Alloysius Egemole V. Osita Oguekwe & Ors. (2008)

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ISTIFANUS THOMAS, J.C.A.

The appeal is undoubtedly against the consent judgment of the 1st and 2nd present respondents who, were the plaintiffs at the lower court and the 3rd present respondent was also the defendant at the lower court The consent judgment was made by C.E, Iyizoba [J] on 10th May 2004,

The further brief fact of the case is that, the suit was commenced by the late father of the 1st and 2nd respondents, It was specifically filed against the 3rd respondent being a Local Government with power to allocate ownership and possession of stall No, E2/1 Main Market Onitsha in Anambra State, The claim was for a declaration that, the Local Government of Onitsha North, was not entitled to revoke the allocation of the said stall and therefore they asked for an injunction to restrain aforesaid Local Government, Onitsha North. On the demise of the late father, the present 1st and 2nd respondents were allowed, and they substituted the name of their father. The suit which was filed on 12/2/97, took [7] seven years and by the Amended Statement of Claim which was filed on 9/7/2003, the 3rd respondent conceded the reliefs of the 1st and 2nd respondents. The parties pursuant to the amicable agreement, filed at the lower court on 21/1/04, the terms of settlement. It was the terms of settlement that the trial court entered as consent judgment between the plaintiffs and the defendant. As per pages 220(a) – 220(b) of the record of appeal, it reads as follows:

“IN THE HIGH COURT OF ANAMBRA STATE OF NIGERIA

IN THE HIGH COURT OF ONITSHA JUDICIAL DIVISION

HOLDEN AT ONITSHA

SUIT NO. 0/77/97

BETWEEN

1. OSITA OGUEKWE
2. UCHENNA OGUEKWE PLAINTIFFS

AND

ONITSHA NORTH LOCAL GOVT. DEFENDANT

ORDER

UPON THE Terms of Settlement filed on 21st January, 2004 by the Plaintiffs and signed by the parties in this suit as hereunder stated:

WHEREAS BY An Amended Statement of Claim dated the 18th day of July 2003 and filed on 9th July 2003 the Plaintiff claim as follows:-

i. Declaration that the right to allocation and occupation of that entire stall situate at and known as Stall No. E2/1 Onitsha Main Market was duly transferred to the plaintiffs.

ii. Declaration that the Defendant is not entitled to revoke the allocation of stalls No. E2/1 main Market Onitsha to the plaintiffs acting under the guise of the Police Report the subject matter of MO/592C/96: C.O.P. Vs. OGUEKWE before the determination of the criminal case, or otherwise without complying with due process of law.

iii. Injunction restraining the Defendant by themselves, their agents, privies or howsoever, from in any way interfering with plaintiffs occupation of stall No. E2/1 Main Market, Onitsha or affecting a revocation of plaintiff’s allocation and allocating same to another person under the premise that the transaction between the plaintiffs and Aloy Egemole was a pledge. The parties are desirous-of-settling the matter amicably and has agreed that consent judgment be entered in the following terms.

1. That Mr. D.U. Oguekwe is the bonafide allotee of stall No. E2/1 Main Market Onitsha.
2. That the allocation paper given to Mr. D.U. Oguekwe the father of the plaintiffs by the Defendant with reference No. OLG/AD/284/5230 and dated 28th March 1996 in respect of the stall No. E2/1 is valid and subsisting.
3. That the Defendant undertakes not to interfere with the possessory right of the plaintiffs over the said stall No. E2/1 Main Market Onitsha as long as they comply with all the conditions stipulated in the Allocation paper issued to Mr. D.U. Oguekwe with Ref. No. OLG/AD/284/5230 and dated 28th March 1996.
4. That parties shall bear their own cost.

AND AFTER HEARING Barrister Ben. Osaka of Counsel for the plaintiffs praying the Honourable Court that the said terms of settlement be made the consent judgment of the court.

(Sgd.)

C.E. IYIZOBA

JUDGE

IT IS HEREBY ORDERED that the terms of settlement dated 21st January 2004 and filed on the same day be and is a hereby made the consent judgment of this court.

ISSUED AT ONITSHA under the Seal of Court and the Hand of the Presiding Judge this 10th day of May 2004.

(Sgd.)

C.N. EZEBILO

ASSISTANT CHIEF REGISTRAR 1”

I am of the considered view, that the consent judgment is very clear and unambiguous. It was specifically a consent judgment. From the above facts of pleadings and settlement, on which a consent judgment was entered and declared in the open court, the present appellant was not a party to the suit. Despite the seven years proceedings of the lower court, the appellant did not care to apply for leave of the court to be joined as a party. It took him almost two years after the consent judgment before he filed a notice of appeal as an interested party. It stands as a fact that, the interested party, kept mute for nine years, while the former parties were battling their dispute. At page 2 of the appellant’s briefs of argument, appellant has wittingly stated as follows:-

“Meanwhile the appellant herein who was at all material times in possession/occupation of stall No. E2/1 main Market Onitsha and whose allocation remained subsisting was neither joined nor served with the court papers.”

Since the statement of fact that-

“at all material time …. “, the appellant was in charge of the stall in dispute, it means he was aware of the suit but not interested to join the parties. He rather wanted the parties or the court to join him.

By leave of this court, as per page 221 of the record of appeal, the appellant was granted leave to apply to appeal as an interested party; leave was also granted to appeal as an interested party and was given 14 days to file his notice and grounds of appeal. The above order was made on 27/2/06.

Appellant’s notice and grounds of appeal was duly filed on 2/3/06 and therefore filed within time. The two grounds of appeal read as follows:-

3. “GROUND OF APPEAL
4. ERROR-IN-LAW

The learned trial judge erred in law when he held that the right to allocation and occupation of the stall situate at and known as stall NO.E2/1 Main Market Onitsha was duly transferred to the Plaintiffs/Respondents.

Particulars of Error

1. There was no material upon which the courts have come to the conclusion that there was a valid transfer of title to the plaintiffs/Respondents.
2. The purported document of sale brandished by the Plaintiffs/Respondents in their pleading was neither signed nor dated by the Appellant, neither was there any witnessing to the purported sale.
3. The purported document of sale was a forgery committed by the plaintiffs/Respondents father and predecessor-in-title Dennis Oguekwe for which he was charged in Onitsha Chief Magistrate Court in charges No. MO/592C/96 and prosecuted till he died in 1997.
4. ERROR IN LAW

The learned trial Judge erred in law when he proceeded to hear and give judgment in the matter without joining the Appellant as a necessary party to the Suit.

Particulars of Error

1. All parties that are necessary for a final adjudication of all issues in controversy in a suit ought to be joined in a case.
2. Plaintiffs/Respondents, by suing the Onitsha North Government Defendant/Respondent -simpliciter, without joining the Allotee of the shade – Appellant – in the case denied the Appellant the opportunity of presenting his case thereby abridging the opportunity for a fair and final adjudication of all Issues in controversy between all the parties.
3. Either party having failed to join the appellant, the so-called consent judgment was a clear case of collusion between plaintiffs/respondents and Defendant/Respondent to shut out the Appellant who has been and is still the valid Allotee-in-possession of Stall No. E2/1 Main Market, Onitsha.
4. The declaration by the Court that the right to allocation and occupation of Stall No. E2/1 Main Market Onitsha was duly transferred to the plaintiffs/Respondents was made without hearing the Appellant, the true owner-in-possession, and therefore made without jurisdiction.
5. RELIEF SOUGHT FROM THE COURT OF APPEAL

To set aside the judgment of the High Court dated 10th day of May 2004.”

Appellant’s brief of argument filed on 21/7/06 has raised questions (a) and (b) for determination. The appropriate issues for determination are not framed but mere questions. Questions (a) and (b) raised are as follows:-

“(a) Was the learned trial judge right in holding that the plaintiffs/respondents were the bonafide allotees of stall No. E2/1 Main Market Onitsha when the contrary is the case on the strength of the pleadings and various depositions made by the parties in the case prior to the so-called judgment?

(b) Was the learned trial judge right in proceeding to hear and give judgment in the matter without joining the Appellant as a necessary party to the suit?”

To compound the appellant’s briefs with confusion, his argument is not on issues but specifically on grounds of appeal. Argument on ground 1 is contained at page 2, while ground 2 is argued at pages 2 – 3. An appeal brief matter, is never allowed to be argued on specific grounds of appeal only. Brief should contain issue or issues which are distilled from the grounds of appeal. Since the appellant’s brief of argument is not based on issues, the appeal is in competent and is even enough to dismiss the appeal.

It is still to be noted that, the 1st and 2nd respondents’ brief of argument filed on 26/01/07, have raised at page 3, a preliminary objection on the appellant’s appeal. The notice of preliminary objection was filed and served on 15/7/07 to the parties. The grounds are as follows:-

“1. That the appeal being against a consent judgment, the appellant neither sought nor obtained the leave of this court to appeal, (which) is contrary to Section 241(2)(c) of the 1999 Constitution.

2. That the Grounds of Appeal contained in the Notice of Appeal did not arise from the Terms of Settlement filed by the parties on 21st January 2004.”

I have carefully re-considered the appellant’s motion to appeal as an interested party, which was granted by this Court on 27/2/06 vide page 221 of the record. It is a fact that the three reliefs sought by the appellant were (i) extension of time to apply for leave to appeal as an interested person; (ii) leave to appeal as an interested person; (iii) and extension of time to appeal as an interested person all against the said judgment of Onitsha High Court in suit No. 0/77/97 dated 10/5/2004. This court granted exactly what the appellant prayed, except the prayer 4, for stay of execution of the judgment and it was refused.

Since the reliefs sought and granted was, for leave to appeal as an interested party simpliciter, the appellant did not appeal against the consent judgment. Appellant should have specifically seeks leave to appeal against the consent judgment, more so, as he was not a party to the consent judgment. It was not enough to merely apply to appeal as an interested party.

Section 241(2)(c) of the Constitution of Nigeria, 1999 is very clear and specific on this. It speaks for itself as follows:-

“S.241(2):

Nothing in this section shall confer any right of appeal,

(a) ……………….

(b) ……………….

(c) Without leave of the Federal High Court or a High Court or of the Court of appeal, from a decision of the Federal High Court or High Court made with the consent of the parties ” (Underlining is mine).

From the above mandatory provision of section 241(2)(c) of the 1999 Constitution of our great country, the appeal filed by the appellant is completely incompetent. Appellant has not shown that he made effort to appeal against the consent judgment made by the three respondents at the lower court. Appellant’s purported motion at page 185 of the record of appeal seeking for an order joining him as a co-defendant to the suit, was an after-thought, because, the motion was filed on the same date that the consent judgment was delivered. The motion was not moved or heard. A mere motion to be joined as a co-defendant was not the proper mode after judgment had been delivered. It would have been appropriate to timeously apply to join as co-party, before a decision is made. See International Agricultural Industries v. Chike Brothers Ltd (1990) 1 NWLR (Pt.124) at 70, where the Supreme Court, per Obaseki, JSC. held that:-

“It is therefore necessary to emphasis that parties should not throw to the wind the wisdom of leaving the prosecution of issues or points that can be taken advantageously after final decision of the High Court till the High Court has given its final decision and appeal against the decision lodged.”

In the instant appeal, appellant did not take up the advantage of joining the parties until the lower court had reached and declared its decision. In respect of consent judgment appeals, the apex court has expounded the s.241(2) of the constitutional law in the cases of Abdulkarim vs. Incar (Nig.) Ltd (1992) 7 NWLR (Pt.251) 1 at 20 and Nig. Water Resources Dev. Ltd. vs. Jaiyesami (1963) Vol. 3 NSSC 74, that on consent judgment, leave of the High Court or the Court of Appeal must be obtained, and that, if such has not been obtained, there is no competent appeal before this court. In the case of Hon. Abdullahi Kamba v. Alh. Ibrahim Bawa (2005) 4 NWLR (Pt.914) 43, 62 it was held that the constitution is very clear and unambiguous for an appellant to appeal against a decision of the lower court made with the .consent of the parties; and that leave of that lower court or that of the appellate court is a mandatory condition precedent. In the instant appeal before this court, there is no evidence that, Mr. Alloysius Egemole, appellant, made any reasonable leave, seeking for a relief to appeal against the consent judgment delivered on 10/5/04.

Finally, appellant’s grounds of appeal are not against the Terms of Settlement which formed the decision of the court, and thus, the consent judgment. The trial court did not and could not hear oral evidence of the parties. The dispute was amicably settled by the parties. By settlement, it means parties have abandoned their pleadings and urged the trial court to enter judgments as per the terms of their settlement or agreement.The dispute was specifically for allocation of market stall No. E2/1 at Main Market Onitsha. Based on the 1st and 2nd respondents’ preliminary objection, the same is sustained. Preliminary objection is granted and the appeal being incompetent; same is hereby dismissed and I so hold.

The 3rd respondent’s brief is also incompetent because the four issues distilled from the appellant’s two grounds of appeal are completely unreliable. There is no way for four multiple issues to be distilled from two grounds. It is not the duty of an appellate court to select an issue from which the respondent has not cross-appealed.

In the instant appeal, 3rd respondent is merely making submission that it is in agreement with the appellant and that it is praying this court to order a retrial of suit No. O/77/97 at Onitsha High Court. The 3rd respondents prayer is dismissed since same has not even sought for leave to appeal against the consent Judgment of which it was a party. Appellants and 3rd respondent’s efforts are entirely dismissed being incompetent. Costs of N30,000 against the appellant and in favour of the 1st and 2nd respondents.

I affirm the decision of the consent judgment of Onitsha High court delivered on 10/5/04.

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Other Citations: (2008)LCN/2639(CA)