TOOCHUKWU ANYANWU V. EMEZIE OKOROAFOR & ORS
(2012)LCN/5656(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of November, 2012
CA/OW/341M/2011
RATIO
“To succeed in getting the court’s favour, he has to satisfy the court that he is an interested party. The courts have generously interpreted the phrase “person having an interest” within the intendment of Section 243(a) of the 1999 Constitution to mean or synonymous with “person aggrieved”, and that “a person aggrieved” is a person who has suffered a legal grievance, a person against whom a decision has been given which has deprived him of something or refused him something or affected his right or title to something. Thus, Belgore, JCA in the case of BAIDO v. I.N.E.C. (2008) 12 NWLR (Pt. 1101) Pg.379 at Pg. 400 Paras. A-D cited and relied on the decision of the Supreme Court in SOCIETE GENERAL BANK v. AFEKORO NWLR (Pt. 628) Pg. 521 at 524 where the Supreme Court held thus: “The expression “person having an interest” for the purpose of an appeal by an interested party is synonymous with “person aggrieved”. It does not really mean a man who is disappointed of u benefit which he might have received if some order had been made. A “person aggrieved” is a person who has suffered u legal grievance, a man against whom a decision has been pronounced which has wrongfully refused him something or wrongfully affected his title to something. Such n person will be granted leave to appeal against a decision given in a proceeding to which he was not a party”. See also NGIGE v. OBI (2006) 14 NWLR (Pt. 999) Pg. 1 at 206 per Alagoa, JCA (as he then was); OJORA v. AGIP (NIG) PLC (2005) 4 NWLR (Pt. 916) Pg. 515 and OZUEH v. EZEWEPUTA (2005) 4 NWLR (Pt. 915) Pg.221.” PER TSAMMANI, J.C.A.
“To achieve that purpose, the document must be read as a whole, and interpreted in that light, so as to achieve harmony among the parts of the document. The document should be construed as a whole and given an interpretation which will be consistent with the object and general context of the entire document. See BAKARE v. I.N.E.C (2007) 7 NWLR (Pt. 1064) Pg. 606; JAMB v. ORJI (2008) 2 NWLR (Pt. 1072) Pg. 552. ADAMS v. UMAR (2009) 5 NWLR (Pt. 1133) Pg.41 and MBANI v. BOSI (2006) 11 NWLR (Pt.991) Pg. 400.” PER TSAMMANI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA S. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
TOOCHUKWU ANYANWU Appellant(s)
AND
1. EMEZIE OKOROAFOR
2. DR. MRS. HELEN OKOROAFOR Suing by their Attorneys Wg. Cdr. Engr. Vincent Okoroafor, Lawrence Okoroafor and J. J. LYN Nig. Ltd.)
3. COMMISSIONER FOR LANDS, SURVEY AND URBAN PLANNING, IMO STATE
4. GOVERNOR OF IMO STATE
5. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, IMO STATE
6. THE REGISTERED TRUSTEES OF THE MUSLIM COUNCIL OF IMO STATE OF NIGERIA Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A., (Delivering the lead Ruling): By a motion on notice dated the 14/12/2011 and filed the 21/12/2011, the applicant prayed for the following reliefs:
1. AN ORDER extending time within which the Applicant may seek leave to appeal against the judgment as an interested party and the Ruling of Hon. Justice C. I. Durueke made on the 30th day of October, 2009 and 8th of July, 2010 in HOW/299/2009.
2. LEAVE to the Applicant to appeal against the judgment and the Ruling as an interested party.
3. EXTENSION of time within which the applicant may appeal against the judgment and the Ruling in Suit HOW/229/2009.
4. AN ORDER deeming as duly and properly served the Notice of Appeal annexed as exhibits to the supporting affidavit of this motion, as appropriate filing fees have been paid.
5. AN ORDER Consolidating the Notice of Appeal filed by the applicant against the judgment of 30/10/2009 and Ruling of 8/7/2010 all filed on the 19th of August, 2011.
6. AN ORDER staying further execution, setting aside as wrongful any execution made pursuant to the said judgment and restraining the respondents from acting on the said judgment in respect of Plot 643 Works Layout, Owerri Imo State, pending the determination of the appeal.
7. AND for such further order(s) that this court may deem fit to make in the interest of justice and in the circumstances of this matter.
THE GROUNDS in support of the application are:
(a) The applicant bought and developed his property without any notice of adverse interest since 2003 and has been in possession and occupation of his property at Plot 643 Works layout, Owerri, Imo State since then, even before the institution of the suit in 2009.
(b) The applicant was not made a party to the proceedings leading to the judgment and was not aware of the suit
(c) The applicant was never served with the judgment and only became aware of a judgment during invasion of the property after the statutory time allowed for appeal had lapsed.
(d) The applicant has a constitutional right of appeal as given by Section 243 of the Constitution of the Federal Republic of Nigeria.
(e) The applicant has suffered embarrassment and is aggrieved and affected by the judgment against his property without his being a party FUNDUK ENGINEERING LTD v. MCARTHUR & ORS (1990) 4 NWLR (Pt. 143) 266.
(f) The applicant has filed Notice of Appeal over the judgment of the court and the Ruling of the court.
(g)The grounds of appeal raises (sic) very serious and fundamental issues of law.
(h)The respondents ought not to be allowed to take advantage of their own wrong.
(i) The Court of Appeal has the power to grant the prayers in the application.
The motion is supported by an affidavit of 41 paragraphs to which are annexed seven (7) exhibits marked as Exhibits A, B, C, D, E, F, H and J respectively and is deposed to by Mr. Kelechi Iheanacho who described himself as the caretaker/agent of the Applicant. In opposition to the motion, the 1st and 2nd Respondents (1st set of Respondents) filed a Counter Affidavit of 35 paragraphs, deposed to by Wing Commander, Engineer Vincent Okoroafor. Annexed to the counter affidavit are 15 exhibits marked as Exhibits A, B, C, D, E, F, G, H, J, K, L, M, N, O and P respectively. In response, the Applicant filed an “Affidavit In Reply To The Counter Affidavit” consisting of 26 paragraphs to which he annexed one document marked as Exhibit “K”. The 1st set of Respondents also filed a “Further Counter Affidavit” of 14 paragraphs, accompanied by five annextures marked as Exhibits LC1, LC2, LC3, LC4 and LC5 respectively. They also filed a “2nd Further Counter Affidavit” on the 30/5/2012 made up of 5 paragraphs to which they annexed Exhibit LC6. The 2nd, 3rd, 4th, 5th and 6th Respondents (2nd and 3rd set of Respondents) did not file any Counter Affidavit.
Now, considering the hostile positions taken by the Applicant and the 1st set of Respondents, parties were ordered to file Written Addresses. The Applicant’s Written Addresses dated the 07/32012 was filed on the
08/3112. The Written Addresses of the 1st and 2nd Respondents (1st set of Respondents) was dated the 26/3/2012 and filed the same day. The Applicant then filed a Written Reply Address, dated the 02/4/2012 and filed the 04/4/2012.
At the hearing of the Application on the 09/10/2012, Mr. I. F. Akponye of learned counsel for the Applicant adopted and relied on the Applicant’s Written Address and the Written Reply Address, as the Applicant’s arguments in this motion. He then urged us to grant the Application. Mr. L.C. Ugorji of learned counsel for the 1st set of Respondents also adopted the Written Address in opposition to the motion filed on the 26/3/2012 and urged us to dismiss the Application.
In arguing the Application, learned counsel for the Applicant is of the view that only one issue arise for determination as follows:
“Whether from the entire circumstances of this application, the Court of Appeal can grant the prayers sought in this application.”
The 1st set of Respondents on the other hand nominated three (3) issues for determination. They are:
“1. Whether the application is competent and properly before the honourable court.
2. Whether the appellant/applicant has any interest in the property known as Plot P10, Works Layout, Owerri, the subject matter of Suit No. HOW229/2009, to bring the appellant/applicant within the class of “Persons Having Interest” as provided for by Section 243 of the Constitution of the Federal Republic of Nigeria, 1999.
3. Whether appellant/applicant has established good and substantial reason for his failure to bring this application within time.”
It would be seen that apart from the first issue nominated by the 1st and 2nd Respondents (hereafter referred to as Respondents), the 2nd and 3rd issues nominated by them can be adequately accommodated in the lone issue formulated by the Applicant. Accordingly, I shall determine this application on issue 1(one) formulated by the Respondents and the lone issue formulated by the Applicant. Considering that the 1st (first) issue presented by the Respondents question the competence of the motion itself I shall endeavour to resolve same first. I shall then proceed to resolve the substantive application, if need be, on the sole issue posited by the Applicant.
The first objection to the competence of this Application as raised by the Respondents is that, Suit No IIOW/229/2009 has two claimants (suing by their Attorneys) and four defendants. That Tochukwu Anyanwu, the Applicant, is not a party to the said suit and therefore has no right to amend the writ in that suit, and thus make himself a party before bringing this application. He referred to the cases of IN RE: F.R.A. WILIAMS (2001) FWLR (Pt. 67) Pg. 867 and IN RE: YINKA FOLAWIYO & SONS LTD (1991) 7 NWLR (Pt.201) Pg.237, to show that application of this nature are usually brought in the format of “IN RE: THE APPLICANT.” In that respect, he submitted that, it is trite law that, no party has the right to alter the Writ of Summons after same has been issued out, without the leave of court. He then relied on “ESSAYS ON CIVIL PROCEEDINGS by Obi Okoye at page 202 Para. 33 to further submit that, any such alteration will render the writ so altered void. Order 3 rule 10(2) of the Imo State High Court (Civil Procedure) Rules, 2008 was also cited in support. On that score, learned counsel contended that the Applicant has no right to alter the Writ of Summons in this suit by adding his name as a party without the leave of court, and therefore the writ on which this application is brought is void for all purposes. He also cited the case of ADEGOKE MOTORS v. ADESANYA (1989) 3 NWLR (Pt. 109) Pg. 250 at 265 in support of his contention.
The response of the Applicant to this contention of the Respondents is at pages 5-6, Paras. 2.11-2.21 of the written Reply Address of the Applicants. Therein learned counsel submitted that, the Respondents failed to disclose or show the law that makes it mandatory that the only FORM of bringing an application as the instant one be titled or headed “IN RE: THE APPLICANT.” That heading an application such as this, as “IN RE:-” does not mean that it is the only Form of bringing such application before the Court of Appeal. That the Applicant properly described himself at the head of the Application, and that it is not the case of the Respondents that the Applicant is not whom he claims to be.
It is therefore the contention of learned Applicant’s counsel that the argument of the Respondents on amendment of writ of summons is strange because, the action the subject of this application was done by Originating Summons at the lower court and not a Writ of Summons. Secondly, that this Application is not a pending action at the High Court, but only an application to enable the Applicant appeal the decision of the lower court as required by law. He submitted that the Rules of the High Court do not govern the present Application in terms of procedure and therefore Order 3 rule 10(2) of the Imo State High Court (Civil Procedure) Rules, 2008 is inapplicable. That in any case, the argument of the Respondents that the writ is void is self defeating as it would imply that the action filed was void. He then drew our attention to the cases of NIGERIAN BOTTLING CO. PLC v. OSOFISAN (2000) 10 NWLR (Pt. 675) Pg. 370; FUNDUK ENG. LTD v. MCARTHUR (1990) 4 NWLR (Pt. 143) Pg.266 and ENYIBROS. FOODS PROCESSING CO. LTD & ANOR v. NIG. DEPOSIT INS. CORP. & ANOR (2007) 153 LRCN Pg. 62, where applications of this nature were considered without heading same “IN RE:…” and made in similar form in which this Application has been brought.
My simple answer to the contention of learned counsel for the Respondents is that the contention is grossly misconceived. In the first place learned counsel did not refer us to any judicial authority or rule of this court which makes it mandatory that an application such as this must be brought in any particular form or in the manner contended by learned counsel. It is my humble view that heading an Application such as this, as “IN RE: THE APPLICANT” is only one method or form of initiating the application. In any case, learned counsel for the Respondent did not contend that the cases of IN RE: F.R.A. WILLIAMS (supra) and IN RE: YINKA FOLAWIYO & SONS LTD (supra) proposed a judicial rule that all applications such as this must be titled or headed “IN RE: THE APPLICANT.” My understanding of the term “IN RE:” simply means “In the matter of or In the application of ….” Captioning an application with that simple Latin term is to draw the attention of the court to the person making the application. It is therefore my humble view that, where an application such as this show clearly on the face of it the person making the application, and the nature of the application, it should suffice.
It is also a total misconception to contend that by making the application, the Applicant has altered any process arising from the proceedings of the lower court. Clearly, the process before this court is neither a writ or originating summons. It is an independent process permitted by the Rules of this court. I therefore agree with learned counsel for the Applicant that the contention of the Respondents on alteration of the Writ of Summons is strange. It is very strange and meaningless and therefore cannot be countenanced. The first leg of the Respondents’ objection as argued in their issue No. 1 is entirely unmerited.
Learned counsel for the Respondents further argued that this Application is incompetent, as it is trite law that an applicant is bound by the prayers on his motion paper and that the case of party is considered on the reliefs sought by him. The cases of GAMU v. HAUSA (2006) All FWLR (Pt. 293) Pg.378 & 380; OKOYA v. SANTILLI (1990) 2 NWLR (Pt. 131) Pg. 172 & 183 and F.U.N.B LTD v. AEROBELL (NIG) LTD ( 2005) All FWLR (Pt. 281) Pg.1651 & 1655 were cited in support. It was then contended that, the 1st prayer on the Applicant’s motion paper seeks for extension of time to seek leave to appeal against the judgment and ruling in Suit No. how/299/2009. That the affidavit of the Applicant as well as the documents exhibited do not refer to the said Suit HOW/299/2009 as there is no such suit before this court. Learned Respondents’ counsel then submitted that, the 1st prayer of the Applicant is therefore not supported by any paragraph of the affidavit and no reason has been proffered as to why this court should extend time to seek the said leave. That assuming, which counsel does not concede, that the Applicant was referring to Suit No. HOW/229/2009, the prayer is still incompetent because the Applicant being the 5th Applicant in the said ruling and therefore a party thereto, cannot appeal as an interested party.
On the 2nd prayer of the Applicant, it is the contention of learned counsel for the Respondents that, the prayer does not refer to any specific judgment or ruling of any court. Learned counsel then submitted that, the prayer is therefore not only clumsy but vague, and therefore grossly incompetent; and should be struck out.
Learned counsel for the Respondents also contended that the 3rd prayer is not predicated on any valid leave and therefore incompetent. That in any case, there are several rulings in Suit No. HOW/229/2009, but the Applicant did not identify the particular ruling he is seeking the court’s indulgence. It was therefore submitted that having failed to do so has rendered the Application vague and incompetent. We were then urged to adjudge the Applicant’s motion as grossly incompetent and to have same struck out. Learned counsel for the Applicant’s response is that the arguments of the Respondents here is strange. That the assertion of the Respondents that Suit No. HOW229/2009 is not before the court is not clear, because, Suit No. HOW/229/2009, the subject of this application was severally stated in the supporting affidavit, after introducing the Applicant’s interest it the subject matter as can be found in paragraphs 17, 19, 20, 24, 26, 27, 28, 29, 31, 33, 34, 35, 36, 37, 38 and 39 of the affidavit in support of the motion. That the judgment was annexed as Exhibit “E” and the Ruling as Exhibit G; and the Notice of Appeal also annexed as Exhibit “G” and “H” respectively. It was also submitted by learned counsel for the Applicant that, the Respondents contention that the Applicant’s application to appeal the Ruling as an interested party is erroneous, because the prayer for extension of time for leave to appeal is for an applicant who seeks leave to appeal the Ruling out of time as held by the Supreme Court in AGU v. ODOFIN (1992) 3 SCNJ Pg.161. That the leave to appeal as an interested party is clearly stated in all prayers of the motion paper as referring to the judgment.
It is the further contention of the Applicant’s learned counsel that, the attack on prayers2 and 3 is unnecessary, since the motion has clearly stated in prayer 1, the name of the judge, the suit No., the dates of the judgment and ruling being appealed against. That the arguments in the Respondents’ issue No. 1 are inchoate and unmeritorious, since the Respondents have joined issues with the Applicant over the Application by filing their Counter Affidavits. The cases of ARIORI v. ELEMO (1983) 1 SCNLR Pg. 1 and ODUA INVBSTMENT CO. LTD v, TALABI (1997) 10 NWLR (Pt. 523) Pg. 1 were cited to submit that the Respondents having joined issues with the Applicant on the Application, have waived their right to complain. That in any case, the Respondents have not shown how they have been prejudiced by the defects in the form they complain of, especially when the courts have now deviated from strict adherence to technicality in favour of the carrying out of substantial justice. The cases of MAJA v. SAMOURIS (2002) 3 SCNJ Pg. 29 at 45; UTC (NIG) LTD v. PAMOTAI (1989) 2 NWLR (Pt. 103) Pg.244 at 249; SALAMI v. BUNGINIMI & ANOR (1998) 9 NWLR (Pt. 565) Pg. 235 SAUDE v. ABDULLAHI (19S9) 4 NWLR (Pt. 116) Pg. 387 and NWOSIJ v. ISESA (1990) 2 NWLR (Pt. 135) Pg. 688 at 717 per Nnaemeka Agu; JSC were cited in support. We were then urged to resolve issue No.1 of the Respondents against the Respondents.
I have carefully read and reflected on the submissions of counsel and the contents of the motion paper. It is clear on the face of prayer 1 that the judgment referred to on the motion paper is HOW/299/12009. However, the Suit referred to at prayer 3 is HOW/229/2009.It is clear therefore that on the surface of the motion paper, two different suits have been referred to. Learned counsel for the Applicant did not help matters as he did not make any attempt to clear the conflict. Perhaps he did not reflect deeply on the issue. The law however is that, it is the duty of the court in its interpretative jurisdiction to interpret any document placed before it in such a manner as to save the document by ascribing to it such a meaning as to bring out the intention of the maker. In doing that courts are encouraged to accord such documents a liberal construction, unless the intention of the maker is clearly recorded in the document without ambiguity whatsoever. The court should therefore avoid undue adherence to technicality at the expense of the justice of the case. See NWOLE v. IWUAGWU (2004) 15 NWLR (Pt. 895) Pg. 61; IDRIS v. A.N.P.P (2008) 8 NWLR (Pt. 1088) Pg. 1 and NIG BANK FOR COMMERCE & INDUSTRY V. INTERGRATED GAS (NIG) LTD & ANOR (1999) 8 NWLR (Pt. 613) Pg. 119 at 127.
To achieve that purpose, the document must be read as a whole, and interpreted in that light, so as to achieve harmony among the parts of the document. The document should be construed as a whole and given an interpretation which will be consistent with the object and general con of the entire document. See BAKARE v. I.N.E.C (2007) 7 NWLR (Pt. 1064) Pg. 606; JAMB v. ORJI (2008) 2 NWLR (Pt. 1072) Pg. 552. ADAMS v. UMAR (2009) 5 NWLR (Pt. 1133) Pg.41 and MBANI v. BOSI (2006) 11 NWLR (Pt.991) Pg. 400.In the instant Application, a plain reading at the head of the document would show that the Application is in respect of Suit No. HOW/299/2009. It is also not in doubt that the Suit No. in prayer 1 is written as HOW/299/2009, but Suit No. HOW/229/2009 is repeated in prayer 3 and which Suit No. features prominently and consistently in the various affidavits of the parties. The only logical and reasonable conclusion to arrive at, in my view is that Suit No. HOW/299/2009 was written in error. After all, lawyers are humans and like all humans, they are prone to errors which may occur in the drafting of documents and other courts processes. It is therefore to be expected that such errors would occur and where such errors occur, they should not be allowed to defeat the purpose of those documents and thus defeat the justice of the case, by strict adherence to technicality. It is therefore my view that Suit No. HOW/299/2009 was typed in prayer 1 in error.
I must admit that the prayers on the Applicant’s motion are clumsily drafted, but that should not be construed as to terminate the Application in limine. In the circumstances, I am of the view that the Application be considered on its merit. The Respondents’ first issue should accordingly be and is hereby resolved against the Respondents.
Now, the sole issue nominated for determination by the Applicant is, whether from the entire circumstances of this application, the Court of Appeal can grant the prayers sought in this application. In arguing same, learned counsel for the Applicant contended that, this Application is principally for the exercise of the discretionary power of this court relating to the exercise of right of appeal of the Applicant. That for the Applicant to invoke the provision of Section 243 of the 1999 Constitution of the Federal Republic of Nigeria, he has to disclose that he has a legal and substantive interest in the matter. He then submitted that the Applicant has shown that he has sufficient interest in the subject matter having deposed in Exhibit B annexed to his supporting affidavit his registered survey plan and the fact of his development of the land for which he attached pictures. That the Applicant has disclosed in his affidavit that his interest has been directly affected by the conduct of the Respondents who filed an action in 2009 without joining him when he has been in the property since 2003 without any let or hindrance. He referred to paragraphs 5, 8, 9, 10, 11, 12, 13, 14, 15 of the affidavit in support as disclosing the concrete interest of the Applicant in the subject matter and that the decision affected him directly. He further referred to the cases of KALU v. ODILI (1992) 5 NWLR (Pt. 240) Pg. 130 at 194 Para. C; RE YINKA FOLAWIYO & SONS LTD (1991) 7 NWLR (Pt. 202) Pg.237; FUNDUK ENG. LTD v. MCARTHUR (1990) 4 NWLR (Pt. 143) Pg. 266; RE: OJUKWU v. OJUKWU (1998) 5 NWLII (Pt. 551) Pg. 673 at 682-683 and NIGERIAN BOTTLING CO. PLC v. OSOFISAN (2000) 10 NWLR (Pt.675) Pg.370 at 381 – 383 to submit that the Applicant is a person having an interest as contemplated by the Constitution of the Federal Republic of Nigeria and that the facts supporting the interest of the Applicant have not been denied by the Respondents.
Learned Applicant’s counsel went on to submit that the Applicant has also sought for an extension of time to appeal and has therefore deposed to sufficient and strong facts on the reason for the delay in filing of the appeal. For that, he referred to the depositions of the Applicant at paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 28, 30, 31, 33, 36 of the Supporting Affidavit and paragraphs 13, 14, 16, and 17 of the Affidavit in Reply to the Respondents’ Counter Affidavit. That Suit No. HOW/2299/2009 was filed and judgment delivered thereon on the 30/10/2009 without making him a party or bringing the fact of the existence of that suit to his knowledge. That the Applicant only became aware of the judgment in October, 2010 following inquiries at the High Court. It is also the contention of the Applicant that those facts were not denied by the Respondents in their Counter Affidavits and should be deemed and accepted as true and that the Respondent rather confirmed those facts when they deposed that they had executed the judgment against the Applicant. He then relied on the case of NORWOOD (NIG) LTD & ORS. v. SAHLBAU GMBH & CO. K.G (1991) 5 NWLR ( Pt. 194) Pg.767; WILLIAMS v. HOPE, RISING VOLUNTARY SOCIETY (1982) 1-2 S.C Pg. 145, to urge us to hold that the Applicant has satisfied the reason for the delay in bringing the application.
The Applicant further contended that, another reason for the delay was due to the advice of his counsel, who advised that the Applicant await the outcome of Suit No. HOW/92/2009 which had challenged the judgment on grounds of fraud. That it was in July, 2011 that his new counsel advised that he appeals against the judgment and ruling. That those facts have been deposed in paragraphs 31, 32, 33, 35, 36, and 37 of the supporting Affidavit. It was therefore submitted by learned counsel for the Applicant that, since the further delay was occasioned by error in advice of learned counsel, it should not be visited on the Applicant. The cases of DOHERTY v. DOHERTY (1964) 1 All N.L.R Pg.299; HARUNA v. LADEINDE (1987) 4 NWLR (Pt.67) Pg. 941; SOY AGENCIES & INDUSTRIAL SERVICES LTD v. METALUM LTD & ORS (1991) 3 NWLR (Pt. 177) Pg. 35 and NORWOOD (NIG) LTD v. STALLBAU GMBH & CO. KG (supra) were cited to submit that courts are slow to punish the sin of counsel on the party who had retained his professional services.
It has also been submitted by learned counsel for the Applicant that, the Grounds of Appeal have raised very serious and substantial issues of law including the issue of breach of fair hearing. That those grounds of law are of exceptional nature as to attract the positive exercise of the discretion of this court.
Learned counsel for the Respondents contended that, it is not in dispute that following the compulsory acquisition of the piece of land known as and called Plot P10 Works Layout, Owerri from Dr. Godwin S. Okoroafor, he promptly filed a Suit in the High Court challenging the said acquisition vide Suit No. HOW/47/88. That it is also not in dispute that when Suit No. HOW/47/88 was pending, the 6th Respondent to whom the land so acquired was allocated, sold same to Chief Emmanuel N. I. Njoku who in conjunction with the 3rd Respondent parcellated the said plot and further sold same to several individuals including the Applicant as evidenced by Exhibits B of the supporting Affidavit and Exhibit E of the Counter Affidavit. Learned Respondents’ counsel then submitted that, by the doctrine of lis pendens, the 6th Respondent was precluded from transferring the right of ownership and possession of the land to any person at all, while the dispute involving the land was still pending in Suit No. HOW/47/88. It was further submitted that, the purported transfer of the said right to Chief Njoku by the 6th Respondent was therefore caught by the doctrine of lis pedens and therefore null and void. The cases of AMAECHI v. INEC (2008) All FWLR (Pt. 407) Pg. 1 at 199 paras. C – F; AKINKUGBE v. EWURUM (2008) 4 SCNJ Pg. 404 at 409; ALAKIJA v. ABDULAI (1998) 6 NWLR (Pt. 552) Pg. 1 at 4 and ENYI BROS. FOODS PIIOCESSING CO. LTD & ANOR v. N.D.I.C. & ANOR (2007) All FWLR (Pt. 367) Pg. 793 at 823 were cited in support.
It was further argued by the Respondents that, by the doctrine of lis pendens, the Applicant cannot claim to have acquired any interest in the property known as Plot 10 Works Layout Owerri or any part thereof, since Chief Njoku who sold the land to him had not acquired any legal interest in the said property which he could transfer to the Applicant as to warrant the Applicant making this application as an interested person or person interested. He again relied on the case of AMAECHI v. INEC (supra) at Pg. 69 to further submit that, in the eyes of the law, the Applicant and his landlord (Chief Njoku) do not exist as persons with any interest in the property known as Plot P10, Works Layout, Owerri. We were then urged to hold that, the Applicant has not shown any legally recognized interest in the property or any part thereof as to bring him into the class of person having interest as provided by Section 243 of the 1999 Constitution (supra)
On whether the Applicant has proffered any reason for the delay or failure to bring the application within time, it is the contention of learned counsel for the Respondents that the only reason is as deposed to in paragraphs 29, 30, 31, 33, 35, and 36 of the supporting affidavit. That comparing those paragraphs of the affidavit with certain documents contained in certain court processes filed by the Applicant, it is very obvious that the Applicant is very economical with the truth. That the Applicant did not tell the court that he and 7 others brought an application in Suit No. HOW/229/2009 on the 4/5/2010, for stay of further execution of the judgment and lost, and thereafter, went to sleep. That the Applicant also filed an application in July, 2011 for the enforcement of his Fundamental Rights and also falsely claimed through his present counsel in a motion filed at the Magistrate Court Owerri in Suit No. OW/486/2010, that he had filed an appeal against the judgment. Learned counsel then submitted that the Applicant became aware of the judgment in Suit No. HOW/229/2009 delivered on 30/10/2009, in May, 2010, when he challenged the execution of same and lost.
On the contention of the Applicant that the delay in bringing this application was occasioned by error of his counsel, learned Respondents’ Counsel disagreed, and submitted that the delay is rather caused by indolence of the Applicant arising from the fact that he realized that he has no interest in the property in dispute, as well as ineptitude of Counsel. That there is a distinction between incompetence of counsel and error of counsel and that an applicant cannot rely on the incompetence of his counsel to ask for the indulgence of this court. That it is not error in a situation where leave of court is required to file an appeal, for counsel to proceed to file appeal without the leave of the court, and then proceed to seek advantage as in the instant case. The cases of HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY v. ABDULLAHI (2010) All FWLR (Pt.507) Pg. 179 at Pp.196-199; IROEGBU V. OKWODU (1990) 10 SCNJ Pg. 89; UMAR INT LTD All FWLR (Pt. 500) Pg. 89 at 808 and WILBAHI HAULAGE LTD v. ANAMCO LTD (2009) All FWLR (Pt. 485) Pg. 1790 at 1798-1799 were cited to submit that the Applicant has not established any good and substantial reason for his failure to bring this application within time. We were then urged to dismiss the application.
In Reply, learned counsel for the Applicant contended that the argument of the Respondents that Suit No. HOW/47/88 will operate as lis pendens against the interest of the Applicant cannot be taken at this stage, in view of the fact that the issue of interest in the subject matter of the judgment is the subject of the appeal being sought in respect of the Ruling of the High Court on the 8/7/2010. That there is a Constitutional right of appeal enuring to the Applicant in respect of the Ruling made on the 8/7/2010, and all the Applicant seeks is for leave to exercise that right of appeal as a party to that Ruling out of time. That the issue of interest in the subject matter is unnecessary in respect of the appeal against the Ruling 8/7/2010 as disclosed in the Grounds of Appeal exhibited as Exhibit J to the Supporting Affidavit. That the question of satisfaction of interest as required by Section 243 of the 1999 Constitution (supra) does not therefore relate to that Ruling of which the Applicant was a party. The case of HARRY AKANDE v, GENERAL ELECTRIC CO. & ORS (1979) 3 -4 S.C pg. 115 was cited in support to further submit that, since the Ruling of the lower court in July, 2010 pronounced on the locus standi of the Applicant and his interest in the subject matter, he has a right of appeal as of right being a “party” to that proceeding. It was further submitted that, any argument at this stage in respect of interest to the subject matter of the judgment which is the subject of this application will amount to prejudging the matter or the substantive appeal at an interlocutory stage, which court are enjoined not to do. The case of ORJI v. ZARIA INDUSTRIES LTD (1993) 1 NWLR (Pt. 216) Pg. 124; HART v. T.S.K.J. (NIG) LTD (1997) 8 NWLR (Pt. 517) Pg. 424; S.C (NIG) LTD v. OUR LINE LTD (1995) 5 NWLR (Pt.395) Pg. 364; ICON LTD (MERCHANT BANKERS v. F.B.N (MERCHANT BANKERS) LTD (1995) 6 NWLR (Pt. 401) Pg. 370 and NIG BOTTLING CO. v. OSOFISAN (supra) at Pg. 383 – 384 Paras. F – A were cited in support.
Learned counsel for the Applicant further submitted that, the basis of the assertion of the Respondents on lack of interest of the Applicant in Suit No. HOW/47/88 which is not the subject matter of this application, and therefore arguable only at the time of taking the substantive appeal. That the Applicant has shown by Exh. “B” annexed to the Supporting Affidavit that he bought and paid for the property, and also spent millions of naira in developing same since 2003, while the judgment sought to be appealed against was filed in 2009 and therefore lis pendens cannot apply to his case, nor can it be determined at this stage. That a right having been conferred on the Applicant over his specific Plot of land is enforceable unless otherwise determined.
On the point that the Applicant did not disclose reasons for the delay, it has been contended by the Applicant that, by the authorities of UKAEGBU v. UGOLI (1991) 6 NWLR (Pt. 196) Pg. 127 at 143-144 and HON. MINISTER OF FEDERAL CAPITAL TERRITORY V. ABDULLAHI (supra) cited by the Respondents, the fact of lack of knowledge of the suit is sufficient reason to grant leave to appeal as a person interested. That since the Ground of Appeal disclose serious issues of law some of which border on the jurisdiction of the court, this Application should be granted. The cases of UKWU v. BUNGE (1997) 8 NWLR (Pt. 518) Pg. 5271 C.B.N v. AHMED (2001) 11 NWLR (Pt. 724) Pg. 369 at 392-393; OLANIYAN v. AWAH (1989) 5 NWLR (Pt. 122) Pg. 493 and UNILAG v. OLANIYAN (1985) 1 NWLR (Pt. 1) Pg.156 at 163 were then cited in support.
Now, it is the constitutional right of a party or person to appeal against the judgment given against him or his interest. Such right is generally jealously guarded and protected by the courts. Courts of law, and indeed the appellate courts are often disposed to interpret such Constitutional or statutory provisions granting the right of appeal in favour of any person aggrieved. In other words, the right of appeal is conferred on the person aggrieved by a determination or decision of a court which has been pronounced against him, and the substance of which has denied such an aggrieved person his right to something or has wrongly affected his title to something. The right of appeal and the person who can exercise such right of appeal is constitutionally and in some instances statutorily circumscribed. It is not a right enuring to all comers, but is a right specifically donated by either the Constitution or the Statute that created either the trial court or the appellate court. See IFEKANDU v. UZOEGWU (2008) 15 NWLR (Pt. 1111) Pg. 508; N.I W.A v. S.P.D.C. (NIG) LTD (2007) 1 NWLR (Pt. 1015) Pg. 305; ISULIGHT (NIG) LTD v. JACKSON (2005) 11 NWLR (Pt. 937) Pg. 631 and EKUNOLA v. C.B.N (2006) 14 NWLR (Pt. 1000) Pg.292.
The right of appeal to the Court of Appeal from the decision of either the Federal High Court, or the High Court of a State is donated by Sections 241, 242, and 243 of the 1999 Constitution of the Federal Republic of Nigeria. Section 241 enshrines situations where a person can appeal from the decision of the Federal High Court or a High Court to the Court of Appeal as of right, while other appeals emanating from the right granted by Section 242 lie with leave of either the High Court or the Court of Appeal. Section 243(a) of the Constitution (supra) circumscribed the persons who can exercise such rights of appeal. For the purpose of this Application, it is the provision of Section 243(a) of the 1999 Constitution (supra) that calls for interpretation. That provision states that:
“243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this constitution shall be-
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having un interest in the matter, and in the case of criminal proceedings at the instance of an accused person oh subject to the provisions of this constitution and any powers conferred upon the Attorney General of the Federation or the Attorney -General of the State to take over and continue or to discontinue such proceedings at the instance of such other authorities or persons as may be prescribed.”
It would be seen therefore that Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 confers a right of appeal to the Court of Appeal from the decisions of the Federal High Court or High Court of a state arising from civil proceedings at the instance of a party thereto, or with the leave of the High Court or the Court of Appeal at the instance of any other person having an interest in the matter. It means therefore that, where the person affected by the decision of the lower court was a party to the case and in the proceedings before the lower court, he need not seek leave to appeal provided he appeals within the time allowed by either the Statute or Rules of Court regulating the powers, practice and procedure of the Court of Appeal. However, where the person seeking the exercise of the right of appeal does so as “a person having an interest in the matter,” he must first of all, seek and obtain the leave of the High Court or of the Court of Appeal. See EKUNOLA v. C.B.N (supra) at Pg. 315; UWAGBA v. F.R.N. (2009) 15 NWLR (Pt. 1163) Pg. 91 and E.F.P CO. LTD v. N.D.I.C (2009) 9 NWLR Pg.216.In the instant case, it is not in dispute that the Applicant seeks the leave of this court to appeal the judgment of the Imo State High Court in Suit No. HOW229/2009, as an interested party. It is also not in dispute that he was not a party to Suit No. HOW/229/2009 before the lower court. That being so, he has to satisfy this court that he is an interested party within the con of Section 243(a) of the 1999 Constitution. This is so because, he will not appeal as of right but as an interested party. In other words, not being a party to Suit No. HOW/229/2009 but seeks leave of Court to appeal by reason of the effect of the judgment which he contends has affected his interest, his right of appeal is subject to the condition as stipulated in Section 243(a) of the 1999 Constitution. To succeed in getting the court’s favour, he has to satisfy the court that he is an interested party. The courts have generously interpreted the phrase “person having an interest” within the intendment of Section 243(a) of the 1999 Constitution to mean or synonymous with “person aggrieved”, and that “a person aggrieved” is a person who has suffered a legal grievance, a person against whom a decision has been given which has deprived him of something or refused him something or affected his right or title to something. Thus, Belgore, JCA in the case of BAIDO v. I.N.E.C. (2008) 12 NWLR (Pt. 1101) Pg.379 at Pg. 400 Paras. A-D cited and relied on the decision of the Supreme Court in SOCIETE GENERAL BANK v. AFEKORO NWLR (Pt. 628) Pg. 521 at 524 where the Supreme Court held thus:
“The expression “person having an interest” for the purpose of an appeal by an interested party is synonymous with “person aggrieved”. It does not really mean a man who is disappointed of u benefit which he might have received if some order had been made. A “person aggrieved” is a person who has suffered u legal grievance, a man against whom a decision has been pronounced which has wrongfully refused him something or wrongfully affected his title to something. Such n person will be granted leave to appeal against a decision given in a proceeding to which he was not a party”.
See also NGIGE v. OBI (2006) 14 NWLR (Pt. 999) Pg. 1 at 206 per Alagoa, JCA (as he then was); OJORA v. AGIP (NIG) PLC (2005) 4 NWLR (Pt. 916) Pg. 515 and OZUEH v. EZEWEPUTA (2005) 4 NWLR (Pt. 915) Pg.221.In the instant application, the Applicant disclosed his interest which has been affected by the judgment in Suit No. HOW/229/2009, at paragraphs 5, 8, 9, 10, 11, 12, 13, 14, 18 and 19 of the Principal Affidavit in support of the motion. To bring the facts to the fore, I propose to reproduce same here:
“5. That the applicant/appellant Mr. Tochukwu Anyanwu, is an indigene of Uwuediabali Ihitteaforukwu Ekwerazu, Ahiazu Mbaise LGA, the owner and the person in possession of the property described as Plot 643 Works Layout, Owerri, which was formerly part of the former Plot p10, Works Layout, Owerri, Imo State, the subject matter of the appeal.
8. That the applicant/appellant bought the land, that is known as Plot 643, Works Layout, Owerri Imo State in 2003 in my presence and my full participation. That I also accompanied the applicant in handling the registration formalities of the title documents of the land at Ministry of Lands, Survey and Urban Planning, Imo State, which registration was completed and full title given to the applicant/appellant. There was no notice of any encumbrance over the land at the Imo State Registry of Deeds where every adverse interest over the property is to be registered following a search that was conducted there before the applicant/appellant paid for the land.
9. That I also supervised the surveying of the land by a registered surveyor und the fencing of this property in 2003. The survey plan was duly deposited with n deposit number given at the office of the Surveyor General of Imo State. This plan is shown in the annexed title document to this affidavit as exhibit B.
10. That following the acquisition, the appellant/applicant proceeded to develop two one bedroom flats in the property in the same 2003. I was also part of the construction by performing some supervisory roles on behalf of the applicant/appellant.
11. That the applicant committed tens of millions of naira in the acquisition and development of the property and throughout the period of inspection for purchase of the land, surveying of the land, the fencing of the land, registration und construction of the building, we were not disturbed by any person neither was there any notice of other adverse interest over the land, since the 2003 he have been in possession of the land.
12. That after the construction of this building, in the same 2003, my sister, the wife of the applicant/appellant the owner of the property, resided on a flat (sic) in the property before traveling to the United States from where she visits and stays whenever she is around. Following her traveling in 2006, I continued to maintain residence in this building with other tenants placed on the property by the applicant/appellant.
13. That it was the applicant/appellant that built the property and let tenants in the property including myself without any disturbance, let or hindrance from anybody.
14. That suddenly since 2010 there has been series of invasions, attacks, damaging of the property by the first set of respondents. ”
18. that the judgment was in respect of one Plot P10 Works Layout, Owerri, Imo State as designated by the government of Imo State since 1980 as shown by the notice of revocation of 1986 which by the time the claimant/respondents instituted the action was no longer in existence as the same government has since 2002 re-designated the area into different plots of land of which the appellant/applicants Plot 643 is one of them.
19. That to the knowledge of the claimant/respondents the applicant had been in possession since (2003) of this registration Plot 643 Works Layout Owerri, Imo State without any notice of adverse interest und had developed the land, yet in 2009 which they instituted the action, they did not make him a party neither did they properly describe the property.”
It is clear from the deposition of the Applicant above that he has an interest in Plot 643, Works Layout, Owerri and which said plot forms part of a larger parcel of land hitherto known as Plot 10, Works Layout, Owerri. The Applicant has also deposed to the circumstances under which his interest in the said Plot 643 arose. The fact of the Applicant’s interest in the land in dispute was not seriously challenged by the Respondents. Rather, their paragraphs ‘/, 8, 9, 10, 11, and 12 of other Counter Affidavit in opposition to this Application tend to support the Applicant’s interest in Plot 643, Works Layout, Owerri which is a part of a larger bundle of land granted the Respondents in the judgment in Suit No. HOW/229/2009. The facts deposed to by the Applicant show clearly that, before the judgment in Suit No. HOW/229/2009, he had acquired title to Plot No. 643, Works Layout, Owerri, but was deprived of his said plot of land by virtue of the said judgment. I am of the view, and do hold that the Applicant has made out a case that he is a person having an interest in plot 643, Works Layout, Owerri, a component part of Plot P10, Works Layout, Owerri which is the subject of the suit and judgment in Suit No. HOW/229/2009. He is therefore a person who is justifiably aggrieved by that judgment, and as that judgment was arrived at in his absence, he qualifies to be granted the leave of this court to appeal as “a person having an interest” in the subject matter of that judgment, within the con of Section 243(a) of the 1999 Constitution.
The issue of lis pendens raised by the Respondents is, in my view, an issue that cannot be countenanced at this stage. Indeed, I agree with the Applicant that lis pendens is one issue that should be raised as a defence by the Respondent at the hearing of the substantive matter or appeal. To consider it now would be prejudging the substantive matter at this interlocutory stage. What is required now is whether or not, the Applicant has disclosed that he is a person having an interest in the matter. Proof of such interest is a different issue which is not our concern at this stage.
It is pertinent at this juncture to reiterate that after the judgment in Suit No. HOW/229/2009 the Applicant and others had, by a motion on notice dated 04/5/2010, prayed the lower court for an order staying further execution of the judgment pending the hearing and determination of another Suit No. HOW/92/2010, which was a suit challenging the validity of the judgment in Suit No. HOW/229/2009. That motion was refused by the lower court. The Applicants filed the instant Application on the 21/12/2011, which is a date far outside the time allowed by the Rules of this court to file any appeal, either in respect of Suit No. HOW/229/2009 or in respect of the Ruling on the motion for stay of further execution. It is also germane for the purposes of this Application to note that, judgment in Suit No. HOW/229/2009 was delivered on the 30/10/2009, while Ruling on the motion, also sought to be appealed against was delivered on the 08/7/2010.
It should also be noted that, the prayer for extension of time is in respect of the judgment and the Ruling of 8th July, 2010. The Applicant seeks extension of time to appeal the judgment of the lower court in Suit No. HOW/229/2009, as an interested party. This court has held in the case of OJORA v. AGIP (NIG) PLC (supra) that, it is wrong and a misconception of procedure for a person to apply for an extension of time to seek leave to appeal as an interested party. Thus, Aka’ahs; JCA (as he then was) in the above cited case stated the position of the law clearly in his contribution at page 547 Paras. C-G, as follows:
“The application cannot be defeated on the ground that he did not apply for extension of time within which to seek leave to appeal because there is no time limit within he should do so. See Section 242(1) and 243(a) of the 1999 Constitution. IN RE: MADAKI (1996) 7 NWLR (Pt. 459) 153 which interpreted order 3 Rule 3(3) Court of Appeal Rules and Section 221 and 222(a) of 1979 Constitution (which are the same as Section 243(1) und 243(a) of the 1999 Constitution) Uwais CJN stated clearly at page 164 thus:
“Neither the constitution nor the Court of Appeal Act or the Court of Appeal Rules prescribe any period within which an interested party may bring application for leave to appeal as “u person having an interest in the matter.”
It is settled therefore that, it is a wrong procedure and a misconception of procedure and the law, for a person seeking for extension of time to appeal as an interested party, to include in his motion, a prayer seeking for extension of time within which to seek leave to appeal as an interested party. That being so, I am of the view and do hold that the prayer for extension of time within which to seek leave to appeal as an interested party, the judgment of the lower court made on the 30/10/2009, is a misconception and therefore procedurally wrong. That prayer (prayer 1) is only relevant when it seeks for extension of time within which to seek leave to appeal the Ruling made on the 8th of July, 2010. In the same vein, prayers 1, 2, and 3 are relevant with respect to the Ruling of 8/7/2010, while prayers 2 and 3 are the relevant prayers with respect to the judgment of 30/10/2009. The prayer seeking for leave to appeal as an interested party has been considered earlier in this Ruling. What remains to be considered for the purpose of this Application, is prayer 3, which seeks for extension of time to appeal both the judgment and the ruling in Suit No. HOW/229/2009. I now proceed to consider same below.
It therefore follows that after showing that he qualifies as an interested party, for his appeal to be competent, it must be further shown that the Applicant is within the time stipulated for filing of the appeal as prescribed by Section24(2)(a) of the Court of Appeal Act, 2004, which stipulates that:
“24(2).The periods for the giving of notice of appeal or notice of application for leave to appeal are-
(a) In un appeal in n civil cause or matter, fourteen days where the appeal is against un interlocutory decision and three months where the appeal is against a final decision.”
It therefore follows that the Applicant had three months within which to file his application for leave to appeal the judgment in Suit No. HOW/229/2009, while he had 14 days to appeal the Ruling delivered on the 08/7/2010. As noted earlier in the course of this Ruling time had elapsed when the Applicant brought the motion now under consideration. Happily, Section 24(4) of the Court of Appeal Act (supra) gives power to this court to extend the periods prescribed in sub-section 2 for the giving of the notice of appeal or the notice of application for leave to appeal. However, for the court to exercise its power granted by Section 24(4) of the Court of Appeal Act (supra), its jurisdiction must be activated by the person seeking to appeal, by way of a Motion on Notice in the manner prescribed by Order 7 Rule 10(2) of the Court of Appeal Rules, 2011, which stipulates as follows:
“Every application for un 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 und by grounds of appeal which prima facie show good cause why the appeal should be heard…..”
It is to be understood from the above cited provision of the Court of Appeal Rules (supra) that, in considering whether or not to grant an extension of time to appeal or to seek leave to appeal, the court must always bear in mind that rules of court must prima facie be obeyed. Though the Court of Appeal Act and the Court of Appeal Rules have given powers to the court to extend time for doing anything to which the Rules of the court apply, the grant of such a relief is at the discretion of the court, and like all judicial discretions, it must be exercised judiciously and judicially always bearing in mind the interest of justice to the parties in the case. In that respect, for a party to secure the favour of the court in the exercise of its discretion whether or not to grant the extension of time to appeal or to seek leave to appeal (as in the instant case), to justify the exercise of the court’s discretion in the exercise of its power to extend such time, he must supply sufficient material upon which the court will base its discretion. This is so because, an application for extension of time within which to appeal or seek leave to appeal is not granted as a matter of course. That being so, the Applicant must satisfy the requirements of Order 7 Rule 10(2) of the Court of Appeal Rules (supra).
By that Rule of this court, an applicant seeking the grant of an order of extension of time within which to appeal or to seek leave to appeal must satisfy two mandatory conditions, as follows:
(a) He must disclose by his affidavit evidence in support of the application, good and substantial reasons for his failure to appeal within the prescribed period; and
(b)The grounds of appeal must prima facie disclose good cause why the appeal should he heard.
See SCOA (NIG) PLC v. OMATSOLA (2009) 11 NWLR (Pt.1151) Pg. 106; SAVANNAH BANK (NIG) PLC v. C.B.N (2007) 8 NWLR (Pt. 1035) Pg.26; F.C.M.B. PLC v. N.LM.R (2009) 9 NWLR (Pt.1147) Pg. 509; MAJEKODUNMI v. CHRISTLIEB PLC (2009) 9 NWLR (Pt. 1145) Pg. 121; MICRO-LION INT’L (NIG) LTD v. GADZAMA (2009) 15 NWLR (Pt. 1162) Pg. 481; AKINPELU v. ADEGBORE (2008) 10 NWLR (Pt. 1096) Pg. 531 and LAWAL v. U.B.N PLC (2008) 12 NWLR (Pt. 1102) Pg.707. It is the Applicant who has the burden of making available to the court such material evidence which should satisfy the court as to properly exercise its discretion in his favour.
In the instant case, the Applicant deposed at paragraphs 14, 15, 16, 30, 31, 35 and 36 of the principal affidavit in support of the motion as follows:
“14. That suddenly since 2010 there has been series of invasions, attacks, damages of the property by the first set of respondents.
15. That in view of the continued harassments, attacks, beatings, invasions of the property, threats of police arrest and detention by these defendants, the applicant went to the police only for the first set of respondents to parade a judgment.
16. That till date, the applicant/appellant was not served with the judgment in this suit, which he was not aware of,
30. That I went to Chief Emmanuel Njoku, the man from whom we bought the property on the instructions of the applicant sometime in November, 2010 over the constant harassment and our discoveries at the High Court Registry, he told me in his house at about 6.30p.m and I verily believed him’ that himself und 2 other owners of the property affected by order had sued in HOW/92/2010 upon realizing the judgment and that he also joined all other persons who acquired interest in different plots of land that constitute former Plot P10, including the appellant/applicant in an application to stay further execution and to set aside the writ of attachment issued und that the court refused the application …..
31. That the applicant/appellant’s learned counsel, Chief Willy U. Ogaoma advised the applicant in October, 2010 that since there is an action in HOW/92/2010 pending before the high court (sic) which is challenging the judgment in HOW/229/2009 that the applicant await the outcome of the matter.
35. That sometimes towards the end of July, 2011, the applicant retained another solicitor, I. F. Akponye, Esq. who advised that the applicant should appeal against the decisions in HOW/229/2010.
36. That while all these were happening, the time within which to appeal against the judgment and the ruling expire.”
I think the gravamen of the Applicant’s case is that the delay in filing of the application to seek leave to appeal out of time, was predicated upon or informed by the advice of his former counsel. He had also deposed that he was never joined as a party in Suit No. HOW/229/2009 and only became aware of the existence of the judgment affecting his interest in Plot 643, Works Layout, Owerri when the 1st set of Respondents began to embarrass, intimidate, humiliate him and invading the property in dispute with a view of the judgment sought to be appealed against. That when he briefed his former counsel, Chief Willy U. Oguorna, the said counsel advised that he stays action on the matter, so as to await the outcome of Suit No. HOW/92/2010 which was then pending before the High Court and the suit challenging the legality of the judgment sought to be appealed against. It is therefore clear that the delay by the Applicant to appeal within the period for filing the appeal as prescribed by Section 24 of the Court of Appeal Act (supra) was informed by the advice of counsel, It is now settled that, once a party has done what is required of him by acting properly to secure the services of counsel and further instructing counsel to carry out his instructions, and the counsel acted inadvertently and even negligently by failing to take steps to file the appeal within time, such a party is absolved of any blame. Accordingly, I am of the view that the inadvertence of counsel of the nature advocated in this application should be applied in favour of the Applicant as qualifying as a good and substantial ground of this application. See LAWAL v. U.B.N. (supra) at Pg. 718-719; and AKINPELU v. ADEGBORE (supra) at Pg. 555.
Having satisfied the requirement that an applicant must show good and substantial grounds, he must proceed to show that the grounds of appeal prima facie show good cause why the appeal should be heard. What is required to be shown here is not that the appeal is likely to succeed. In other words, all that is required of an Applicant in this respect is to show that the proposed grounds of appeal disclose an arguable issue. The fact that the appeal may succeed or not is immaterial at this stage. Thus, Nwodo; JCA in the case of F.C.M.B PLC v. N.I.M.R (supra) put the position succinctly at pages 521-522 Paras. H-A as follows:
“Grounds of appeal provide the mirror through which the court takes a peep at the appeal, not to determine the strength of the appeal but to provide useful information on the trend of the appeal. This is why good reason must be disclosed for hearing of the appeal not that the appeal will succeed. All the court should be concerned with is the strength of the grounds of appeal and not the success.”That being so, the only duty of the court is limited to seeing whether the grounds of appeal are substantial and reveal arguable grounds. The court should therefore avoid considering or deciding on the success of the grounds of appeal, for to do so would amount to deciding the substantive appeal in an interlocutory application. See N.N.P.C v. O.E (NIG) LTD (2008) 8 NWLR (Pt. 1090) Pg. 583; MICRO-LION INT’L (NIG) LTD v. GADZAMA (supra) at Pg. 501; SAVANNAH BANK (NIG) PLC v. C.B.N (supra) at Pg. 39; E.F. CO. LTD v. N.D.I.C (2007) 9 NWLR (Pt. 1039) P9.216 and MAJEKODUNMI v. CHRISTLIEB PLC (supra) at Pg. 129. I have perused the grounds of appeal as drawn in the two notices of appeal annexed to the principal affidavit in support of the Applicant’s motion. I am of the view that the notices of appeal disclose good and substantial reasons why the application be granted, So that the appeal be heard. Such good and substantial grounds touch on, inter alia, locus standi in the subject matter of the appeal, want of fair hearing, want of jurisdiction and abuse of court process. Having thus found, I am of the view that the Applicant has satisfied me that he is entitled to be granted an extension of time to appeal both the judgment in Suit No. HOW/229/2009 and the Ruling of 08/7/2010.
On the issue of stay of execution and injunction, it is the submission of learned counsel for the Applicant, relying on the case of GOV. OF LAGOS STATE v. OJUKWU (1986) 1 NWLR (Pt. 18) Pg.621, that the purpose is to maintain the status quo ante belum pending the determination of the appeal. Learned counsel for the Respondents did not say anything on the issue of stay of execution.
Now, I wish to restate that, the principles guiding the grant or refusal of an application for stay of execution and injunction are the same. Both are granted as a matter of discretion of the court and which discretion is usually exercised based on a consideration of same conditions. Generally however, the court are loath to deny a successful litigant from enjoying the fruits of the judgment. The court should also consider the effect of refusal of the application on the appellant/applicant if he eventually succeeds in the appeal. In the determination of whether or not to grant an order of stay of execution, the court should therefore do a balancing act between the contending interests of the parties. In doing that balancing act, the court would consider whether the Applicant has disclosed special circumstances which would attract the determination of the application in his favour. Some of the circumstances under which an application for stay of execution or injunction pending appeal may be made are:
(a) Whether the subject matter of the dispute will be destroyed if injunction or stay of execution is not granted;
(b) Where a situation of helplessness would be foisted on the court, especially an appellate court;
(c) Where execution will paralyze right of appeals;
(d) Where the order of the court would be rendered nugatory; or
(e) Where execution will prevent a return to the status quo if the appeal eventually succeeds.
By the use of the word “or” it means that these conditions are considered disjunctively. It means therefore that the presence of any of the above stated requirements will suffice for the grant of the injunction. The burden is on an applicant to depose to an affidavit which discloses any of the above stated special circumstances. See AJUMA v. S.P.D.C.M. LTD. (2011) 18 NWLR (Pt. 1279) Pg. 797; OLOJEDE v. OLALEYE (2010) 4 NWLR (PT. 1183) Pg. 1; HO v. ABUBAKAR (2011) 12 NWLR (Pt. 1261) Pg. 323 and S.P.D.C.N. LTD v. AMADI (2011) 14 NWLR (Pt.1266) Pg. 157).
It would be seen that the rationale behind the above stated requirements is primarily aimed at protecting the res from being destroyed, demolished or annihilated. The court therefore has the duty to protect the res, so that the res is kept intact for the benefit of the party who finally secures victory at the end of the litigation process. As stated earlier, it is the affidavit evidence of the parties which the court will consider in the determination of whether any of the above stated requirements exist.
I have carefully read and reflected on the various affidavits and counter affidavits filed in respect of this application. I should also point out that the subject matter of this dispute is land known as Plot 643, Works Layout, Owerri which is a larger part of Plot P10, Works Layout, Owerri which is the land granted the Respondents in the judgment sought to be appealed against. The Applicant’s affidavit does not disclose any fact establishing the existence of any of the requirements for the grant of the order of injunction or stay of execution. Rather, the Respondents deposed at paragraph 23 of their Counter Affidavit in opposition to this Application, that the judgment in Suit HOW/229/2009 was executed by bailiffs of the High Court of Imo State and possession of the entire Plot P10, Works Layout, Owerri given to the 1st and 2nd Respondents. They further deposed in paragraphs 14, 25 and 26 of the said Counter Affidavit that, it was after the said execution was carried out that the Applicant and others filed an Application before the High Court seeking for stay of execution, and the said application was refused. Though the Applicant denied at paragraph 23 of the Reply Affidavit that the bailiffs carried out any execution, he did not disclose that he is still in possession, in view of the Respondents depositions in paragraphs 32 and 33 of the Counter Affidavit. On the whole therefore, I am of the view that the Applicant did not disclose any special circumstance why an injunction or order of stay of execution be granted in this case. Accordingly, the prayer 6, which seeks for an order of stay of execution is refused and is hereby dismissed. Prayers 1, 2, 3, and 5 are hereby granted.
On the whole therefore, this application has merit and is hereby granted. It is accordingly ordered that:
1. AN ORDER is granted extending the time within which the Applicant may seek leave to appeal against the Ruling of Hon. Justice C. I. Durueke delivered on the 8th day of July 2010, in Suit No. HOW/229/2009.
2. LEAVE is granted the Applicant to appeal against the Judgment of C. I. Durueke; J of the Imo State High Court sitting at Owerri in Suit No. HOW/229/2009, delivered on the 30/10/2009, as an interested party; and the Ruling delivered on the 8th day of October, 2010 in Suit No. HOW/229/2009.
3. AN ORDER is granted extending the time within which the Applicant may appeal the Judgment and Ruling in Suit No. HOW/229/2009.
4. AN ORDER is granted CONSOLIDATING the Notices of Appeal against the Judgment delivered on the 30/10/2009 and the Ruling delivered on the 08/7/2010 in Suit No. HOW/229/2010.
5. THE NOTICE OF APPEAL is to be filed within seven (7) days from today.
I make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A. (PRESIDING): I have had a preview of the Ruling just delivered by my learned brother H. S. Tsammani, JCA.
I agree entirely with my learned brother that the application has merit and it is also granted by me, save the prayer for stay of execution which is also refused by me. I also endorse the consequential order as to costs.
MOJEED A. OWOADE. J.C.A.: I read in advance the Ruling delivered by my learned brother HARUNA S. TSAMMANI, JCA. I agree with the reasoning and conclusion and I abide with the consequential orders.
Appearances
I. F Akponye; Esq.For Appellant
AND
L. C. Ugorji; Esq. with L. U. Osuimi; Esq.For Respondent
