed Notice of Appeal attached to the motion paper containing four grounds of appeal and it is my finding that they prima facie show good cause why the appeal should be heard.
I adopt and rely on the holding by FABIYI JSC while delivering the lead judgment in NATIONAL UNION OF ROAD TRANSPORT WORKERS & ANOR. V ROAD TRANSPORT EMPLOYERS ASSOCIATION OF NIGERIA & ORS (2012) 10 NWLR {Pt. 1307} page 170 at 187 paragraphs C – D that; It was not right for the plaintiffs to keep it out of the game and attempt to ?steal the show? behind the back of a deserving defendant.
After all, any judgment made with an order against a necessary and desirable party behind its back will be to no avail. It cannot be allowed to stand
Based on the facts and circumstances of this application, it is necessary and desirable to allow the Applicants to exercise their right of appeal because it is in accordance with the principle of fair hearing as enshrined in Section 36 of the 1999 Constitution, (as amended). To shut them out from ventilating their grievances of appealing against the decision in Suit No. PHC/1073/2009 will tantamount to denial of their constitutionally guaranteed right to fair hearing and I so hold.
It is therefore the Ruling of this Court that this application has merit and it is accordingly granted as prayed;
1. An Order is granted extending time to the Applicants to seek leave to appeal against the judgment of the lower Court in Suit No. PHC/1073/2009: Chief Nyeche Amadi Okochamati & Anor V Mr. Nzenyele Nwagbara & 3 Ors. delivered on 29th July, 2013.
2. Leave is granted to the Applicants to appeal as interested parties against the judgment of the lower Court delivered on 29th July, 2013.
3. Time is extended to the Applicants to appeal as interested parties against the judgment of the lower Court in Suit No. PHC/1073/2009. Between: Chief Nyeche Amadi Okochamati & Anor V Mr. Nzenyele Nwagbara & Ors delivered on 29th July, 2013.
4. Time is also extended to the Applicants to file their Notice of Appeal. The said Notice of Appeal shall be filed within 10 days.
5. Leave is granted to the Applicants to compile and transmit their Record of Appeal from lower Court in Suit No. PHC/1073/2009: Chief Nyeche Amadi Okochamati & Anor -V- Mr. Nzenyele Nwagbara & 3 Ors. within 30 days pursuant to Order 8 Rules 4 and 5 of the Court of Appeal Rules, 2016.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read the Ruling of my learned brother, BITRUS GYARAZAMA SANGA JCA before it was delivered. I agree that the application has merit and it is granted by me. I abide by the consequential Orders.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft the ruling delivered by my learned brother Bitrus Gyarazama Sanga, JCA. I agree with the sound reasoning and conclusion of my respected learned brother. The appeal is meritorious and the application is accordingly granted as prayed.
Appearances:
K.U. Obayi, Esq. for the Appellants seeking leave to appeal as interested partiesFor Appellant(s)
Frank A. Chukuka, Esq. for the Appellants/Respondents.
M.A. Dagogo-Harry, Esq. for the 1st set of respondent.
S.C. Eze, Esq. for the 2nd set of respondents
For Respondent(s)
