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In The Supreme Court of On Friday, the 8th day of July 2005
Before Their Lordships
S.C. 195/2000
Between
And
Judgement of the Court Delivered by Umaru Atu Kalgo J.S.C
By a writ of
summons issued out on the 22/12/75 in the High Court of the then
"(a)
A declaration that the defendant is not entitled to build on No.
8 Old Market Road, Onitsha, which forms part of the estate of late E.
Egerton Williams, the plaintiff's father.
g Plaintiff, as against the
defendant is entitled to the possession of the property known as No. 8 Old
Market Road, Onitsha, as one of the beneficiaries/successors in title to his
father E. Egerton Williams.
(b)
An injunction to restrain the defendant, his servants and/or agents
from entering into
(c)
General damages in the sum of
It is at this stage pertinent
to observe that the original plaintiff in this case Dr. S. S.
Olukotun-Williams died on 11th May,
1987 and was by order of the trial court, substituted by the appellant. Also
the original defendant, Mr. George C. Mokwe, died on 18/4/88
and was by order of the trial court also
substituted by one person named E, Mokwe.
Parties filed their pleadings
in the trial court, and before the commencement of trial, they made frantic
efforts to settle the dispute between them out of court but this did not
materialise. The trial therefore commenced on 27/1/93 and concluded with the
appellant's address on 13/7/94. The suit was undefended by
It is important to state here
that the respondent was not a party to this case from its inception to the
judgment at the trial. It is clear from the record of proceedings in this
matter that by a motion on notice filed in the trial court on 8/7/94, the
respondent prayed the trial court to be joined as a co-defendant to the
suit. This was after
witnesses were heard and the case was closed for
address by the appellant. It is however not clear from the record of
proceedings what happened to the motion for joinder after it was filed. It
was not shown whether it was moved or drawn to the attention of the trial
court but it was filed 2 days from the day judgment was given. The
motion was however not entertained by the trial
court but the appeal against the alleged refusal to hear it was abandoned
and struck out by the Court of Appeal. Be that as it may, it is abundantly
clear that up to the time of the delivery of the judgment by the trial court
on the 28/7/94, only Gregory Mokwe, was the defendant in the case,
G.
C. Mokwe & Sons Ltd., the present respondent was not a party
to the case. However the respondent as a party interested filed its notice
of appeal against the judgment on 28/7/94 and then applied on the 24th
of June, 1995 to the Court of Appeal under
Section 222(a) of the 1979
Constitution of Nigeria which is applicable to this case, for an
order for leave to appeal against the said
judgment as a person interested. That application was granted as prayed on
the 5th of February, 1996 more than 6 months after filing the
notice of appeal.
The appeal was then heard by
the Court of Appeal, Enugu Division: it was allowed and the decision of the
trial court was set aside and a retrial was ordered. The notice of appeal
filed on 14/7/
94 by the party interested/respondent was struck
out.
The appellant was dissatisfied
with this decision and appealed to this court. The respondent/party
interested (hereinafter referred to simply as respondent) also
cross-appealed against the decision striking out its appeal filed on
14/7/94, but this was later withdrawn and struck out on the 24/10/2001.
Written briefs were filed in
court and exchanged between the parties as required by the rules of court.
The appellant formulated 3 issues for the determination of this court which
read:
(i)
Was the Court of Appeal right to say that it is too late to raise the
issue of competence of an appeal even in a brief of argument and with the
consent of the appellant's counsel?
(ii)
As at the date the notice and grounds of appeal was entered, was the
Court of Appeal right to hold that there was an appellant?
(iii)
Was the Court of Appeal right to hold that the trial court was
obliged to hear an application for joinder not brought to its notice either
by counsel for the applicant or the clerk of court"
The respondent having abandoned his
cross-appeal raised only one issue in its brief which is:
“Whether the court below was
justified to have granted leave to the appellant to appeal as a person
interested against the judgment of the learned trial court in the
circumstances of this case”
Having regard to the original
and additional grounds of appeal filed by the appellant in this case, I find
that the appellant's issues for determination are more germane to the
grounds than the sole issue of the respondent. I shall therefore consider
them in the determination of this appeal.
The learned counsel for the
respondent submitted in his brief that the grounds of appeal 1, 2,
3 and 4 and the
additional ground filed by the appellant in his notice of appeal in this
case are at most all of mixed law and fact for which no leave was granted or
obtained to file them and should therefore be struck out as incompetent. He
cited in support the cases of Obatoyinbo
v. Oshatoba (1996)
5
NWLR (PI. 450) 531 at
547; Nwadike
v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at
743; Metal Construction (W.A.)
Ltd. v. Migliore (1990) 1 NWLR (Pt.
126)299.
The learned counsel for the
appellant however submitted in his brief that all the 4 grounds of appeal
and the additional ground are grounds of law and are validly filed in this
case. He cited a plethora of decided cases in support.
In this court, the appellant filed a
notice of appeal and in ground 1 of appeal on page 319 of the record he
challenged the order of the Court of Appeal which he said was illegal and
occasioned a miscarriage of justice. The main ground read with the
particulars, are challenging the competence of the appeal by the respondent
in the
Court of Appeal. This is no doubt an issue of law which can properly be
taken up in this court having failed in the Court of Appeal. The same is
true of ground 4 which challenges the jurisdiction of the Court of Appeal to
entertain the application for leave to appeal. But ground 2 which challenges
the exercise of the discretion of the
Court of Appeal in granting the application without the appellant and ground
3 which challenges the finding of the Court of Appeal on failure of the
trial court to hear and determine the motion for joinder will appear to me
to raise issues of mixed law and fact. They both require leave of the Court
of Appeal or this court to be filed and
there was no such leave from the record of appeal. They are therefore
incompetent and I hereby strike them out accordingly together with issue 3.
This leaves grounds of appeal 1, 4 and the additional ground for which leave
to file has been granted by this court. From this, we now only have issues 1
and 2 to be canvassed and considered in the appeal.
I will take issues 1 and 2
together. It is not in dispute between the parties that the respondent G. C.
Mokwe & Sons Ltd. was not a party to the case in the trial court from the
beginning to the day judgement was delivered on 28/7/84. It cannot therefore
appeal as of right against that judgment to any higher court. See
Section 220(1) of 1979 Constitution.
But by virtue of the provisions of
Section 222(a) of the 1979 Constitution; it can properly apply to the
higher court, in this case, the Court of Appeal, for leave to appeal as an
interested party.
It is also not in dispute that
the respondent, even though not a party to the case as of 28/7/94 when the
judgment of the trial court was delivered, filed a notice of appeal against
the said judgment on 28/7/94. The following day on the 29th of
July 1994, he filed another motion for leave to appeal as an interested
party. This motion was purported to be transferred to the Court of Appeal,
3 asked specifically for:
"An order deeming the notice of
appeal dated 28/7/94 and filed on 28/7/94 as properly filed."
The motion was heard by the
Court of Appeal. The appellant's counsel did not oppose the application and
the prayers in the application were granted as prayed. The court therefore
further ruled thus:
"It follows that the applicant
G. C. Mokwe & Sons Ltd is hereby granted the leave of this court to appeal
against the judgment of the lower court in suit No. 0/183/75 as an
interested party. Leave is also granted in that capacity against the said
judgment. The applicant having filed and served his notices and grounds of
appeal against D the said
judgment of the lower
court, the notices and grounds of appeal are deemed to have been properly so
filed."
The appellant did not appeal
against this ruling of the Court of Appeal directly but he sought and
obtained leave to file an additional ground of appeal which was filed.
The main contention of the
learned counsel for the appellant in his arguments in his brief on issues 1
and 2 is that since the respondent filed its notice and grounds of appeal in
this case without leave on 28/7/94, and only obtained leave to do so when
the Court of Appeal granted its application on 5/2/96, the notice of appeal
filed is incompetent and the appeal is a nullity.
He cited in support the cases of Aqua Ltd v.
For the respondent, it was
submitted in the brief that the notice of the application for leave to
appeal from the decision of the trial court was duly and promptly given the
very day the trial court delivered its judgment. The respondent also
submitted that considering the peculiar circumstances of this case, the
Court of Appeal was perfectly justified in exercising its discretion to
grant the application. The respondent further submitted that the order
deeming the notice of appeal as properly filed was legitimately made having
regard to the circumstances of the case and that the case of Cooperative
Bank of Eastern (Nig.) Ltd (supra) cited by the appellant to invalidate
the deeming order cannot apply to the instant case.
The central issue in this
appeal therefore, is essentially a complaint against the grant of the leave
to appeal by the Court of Appeal to the respondent against the decision of
the trial court as interested party.
It is however submitted that
the grant of such leave involves an exercise of judicious and judicial
discretion on the part of the Court of Appeal taking into consideration all
the circumstances of the application before the court.
See Metal Construction W. A. Ltd. v. Migliore
(1990) 1 NWLR (pt. 126)
299 at 325,
Comex
Ltd. v. (Nig.) Arab Bank Ltd. (1997) 3 NWLR (pt. 496) 643
at 655.
The main contention of the
appellant in his brief is that by filing the notice of appeal against the
judgment of the trial court on 27/8/94 before obtaining leave to appeal from
the trial court or the Court of Appeal, the appeal filed was incompetent and
a nullity. It was further contended that the leave granted by or obtained
from the Court of Appeal on 5/2/96, could not sustain or validate the appeal
as it was not made retrospectively.
The learned counsel for the
respondent explained in his brief that since the respondent was not a party
to the case at the time the trial court delivered the judgment in the case
on 28/7/94, the respondent could only be made a party, as a person
interested in the matter with the leave of the trial court or the Court of
Appeal pursuant to the provisions of
section 222 (a) of the 1979 Constitution which is applicable to this
case. Learned counsel further explained that an application by motion on
notice was filed by the respondent for leave to appeal as an interested
party against the judgment of the trial court delivered on 28/7/94. All this
was conceded by the appellant in his brief. But what the appellant was
saying was that the leave granted for extension of lime to file the notice
of appeal could not be retrospective.
Let me now examine closely the
application for the leave to appeal and the order of the Court of Appeal
granting the leave. The application which was filed on 29/6/95 was for:
"1.
An order extending the time within which the applicant may apply
for leave to appeal against the final judgment of the High Court Onitsha
dated 28/7/94 as a party interested.
2.
An order granting the applicant G. C. Mokwe and Sons Limited leave
to appeal against the judgement of the High Court Onitsha dated 28/7/94
as a party interested.
3.
An order deeming the notice of appeal dated 28/7/94 and filed on
28/7/94 as properly filed.
4.
An order directing a slay of execution of the judgment of the High
Court Onitsha delivered in this suit on 28/ 7/94 pending the determination
of the appeal to this Honourable Court.
5.
An order for accelerated hearing of this appeal"
(Italicising mine)
The application was supported
by a 43 - paragraph affidavit sworn to by one Emeka
Umejiaku, a legal practitioner. There was no
counter-affidavit filed by the appellant. On the 5/2/96 when the Court of
Appeal heard counsel for the parties on the application, the learned counsel
for the appellant (respondent in the application) Mr.
Chilota concluded his submission by saying:
"I now say that I am not
opposing the motion".
Thereafter the Court of Appeal
ruled thus:
"With the learned counsel for the respondent not opposing having heard counsel for the applicant, Ikwueto Esq., the prayers of the applicant arc hereby granted. It follows that the applicant G. C. Mokwe & Suns Ltd is hereby granted the leave of this court to appeal against the judgment of the lower court in suit No. 0/183/75 a.v an interested party. Leave in also granted to appeal in that capacity against the said judgment. The applicant having filed and sewed his notices and grounds of appeal against the said judgment of the lower court, the notices and grounds of appeal are deemed to have been properly so filed. Also it is ordered that the execution of the judgment of the lower court in suit No. 0/183/75 delivered on 28/7/94 be stayed pending the determination of this appeal",
(italicising mine)
This ruling of the Court of
Appeal is comprehensive and clear. It granted all the prayers of the
respondent and was with the agreement of counsel for the appellant who
raised no objection to the grant.
I have carefully examined all
the submissions of the learned counsel for the appellant in his brief
including the decided cases cited in support thereof and although I found
them to be relevant in accordance with the principle of law enunciated in
those cases, I am of the view that the order deeming the notice of appeal
filed by the respondent as properly filed with effect from the day the order
was made cannot be seriously faulted. My reasons are these:
“1.
The respondent in his application for leave to appeal as party
interested has given good and substantial reasons in the affidavit why it
failed to appeal within time;
2.
It exhibited the notice of appeal containing grounds of appeal which
shows good cause why the appeal should be heard;
3.
It filed the application for leave to appeal under
Section 222 (a) of 1979 Constitution
as party interested on 28/ 7/94, the day the judgment of the trial court was
delivered;
4.
During the trial of the case and before
the said judgment was delivered, precisely on 11/7/94, the respondent filed
an application to be joined as a necessary party to proceedings;
5.
When the learned trial judge failed to hear the application mentioned
in (5) above, the respondent felt aggrieved and filed a notice of appeal to
the Court of 3 Appeal
against that on 14/7/94.
6.
By virtue of the provisions of Section 31 of the Court of Appeal Act
(cap 75 of 1990 Laws of the Federation) as from 28/7/94, the respondent is
deemed to be an "appellant" as defined therein;
7.
The case was undefended in the trial court because the then defendant
had no interest in the land in dispute."
All these have been
meticulously stated in the affidavit in support of the application for leave
to appeal by the respondent in the Court of Appeal.
By
Section 31 of the Court of Appeal Act,
an "appellant" is defined to mean, any person who desires to appeal or
appeals from a decision of the Court below or who applies for leave to
appeal, and includes a legal practitioner representing such a person in that
behalf. By filing the motion for leave to appeal in the trial court on
28/7/94, the day the judgment was delivered by that court, the respondent
was definitely desirous of appealing against it to the Court of Appeal. He
was therefore an "appellant" within the meaning of Section 31 of the said
Act. It is not in dispute however, that the respondent though not a party to
the case then filed its appeal on 28/7/94 before the actual leave to do so
was granted by the Court of Appeal. At that stage, the appeal is no doubt a
nullity. However, being an "appellant" at that time and having filed its
notice of appeal without leave, which is no doubt void, it then filed its
application for leave to appeal in the Court of Appeal and in prayer 3 asked
for deeming the notice and grounds of appeal it filed earlier, as properly
filed in order to regularise the filing of the notice of appeal. This, in my
view, makes it unnecessary for the requirement of a separate prayer for
enlargement of time to appeal, in the circumstances of this case. Therefore
the Court of Appeal having granted the respondent's prayer for leave to
appeal without any objection by the appellant are perfectly entitled in my
view, to grant the 3rd prayer deeming the notice of appeal filed on 28/7/94
by the respondent as properly filed in this case. And although it has
retrospective application, it was only intended to regularise the filing of
the notice of appeal carried out on 28/7/94. The case of
Cooperative Bank of
"It is clear from the record
book that the motion in question (for leave to appeal) was moved by learned
counsel for the appellant on 5/2/96. A. U. Chilota
counsel for the respondent did not oppose the motion. This court accordingly
granted it as prayed. Leave was therefore granted the applicant. The order
was given way back on 5/2/96. The respondent had all the opportunity to
appeal if he was not satisfied. But there was no appeal.
He now raises the issue in his brief filed on 28/10/96.1 do not think
the law allows him to do so, the objection on the competence of the appeal
therefore fails".
The facts elicited in the
above quotation were perfectly correct according to the proceedings in this
case, and I entirely agree with the Court of Appeal that without an appeal
against the orders, the objection to the competence of the appeal on that
ground cannot be taken. That should be the end of the matter.
In the affidavit in support of
the application for leave to appeal as an interested person under
Section 222 (a) of the 1979
Constitution, the following paragraphs are pertinent:
"37.
That the original defendant in this suit was Chief George Mokwe late.
38.
That following the death of the said original defendant, the
plaintiff in this suit prayed the High Court Onitsha to substitute the
deceased defendant with Gregory Mokwe.
39.
That by an order of court dated 20/3/89, the High Court Onitsha
substituted Gregory Mokwe as a defendant.
40.
That the said Gregory Mokwe has no interest whatsoever in the
properly commonly known as
41.
That I am informed by the applicant and I verily believe that the
said Gregory Mokwe did not make any attempt to defend this suit nor did he
bring the pendency of same to the notice of applicant.
42.
That late Chief George C. Mokwe was in his lifetime the
alter-ego/Chairman/Chief Executive of G. C. Mokwe and Sons limited.
43.
That by a Deed of Conveyance dated 26/4/74 and registered as
81/81/712 in the lands registry
44.
That hereto annexed and marked as exhibit G. is a copy of the deed of
conveyance dated 26/4/74 and registered as 81/81/712 Enugu (now
Awka)
45.
That I am informed by the applicant I verily believe that the
applicant's application to be joined as a defendant in this suit is to
enable the applicant defend its title and interest in the property known as
46.
That I am informed by the applicant and I verily believe that
the applicant built a 3 storeyed building at
From the averments in the
above paragraphs, it is abundantly clear that the respondent has a legally
cognisable interest which the decision of the trial court seeks to deprive
him of if not challenged; hence the filing of the notice of appeal on the
day of the judgment, accompanied by the application for leave to appeal. See
Societe Generate Bank (Nig) Ltd v.
Afekoro (1999) 11 NWLR (Pt. 628) 521. By
Order 3 Rule 4 (2) of the Court of
Appeal Rules 1981 (as amended) the two conditions which must be
fulfilled to justify the grant of extension of time for leave to appeal are
good and substantial
reasons for failure to appeal within prescribed
period and grounds of appeal which
prima facie show good cause why the appeal should be heard. See In Re
Adewunmi & Ors (1988) 3 NWLR (Pt. 83) 483;
These conditions have been
satisfied fully in this case, in my view, with particular reference to the
averments in the affidavit in support of the application and the notice of
appeal attached thereto.
It is also of great importance
to emphasise and bear in mind that the failure of the trial Judge to hear
and determine the respondent's application to be joined as co-defendant to
the action and for leave to appeal to Court of Appeal has serious effect on
the proceedings in this case generally and must be considered in the
interest of justice.
By virtue of the provisions of
Section 222 (a) of the 1979
Constitution which is applicable to this case, the Court of Appeal has
the discretion in granting or refusing an application before it for leave to
appeal as an interested party and any such discretion exercised by it
remains valid unless it is shown to have been wrongly exercised on erroneous
principles or tainted with illegality. See Ndulue
v. Ibezum (2002) 12 (NWLR) (Pt.780) 139. And
this court does not substitute its own discretion for that of the court
below in applications like this, unless the court below did not act in good
faith or has been swayed by irrelevant considerations or acted arbitrarily
or capriciously or under a misconception of law or misapprehension of fact.
See
For all what I have said
above, I find no merit in this appeal having regard to the circumstances. I
dismiss it and affirm the decision of the Court of Appeal delivered on 11th
August 1997, I award to the respondent
Judgment delivered by
Idris
Legbo Kutigi, J.S.C.
I read before now the judgment
just delivered by my learned brother Kalgo,
J.S.C. I agree with his conclusion that the appeal is unmeritorious. It is
accordingly dismissed with
Judgment delivered by
Dahiru
Musdapher, J.S.C.
I have had the honour to read
in advance the judgment of my lord Kalgo, J.S.C.
just delivered with which I entirely agree. For the same reasons so lucidly
and comprehensively set out in the aforesaid judgment, which I respectfully
adopt as mine. I too find no merit in this appeal. I dismiss it and I also
abide by the order for costs contained in the aforesaid judgment.
Judgment delivered by
Ignatius Chukwudi Pats-Acholonu,J.S.C.
I agree.
Judgment delivered by
Sunday
Akinola Akintan,
J.S.C.
The dispute in
this case arose over a building at
Shortly after the trial High
Court delivered its judgment, the respondent filed a notice of appeal
against the judgment. He later filed a motion in which it prayed, inter
alia, for extension of time to apply for leave to appeal against the
judgment as a party interested; leave to appeal as a party interested; an
order deeming the notice of
appeal already filed as properly filed; and stay of execution of the
judgment of the trial High Court. The motion was supported with an affidavit
and at the hearing it was not opposed. All the prayers in the motion were
therefore granted as prayed.
The appellant was dissatisfied
with the decision and an appeal filed against it at the Court of Appeal was
dismissed. The present appeal is against the decision of the Court of
Appeal. Three issues were formulated as arising for determination in the
appeal in the appellant's brief filed in this court. These are well set out
in the leading judgment written by my learned brother,
Kalgo, JSC. I therefore need not repeat them. All the issues raised
in the appeal are also fully discussed and I entirely agree with the
reasoning and conclusions reached in the said leading judgment.
The only aspect I will like to
comment on is the contention that since the respondent did not obtain its
leave to be joined as a party interested, it was wrong to grant the prayer
deeming the notice filed before the application was made. I believe that
that submission is totally misplaced in that since the respondent was not a
party in the case at the trial, it could only be a party when the court
granted its prayer to appeal as a party interested. The time when the notice
and grounds of appeal was, in this
case, deemed to be filed is on the date the court granted the prayer for
deeming the notice as properly filed. It was open to the court as was within
the prayer before it, to order that the notice already filed he refiled or
give any other order as to how and when the notice could be filed or to deem
the one already filed as properly filed as the court ordered in the case.
Any of the form of filing mentioned above would be proper and within the
prayer before the court. The contention that the order as made is unlawful
is therefore totally wrong.
For the reasons I have given
above, and the fuller reasons given in the leading judgment just delivered
by my learned brother. Kalgo, JSC, which I have
read before now and which I adopt, I also agree that there is no merit in
the appeal and I dismiss it with
Counsel
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