ONUKAGHA & ANOR v. OKOROAFOR & ORS (2018)
LPELR-44080(CA)
PRACTICE AREA: APPEAL
INTRODUCTION
Generally, Section 24 of the Court of Appeal Act prescribes that appeal arising from a final judgment of the High Court must be lodged within three months in respect of civil cases and 90 (ninety) days for criminal cases while an appeal against an interlocutory decision of a High Court must be lodged within 14 days. There has however been instances where an affected party is not even a party to the suit itself but merely gets to know about the suit when the judgment is being executed or about to be executed against him. In such an instance, if the stipulated period of 90 days has elapsed, will the Court foreclose the interested party from filing an appeal?
MBABA, J.C.A., while delivering the leading judgment in this appeal said: “It has been stated, repeatedly, that one who applies for leave to appeal, as an interested party, does not need extension of time to seek leave to appeal. This is so because time does not run out against him, upon coming to know of the judgment, to appeal against, and having not yet been a party to the said Suit, he seeks to contest the judgment, he cannot be questioned for not bringing the appeal within time (90 days from the delivery of the judgment).”
The Honourable Justice went further to say that “We have held several times, that a person who was not a party to a suit, cannot be bound by any order of Court in the suit, and cannot also take benefit of the suit, by enforcing the judgment, not being a party or privy to the action. Such a party that stands to be affected or threatened by the unfortunate Court decision cannot be denied the right to appeal against such decision, as an interested party.”
The Court of Appeal further held Per MBABA, J.C.A. that “It is settled therefore, that, it is a wrong procedure and a misconception of procedure and the law, for a person to apply for extension of time to seek leave to appeal, when he seeks to appeal, as an interested party; he does not need to include in his motion, a prayer for extension of time to seek leave to appeal.”
Speaking on what the proper approach is, the Hounourable Justice pointed out that “what [an interested party] actually needs, is for leave of Court to appeal, as an interested party, in which case he must convince the Appellate Court of his interest in the judgment he seeks to appeal against.”
FACTS
The Appellants/Applicants derived their purported interest/title in Plot 640 Works Layout, Owerri, which is part of Plot P.10 Works Layout, Owerri, from Chief Emmanuel Njoku. The 1st Applicant was brought into the property, by the said Nze Emmanuel Njoku, by way of power of attorney. The 1st Applicant, in turn brought in the 2nd Applicant also by way of power of and they exercised proprietary interests/ownerships over the property. In 2009, the portions they claimed in the land was attached by the writ of Execution in HOW/229/2009; a suit to which they were not parties.
Consequently, Appellants/Applicants, through their Landlord, Chief Emmanuel Njoku, filed a motion seeking a stay of the execution or of further Execution of the judgment in HOW/229/2009, delivered on 30/10/2009, or in the alternative, an order discharging all orders deriving from the said judgment as it affected them, (who were not parties to the suit). The trial Court dismissed the Application on 8/7/10, upholding the preliminary objection raised against the application, that Applicants had no locus standi to bring the application.
Apparently dissatisfied by the judgement of the Court, Applicants filed this Motion on 12/10/16, majorly seeking an Order of the Court of Appeal for enlargement of time within which to seek leave to appeal against the decision of the Imo State High Court in Suit No. HOW/229/2009, delivered on 30/10/2009; and for leave to appeal, as interested parties, against that decision, and extension of time to do so.
The application was founded on the grounds that the judgment sought to be overturned was delivered without jurisdiction; and that the lapse in time was because the Counsel hitherto engaged to handle the appeal was down with leukemia that led to his death.
ISSUE(S) FOR DETERMINATION
The sole issue for determination of the appeal was:
Whether this Honourable Court will be justified to grant this humble application.
HELD
The lone Ground of appeal, was granted and Applicants were allowed 21 days to file their Notice of Appeal against the judgment of the High Court of Imo State in HOW/229/2009, delivered on 30/10/2009, with effect from the date the application was granted.
Cost of this application assessed at Fifty Thousand Naira (N50,000.00) only was awarded against the 1st and 2nd Respondents to be paid to the Applicants.
RATIO DECIDENDI
APPEAL – APPEAL BY INTERESTED PARTY: Whether there is a time limit within which an application for leave to appeal as an interested party may be brought/nature of the application for leave to appeal as an interested party
“It has been stated, repeatedly, that one who applies for leave to appeal, as an interested party, does not need extension of time to seek leave to appeal. This is so because time does not run out against him, upon coming to know of the judgment, to appeal against, and having not yet been a party to the said Suit, he seeks to contest the judgment, he cannot be questioned for not bringing the appeal within time (90 days from the delivery of the judgment). See the case of In Re Vs Madaki (1996) 7 NWLR (Pt.459) 153, wherein the Supreme Court interpreted Order 3 Rule 3(3) of the Court of Appeal Rules and Section 221 and 222(a) of the 1979 Constitution (which are the same as 243(1) and 243(a) of the 1999 Constitution), where my Lord, Uwais CJN, said:
“Neither the Constitution nor the Court of Appeal Act or Court of Appeal Rules prescribe any period within which an interested party may bring application for leave to appeal as a person having an interest in the matter.”
It is settled therefore, that, it is a wrong procedure and a misconception of procedure and the law, for a person to apply for extension of time to seek leave to appeal, when he seeks to appeal, as an interested party; he does not need to include in his motion, a prayer for extension of time to seek leave to appeal. What he actually needs, is for leave of Court to appeal, as an interested party, in which case he must convince the Appellate Court of his interest in the judgment he seeks to appeal against. See the cases of Christian Iwuagwu Vs Emezie Okoroafor & Ors (2012) LPELR – 20829 CA; Funduk Engineering Ltd Vs Mcarthur & Ors (1996) LPELR – 1291 (SC). See also Fed. Airport Authority of Nigeria Vs BI – Courtney Ltd & Anor (2011) LPELR – 1942 CA, where this Court said:
“Party interested” against the judgment… Applicant must show his legal interest and the following conditions must co-exist:
(a) Good and substantial reasons for failure to appeal within the period prescribed by the appropriate rules of Court, and
(b) Good and substantial ground(s) of appeal which prima facie show good cause why the appeal should be heard – Ukwu Vs Bunge (1997) 1 NWLR (Pt.518) 527; Ibodo Vs Enarofia & Ors (1980) 5 – 7 SC 42. See also Ogembe Vs Usman & Ors (2011) LPELR – 8155 (SC); (2011) 7 NWLR (Pt.1277) 638, where the Supreme Court stated the important requirements where a party seeks for leave to appeal as an interested party; thus:
“One of the important requirements, where a party seeks for leave to appeal as an interested party, is that he ought to annex to his application a proposed Notice of Appeal. This is to assist the Appellate Court in the consideration of the grounds of appeal… to find whether the proposed grounds of the appeal are substantial and arguable…”Per MBABA, J.C.A. (Pp. 12-15, Paras. E-A)
APPEAL – APPEAL BY INTERESTED PARTY: At what instance will leave to appeal as an interested party be granted
“We have held several times, that a person who was not a party to a suit, cannot be bound by any order of Court in the suit, and cannot also take benefit of the suit, by enforcing the judgment, not being a party or privy to the action. Such a party that stands to be affected or threatened by the unfortunate Court decision cannot be denied the right to appeal against such decision, as an interested party. See the case of Poroye Vs Makarfi & Ors (2017) LPELR – 42738 SC; Re- Madaki (1996)7 NWLR (Pt.459)153; Chukwu & Ors Vs INEC & Ors (2014)10 NWLR (Pt.1415) 385; Makarfi Vs Poroye & Ors (2016) LPELR – 41296 (CA).”Per MBABA, J.C.A. (P. 21, Paras. B-E)
APPEAL – ISSUE(S) FOR DETERMINATION: Whether a respondent who has not cross-appealed or filed a respondent notice can raise issues not related to the grounds of appeal filed by the appellant
“By law, a Respondent’s issue for determination of appeal or application must be predicated on Applicant’s grounds of appeal or prayer in the application, except where the Respondents files a cross-appeal or Respondent’s notice, or preliminary objection to challenge the application, to sustain the strange issue. See Emesonye Vs State (2016) LPELR – 40550 CA, where it was held:
“We have stated, several times, that a Respondent has no room to raise an issue for determination of appeal, outside the grounds of appeal, formulated by the Appellant, except, of course, he (Respondent) has cross appealed, or raised a Respondent’s Notice, on the strange or fresh issue he proposed. See the case of Onuegbu & Ors Vs GOV. of Imo State & Ors (2015)8 CAR 224 at 240; (2015) LPELR – 25968 (CA0; Anyalenkeya Vs Anya & Ors(2016) LPELR 40218 CA (page 20 thereof; Musa Vs. State (2014) LPELR 22912 CA; (2014) 25 WRN 101.” Abiola Vs FRN (2014) LPELR – 24109 CA.”Per MBABA, J.C.A. (Pp. 6-7, Paras. F-E)
OTHER CASES FROM THE COURT
OLUDE v. STATE (2018) LPELR-44070(SC)
APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Onus on an appellant appealing against concurrent findings of Lower Courts
“Above all, this Court does not lightly interfere with the concurrent findings of lower Courts unless such findings are shown to be perverse or not the result of a proper exercise of discretion. Counsel for the appellant, thus, had a duty to demonstrate the perversity of those concurrent findings. Having failed to do so, there is no basis for this Court’s interference with them,Sokwo v Kpongbo (2008) All FWLR (pt 410) 680, 695 – 696; H – A; Braimah v Abasi (1998) LPELR – 801 (SC) 34; C – E; Okonkwo v Okagbue [1994] 9 NWLR (pt 368) 301.
Simply put, if learned counsel wanted this Court to upset those concurrent findings of lower Courts he should have shown that there were exceptional circumstances for doing do. Thus, he had a duty to show that the findings are perverse; there was a miscarriage of justice or that a principle of Law or procedure was not followed, Ogbu v. State (1992) 8 NWLR (pt. 295) 255; Igago v State [1999] 14 NWLR (pt. 637) 1; Adeyemi v The State [1991] 1 NWLR (pt. 170) 679; Adeyeye v The State (2013) LPELR – 19913 (SC) 46; Akpabio v State (1994) 7 NWLR (pt 359) 635; Ejikeme v Okonkwo [1994] 8 NWLR (pt 362) 266.”Per NWEZE, J.S.C. (Pp. 16-17, Paras. E-D)
CRIMINAL LAW AND PROCEDURE – OFFENCE OF MURDER: Essential ingredients that must be proved by the prosecution to ground a conviction for murder
“the appellant was charged with the offence of murder: an offence whose ingredients have been so frequently, commented upon that both the Prosecution and defence ought to be familiar withthe decisions at the tip of their fingers. For instance, in Tajudeen Iliyasu v The State [2015] LPELR – 24403 (SC) 25; B -G, this Court [per Nweze, JSC] held that:
Under the said section, the prosecution is obliged to prove: (1) that the deceased died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. These ingredients … have witnessed consistent espousal in many jurisdictions, for example, by English Courts, R v Hopwood(1913) 8 Cr. App. R. 143; Hyan v DPP (1974) 2 All ER 41; Woolmington v DPP (1935) AC 462; by Nigerian Courts, Madu v State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v State [2000] 15 NWLR (pt 691) 467; Idemudia v State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607 and by Courts in other Commonwealth jurisdictions, see for example, R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R. v. Tralka (1965) Qd, R. 225, (Queensland, Australia).”Per NWEZE, J.S.C. (Pp. 10-11, Paras. F-F)
EVIDENCE – UNCHALLENGED/UNCONTROVERTED EVIDENCE: Effect of an unchallenged/uncontroverted evidence
It is well-known that where evidence of a witness is uncontradicted or unchallenged, the Court would relate it to the applicable law, State v Oka (1975) 9 -11 SC 17; Aigbadion v State [2000] 7 NWLR (pt 666) 686; Pius v State (2015) LPELR – 24446 (SC) 1s -16; G -A; Ayeni v State (2016) LPELR- 40105 (SC).”Per NWEZE, J.S.C. (P. 16, Paras. C-E)
EVIDENCE – CONFESSIONAL STATEMENT: Effect of resiling from an extra judicial confessional statement
“Now, at pages 203 – 204 of the record, the learned trial Judge, Oyewole, J (as he then was), with reference to the appellant’s extra-judicial confessions, proceeded thus:
In each of the said statements, the defendant [now, appellant] supposedly gave various accounts of how the deceased [person] met his death and in exhibit P4 exonerated the various individuals to which (sic) he ascribed roles in the earlier statements. In the said exhibit P4, the defendant allegedly made direct confession to (sic) the crime and gave an account of how he murdered the deceased [person]. [page 203 of the record; italics supplied for emphasis]
The trial Court, then turned to the legal effect of the appellant’s resiling from exhibit P4. The Court correctly, stated the position of the law thus:
Having resiled from this statement, the position of the law is that the said statement, exhibit P4, will be considered and evaluated alongside other available evidence in reaching a decision notwithstanding that the defendant has resiled therefrom in his testimony in open Court, Egbohonome v State [1993] 7 NWLR (pt 306) 383; Ibina v State [1989] 5 NWLR (pt 120) 238, 248 and Nwosu v State [1998] 8 NWLR (pt 562) 433, 442.”Per NWEZE, J.S.C. (Pp. 11-12, Paras. F-F)
KOLAWOLE v. ADULOJU & ORS (2018) LPELR-44075(CA)
APPEAL – REPLY BRIEF: What should a reply brief be limited to
“On the Appellant’s reply brief, one could see that inspite of one or two comments by way of reply on the Respondent’s brief of argument, the Appellant took an undue advantage to re-argue his brief already adopted. What Appellant failed to appreciate is that a reply brief is not a forum to either engage in arguments at large or re-argue the Appellants brief as is being done in this case. See OJO V. OKITIPUPA OIL PALM PLC (2001) 9 NWLR (PT. 719) 679 AT 693, OGBORU V. IBORI (2005) 13 NWLR (PT 942) 319. In the case of Cameroon Airlines v. Mike Otutuizu (2005) 9 NWLR (PT. 929) 202 where the Court held that a nature of reply brief should be limited to answering only new points arising from the Respondents brief and therefore should not be used to proffer further argument to those already made and contained in the Appellants brief of argument. See Onuaguluchi v. Ndu (2000) 11 NWLR (Pt. 590) 204 and A.C.B. Ltd v. Apugo (1995) 6 NWLR (Pt. 399) 65.”Per ELECHI, J.C.A. (Pp. 22-23, Paras. F-E)
COURT – JURISDICTION: Importance of jurisdiction in the process of adjudication
“The law is settled that, the issue of jurisdiction can be raised at any stage of Courts proceedings. Even on appeal at the Supreme Court. It can also be raised in any manner by any of the parties in an action or even suo motu by the Court. Therefore it is no longer a moot point that the question of jurisdiction is of absolute importance in Courts adjudication system. It is the blood and the life of adjudication. It cloths the Court with the power to hear and determine all causes brought before it. Without it, a Court is not only completely devoid of power to adjudicate, it becomes lame duck in respect thereof. This is because when a Court is bereft of jurisdiction, everything done by it is an exercise in futility and amount to a total futility. Therefore the issue of jurisdiction cannot be waived or compromised by either litigants or the Courts. It is far from trivial but a grave matter that must be foremostly thrashed out. See the case of MADUKOLU V. NKEMDILIM (1962) 2 SCNJ 341, TIDEX NIG. LTD V. MASKEW (1998) 3 NWLR (PT 542) 404, A.S.T.C V. QUORUM CONSORTIUM LTD (2009) 9 NWLR (PT. 1145) 1 and SHELIM V. GOBANG (2009) ALL FWLR (PT. 496) 1866.”Per ELECHI, J.C.A. (Pp. 26-27, Paras. D-C)
PRACTICE AND PROCEDURE – ABUSE OF COURT/JUDICIAL PROCESS(ES): Meaning and nature of the concept of “abuse of Court/judicial process”
“The definition of abuse of Court process is quite trite and age hallowed. It simply means a process lacking in “bonafide”, frivolous, vexations or oppressive. It is also said to mean a misuse of legal process. An example of such is re-litigation of issues previously settled, compromised or decided in a matter, litigating prematurely, to mention a few.
The issue of abuse of Court process is also an issue of jurisdiction. See APC Ltd v NDIC (NUB Ltd) (2006) 15 NWLR MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341 PT. 1002, 404 OFIA V. EJEM (2006) 11 NWLR (PT. 992) 652 USMAN V BABA (2005) 2 NWLR (PT. 917) 113. In Israel Amaefule & Ors v. The State (1988) 2 NWLR (Pt. 75) 156 at 177 Oputa JSC described inter alia as “a term generally applied to a proceeding which is wanting in bonafides and is frivolous or oppressive” it means abuse of legal procedure or improper use of a legal process.”
In SODIPO V LEMMINKAINEN O.Y (1992) 8 NWLR (PT. 258) 229 TOBI JCA (as he then was) defined it as an action which could be one or more too many…… the process of Court is used malafide to over reach the adverse party to the direct annoyance of the Court.
In David Ogbu Onuoha v. National Bank of Nigeria Ltd & Anor (1999) 13 NWLR (PT. 636) 621 at 6271 Sanusi (JCA as he then was) defined it as “thus this can arise in instituting a multiplicity of actions on the same subject matter against the same opponent and on the same issues.”
In BIBEJIOK & ALLIED PRODUCTS LTD V. ALM M. MALIDI ABUBAKAR & 2 ORS (2001) 19 WRN 119 at 121, OBADINA JCA described abuse of process as an improper use of the process and procedure of Court by a litigant.”Per ELECHI, J.C.A. (Pp. 23-25, Paras. E-A)
GOMBE STATE CO-OP, SAVINGS & LOANS LTD v. GTB PLC & ORS (2018) LPELR-44090(CA)
PRACTICE AND PROCEDURE – AMENDMENT OF COURT PROCESSES/PLEADINGS: Principles guiding the discretionary power of Court to grant or refuse an application for amendment of pleadings/Court processes
“It is basic and elementary that the principle governing the grant of leave to amend is for the purpose of determining the real issue or issues in controversy between the parties. It is a long standing principle adhered to by the Courts which was firmly stated thus by the apex Court:
“The Courts have always followed the established principle that the fundamental object of adjudication is to decide the rights of the parties and not to impose sanctions merely for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.”
Per Achike JSC of blessed memory in the case of ALSTHOM S. A. V. CHIEF SARAKI (2000) 14 NWLR (PT. 687) P. 415. See also the cases of ALH. MOHAMMED YUSUFU & ANOR V. CHIEF OLUSEGUN AREMU OLAKIOLA OBASANJO & 56 ORS (2003) 9-10 SC 53.
In that regard, certain guiding principles have been laid down in respect of amendment by the apex Court and plethora of authorities by that Court as well as this Court. Ejiwunmi JSC of blessed memory stated them in the case of PATRICK OKOLO & ANOR V. UNION BANK OF NIG. LTD. (1999) LPELR-SC 161/1998. Amongst the principles therein, the Court stated thus:
“Court must consider the materiality of the amendment sought and will not allow an inconsistence or useless amendment. Where the amendment relates to a mere misnomer it will be granted almost as a matter of course. Leave to amend will not be granted if the amendment would not cure the defect in the proceedings.” Per WILLIAMS-DAWODU, J.C.A. (Pp. 10-12, Paras. F-B)
PRACTICE AND PROCEDURE – MISNOMER: What is a misnomer; when a misnomer is said to have occurred
“The Applicant argues that, it is a mere misnomer which the Court would readily allow, whilst the Respondents have vehemently opposed and of the position that it is a substitution of a non-legal personality/person unknown to the law with a legal personality and that indeed there was no valid writ and suit at the Court below. That consequently, even this application ought to be discountenanced as the non-juristic person has brought it before this Court and it robs off the jurisdiction of this Court. What then does the word ”Misnomer” entail?
“A misnomer as defined by Mozley and Whitby Law Dictionary 10th Ed. P. 295 – is a mistake in name-incorrect name is given to a person in a writ-it occurs when a mistake as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. The correct person in other words is brought to Court under a wrong name.
Where there is an error only as to the correct name of a party to a suit an amendment sought in the proper manner may be allowed to rectify the error. It is usual to allow amendment in such a context … Indeed that is the import of the decision in NKWOCHA V. FEDERAL UNIVERSITY OF TECHNOLOGY supra……..” See the case of NJOKU V. U.A.C (1999) 12 NWLR (PT. 632) 557. See also the cases of SO SAFE TABLE WATER TECHNOLOGIES LTD. V. OBAFUNMILAYO AYINOLUWA & ORS (2013) LPELR-CA/L/176/2007.
Mis-description of an entity is a misnomer, which is where the correct person is brought to Court under a wrong name as it appears to be the situation herein with the suit filed in the wrong name at the Court below which has brought about the instant application for amendment. In MAERSK V. ADDIDE INVESTMENT LTD. (2002) 4 SC (PT. 11) P. 157 the apex Court held thus:
“…..However that a person sued is not a legal person does not preclude the Court from amending the title of the action to show the correct name of the party sued if it is shown to the satisfaction of the Court that it was a Misnomer, such power of amendment is covered by the provision of Order 32 and such like enactments. The exercise of such power of amendment has been acknowledged in several cases’.”
And in the case of OLU OF WARRI V. CHIEF SAM WARRI ESI (1958) 3 FSC 94, wherein Ademola FCJ, as he then was, stated thus:
”When an objection was raised about a misnomer, if application is made to amend the writ by substituting the proper names it should be granted.”
From the foregoing, in my humble view, the instant application is an issue of misnomer.”Per WILLIAMS-DAWODU, J.C.A. (Pp. 12-14, Paras. C-D)
PRACTICE AND PROCEDURE – AMENDMENT OF COURT PROCESSES/PLEADINGS: Circumstances under which Court may grant an application for amendment of a misnomer
“The next question will then be whether or not the Applicant seeks an amendment in the proper manner as required.
Once an appeal has been entered as herein by virtue of Order 4 Rule 10 of the 2016 Rules of this Court which states thus:
“An appeal shall be deemed to have been entered in the Court when the Record of Proceedings in the Court below has been received in the Registry of the Court within the time prescribed by the Rule.”
All subsequent applications in the matter have to go before the Court of Appeal which is what the Applicant herein has done. See Order 6 Rule 1 of the Rules of this Court and by virtue of Order 4 Rule 1 of the said Rule which provides as follows, this Court:
“……shall have all the powers and duties as to amendment and otherwise of the Court below…”
As well as Section 15 of the Court of Appeal Act.
The instant application is one that requires the exercise of the discretion of this Court, which discretion must be judicially and judiciously exercised. Is this application one, deserving of the judicial and judicious exercise of the discretion of this Court? From a thorough consideration of all the processes before this Court in respect of this application, both for and against, as it is a question of fact to determine whether it is a misnomer or not; the corporate personality of the Applicant was not in doubt in my view and humbly, neither was there any confusion or injustice to the Appellant/Applicant and 2nd-4th Respondents. This Court is therefore able to favourably exercise its discretion herein. One is fortified in this position by the law as stated in the case of NJOKU V. U. A. C. supra thus:
“Corporate personality of the Respondent is not in doubt. It is therefore a legal person. It can sue or be sued in its corporate name as a juristic person. i.e artificial person. Therefore, if such a name has been identified that name shall be the name of the proposed defendant or plaintiff.
However the law allows some room for human error. Where a limb or part of the name of the defendant is advertently omitted and the purported defendant is not misled, then that Court can always allow the plaintiff in a proper manner to amend what the Court thinks is a misnomer.”
The stance of the Courts is to do substantial justice and as stated in the case of NALSA & TEAM ASSOCIATE V. NNPC (1991) 8 NWLR (PT. 212) 652, the days of technicalities are gone.
In the result, this application is hereby granted as prayed and in the main, to the effect that, leave is hereby granted to the Applicant to amend its name to read Guaranty Trust Bank as opposed to Guarantee Trust Bank.” Per WILLIAMS-DAWODU, J.C.A. (Pp. 14-16, Paras. D-F)
