UKAEGBU v. OGBUISI & ANOR
(2020)LCN/15708(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Tuesday, March 31, 2020
CA/OW/58M/2019(R)
Before Our Lordships:
AyobodeOlujimiLokulo-Sodipe Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Between
CHIEF E.E. UKAEGBU (For Himself And As Representing Amaofufe Community Igbere) APPELANT(S)
And
1. JOHN KABRA OGBUISI 2. NDUKWE OGBUISI (For Themselves And As Representing Ogbuisi Uguru Opaisi Of NdiUga Family Of Amaofufe, Igbere) RESPONDENT(S)
RATIO:
AN ORDER OF INJUNCTION IN RESPECT OF A PARCEL OF LAND AND TRESPASS
I am of the view that it should have been obvious to the Applicant that the Respondents could have been comfortably sued for trespass in respect of any alleged incursion into the land against which the trial customary Court had issued a perpetual injunction against them, or to have initiated a contempt proceedings against the said Respondents for flaunting an order of injunction in respect of the said parcel of land, that was not awarded to the said Respondents. The Okposi community need not seek for the reversal of the judgment of the lower Court before the said community can take advantage of the benefit conferred on them, by the judgment of the lower Court. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
THE CONDITIONS FOR SEEKING FOR AN EXTENSION OF TIME
Indeed, I cannot but observe that the position of the law as it relates to the conditions which an applicant seeking for an extension of time in respect of anything required to be done within a specified time frame by law, must establish as stated in the case under reference, is no different from the position the Supreme Courtenunciated in the old case of WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR-3484(SC) in respect of the principles guiding the grant of an application for extension of time within which to appeal.
See also the cases of MANN V. PYAM (2019) LPELR-47780 (CA) and DELE AFOLABI & BROTHERS (NIG) LTD V. STERLING BANK (2018) LPELR-46546(CA) amongst many others in respect of the position of this Court on the matter under consideration and which position is not different from the position of the Supreme Court in the cases cited hereinbefore. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
THE ATTITUDE OF THE COURT IN GRANTING AN APPLICATION FOR EXTENSION OF TIME
The attitude of this Court, is to grant an application for extension of time within which to appeal once the adversary of the applicant does not oppose the grant of the same. However, where or when the respondent in the motion evince the intention to oppose the same as is the case in the instant motion, then the Court has to satisfy itself that the Applicant has placed before it, sufficient materials in satisfaction of the two conditions he has to establish, to warrant the grant of the indulgence being sought.
I have hereinbefore copiously re-produced the depositions contained in the affidavit in support of the instant motion. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgement): The Appellant/Applicant (hereafter to be simply referred to as “the Applicant”) brought the motion dated 6/3/2019 and filed on 7/3/2019, pursuant to Section 24(4) of the Court of Appeal Act, 2004; Section 245(1) and (2) of the 1999 Constitution; and Order 6 Rules 1, 2, 7 and 9 of the Court of Appeal Rules, 2016. The Applicant seeks in the said motion for: –
“An order extending the time within which the Appellant/Applicant may appeal against the judgment of the Customary Court of Appeal of Abia State delivered on 14th April, 2011 in Appeal Nos. CCA/Um/A/3/2009 (sic) and CCA/UM/A/14/2003 – JOHN KABRA OGBUISI & ANOR VS. CHIEF E.E. UKAEGBU.”
The grounds of the application are: –
“(1) The time within which the Appellant may appeal against the judgment of the Court below delivered on 14th April, 2011 has elapsed.
(2) The Appellant has good and substantial reasons for not appealing within time.
(3) The ground of appeal prima facie shows good cause why the appeal should be heard.
(4) The Court has ample powers to extend time to appeal.”
The motion was entertained on 28/1/2020, with the learned counsel for the Applicant, M.C.L. Ononiwu, relying on the supporting affidavit of the said motion, in urging the Court to grant the motion in question. In the same vein, learned counsel for the Respondents, D.M. Amako, relied on the counter affidavit filed in the said motion, in urging the Court to dismiss the same.
The deponent to the supporting affidavit of the motion is one Ezeogo Patrick Anyaogu who described himself as being of Amaofufe community, Igbere and a village head thereat. The supporting affidavit contains 19 paragraphs. The relevant paragraphs containing the facts relied upon for the grant of the instant motion, read: –
“Paragraph 4
The Respondents herein instituted an action against us at the Customary Court, Okoko Item in respect of Okposi land situate at Amaofufe Igbere which they claimed as their personal property.
Paragraph 5
We in turn counter-claimed seeking a declaration that Okposi land was the communal property of Amaofufe community excluding the Respondents herein.
Paragraph 6
The Customary Court after considering the evidence dismissed our counterclaim and granted relief which the Respondents did not claim. A copy of the judgment is marked Exhibit A.
Paragraph 7
Both sides were aggrieved by the judgment and consequently appealed to the Customary Court of Appeal Umuahia.
Paragraph 8
The Customary Court of Appeal in its judgment delivered on 14th April, 2011 dismissed both the main appeal and our cross-appeal in terms of the judgment now shown to me and marked Exhibit B.
Paragraph 9
We have not appealed against the said judgment since there was no victor and no vanquished having regard to the fact that the parties are all members of the same community.
Paragraph 10
However, of late, the Respondents have resorted to harassing and intimidating us claiming that they were victorious and seeking to encroach into Okposi land adjudged communal land by the Courts below.
Paragraph 11
Our community consequently resolved to appeal against the judgment of the Court below which did not specifically address the complaints in our cross-appeal to that Court but simply rubber stamped the decision of the trial Customary Court Okoko Item.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Paragraph 12
We had appealed to the lower Court against the decision of the Court of trial in relation to previous native Court decision in Suit No. C/5148/56 wherein the Respondents’ father testified that Okposi land is communal land of Amaofufe contrary to the present claims of the Respondents.
Paragraph 13
The Court below glossed over our complaints and simply rubber stamped the trial Courts (sic) distortion and misinterpretation of the judgment in the previous suit which was Exhibit B in the trial Court.
Paragraph 14
It is contrary to the customary law of Igbere people for communal land to transform into personal land under any guise as was done by the trial court and sanctioned by the courts below.
Paragraph 15
It is also contrary to the native law and custom of Igbere for communal land to be partitioned in favour of the Respondents who did not even seek that relief in their claim and without the concurrence of the entire community.
Paragraph 16
The delay in filing an appeal was as a result of our desire to give peace a chance, a move which the Respondents view as a sign of weakness hence their renewed on slaught, harassment and intimidation in respect of our communal land.
Paragraph 17
It is in the interest of justice that we be given an opportunity to ventilate our grievances against the judgment of the Court below as shown on Exhibit C the proposed Notice of Appeal.
Paragraph 18
The Respondents will not be prejudiced in any way if this application is granted.”
Apart from the depositions in paragraphs 4 and 5, of the affidavit in support of the instant motion, which the Respondents admitted, they denied paragraphs 1-3 and 6-19 thereof. The Respondents having also deposed to the effect that the Amaofufe community never gave consent to the deponent to the supporting affidavit to depose to the same, proceeded to depose in paragraphs 7-25 of their counter affidavit deposed to by the 2nd Respondent on record, as follows: –
“Paragraph 7
That both the main appeal and the cross-appeal was (sic) dismissed and the judgment of the trial Customary Court affirmed by the Customary Court of Appeal Abia State on 14th April, 2011.
Paragraph 8
That following the dismissal of the appeals the Applicant refused to respect the said judgment of the trial Customary Court Okoko Item as affirmed by the Customary Court of Appeal Abia State and thus continued to disobey same in collaboration with his family members despite repeated warnings by us.
Paragraph 9
That as a result of paragraph (8) above, we recently instituted Contempt Proceedings precisely on 22nd day of November 2018, against persons, and families, including the deponent to the affidavit in support of this application, disobeying the said judgment in collaboration with the Applicant. And the said contempt proceedings is still pending before the Customary Court Okoko Item in Abia State. Copy of the contempt proceedings is hereby attach (sic) as an exhibit and marks (sic) Exhibit “AA”.
Paragraph 10
That we never resorted to harassing and intimidating the Applicant as deposed in paragraph 10 of affidavit in support. It is the Applicant and his family members in collaboration with their cohorts that have continued to encroach into part of Okposi land adjudged our family land by the trial Court to the exclusion of the Applicant and have also without our consent continued to tamper with and/or carry out transactions on the part of the land adjudged communal land in disobedience to the said judgment/orders of the Court.
Paragraph 11
That paragraph 11 is false; the community never resolved to appeal against the judgment of the Court below. The community has no iota of interest in the land and this matter, Applicant and his Ukaegbu family members are just using the name of the Amaofufe community to interfere with our family land. The said judgment addressed the complaint of the Applicant before the said Court.
Paragraph 12
That paragraph 12 is false; Applicant has not filed any appeal in the lower Court against the purported previous native Court decision in Suit No. C/S/148/56 and the said suit has nothing to do with this application. And our father never made the testimony allegedly credited to him.
Paragraph 13
That the Court below never glossed over the Applicant’s complaints and never rubber stamped any alleged distortion and misinterpretation of the alleged judgment in the previous suit as alleged or at all.
Paragraph 14
That there was no question of transformation of communal land into personal landin the case and judgment of the trial Customary Court Okoko Item and the Court below whether under Igbere native law and custom or otherwise.
Paragraph 15
That the Court below never partitioned any communal land of Igbere in our favour as alleged by the Applicant or at all. There was no question or issue of partitioning of communal land in the case and judgment of the Court below, whether under native law and custom of Igbere people or otherwise.
Paragraph 16
That paragraph 16 is false; the Applicant’s very long and unreasonable delay in bringing this application is not born (sic) out of any desire to give peace a chance as alleged. The Applicant after delivery of the judgment by the Court below went home jubilating, claiming and lying to people of their community that the judgment was in his favour. And since then Applicant and his family members have continued to in collaboration with their co-horts use (sic) their financial, numerical, political and otherwise strength to suppress, manipulate and frustrate every effort we have been making to ensure that the true position of the judgment is known to the people of the community andobeyed.
Paragraph 17
That the Applicant and members of his family stated time without number in our hearing that they are not interested in appealing the judgment but that they will used (sic) their above stated strengths to render the judgment fruitless to us.
Paragraph 18
That the Applicant has since then continued to use all manner of means to actualize their above stated intentions and plans including, harassment and intimidation.
Paragraph 19
That the Applicant never approached us and or made any effort or move for peace at all. In fact the issue of peace has never been contemplated by the Applicant throughout this matter till date.
Paragraph 20
That it is the contempt proceedings pending before the trial Customary Court Okoko Item that prompted the filing of this application by the Applicant.
Paragraph 21
That I was informed by our counsel, D.M. Amako Esq. of counsel on the 27th day of May 2019, at No. 188 Azikiwe Road, Aba, Abia State, by 12 noon and I verily believe him that the grounds of appeal as contained in the proposed notice of appeal attached to this application do not relate to any question or issue of customary law. That this Court does not have jurisdiction to entertain appeal from the Court below unless the ground(s) of appeal relate to question of customary law.
Paragraph 22
That I was informed by D.M. Amako Esq. of counsel on the 27th day of May 2019, at No. 188 Azikiwe Road, Aba, Abia State, by 12 noon and I verily believe him that the 3 months provided by the Rules of this Court within which the Applicant is to appeal against this judgment delivered on 14th April, 2011, expired since July 2011.
Paragraph 23
That there is an unreasonable delay between the expiration of time within which to appeal and this application, a period of over 7 years and 8 months.
Paragraph 24
That granting of this application will definitely prejudice and embarrass us and also make Court litigation process an endless process.
Paragraph 25
That this application is made in bad faith and against the interest of justice and is an abuse of judicial process.”
The Applicant filed a further affidavit in response to the counter affidavit of the Respondents. Surprisingly, learned counsel for the Applicant whether oblivious ofthe fact or otherwise, did not make any reference to, and/or did not rely on said further affidavit in moving the instant motion. Sections 107-116 of the Evidence Act, 2011 (hereafter to be simply referred to as “Evidence Act”) deal with “affidavits”. Sections 117-120 relate to “provisions in taking affidavit”. Given the provisions of the Evidence Act referred to herein before, it would appear to be settled that an affidavit is a means permitted by law for parties to a dispute (depending on the nature of the proceeding) to place before a Court, the evidence on which they rely in respect of a matter in dispute. See the cases of NCC V. MOTOPHONE LTD (2019) LPELR-47401 (SC) and AKOMOLAFE V. ILESANMI (2015) LPELR-25664(CA) amongst many others. In the circumstances, I am therefore of the considered view that the failure of the Applicant to have relied on his further affidavit at the hearing of the instant motion, is a clear manifestation that the said further affidavit contains nothing that he can properly rely upon in having this Court grant his prayers. Accordingly, I will discountenance the said further affidavit. There are many decisions of the Supreme Court and this Court, to the effect that there is nothing as/like an inherent right of appeal in this country. That all rights of appeal from a Court such as the lower Court, to a higher Court, such as this Court, are created by the amended 1999 Constitution and/or relevant statute(s). Section 241(1) of the amended 1999 Constitution provides for situations in which an appeal shall lie as of right to this Court from the decisions of a Court such as the lower Court. Section 241(2) in the same vein provides for an appeal from decisions of a Court such as the lower Court, with the leave of the lower Court or this Court. It is however clear from many other relevant provisions of the amended 1999 Constitution, that the rights of appeal donated by the said Constitution cannot be exercised according to the whims or caprice of the party seeking to exercise the right. The right has to be exercised in accordance with the relevant provisions of the Court of Appeal Act, 2004, and the Court of Appeal Rules, 2016, made pursuant to the provision of Section 284 of the amended 1999 Constitution.
Suffice it to say that though two rights ofappeal (i.e. appeal as of right and appeal with the leave of a lower Court or this Court) are donated to parties to an action (in contradistinction to “an interested party”) by the amended 1999 Constitution, the right must be exercised by an intending appellant within the periods stipulated by the Court of Appeal Act, 2004, (hereafter to be simply referred to as “Court of Appeal Act”) in Section 24.
The lower Court in the instant case is a Customary Court of Appeal. The provisions relating to a right of appeal exercisable as of right as donated in/by Section 245 of the amended 1999 Constitution, in respect of the decisions of the lower Court reads: –
“245(1) An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary law and such other matters as may be prescribed by an Act of the National Assembly.
(2) Any right of appeal to the Court of Appeal from the decisions of a Customary Court of Appeal conferred by this section shall be –
(a) exercisable at the instance of a party thereto or, with the leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest in the matter;
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”
The proceedings of the lower Court in respect of which the Applicant wants to appeal is civil in nature; indeed, it is against the final decision of the lower Court in the said proceedings. It is clear therefore, that pursuant to the provisions of Section 24 of the Court of Appeal Act, the Applicant who having regard to his motion, wants to appeal as of right had a period of 3 months from the date of the decision of the lower Court on 14/4/2011, to have given his notice of appeal in the manner directed by the 2016 Rules of this Court without seeking any indulgence from this Court. This, the Applicant has failed or neglected to do, and the Applicant being conscious of the provision of Section 24(4) of the Court of Appeal Act, empowering this Court to extend the period within which he may appeal, has brought the instant motion seeking for extension of time within which he may appeal against the judgment of the lower Court in question.
The Court of Appeal Rules, 2016 in Order 9 Rule 2 set out the criteria or conditions to be satisfied by a person who wishes to appeal but did not do so within the prescribed period. They are: the person’s application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard.
Provisions in respect of the criteria or conditions an applicant seeking for extension of time within which to appeal, must fulfill in order to be entitled to the indulgence are not exclusive to this Court. The rules of procedure of the Supreme Court contain similar provisions in respect of appeals to that Court. This being the case, there is no dearth of cases in which the provisions in question have been considered and interpreted. See amongst many others in this regard, the case of NGERE V. OKURUKET (2014) LPELR-22883(SC)wherein the Supreme Court stated thus: –
“The applicants had a constitutional right of appeal if they appealed within three months from the 7th of July, 1994, but since they were unable to appeal within that time, Order 2 Rule 31 of the Supreme Court Rules provides succor, it provides for enlargement of time, etc. xxxx
The grant of an application for extension of time to appeal is a matter within the discretion of the judge. That discretion is properly exercised if the judge considers the rules governing the particular application before granting the application. In an application for extension of time within which to appeal, the affidavit in support of the application must be detailed on –
(a) good and substantial reasons for failure to appeal within the prescribed period, and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
Good reasons for delay and arguable grounds of appeal, not necessarily grounds of appeal that would succeed must co-exist before an application for extension of time to appeal can be granted. Where the judge exercises his discretion in the absence of (a), (b) above he would be acting as he likes, and giving uninhibited right to extension of time thereby defeating the purpose of the rules and putting the conduct of litigation in disarray. A judge would readily accede to an application for extension of time to appeal if a good ground for the appeal for the appeal is on jurisdiction. Where this happens to be the case the application would be granted even if no good reason for the delay are before the Court.
On (a) above the applicant is expected to give a detailed explanation for the delay. He should show something that entitles him to the exercise of the Courts (sic) discretion. e.g. pardonable inadvertence, mistake or negligence of counsel. See xxx”
Indeed, I cannot but observe that the position of the law as it relates to the conditions which an applicant seeking for an extension of time in respect of anything required to be done within a specified time frame by law, must establish as stated in the case under reference, is no different from the position the Supreme Courtenunciated in the old case of WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR-3484(SC) in respect of the principles guiding the grant of an application for extension of time within which to appeal.
See also the cases of MANN V. PYAM (2019) LPELR-47780 (CA) and DELE AFOLABI & BROTHERS (NIG) LTD V. STERLING BANK (2018) LPELR-46546(CA) amongst many others in respect of the position of this Court on the matter under consideration and which position is not different from the position of the Supreme Court in the cases cited hereinbefore.
The attitude of this Court, is to grant an application for extension of time within which to appeal once the adversary of the applicant does not oppose the grant of the same. However, where or when the respondent in the motion evince the intention to oppose the same as is the case in the instant motion, then the Court has to satisfy itself that the Applicant has placed before it, sufficient materials in satisfaction of the two conditions he has to establish, to warrant the grant of the indulgence being sought.
I have hereinbefore copiously re-produced the depositions contained in the affidavit in support of the instant motion. It is clear as crystal that the Applicant knew that the judgment of the trial customary Court was against him in relation to the claims of the Respondents before that Court. Likewise, that his counter claim was dismissed. Hence the cross-appeal to the lower Court in respect of the counter-claim. The counter-claim of the Applicant having regard to page 2 of Exhibit “B”, (i.e. the judgment of the lower Court delivered on 14/4/2011) are for: –
“(1) A declaration that Amaofufe community excluding the plaintiffs are entitled to customary right of occupancy of certain piece or parcel of land known as and called ‘OKPOSI’ lying and situate in Amaofufe Igere within the jurisdiction of this Court.
(2) Order of Court for forfeiture by the plaintiffs of their right if any on this land.
(3) Order of Court permanently restraining the plaintiffs, their agents and or successors in title from dealing with the land in any form or shape whatsoever.”
It is also clear as crystal that the Applicant had express knowledge of the fact that the lower Court dismissed the cross-appeal that could have warranted the grant of his counter-claim, if his appeal in respect of the same had been successful. In the same vein, it is equally clear as crystal that the Applicant had express knowledge of the fact that the lower Court affirmed the judgment of the trial customary Court having regard to page 11 of Exhibit “B”. The judgment of the trial customary Court which the lower Court affirmed as contained on pages 196-197 of Exhibit “A” reads: –
“Therefore, in line with the massive evidence before this Honourable Court and the finding of facts both from the evidence of both parties in dispute, their witnesses and the inspection exercise carried on the land in dispute, this Court is compelled to hold and do hold as follows: –
1. The claim by the Plaintiffs that they are exclusively entitled to the customary right of occupancy over all the area of Okposi land as showed in their survey plan No. OSN/ABD/1/202 on record as Exhibit “H”, cannot be granted by this Court.
2. The Defendants’ claim that they alone excluding the family of the Plaintiffs are Amaofufe Community and as such are entitled to a specified area of the Okposi land which falls within the larger area claimed by Plaintiffs, and which Defendants termed community land of the Amaofufe people, is misconceived and frivolous and is not supported by any credible evidence. It is our considered view and which we do hold strongly, that every available evidence before this Honourable Court, both given orally and as contained in Exhibits A, B, C, D, E and O respectively, all unequivocally referred (sic) the family of the Plaintiffs as indigenes of Amaofufe community. Therefore the claim of the Defendants in their counter claim that the Plaintiffs are not indigenes of Amaofufe community is baseless and an incurable defect in their claim, fatal to their counter claim as a whole. In view of the above situation, Defendants (sic) counter claim is bound to fail and has failed, and having failed, it is hereby dismissed for lacking in merit.
ORDER
1. The Plaintiffs are hereby granted the customary right of occupancy over the Okposi land area comprising from the Roman Catholic Mission and School premises unto and including those land areas being bounded by Ndi Agboto Ibina; Ndia MbeIbina and that of EziukwuIb in a demarcated by Odu trees which the Defendant called Ukwukwanta and MgbeleOgbo lands respectively. Also granted the Plaintiffs is the Area of land also not contested by the Defendants, from the Old road called UzoAgu by the Defendants and bounded by the lands of Ndi Okorocha, and that of NdiOkwuoma and that belonging to Abel Oteteh downwards to the footpath to the former old homestead (Ezi) cum compound of Amaofufe people which is no longer inhabited, and including all the land areas across the said track road upwards to the tarred road leading to Agbo Igbere and terminating at Chief Sam Okpo’s land area which was granted to them in 1958 by the Ebiri Counsel (sic) of Chiefs against Josaiah Ibekwe Kazi as contained in Exhibit “E” and known as Elu Uzo.
2. Defendants, their servants, privies, agents, are perpetually restrained from entering or interfering with the above specified areas granted exclusively to the Plaintiffs.
3. The following areas of Okposi land are hereby granted to Amaofufe community and thereby declared community land; the strip of farm area in Okposi demarcated by Odu trees and sharing boundaries with the Plaintiffs land which the Defendants called Ukwukwanta land, that has boundaries with the lands of NdiMbeAzu, Eziukwu and Abgo OwerreIbina respectively up and including all the built up areas on both sides of the tarred road from Onu leading to AgboIbgere and bounded by the Old road also known as UzoAgu and terminating at the Footpath leading to the former Amaofufe Compound but excluding the piece of land just before the unity study class Building which Plaintiffs claimed to be the homestead of their grandfather and which is hereby granted to them.
4. Plaintiffs, their servants, privies agents are perpetually restrained from entering or interfering in whatsoever manner with the area of land declared by this Honorable Court as Amaofufe community land without the consent of other principal members of Amaofufe community comprising of NdeOpaisi; NdeUkara; NdeOkereukwu; NdeOgbuitem; and NdeAgwara as could still be found in NdiUgah compounds of Amaofufe community.
5. It is further ordered by this Honourable Court that no single individual in Amaofufe community should on his own volition and without the consent of other members, especially principal members of the already mentioned kindred’s, solely appropriate, or alienate the area of lands belonging to Amaofufe community. That is our judgment so be it.”
I simply do not see any explanation the Applicant has given for not appealing against the decision of the lower Court as captured above, talk less of his having given a satisfactory explanation for the delay in appealing against the said judgment since it was delivered on 14/4/2011, until the year of our Lord 2019 (when he brought the instant motion) and this was even after the Respondents initiated a contempt proceeding against him in respect of the judgment of the customary trial Court delivered on 29/10/2002, which was affirmed on 14/4/2011, by the lower Court. The judgment of the lower Court delivered on 14/4/2011, left no one in doubt as to the aspects of the case of the Respondents and the aspect of the Applicant’s counter claim, that were resolved against and/or in favour of the parties. The position of the law is settled to the effect that a judgment or order or ruling of a Court no matter how incorrectly arrived at is valid, binding and subsisting until it is set aside by the same Court or by an appellate Court. See the case of EDILCON (NIG) LTD V. UBA PLC (2017) LPELR-42342(SC) amongst many others. This is however not to say that parties cannot negotiate out of the judgment of a Court consequent to an agreement in which all the elements of a valid contract are fulfilled. The Applicant has deposed to the effect that they did not appeal against the judgment of the lower Court which affirmed the judgment of the trial customary Court which found against the Applicant’s claim that the Respondents are not members of the Applicant’s community, on the ground that there was no victor and no vanquished, having regard to the fact that the parties are all members of the same community. That he now resolved to appeal against the judgment of the lower Court because the Respondents of late (a very fluid or expression lacking in exactitude) have restored to harassing and intimidating them on the ground that they were victorious and seeking to encroach into Okposi land adjudged to communal land by the Courts below. I am of the considered view that the Applicant have glaringly exposed his total and deliberate misapprehension of the consequence(s) of the affirmation of the judgment of the trial customary Court by the lower Court by conceiving that there was no victor no vanquished in the judgment of the lower Court. I am of the considered view that it is as a result of the total and deliberate misapprehension of the judgment of the lower Court that the Applicant has used the phrase “of late” and thereby neglecting to furnish any explanation for the delay in appealing against the judgment of the lower Court from any verifiable date till when he chose to bring the instant motion.
Flowing from all that has been said, is that the Applicant has woefully failed to explain his failure to appeal within the period he was by law required to do so. In other words, I do not find the total and deliberate misapprehension of the judgment of the lower Court as reasonable explanation in the least for the inordinate delay on the part of the Applicant to now initiate an appeal against the judgment of the lower Court. The failure in this regard necessarily portends the failure of the instant motion as the position of the law is that the two conditions the Applicant is to establish in order to have the Courtgrant his motion, must co-exist.
In any event, the sole ground of appeal set out in the proposed notice of appeal to wit:
“The Court below erred in dismissing the Appellant’s Cross-Appeal to that Court, contrary to the Customary Law of Igbere Community”
in my considered view, is simply a contrived ground of customary law by mentioning therein, “customary law of Igbere community”. This is against the backdrop of the fact that the issues formulated for the determination of the lower Court by the Applicant in his cross-appeal against the dismissal of his counter-claim by the trial customary Court as set out on page 5 of Exhibit “B” are: –
“(1) Whether having regards to the facts that Ogbuisi Uguru, the father of the Plaintiffs/Appellants never in his life time laid any claim to the sole ownership of the land in dispute namely Okposi, the Plaintiffs/Appellants have any locus standi whatsoever in claiming that Okposi land of Amaofufe village is their fathers (sic) family land.
(2) Whether on the facts and in the light of the content of Exhibit B, which was duly tendered by the Plaintiffs in the lower Court and adopted by all the parties to this case, the Customary Court Item was right at all in returning quite a different verdict which is contrary to that contained in Exhibit B which exhibit ought to have constituted a solid ground for res judicata as it were.
(3) Whether the customary Court Item was right in partitioning Okposi land thereby giving the plaintiffs what they did not ask for in their claim whereas Exhibit B that is Suit No. C/S148/56 declared by Igbere native Court held that Okposi land is a communal land of Amaofufe village.”
Grounds of appeal have to flow from the decision of the Court whose judgment is on appeal. I am of the considered view that the same principle must apply to the proposed grounds of appeal in an intended appeal, as it is a notice of appeal in the manner of the proposed notice of appeal, that would be filed in the event the motion for extension of time succeeds. Therefore, there is every need to see that a ground of appeal or grounds of appeal flow from the decision appealed against when the Court has to exercise its discretion to extend time within which to appeal. In other words, while the relationship of a ground or grounds of appeal to the decisions appealed against does not come up for consideration or scrutiny at the point in time where an appellant exercises his right of appeal within the time provided for that purpose by law (but can only properly come for scrutiny prior to or at the hearing of the appeal), the Court has to consider the relationship of a ground or grounds of appeal vis-a-vis the decision appealed against, when its leave is being sought to appeal or when extension of time within which to appeal, is being sought. This is because, if this is not done, the Court might end up allowing an appeal to be erected on a ground or grounds which manifestly do not flow from the decision being sought to be appealed against. This being the view that I hold, I am also of the further view that a contrived ground of appeal relating to customary law, cannot be said to be a ground of appeal which prima facie show good cause why the appeal should be heard. In my considered view, it therefore becomes obvious that where the sole ground of appeal in a proposed notice of appeal does not arise from the decision appealed against, then theApplicant instead of showing good cause why the appeal should be heard by such a ground, has only succeeded in showing why the appeal should not be heard.
Flowing from all that has been said, is that even if I am wrong in the position I have taken that the Applicant did not furnish any explanation for the delay in appealing vis-a-vis the day of the judgment being sought to be appealed against (which is not conceded), he has in any case, not shown good cause as to why his intended appeal should be heard having regard to sole ground of appeal contained in the proposed notice of appeal placed before this Court in his application. The Applicant in the circumstances has therefore, again failed to establish the two conditions that must co-exist, to warrant the grant of the instant motion. The said motion fails and must be dismissed.
Indeed, I cannot but observe that the Applicant’s motion can easily be described as an abuse of Court process inasmuch as it glaringly, is to stall the contempt proceedings brought against him by the Respondents. Or how can one describe the situation wherein the Applicant conceived the activation of an appeal asthe best course to take when in paragraph 5 of the supporting affidavit, he disclosed that he decided to appeal because the Respondents have resorted to “harassing and intimidating us claiming that they were victorious and seeking to encroach into Okposi land adjudged communal by the Courts below”. I am of the view that it should have been obvious to the Applicant that the Respondents could have been comfortably sued for trespass in respect of any alleged incursion into the land against which the trial customary Court had issued a perpetual injunction against them, or to have initiated a contempt proceedings against the said Respondents for flaunting an order of injunction in respect of the said parcel of land, that was not awarded to the said Respondents. The Okposi community need not seek for the reversal of the judgment of the lower Court before the said community can take advantage of the benefit conferred on them, by the judgment of the lower Court.
In conclusion, the Applicant’s motion dated 6/3/2019 and filed on 7/3/2019, is hereby dismissed and costs in the sum of N100,000.00, is awarded in favour of the Respondents and against the Applicant given the glaring lack of bona fide of the said motion.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, A.O. Lokulo-Sodipe, JCA that the Application is devoid of merit, particularly as the sole ground of the appeal, cannot be located within any discernable question of customary law.
The Appellate Court has a duty to scrutinize the proposed Notice and grounds of Appeal at the time of considering application for leave or extension of time to appeal, to see if the said proposed ground(s) disclose(s) good and reasonable grounds to warrant the grant of the application. See the recent decisions of this Court in Bartholomew Mbagwu Vs Evangelist Mathias Ohalete & Anor (2020) LPELR – 49543 CA (delivered on 13/3/2020):
“It should be noted that the law requires the Appellate Court to look at the proposed grounds of appeal in an application for leave (or extension of time to appeal) or in an application to amend notice of appeal or file additional grounds of appeal. This is to be sure that the proposed ground(s) is worth the trouble of granting the leave or order sought; that it discloses good and arguable ground of appeal. See Ogembe vs Usman &Ors (2011) LPELR – 8155 (SC); CPC vs Nyako & Ors (2011) LPELR -23009 (SC).” In that case Mbagwu Vs Ohalete (supra) it was further held:
“Even a casual look at this grounds 1 — 3 of appeal …… and the proposed grounds Amended grounds 10, 11 and 12 of the Appeal – Exhibit A, would show that the said grounds are anything, but questions of customary law, arising from the judgment appealed against… ”
I too dismiss the appeal and abide by the consequential orders in the lead Ruling.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree that the Applicant’s motion constitutes an abuse of Court process and should not be allowed to stall the contempt proceedings brought against him.
I also agree with the orders for cost made against the Applicant and in favour of the Respondents.
Appearances:
M.C.L. OnoniwuFor Appellant(s)
D.M. AmakoFor Respondent(s)
