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ZAKARIYAH & ORS v. OLAM (NIG) LTD & ORS (2021)

ZAKARIYAH & ORS v. OLAM (NIG) LTD & ORS

(2021)LCN/15839(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Friday, December 03, 2021

CA/IL/55M/2020(R)

Before Our Lordships:

UzoIfeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Between

1. SHEIK ABDULGANIYU ZAKARIYAH 2. MALL. ABDULHAMMED ABDULSALAM 3. MALL. ISIAKA ABDULKAREEM 4. MALL. IDRIS ABUBAKRY TOYIN APPELANT(S)

And

1. OLAM NIGERIA LIMITED 2. HON. ATTORNEY GENERAL OF KWARA STATE 3. ABDULRASAKI USMAN IKOLABA RESPONDENT(S)

 

RATIO:

WHEN A PARTY IS SAID TO BE INTERESTED IN A SUIT

How can a person having interest in the decision of a Court be determined? In EFPC (Nig) Ltd vs NDIC (2007) 9 NWLR Pt. 1039 P.216, it was held that the test for determining a person is interested in a matter decided by a Court, is whether he would have been joined as a party, ab initio, in the suit or matter, the judgment of which he is seeking to appeal against. That a person having interest includes a person who is affected or likely to be affected or aggrieved or likely to be aggrieved by the decision in the proceedings which he seeks to appeal against. PER IBRAHIM SHATA BDLIYA, J.C.A. 

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgement): By a motion on notice dated 15th day of September, 2020 and filed on the same date, the interested parties/Appellants sought for the following orders:
(1) “An order of this Honourable Court for extension of time within which the application to seek leave to appeal as interested parties against the judgment delivered by Honourable Justice M.A Folayan (rtd) of the Kwara State High Court Ilorin Judicial Division on 10/12/2015.
(2) Leave of this Honourable Court for the applicants to file an appeal as interested parties against the judgment of the High Court of Justice, Kwara State delivered by Honourable Justice M.A Folayan (rtd) of the Kwara State High Court Ilorin Judicial Division on 10th December, 2015.
(3) An extension of time within which to file an appeal against the judgment delivered by Honourable Justice M.A Folayan (rtd) of the Kwara State High Court Ilorin Judicial Division on 10th December, 2015.”

The following documents were exhibited as annexures to the motion on notice, which are these:
1. Letter dated 10th of November, 2019, demand for payment ofthe sum of N 500,000,000:00 Exhibit ‘A’.
2. Letter dated 15th of November, 2017 addressed to Ismail FunshoYusuph Esq. Exhibit ‘B’.
3. Letter dated 27th of August, 2020 to WHOM IT MAY CONCERNED Exhibit ‘C’.
4. Notice of Appeal, Exhibit ‘D’.
5. Judgment delivered on the 10th of December, 2015 in suit no: Kws/198/2011. Exhibit ‘E’.

The applicants filed a nine (9) paragraphed affidavit in support of the application. The 1st respondent filed a 17 paragraphed counter-affidavit in opposing the application. A further affidavit was filed by the 1st respondent, the 2nd and 3rd respondents did not file affidavit. The relevant and material depositions contained in the affidavit, counter-affidavit and further affidavit will be resorted to in course of the hearing and determination of the application where desirable. The application being contentious this Court ordered for written addresses in support of their respective position in the application. The interested parties/appellants filed written address on the 25th of June, 2021 with a sole issue for determination contained on page 1 (one) thereof. The issue is as follow:

“Whether or not the interested parties/Applicants are entitled to be granted leave to appeal, and the prayer for extension of time within which to appeal.”

The respondents did not file written addresses.

At the hearing of the application on the 29th of October, 2021, learned counsel to the interested parties/applicants adopted the written address in support of the application; and urged this Court to grant same as prayed. Learned counsel to the respondents did urge that the application be dismissed for being unmeritorious.

DETERMINATION OF SOLE ISSUE
The sole issue for determination in the application is thus: whether the interested parties/applicants are entitled to be granted the reliefs (orders) sought in the motion on notice filed on the 15th of September, 2020? I.Y Yusuph Esq., of learned counsel to the applicants made submissions on pages 1 to 2 of the written address filed on the 25th of June, 2021. Specifically, learned counsel did submit that a person interested in a judgment delivered in a suit to which he was not a party thereto, can by leave of Court, appeal against such judgment as provided by Section 243(1)(a) of the 1999 Constitution (as amended). It has been further submitted that by the depositions contained in the affidavit, further affidavit and the further and better affidavit, the applicants have shown or established their interest in the judgment of the lower Court. That the applicants have also shown why leave should be granted to extend the time within which to seek leave, leave to appeal and also extending time within which to file the appeal. In conclusion, learned counsel did urge that the application be granted to enable the applicants to appeal against the judgment of the lower Court delivered on the 10th of December, 2015 in suit No: Kws/195/2011.

Is the application of the interested parties/applicants competent? Section 243 (a) of the 1999 Constitution (Amended) provides thus:
“Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by the Constitution shall be
a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter.”
In the case of Adeleke vs Oyo House of Assembly (2006) 3 JNSC Pt. II P.548, the Apex Court held that:
“Any other person who has an interest in a case, but is not a party to the case cannot appeal in the proceedings until he seeks the leave of either High Court from which the case is being appealed or the Court of Appeal to which the appeal is to be brought. A party who desires to appeal as interested party has the option to obtain the necessary leave prescribed for doing so, on application to either High Court, which decided the case or the Court of Appeal, by Section 243 of the 1999 Constitution, the Court of Appeal can grant an applicant having an interest in the matter, leave to appeal and there is no time limit prescribed in said Constitution over Court of Appeal or Court of Appeal Rules within to which to bring the application.”
In Otu vs ACB (2008) Vol. 3 MJSC P.206, the Apex Court enunciated that a party who has an interest in an appeal from a High Court to the Court of Appeal must obtain leave to do so. That where leave of the High Court or the Court of Appeal has not been obtained in an application by an interested party, to appeal to the Court of Appeal against the judgment of a High Court, to which he was not a party, the Court would not be seised of the jurisdiction to adjudicate in any matter either at the High Court or the Court of Appeal. The foregoing position of the law has the support in the case of Otu vs ACB (2008) Vol. 3 P. 206, wherein Oguntade J.S.C held that:
“Where leave is required either in the Constitution or in the rules of Court and leave is not sought and granted, the Court has no jurisdiction to grant the motion as it is incompetent. An order on such an incompetent motion is invalid.”
By the provision of Section 243(a) of the 1999 Constitution (amended), any person who claims to have an interest or is aggrieved by a judgment of the Federal High Court or High Court of a State or any Court of Superior jurisdiction, and intends to appeal against such judgment to the Court of Appeal, must obtain leave of the trial Court or the Appellate Court. By the application filed on the 15th of September, 2020, the applicants are seeking for an order to appeal against the judgment of the High Court of Justice Kwara State in suit no: Kws/195/2011, delivered on the 10th day of December, 2015. It is after being granted the leave, that the applicants are going to appeal against the judgment of the lower Court, the High Court of Justice, Kwara State.
Suit No: Kws/195/2011 was adjudicated upon by the Kwara State High Court, and the judgment was delivered on the 10th of December, 2015. The applicants were not a party to the suit before the trial Court. When they became aware of the judgment, they filed the application seeking for leave of this Court to appeal against the said judgment as an interested parties pursuant to the provision of Section 243(a) of the 1999 Constitution (Amended).
InSCB (Nig) Ind vs Afekoro Ltd(1999) 1 NWLR Pt.628 P.521, it was held that a person who is not a party in any proceedings in which a decision has been taken by the Federal High Court, National Industrial Court or the High Court but wishes to appeal to the Court of Appeal against such decision must seek leave of the Federal High Court, or the High Court or the Court of Appeal (as the case may be) to do so. Also, in Chukwu vs INEC (2014) 10 NWLRPt.1415 P.385, the Supreme Court endorsed the decision of this Court in Omotesho vs Abdullahi(2008) 2 NWLR Pt.1072 P.526 @ 543.

How can a person having interest in the decision of a Court be determined? In EFPC (Nig) Ltd vs NDIC (2007) 9 NWLR Pt. 1039 P.216, it was held that the test for determining a person is interested in a matter decided by a Court, is whether he would have been joined as a party, ab initio, in the suit or matter, the judgment of which he is seeking to appeal against. That a person having interest includes a person who is affected or likely to be affected or aggrieved or likely to be aggrieved by the decision in the proceedings which he seeks to appeal against.

The law is trite, a person seeking leave to appeal as an interested party must first of all seek and obtain leave of this Court. See Funduk Eng. Ltd vs J. MCArthurIn re Madaki (1996) 2 SCNJ P.64 @ 75, where the Apex Court held that:
“Any party interested to appeal because he has an interest in the proceedings must first of all obtain leave under S.221 to become a party.”
That a person who was not a party in an action can only appeal against the decision of a Court, must first of all obtain leave of the Court, has been further reinforced in the case of Mobil vs Monokpo (2003) 12 SCNJ P.122, wherein the Apex Court, Per Niki Tobi J.S.C (of blessed memory) said:
“In order words, only a party who is aggrieved by a judgment can appeal against it. Such a party is either a party in the case or a party interested in the case. While a party in the case can appeal as an appellant qua plaintiff or defendant at the lower Court without satisfying the Court of any reason for filing an appeal, a party interested must prove his interest in the case.”
Katsina Alu JSC (as he then was of blessed memory) expressed similar views when his lordship held in Cherabim & Seraphin vs Talasi (2001) 6 SCNJ P.136 that:
“One does not need a magnifying glass to see that the existence of a decision affecting a party is a condition precedent to the existence of a right of appeal and indeed the exercise of any such right of appeal by that party. The right is a right against the decision of a Court adversely affecting a party. It therefore goes without any argument that for a person to claim any right of appeal as envisaged, that person must show that the decision of the Court against his or his interest.”

In order to ascertain the interest of the applicants or their grievance with the judgment of the trial Court, that is the Kwara State High Court in Suit No: Kws/195/2011, a resort or recourse to the depositions contained in the affidavit in support of the application, and the counter-affidavit filed by the 1st respondent, is pertinent. Paragraphs 5 to 15 of the applicants’ affidavit in support of the application are relevant or germane to their interest in the matter before the trial Court:
I. “That it was through the 1st defendant/respondent’s letter that the applicants knew that Suit No: Kws/195/2011 between (i) Alhaji ShaffhiIkolaba and (ii) Abdulrasaki Usman Ikolaba and the 1st and 2nd defendant was instituted and had been decided by Honourable Justice M.A Folayan (rtd) of the High Court of Justice, Ilorin Kwara State on the 10th December, 2015.
II. All efforts to get record of the Court from the counsel to the two claimants at the lower Court were unsuccessful.
III. That we made efforts to get the Court record but we discovered that the judge who decided the matter had retired from service.
IV. That it was the High Court Registry that assisted the applicants to get the record of the matter.
V. The applicants just got the record after COVID-19 lockdown.
VI. That upon going through the record of the matter, we noted that both Alhaji ShaffiIkolaba and AbdulrasakIkolaba (claimants) acted without consent of the Ikolaba family.
VII. They did not obtain consent and approval of the Ikolaba family before they went to Court on behalf of themselves and on behalf of the Ikolaba family.
VIII. The two claimants did not represent the applicants family appropriately in the matter and some facts of the case were misrepresented.
IX. That both claimants did not show interest to pursue appeal against the said judgment.
X. That the 1st claimant is now deceased and the 2nd claimant (now 3rd respondent) is not ready to pursue the proposed appeal.
XI. That the applicants were given consent and approval of IKolaba family to represent them in this application and proposed appeal. Copy of the letter of approval is hereby attached as Exhibit C.

XII. That there are cogent and recondite issues of law and facts as ground of the proposed appeal. Copy of the proposed notice of appeal is hereby attached and marked as Exhibit D.”

The 2nd and 3rd prayers of the applicants are for an orders for leave and extension of time within which the applicants can appeal to this Court against the judgment of the lower Court delivered on the 10th day of December, 2015, in suit no: Kws/195/2011. Order 6 Rules (1)(4) and 10 (1) (2) of the Court of Appeal Rules, 2016, provide thus:
“10(1) The Court may enlarge the time provided by these rules for the doing of anything to which these rules apply except the filing of notice of intention not to contest an application under Rule 8 above.
(2) Every 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. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the notice of appeal.”

In an application for extension of time within which to appeal, an applicant must satisfy the provisions of Order 6 Rule 10 (1) and (2) of the Rules of Court. The Supreme Court had this to say in the case of ANPP vs Albashir (2010) 2 SCNJ P.159 @ 181:
“An applicant who seeks an equitable relief from the Court of Appeal must meet the requirements in Order 7 Rule 10 (2) of the Court of Appeal rules 2007. Such an application shall be supported by an affidavit evidence which must show (1) good and substantial reason for failure to appeal within the prescribed period. (2) grounds of appeal which prima facie show good cause why the appeal should be heard. In order to exercise its discretion to grant any application for extension of time within which to appeal, the Court has never compromised on the issue that the two conditions stated above must be satisfy conjunctively. The two conditions must be established in the affidavit evidence in support of the application. When only one out of two conditions is satisfied, the application cannot be granted.”​
An applicant applying for extension of time within which to appeal and who wishes that the discretion of the Court of Appeal under the Court of Appeal Rules be exercised in his favour must satisfy the two conditions prescribed under the rules. It is not enough to satisfy just one of the two conditions. In other words, to warrant the exercise of the Court’s discretion in favour of the applicant both conditions must be satisfied concurrently.
In order for an application for extension of time within which to appeal to be granted, the Court must carefully scrutinize the affidavit in support of the application and the proposed ground(s) of appeal annexed to the affidavit in support so as to determine whether the conditions stipulated in the rules have been fulfilled or complied with.​
Earlier in this ruling, I have had made reference to the affidavit and the counter-affidavit before the Court in support of the application of the applicants. I have dispassionately considered the depositions contained in the said affidavits. The applicant, on the whole, have given satisfactory reasons why the appeal was not filed within the prescribed period. The depositions contained in the affidavits have also explained the reasons for not bringing the application within a reasonable period since the delivery of the judgment by the trial Court.
By the depositions contained in paragraphs 4 to 23 of the affidavit in support of the application, the applicants have had given sufficient reasons why they could not appealed within the time prescribed to do so. Another requirement which must be satisfied in order for an applicant to be entitled to an order extending time within which to appeal is that the proposed grounds of appeal must show good cause why the appeal should be heard. See J.C An vs Unegbu (2012) 2 NWLR Pt. 1284 P.216 @ 230, wherein it was enunciated that it is not the duty of the Court at this stage to consider whether the appeal will succeed. It is enough that the grounds of appeal are arguable. As to whether the appeal will succeed, that is to be left for consideration at the hearing of the appeal. See C.C.B (Nig) Ltd vs Ogwuru (1993) 3 NWLR Pt. 284 P.63; In Re. Adewumi (1988) 3 NWLR Pt.83 P.483; Ibodo vs Enarofia (1980) 5-7 SC 42;Ogbu vs Urum (1981) 4 SC 145 and Ukwu vs Bunge (1997) 8 NWLR Pt.518 P.577.
It must be pointed out that the applicant need not show the proposed grounds of appeal will succeed. Rather, what is required of the applicant is only to show that a prima facie case has been shown by the proposed grounds of appeal. See Ukwu vs Bunge (1977) 8 NWLR Pt.518 P.577 and Ikenta Best (Nig) Ltd vs A.G Rivers State (2008) 6 NWLR Pt.1084 P.612. The proposed grounds of appeal, without their particulars are thus:
“GROUNDS OF APPEAL
GROUND ONE: ERROR IN LAW AND FACT
The learned trial judge erred in law and fact when he held that though the compulsory acquisition of the claimants family and definitely the entry of 1st defendant cannot be legal. However, because of the fact that this suit was brought outside the 10 years limitation period imposed by limitation Law of Kwara State, the claimants is left with no cause of action…
Particulars of Error
i. The evidence of DW2 shows that sometime in 2010 the 2nd defendant published a notice of acquisition on COMPASS News Paper of Thursday, August 12, 2010 without more, and issued Certificate of Occupancy (C of O) in favour of the 1st defendant on the claimants land.
ii. The Exhibits A, B, C, E, G, H, J and K and Exhibits D5 and D7 showed that the claimants’ family and the 2nd defendant were in talk on the subject matter up till 2010 and the action was filed in June, 2011.
iii. It is the duty of the defendants to show that the action was statute barred.
GROUND TWO: ERROR OF FACTS
The learned trial judge erred in fact when he assumed jurisdiction of the suit instituted in representative capacity of Ikolaba family without taking to the cognizance the consent and approval of the family.
PARTICULARS OF ERROR
1. The claimants in the lower Court filed action on behalf of themselves and on behalf of Ikolaba family without obtaining consent and approval of their family.
2. There is nowhere in the claimants pleading that indicate that the claimants instituted the action on behalf of the Ikolabe family
3. The head of Ikolaba family was not carried along in the matter.
4. No proper party before the Court assume jurisdiction.
5. The Court lacks jurisdiction to entertain the matter.

Exhibit “D” attached to the affidavit of the applicants contained the proposed grounds of appeal. They are two (2) grounds of appeal, which consist of arguable issues on points of law. The proposed grounds of appeal, if taken as a whole with their particulars have established a prima facie case why the appeal must be heard in view of the issues raised therein which requires the appellate Court to resolve same on appeal in the over-all interest of justice to both parties, the applicants and the respondents. It is view of the foregoing that I am of the firm view that the orders sought by the application should be granted.

Accordingly, the application of the applicants is hereby granted. I make an order granting prayers 1, 2 and 3 that is: (I) Time is extended to the applicants to seek leave to appeal; (II) Leave is granted to the applicants to appeal as an interested parties against the judgment of the lower Court of Justice, Kwara State delivered on the 10th December, 2015; and (III) Time within which to appeal against the judgment of the trial Court is hereby extended. The applicants are to file notice and grounds of appeal within 14 days from the date a drawn up order of the Court is served on them. I make no order as to costs.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the ruling just delivered by my learned brother, IBRAHIM SHATA BDLIYA, JCA. The interested parties have exhibited reasons why the Court must hear them on appeal.

The Courts are reluctant to foreclose a party whose rights are in danger of being trampled upon.

The Applicants in furtherance of their application have established a prima facie case that must be ventilated in the interest of justice.

For this, and the more robust reasoning in the lead ruling, the Applicants’ prayers are granted as in the lead ruling.
I also abide by the other orders contained therein.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.

Appearances:

I.I YUSUPH, Esq. with him, A.AOmolabi, Esq. and I.S Abdulqodir, Esq.For Appellant(s)

TaofiqAlubarika, Esq. – for 1st Respondent
Issa Zakari (SSC ) with him, Kemisola Afolabi (SSC) – for 2nd Respondent. For Respondent(s)