UZUZU v. BENNETH & ORS
(2021)LCN/15865(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Thursday, July 22, 2021
CA/PH/588M/2017(R)
Before Our Lordships:
Paul Obi Elechi Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Between
TROTSKY E.N. UZUZU APPLICANT SEEKING LEAVE TO APPEAL AS AN INTERESTED PARTY APPELANT(S)
And
1. MRS. HANNAH BENNETH 2. CHIEF NYECHE AMADI OKOCHAMATI 3. MR. CHIEMENEM NYECHE AMADI OKOCHAMATI 4. MR. NZENYELE NWAGBARA 5. MR. NYESOM NWAGBARA 6. MRS. NNENDA NWAGBARA RESPONDENT(S)
RATIO
WHETHER OR NOT AN APPLICATION SEEKING ENLARGEMENT OF TIME WITHIN WHICH TO FILE AN APPEAL IS GRANTED AT THE DSICRETION OF THE COURT
It is trite law that an application of this nature also calls for the exercise of discretion by the Court. And in exercising its discretion, the Court must be satisfied with the Applicant’s explanation of his failure to seek to appeal within the prescribed period and whether the grounds of appeal prima facie show good cause why the appeal should be heard. However, where the issue of jurisdiction is raised, it is not necessary for the Court to inquire into the reason for the delay in bringing the application as a challenge to the Court’s jurisdiction is a good ground for hearing the appeal. See Braithwaite vs. Dalhatu (2016) ALL FWLR (Pt. 846) 202 at 220-221, Paras. E-D.
The right to appeal is a constitutionally guaranteed right. However, where exist an appeal already of a judgment of a High Court pending before the same Court of Appeal on which an Applicant seeks to also appeal again, then the Court can conveniently refuse the leave seeking to appeal the same judgment already before it mostly when there is a subsisting judgment of the High Court over the same subject matter and on where there is no appeal by the Appellant. PER ELECHI, J.C.A.
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgement): This is a ruling on an application brought by the Appellant/Applicant seeking leave to appeal as an interested party on an application brought pursuant to Section 243(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order 6 Rules 2 & 4 of the Court of Appeal Rules 2016.
In this motion, the Applicant as an interested party is seeking leave of this Court for the following:
(1) Enlarging the time within which Mr. Trotsky E.N. Uzuzu (the Applicant may seek leave as an interested party against the judgment of Rivers State High Court in Suit No. PHC/1073/2009: Chief Nyeche Amadi Okochamati & Anor vs. Mr. Nzenyele Nwagbara & Ors. presided over by Hon. Justice B.A. Georgewill (as he then was) on the 29th day of July 2013.
(2) An order granting leave to the Applicant to appeal as an interested party against the judgment of Rivers State High Court in Suit No. PHC/1073/2009 – Chief Nyeche Amadi Okochamati & Anor vs. Mr. Nzenyele Nwagbara & Ors.
(3) An order extending the time within which to appeal as an interested party against the judgment of Rivers State High Court delivered by Hon. Justice B.A. Georgewill on the 29th day of July 2013 in Suit No. PHC/1073/2009: Chief Nyeche Amadi Okochamati & Anor vs. Mr. Nzenyele Nwagbara & 3 Ors.
(4) An order extending the time within which the interested party/Applicant shall file notice and grounds of appeal.
AND FURTHER TAKE NOTICE that the grounds for this application are as follows:
1. The Applicant (as an interested party) is in actual possession of part of the subject matter in issue by virtue of purchase from the 1st set of Respondent (MRS. HANNAH BENNETH), before the commencement of Suit No. PHC/1073/2009 the subject of this appeal.
2. The Respondents knew and have always known that the Applicant had significant interest in the subject matter yet they failed, refused, and neglected to join him as a party in the lower Court.
3. SUIT PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOR VS. NZENYELE NWAGBARA & 3 ORS. that led to this appeal was founded on fraud, without jurisdiction as the 2nd set of Respondents has no “locus standi” to have maintained the action at the lower Court.
4. That this application will not prejudice any of the parties and ought to be granted in the interest of justice.
5. The judgment in SUIT NO. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOR VS. NZENYELE NWAGBARA & 3 ORS affects the applicant’s interest in and over his land subject matter in that suit.
In the affidavit in support of the Application:
I, MR. TROTSKY E. N. UZUZU, male, adult, Christian, citizen of Nigeria residing in Rumuolumeni Town, Obio/Akpor Local Government Area of Rivers State of Nigeria, do hereby make Oath and state as follows:
1. That I am the Applicant in this application by virtue of which I am conversant with the facts deposed in this application.
2. That I am a bonafide Purchaser for value of part of the land, the subject matter of this application. I purchased the land from the 1st set of Respondent (MRS. HANNAH BENNETH) since 25th November, 2008 and have been in actual possession of same. I built a family residential house and have carried out several improvements on the land worth millions of Naira. The Deed of Conveyance evidencing the transaction between the 1st set of Respondent (MRS. HANNAH BENNETH) and I, is hereto exhibited and marked EXHIBIT A.
3. That the father to the 2nd and 3rd set of Respondents who claimed to be entitled to the customary right of occupancy in respect of the land had conveyed their rights and interests over the land to the set of Respondent who subsequently by sale conveyed her interest in the land to me on 25th November, 2008.
4. That the 2nd set of Respondent’s father Late Chief NYECHE JONAH AMADI, had by a DEED OF CONVEYANCE dated 16th day of January, 2003 sold and conveyed his interests in the land to the 1st set of Respondent who subsequently sold part of the said land to me on 25th November, 2008 at a purchase price of N2,800,000.00 (Two Million, Eight Hundred Thousand Naira) only.
5. That when the 2nd set of Respondents commenced SUIT NO. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOR VS. NZENYELE NWAGBARA & 3 ORS. against the 1st set of Respondent (MRS. HANNAH BENNETH) the 1st set of Respondent and others entered appearance and filed joint Statement of Defence and frontloaded DEED OF CONVEYANCE dated 16th day of January, 2003 and yet another DEED OF CONVEYANCE dated the 5th day of March, 2005 for which the 1st set of Respondent used in buying the land from the 2nd and 3rd sets of Respondents’ fathers. This information was discovered upon being served with a letter from Wome Moses Esq. and I conducted upon a diligent inquiry in the Registrar’s office of the Court. The said DEEDS OF CONVEYANCE which the 1st set of Respondent indicated as among the bundle of documents she was to rely upon during trial is now omitted in the Records of Appeal transmitted to this Honourable Court in Appeal No. CA/636/2016; A Certified True Copy of the DEEDS OF CONVEYANCE are annexed and marked as EXHIBITS B1 & B2 respectively.
6. That the 2nd set of Respondents filed SUIT NO. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOR VS. NZENYELE NWAGBARA & 3 ORS. on 16/6/2009, when they knew that they are not the owners of the land.
7. That the land is the bonafide property of the 1st set of Respondent who then sold part of it to me before I commenced various improvements on the said land.
8. That there is strong fraudulent collusion between the 1st set of Respondent, the 2nd and 3rd set of Respondents to secure judgment at my back, chase me out of the land, re-sell same and share the proceeds among themselves. The 2nd set of Respondents got judgment through fraud:
In trying to itemise the particulars of fraud, the Applicant further stated on oath:
1. The 2nd set of Respondents knew that they are not the owners of the land.
2. The 2nd and 3rd set of Respondents knew and had always known that the land had been sold to the 1st Respondent.
3. The 1st set of Respondent (MRS. HANNAH BENNETH) was put into possession by both the 2nd and 3rd sets of Respondent’s father before she sold part of the land to me.
4. The failure of the 1st set of Respondent to defend the suit at the lower Court after becoming aware of the pendency or existence of the suit and after several hearing NOTICES had been served on the 1st set of Respondent was to allow the 2nd set of Respondents secure cheap victory in furtherance of their fraudulent connivance.
5. The 2nd set of Respondents filed SUIT NO. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOR VS. NZENYELE NWAGBARA & 3 ORS. on 16/6/2009, when they knew that their late parents have sold and conveyed their interests in the said land in dispute to the 1st set of Respondent.
6. The failure or refusal to compile and transmit in Appeal No. CA/PH/636/2016 to this Court the DEEDS OF CONVEYANCE otherwise LAND PURCHASE AGREEMENT between the 1st set of Respondent, the 2nd and 3rd sets of Respondents’ fathers frontloaded by the 1st set of Respondent at the trial Court is in furtherance or continuation of the foul play or fraud.
7. I am a bonafide Purchaser for value of part of the land and I have interest in this application. I will be bound by the outcome thereof yet I was dishonestly shielded from the trial at the lower Court.
8. The 2nd set of Respondents had at all material time in the case known that I am in possession of part of the land in dispute and has claimed ownership over the said land but deliberately refused to join me as necessary party to the suit and got judgment at my back.
9. That I was not aware of the trial at the lower Court as I was neither served with the Originating processes nor made a party.
10. That I only became aware of the said judgment of the lower Court when Wome Moses, Esq., Solicitor to the 2nd set of Respondents wrote a letter to me requiring me to pack out of the land. 2nd set of Respondents’ Solicitor’s letter dated 27/8/2013 and 17/12/2013 are hereto exhibited and marked EXHIBITS C1 and C2 respectively.
11. That immediately I became aware of the judgment, I consulted and sought legal advice from THE LAW FIRM OF GEORGE STEVENSON, OF NO. 4 MBONU STREET, D/LINE, PORT HARCOURT who advised me to commence an action against the 1st and the 2nd sets of Respondents at the lower Court. I immediately instructed a Counsel to file an action on my behalf following which ANITA EZIKE, Esq. of GEORGE STEVENSON filed SUIT NO. PHC/2828/2013 against the 1st set of Respondent and Others. The Writ of Summons is hereto exhibited and marked EXHIBITED D.
12. That following the Preliminary Objection filed by the 2nd set of Respondents Counsel on the ground that the case is RES JUDICATA, the Rivers State High Court presided over by HON. JUSTICE BOMA DIEPRIYE, upheld Preliminary Objection and struck out my case on 16th day of May, 2017. A Certified True Copy of that judgment is hereto exhibited and marked EXHIBIT E.
13. That immediately the case was struck out, I engaged the services of RAPHAEL KINIKA NSIRIM, Esq., of OMNI-JURIS CHAMBERS of 32, Ada George Road, Port Harcourt to prosecute the appeal on my behalf. RAPHAEL KINIKA NSIRIM, Esq., advised me that the best legal option available to me is to seek the leave of this Honourable Court to appeal as an interested party, hence my application.
14. That my failure to file this Motion at the time it was supposed to have been filed is a mistake of my Counsel as my Counsel did not so advice.
15. That I respectfully pray this Honourable Court not to visit the sin of my Counsel for not advising me at the earliest possible time to appeal and grant my application.
16. That it is only when I am allowed to appeal that I can present my own side of the matter.
17. That I have no notice of the proceedings at the lower Court as the Respondent secretly shielded the case from me and fought the case at my back.
18. That I am informed by RAPHAEL KINIKA NSIRIM, Esq., of OMNI JURIS CHAMBERS, 32, ADA GEORGE Road, Port Harcourt on 06/07/2017 in his Chambers by 1.00 pm when this case came up for review and I verily believe him as follows:
i) That leave of this Honourable Court is required for me to appeal as an interested party.
ii) That I am out of time in filing the Notice of Appeal and requires leave of this Honourable Court to extend the time for the filing of the appeal.
19. That I am aware that my Counsel has prepared my proposed Notice of Appeal and same is herewith exhibited and marked EXHIBIT F.
20. That the said proposed Notice of Appeal shows arguable grounds of appeal.
21. That my Counsel RAPHAEL KINIKA NSIRIM, Esq., of the same address, same date and time; has assured me and I verily believe that if leave is granted, he needs only little period to compile Record of Appeal and file my Brief of Argument.
22. That I am desirous of and willing to diligently prosecute this appeal if leave is granted.
In a written address as ordered by the Court, the Applicants’ Counsel on the 28/6/2021 re-adopted his written address and formulated one issue for determination:
“Whether this Honorable Court is entitled to and can exercise its jurisdiction to grant the Applicant’s application in all the circumstances of this case?”
Applicants’ counsel submitted that from the facts and circumstances of this case, Applicant’s interest has been directly affected by the said judgment in Suit No.: PHC/1073/2009 and which has rested in him with the right of appeal as an interested party as per the record of proceedings leading to the judgment that gave rise to this appeal.
It is trite law that an application of this nature also calls for the exercise of discretion by the Court. And in exercising its discretion, the Court must be satisfied with the Applicant’s explanation of his failure to seek leave of appeal within the prescribed period and whether the grounds of appeal prima facie show good cause why the appeal should be heard. However, where the issue of jurisdiction is raised, it is not necessary for the Court to inquire into the reason for the delay in bringing the application as a challenge to the Court’s jurisdiction is a good ground for hearing the appeal. See Braithwaite vs. Dalhatu (2016) ALL FWLR (Pt. 846) 202 @ 220-221, Paras. E-D.
The Applicant has in his Notice of Appeal raised the issue of statute bar. The said Ground 3 of the Notice of Appeal states thus:
“The learned trial Judge erred in law by delivering judgment in favour of the 2nd set of Respondents when from the pleadings and evidence before the Court the case was statute-barred.”
It is submitted that the law is well settled that “a complaint that a claim is statute barred is a complaint about the incompetence of the suit as the Court will not have jurisdiction to try it.” See Araka vs. Ejeagwu (2001) FWLR (Pt. 36) 830.
Also that the suit that gave rise to this appeal was statute-barred for which the Applicant has genuinely raised same in his Notice of Appeal, among other issues which border on the trial Court’s jurisdiction. With this issue of jurisdiction so raised, the Court is no longer required to inquire into the delay in seeking leave to appeal in order to grant the application. See Braithwaite vs. Dalhatu 221, Paras. D.
Notwithstanding the fact that the Applicant has raised the issue of statute bar, among other jurisdictional issues bordering on locus standi, fraud and fair hearing in his Notice of Appeal for which the Court will as a matter of law grant the application, the Applicant has gone further in his supporting affidavit to explain out the reasons for his delay in seeking leave to appeal which the Respondents have not frontally denies. We therefore urge the Court to grant the instant application in its entirety.
The Applicant has also alleged fraud and deposed same in his Affidavit in support. We further submit that the law is settled that where a judgment is given against a necessary and desirable party behind its back, such judgment cannot be allowed to stand, as in the instant case. Please see N.U.R.T.W vs. R.T.E.A.N (2012) 10 NWLR Pg. 170; Green vs. Green (1987) 3 NWLR (Pt. 61) 480; Uku vs. Okumagba (1974) 1 ANR (Pt. 1) Pg. 475.
Also submitted is that the right to fair hearing is a fundamental Constitutional right guaranteed by Section 36 of the Constitution of Federal Republic of Nigeria 1999 (as amended). Fair hearing is a hearing which is fair to all the parties to the suit, giving each one an opportunity to be heard. A trial conducted in breach of fair hearing vitiates such proceeding, rendering same null and void. See Idakwo vs. Ejiga (2002) FWLR (Pt. 119) 1499; Samba Petroleum Ltd. vs. IMB Plc (2010) 5-7 (Pt. 1) MJSC Pg. 103; Ogbeshe vs. Idam (2014) ALL FWLR (Pt. 728) 992 at 1014-1015 Paras. D-F.
The Applicants has clearly stated that at the lower Court he was denied fair hearing. The 2nd set of Respondents/Claimants knew at the material time of the institution of this case at the lower Court in Suit No. PHC/1073/2009 that the Applicant bought the land, the subject of the appeal from the 1st set of Respondent as a Defendant at the lower Court and yet, refused to join the Applicant at the initial time.
In opposition to this application, the 2nd set of Respondents filed a Counter-Affidavit. The reason put forward by them are:
1. That the Applicant has no interest in the subject matter.
2. That the reasons for seeking leave to appeal are not satisfactory.
On the contrary, the Applicant stated that the 2nd set of Respondents are not in a position to determine which reason is cogent in the circumstance of this case to sustain the Applicants application as it is entirely the function and duty of this Court.
Even on the point that the Applicant has no interest in the subject matter, it is contended that from the record of proceedings leading to the judgment as well as the Appellant’s affidavit in support of the motion wherein the Applicant clearly disclosed his interest in the land.
Worthy of note is that the 1st and 2nd set of Respondents have not shown or explained the harm or damage it will cause or occasion on them if the Applicant is allowed into the case, and until that is done, the Court is urged to resolve this lone issue in favour of the Applicant and consequently grant the application.
In opposing the application, the 2nd and 3rd set of Respondents filed a 19 paragraph Counter-Affidavit and averred that the Applicant has no interest whatsoever in the land in dispute for the following reasons:
(i) The Applicant allegedly purchased the land in issue from the Appellant (1st Respondent) in Suit No: CA/PHC/636/2016 vide Applicant’s Exhibit “A”.
(ii) The 2nd and 3rd Respondents challenged the 1st Respondent to Court PHC/1073/2009, the 1st Respondent is the Applicant’s root of title as per applicant’s Exhibit “A”.
(iii) By the judgment order in Applicant’s Exhibit “C1”, Applicant’s root of title was lost to the 2nd and 3rd Respondents.
(iv) The Applicant by the lawyer’s letter of Exhibit “C2” dated 27th August 2013 got to know that the 2nd and 3rd Respondents have been legally declared the owners of the land in dispute.
(v) The Applicant took legal step against his vendor, the 1st Respondent, who is Applicants root of title, also took step against 2nd and 3rd Respondents including the 4th and 5th Respondents in PHC/2828/2013, filed on 24-12-2013 after receiving Exhibit “C2” of the Applicant from the 2nd and 3rd Respondents lawyer.
(vi) Applicant’s Exhibit “D” is the said PHC/2828/2013 which the Applicant sought to be declared the owner of the part of the land in dispute for which the 2nd and 3rd Respondents had already gotten judgment in PHC/1073/2009 see the judgment order in Applicant’s Exhibit “C1”.
(vii) That HON. JUSTICE BOMA DIEPIRI on the 16th May, 2017 in the said Applicant’s Suit PHC/2828/2013 which Applicant sought interest over the subject, held thus:
As could be seen the 1st Defendant in this case (1st Respondent) who is the vender of the Claimant (party seeking leave to appeal) CLEARED ADMITTED that the land she sold to the Claimant (subject of this litigation) was mapped out from the entire parcel of land subject matter of PHC/1073/2009 for which judgment was entered against her and her co-defendants. If this is so then the land in dispute in this case is affected by the said judgment as the Claimant (the party seeking leave to appeal) in this case cannot have a better title than his vendor (1st Respondent) the 1st Defendant in this case. The title of the Claimant (Applicant seeking leave to appeal) IS SUBSUMED in the 1st Defendant’s (1st Respondent’s) title. He either swims or sinks with 1st Defendant (1st Respondent) his vendor…” See page paragraphs 2 of Applicant’s Exhibit “E”.
That the said judgment in Applicant’s Exhibit “E” which binds the Applicant being a subsisting judgment for which there is no appeal clearly shows that the alleged interest of the Applicant is subsumed in 1st Respondent’s interest, there is no independent Applicant’s interest to be considered by virtue of the Application for leave to appeal as the Applicant will swim or sink with the 1st Respondent in CA/PH/636/2016, the 1st Respondent being the root of title of the Applicant, the Applicant is not a bonafide purchaser for value in view of Applicant’s Exhibits “C” and “E” which binds the Applicant and there be no appeal over Applicant’s Exhibit “D”.
The 2nd Respondent in order to further buttress the point that the Applicant has no interest as a party stated that:
(i) The Applicant by his Exhibit ‘C’ dated 27th August 2013 got to know the judgment in favour of the 2nd and 3rd Respondents in Applicant’s Exhibit ‘C’.
(ii) The Applicant did not file any appeal or ask for extension of time to appeal as per PHC/1073/2009 upon receiving Exhibit ‘C’, the Applicant rather choose to file Suit No. PHC/2828/2013 on 24/12/2013 five months after he received Exhibit ‘C’ of the Applicant.
(iii) It was after the Applicant lost in PHC/2828/2013 which he filed as the trial Court made a clear pronouncement at paragraph 2 page 3 of Applicant’s Exhibit ‘E’ to the effect that Applicant has no interest over the subject matter of this application, the decision in Exhibit ‘E’ of the Applicant binds the Applicant who did not file any appeal over same.
(iv) The Applicant in ‘D’ sued the 1st, 2nd and 3rd Respondents and others did not complain of any fraud or collusion.
In this written address filed on the 18/3/2018 as ordered by this Court, the 2nd Respondent formulated a lone issue for determination thus:
“Whether the interest of the Appellant in this application is not subsumed in the 1st Respondent’s interest in Appeal No. CA/PH/636/2016 already before this Court as held by the High Court in PHC/2828/2016 for which there is no appeal by the Applicant.”
Learned 2nd Respondent’s counsel concedes that a right of appeal is guaranteed under the Constitution but that in this case, it is submitted that there exists an appeal already of a judgment of a High Court pending before the same Court of Appeal on which an Applicant seeks also to appeal again then the Court can conveniently refuse the leave seeking to appeal the same judgment already before it most when there is a subsisting judgment against the Applicant as it is in this case over the subject matter. Reliance was placed on Exhibit A and the Counter-Affidavit in a similar application in CA/PH/587M, a subsisting judgment of the High Court over the same subject matter and on which there is no appeal by the Applicant.
It is therefore submitted that since the Applicant who is the same party in Exhibit A failed to appeal against the judgment, he is estopped from bringing in this application as the lower Court in Exhibit A held that the Applicant’s interest is subsumed in his vendor’s interest in CA/PH/636/2016. See also the depositions in the Counter-Affidavit and also Exhibit A to buttress this point.
The Court is urged to resolve this issue in favour of the 2nd Respondent and hold that the interest of the Applicant is subsumed in the interest of the Appellants in CA/PH/636/2009, the same judgment the Applicant seek leave to appeal. Even the Applicant alleged fraud in the judgment before the Court in Suit No. PHC/1073/2009, the law is trite that a judgment obtained can simply be set aside since it is null and void. See A.P.C. vs. Nduul (2018) 2 NWLR (Pt. 1602) 1 at 23.
The Court is urged to refuse the application.
RESOLUTION OF ISSUES
The issue for determination in this appeal is thus:
“Whether this Honourable Court is entitled to and can exercise its jurisdiction to grant the Applicants’ application in all the circumstances of this case.”
The Applicant’s motion for leave to appeal as an interest party is dated 2nd day of November, 2017. In opposing the Applicant’s application, the 1st Respondent filed a Counter-Affidavit dated and filed on 14/2/2018. The Applicant upon being served with the 1st set of Respondents’ Counter-Affidavit, filed a further affidavit in response to the said Counter-Affidavit dated and filed on 21/02/2018.
The Applicant’s application is predicated on the six grounds set out on the motion paper.
It is trite law that an application of this nature also calls for the exercise of discretion by the Court. And in exercising its discretion, the Court must be satisfied with the Applicant’s explanation of his failure to seek to appeal within the prescribed period and whether the grounds of appeal prima facie show good cause why the appeal should be heard. However, where the issue of jurisdiction is raised, it is not necessary for the Court to inquire into the reason for the delay in bringing the application as a challenge to the Court’s jurisdiction is a good ground for hearing the appeal. See Braithwaite vs. Dalhatu (2016) ALL FWLR (Pt. 846) 202 at 220-221, Paras. E-D.
The right to appeal is a constitutionally guaranteed right. However, where exist an appeal already of a judgment of a High Court pending before the same Court of Appeal on which an Applicant seeks to also appeal again, then the Court can conveniently refuse the leave seeking to appeal the same judgment already before it mostly when there is a subsisting judgment of the High Court over the same subject matter and on where there is no appeal by the Appellant.
The Respondent in opposing this application relied heavily on their Counter-Affidavit filed on the 22/11/2017 and more particularly on Exhibit ‘A’ wherein a similar application in CA/PH/587M, a subsisting judgment of the High Court over the same subject matter and on which there is no appeal yet by the Applicant.
Paragraphs (3 vii) and 4 of the Counter-Affidavit states thus:
(vii) That HON. JUSTICE BOMA DIEPIRI on the 16th May, 2017 in the said applicant’s suit PHC/2828/2013 for which Applicant sought interest over the subject, held thus:
As could be seen the 1st Defendant in this case (1st Respondent) who is the vendor of the Claimant (party seeking leave to appeal) CLEARED ADMITTED that the land she sold to the Claimant (subject of this litigation) was mapped out from the entire parcel of land subject matter of PHC/1073/2009 for which judgment was entered against her and her co-defendants. If this is so then the land in dispute in this case is affected by the said judgment as the Claimant (the party seeking leave to appeal) in this case cannot have a better title than his vendor (1st Respondent) the 1st Defendant in this case. The title of the Claimant (Applicant seeking leave to appeal) IS SUBSUMED in the 1st Defendant’s (1st Respondent’s) title. He either swims or sinks with the 1st Defendant (1st Respondent) his vendor….” See page paragraphs 2 of Applicant’s Exhibit “E”.
That the said judgment in Applicant’s Exhibit which binds the Applicant being a subsisting judgment for which there is no appeal clearly shows that the alleged interest of the Applicant is subsumed in 1st Respondent’s interest, there is no independent Applicant’s interest to be considered by virtue of the Application for leave to appeal as the Applicant will swim or sink with the 1st Respondent in CA/PH/636/2016, the 1st Respondent being the root of title of the Applicant, the Applicant is not a bonafide purchaser for value in view of Applicant’s Exhibits “C” and “E” which binds the Applicant and there be no appeal over Applicant’s Exhibit “D”.
On my own opinion, I cannot but agree with the above evaluation of evidence by the learned trial Judge both documentary and affidavit evidence. Infact, like Siamese twins, the Appellant/Applicant cannot severe his own interest from that of the 1st Respondent’s interest in CA/PH/636/2016 as the 1st Respondent is the root of title of the Applicant. Therefore, the interest of the Appellant/Applicant as per this application is subsumed in the 1st set of Respondents in Appeal No. CA/PH/636/2016 which is already before the High Court in PHC/282/2016 for which there is no appeal by any party or even the Appellant/Applicant.
This appeal has no merit and hereby dismissed.
Accordingly, the reliefs on the motion dated 2/11/2017 and filed on same date viz:
1. Extending the time within which MR. TROTSKY E.N. UZUZU (the Applicant) may seek leave to appeal as an interested party against the judgment of Rivers State High Court in Suit No. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOTHER VS. MR. NZENYELE NWAGBARA & 3 OTHERS, presided over by Honourable Justice B.A. Georgewill (as he then was) on the 29th day of July, 2013.
2. An Order granting leave to the Applicant to appeal as an interested party against the judgment of the Rivers State High Court delivered by Honourable Justice B.A. Georgewill in Suit No. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOTHER VS. MR. NZENYELE NWAGBARA & 3 OTHERS.
3. An Order extending the time within which to appeal as an interested party against the judgment of the Rivers State High Court delivered by Honourable Justice B.A. Georgewill on 29th day of July, 2013 in Suit No. PHC/1073/2009: CHIEF NYECHE AMADI OKOCHAMATI & ANOTHER VS. MR. NZENYELE NWAGBARA & 3 OTHERS.
4. An Order extending the time within which the interested party/Applicant shall file notice and grounds of appeal.
The above reliefs are hereby refused. Application not granted and accordingly dismissed.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft, the ruling just delivered by my learned brother, Paul Obi Elechi, JCA, and I agree entirely with the reasoning contained therein and the conclusion arrived thereat.
I too find this appeal unmeritorious and dismiss it as done in the lead ruling. The reliefs sought in the application are equally refused by me and the entire application not granted and accordingly dismissed.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree with the decision contained in the lead ruling of my Lord, the Hon. Justice P. O. Elechi, which has just been delivered and in which he adjudged this application as lacking in merit.
I really do not have any useful additions to make to the well-considered ruling.
I too, will not grant this application and accordingly dismiss same.
Appearances:
R. K. Nsirim, Esq. For Appellant(s)
Frank A. Chukwuka, Esq. – for 1st Respondent
M. A. Dagogo-Harry, Esq. – for 2nd Set of Respondent
K. O. Etekan – for 3rd Set of Respondent For Respondent(s)