County & City Bricks Development Company Ltd (2019)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, JSC
The Federal High Court (Coram: Abdullah! Mustapha, CJ) delivered its final judgment in the suit No. FHC/L/CS/368/2007on 8th June, 2009; wherein it found inter alia that:
i.That there was a contract between the Plaintiff and the 1st Defendant wherein the 1st Defendant agreed to convey to the Plaintiff 16 Hectares of land at Ikoyi, Foreshore, Ikoyi for a term of 99 years with effect from 1st January 1993 at a premium of N4,500.000.00 and annual Ground Rent of N180,000.00 and that the contract has not been superseded or overridden by the Deed of Lease dated 13th November, 1993 and the Deed of Rectification dated 19th April, 1999.
ii.The conveyance of a lesser area of land in the Deed of Lease dated 13th November, 1993 and the Deed of Rectification dated 19th April, 1999 totalling 10.47 Hectares of Land is not a discharge of the 1st Defendant’s contractual undertaking to convey 16 Hectares of Land to the Plaintiff.
iii. That the 1st Defendant is in breach of the contract for the lease of 16 Hectares of land to the Plaintiff.
The trial Court then further reinforced the findings of fact with the following orders or declarations in favour of the Plaintiff (herein the Appellant) –
1.That the Plaintiff is the person that owns the entire land comprised in the Survey Plan of M.A. FASASI dated 5th May, 1995 with number MAF/322/95/L
2.That the Plaintiff is entitled to the grant of a Statutory Right of Occupancy over (the) 16 Hectares of Land shown in Annexure CCB/2.
3.That the 1st Defendant has no interest whatsoever in the land (the) subject matter of this suit more particularly described in Annexure CCB/2 and the purported grant of leases or Certificate of Occupancy over same to the 3rd to 8th Defendants are null and void.
The 1st and 2nd Defendants (among 8 defendants) in the said suit at the trial Federal High Court were the 1. Hon. Minister of Environment, Housing and Urban Development, and
- Attorney General of the Federation, who presently are respectively the 1st and 2nd Respondents in this appeal. They were the Applicants at the lower Court where they sought –
- AN ORDER of – (the) Court extending the time within which – (to) seek leave – to appeal against the Judgment of the Federal High Court, Lagos Division, Coram: Mustapha, CJ (as he then was) in suit No. FHC/L/CS/368/2007 -delivered on 8th June, 2009 –
2.AN ORDER-granting leave to the Applicants to appeal against the Federal High Court Judgment.
3.AN ORDER enlarging the time within which the Applicants may appeal against the Federal High Court Judgment.
At the trial Court the office of the Attorney-General of the Federation (the 2nd Defendant/Applicant/Respondent); through Itua Eigbe, Esq., represented both the 1st & 2nd Defendants (herein the Respondents). Mr. Itua Eigbe was by then the Acting Chief State Counsel in the office of the
Attorney-General of the Federation. The Respondents herein are, no doubt, both Officers/Departments of the Federal Government of Nigeria.
On 7th July, 2009, through letter No. MJ/CIV/58/07/525, the 2nd Respondent, as Counsel to the 1st Respondent, through the said Itua Eigbe, Esq. advised the 1st Respondent (as the 1st Defendant at the trial):
It is however the considered view of this Ministry, given the overwhelming evidence in support of the Plaintiffs case that an appeal in this matter is not likely to succeed, and as such suggest negotiation with the Plaintiff as viable alternative. Moreso, the unviability of the policy file in this matter was helpful to our case.
Thereafter, Mr. Itua Eigbe of Counsel to the 1st and 2nd Defendants (Respondents herein), apparently under pressure to appeal, wrote the letter dated 14th August, 2009 to all the parties in the suit at the trial Court informing them, on behalf of the 1st and 2nd Defendants/Respondents –
– that following the said judgment, the 1st and 2nd Defendants have carefully reviewed same in line with facts which emerged at the trial and facts at its disposal bordering on the original allocation and have decided not to appeal the said judgment. The Ministry has no further interest in the matter.
In the circumstances, since the Ministry no longer has interest in the matter you are advised to meet with the Plaintiff for amicable settlement to the matter.
These two letters were specifically pleaded as exhibits in the affidavit supporting the application for extension of time within which these same 1st and 2nd Defendants, as the Applicants (now Respondents), would appeal the same judgment in the suit No. FHC/L/CS/368/2007 delivered on 8th June, 2009.
The application at the lower Court, vehemently opposed by the Appellant herein, was brought pursuant to Order 7 Rule 10(2) of the Court of Appeal Rules, 2011 providing that –
10(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 reason cause why the appeal should be heard – –
The summary of the Appellant’s contention in this appeal is that the Respondents who had abandoned their right of appeal by consciously electing not to exercise that right to appeal cannot be heard to say that their own decision to abandon their right of appeal by electing not to appeal constitutes “good and substantial reasons for failure to appeal within the prescribed period”, as fixed by Section 24(2)(b) of the Court of Appeal Act, 2004. I agree with the Appellant that, from Paragraphs 7, 11, 12, 14, 18, 19, 20 and 21 of their Counter-Affidavit at the lower Court, they established that the Respondents herein, as the applicants at the lower Court, “had made a choice not to appeal the decision of the trial Court” delivered on 8th June, 2009 in the suit No. FHC/L/CS/368/2007. That fact is not in dispute as between the parties herein. It is clear, from the affidavit in support of their application for extension of time within which to seek leave to appeal, that the Respondents, as the applicants, admitted that fact. I will think the Respondents, in electing not to appeal the decision of the trial Court, which fact of election they communicated to the Plaintiff (herein the Appellant), made no mistake at all. The decision not to appeal was a deliberate and a conscious decision taken inter alia upon carefully reviewing the judgment “in line with facts which emerged at the trial and the facts at (their) disposal” and further upon “their considered view, – given the overwhelming evidence in support of the Plaintiffs case that an appeal in this matter is not likely to succeed.” They also took into consideration “the unviability of the policy file (sic) in this matter”. The lower Court, at pages 242 and 243 of the Record, seems to have got it wrong when it held, relying on KOTOYE v. SARAKI (1995) 58 N.W.LR. (Pt. 395) 256; (1995) 1 S.C.N.J 1 at 7, and IKENTA v. A.G. RIVERS (2008) 6 N.W.L.R. (Pt. 1084) 621, that the facts of this, particularly the deliberate decision of the Counsel for the Respondents, as the applicants, was not a conscious election not to exercise the right of appeal of the Respondents but a mere mistake of Counsel, and that “such a mistake or its consequences should not, in general, be visited on his client, who in most cases is a layman.”
Still at page 242 of the Record, the lower Court, apparently believing that it was called upon to review the decision of the 2nd Defendant/Respondent (doubling also as Counsel for the 1st Defendant/Respondent) stated, magisterially:
The 2nd Applicant (now Respondent), as a Legal Practitioner, and in fact the Chief Legal Officer of the Federation, knew fully that Public interest could be adversely affected if he failed to appeal the judgment of the lower Court within the period prescribed by law. Unfortunately, however, the 2nd Applicant was most complacent and derelict in protecting whatever interest the Government may still have had in the case. Thus, it is rather that as the Chief Law Officer of the Federation, the 2nd Applicant had been so derelict and complacent to the extent of gambling away the right of appeal thereof.
These findings clearly abnegate any contention or pretensions the Respondents may have to the principle that mistake or error of Counsel should not be visited on his client.
The Lower Court appears to think that UKWU v. BUNGE (1997) 8 N.W.LR. (Pt. 518) 527 at 542 avails it to look the other way to the provisions of Order 7 Rule 10(2) of its own Rules that requires the Applicant, seeking the indulgence of enlargement of time within which to appeal, to set forth in the supporting affidavit, “forth good and substantial reasons for failure to appeal within the prescribed period”. In UKWU v. BUNGE (supra), particularly in the statement of Ogbuagu, JSC, the point was made that if the proposed ground of appeal raises a constitutional and fundamental issue of jurisdiction which prima facie appears so it might not be necessary to inquire whether there are good and substantial reasons for not appealing within the prescribed period; and that such issue of jurisdiction raised in the proposed ground of appeal may induce the Court to take a lenient view of the delay in appealing within the prescribed period.
The Respondents, relying heavily on UKWU v. BUNGE (supra) have reasoned that they did not waive their right of appeal which is a constitutional right, and that the right that can be waived, as decided by this Court in ARIORI v. ELEMO (1983) N.S.C.C. 1, on which the Appellant rests its case, is the “right conferred solely for the benefit of the individual” and further that in this case the right of appeal vested in the State or public officials are not such right that such State or public officers can waive.
The Appellant, on the other hand, argues that the Respondents, as 1st and 2nd Defendants at the trial Court, communicated their intention not to appeal to them, and that the Respondents had expressly and in clear terms abandoned, renounced and repudiated their right of appeal. They argue therefore that the Respondents having expressly abandoned their right of appeal should not, in equity, still be allowed to seek to exercise the said right.
I agree with the Appellants that the Respondents took a deliberate and conscious decision not to appeal, and gave reasons for the decision. Their application at the lower Court was not intended to be a judicial review of that decision not to appeal, which they communicated to Appellant, as the-plaintiff, and the other defendants at the trial Court. It was not also a question of complacency or dereliction of duty. The lower Court, by the application of the Respondents, was not called upon to decide or determine whether or not the decision or election of the Respondents, in the exercise of their undoubted liberty or discretion, not to appeal, for the reasons they gave therefor, was unreasonable or not.
The Appellant, on the other hand, had put up a case of waiver and estoppel by conduct before the Lower Court to consider viz-a-viz the Respondents’ resiling from their earlier election not to appeal by their subsequent application seeking extension of time within which to seek leave, et al. Section 151 of the Evidence Act, 2004 (now Section 169 of the 2011 Evidence Act), which the Lower Court did not consider, seems to offer direct answer to this point on which issues have been joined by the parties herein. It provides-
When one person has, either by virtue of an existing Court judgment, —— or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.
The principle of estoppel by conduct is based on the public policy that says that there must be an end to litigation. Its aim is, not only to hold a party to his undertaking that he will no longer insist on either his right to appeal or the accrued right or obligation from the judgment, but also not to allow a person benefit from his prevarication. Equity, generally abhors subterfuge, deception and some other unconscionable conduct. Equity acts in personam. That is why it is stated that he who comes to equity must come with clean hands. My learned brother, C. C. Nweze, JCA (as he then was) emphasised this in STANDARD CHARTERED BANK NIGERIA LTD v. DR. TUNJI BRAITHWAITE (2013) L.P.E.LR. 20814 (CA) in his statement –
Equity like an immaculate garment, abhors the company of those who are likely to contaminate its majesty; taint its purity or dampen its allure! Above all, since it does not trade on detergents, those who approach her hallowed portals are forewarned to denude their hands of all dirt – that may be detestable and impeachable.
Section 241 of the Constitution vests in the Respondents a right of appeal from the decision of the trial Federal High Court. There is no doubt about that they had 90 days under Section 24(2) (b) of the Court of Appeal Act, 2004 to exercise that right, if they are mindful to. In the instant case, the Respondents elected not to exercise that right and had expressly let the Appellant and other parties in the suit know that they intended not to appeal and would not appeal the decision of the Federal High Court. They further expressly told all concerned that they were, from the facts of the case, satisfied with the judgment.
The Appellant submit, and I agree with them, that the legal consequence of the written statements and conduct of the Respondents communicated to the Appellants following the judgment of the trial Court is that they had relinquished and abandoned their right of appeal and had thereby relinquished same irretrievably. I do not agree with the Respondents that the right of appeal is not a personal right vested in them as parties in the suit at the trial Court. That right enures to them to exercise, and it can only be exercised within 90 days or such longer time as the Court may extend. The fact that the Respondents are public officers does not derogate the truth of the matter that as parties to the suit they, like all parties in the suit are at par and do enjoy “the equality of rights, obligations and opportunities before the law” as assured by Section 17(2)(a) of the Constitution, as amended. They can waive the right conferred on them, as litigants, by law. In the instant case they can waive the right of appeal conferred on them, as litigants and like all other litigants, by Section 241 of the Constitution read together with Section 24(2)(b) of the Court of Appeal Act. The decision of this Court in ARIORI v. ELEMO (1983) 14 N.S.C 8, particularly the opinion of Eso, JSC at page 37 thereof, puts the question beyond doubt thus –
The next enquiry is to what extent to which a person could waive rights conferred on him by law? When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such right. The right is for his benefit. He sui juris. He is under no longer disability. He should be able to forego the right; in other words, waive it either completely or partially, depending on his choice. The extent to which he has foregone his right would be a matter of fact and each case will depend on its peculiar facts. — A beneficiary under statute should have full competence to waive those right once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of its statutory provisions.
In the peculiar circumstance of this case, it is my considered view that “a right conferred solely for the benefit of an individual” means the right of appeal conferred on the litigant who may be aggrieved by a decision given or rendered in a suit against him.
There is nothing I can find in either the Constitution or the Court of Appeal Act that forbids waiver by the Respondents herein of their right of appeal.
Waiver operates as estoppel against “the person who is to enjoy the benefit or who has the choice of two benefits (and is) fully aware of his right to the benefit or benefits, but – either neglect to exercise his right to the benefit, or where he has the choice of the two, he decides to take one but not both”: ARIORI v. ELEMO (supra) citing with approval VYVYAN v. VYVYAN 30 bear 60. The exercise of the right of waiver, as Eso, JSC, explains in ARIORI v. ELEMO (supra), has to be voluntary, devoid of any legal disability. It operates thus: if a person with full knowledge of the rights, interest, profits or’ benefits conferred upon or accruing to him by and under the law, intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his right, or that he has suffered by his not having exercised his rights. In the circumstance, just like in the instant case, he should be held to have waived his rights and consequently estopped from raising the issue subsequently.
My Lords, from the facts of this case, wherefrom it is abundantly clear that the Respondents having voluntarily waived their right of appeal, they cannot be heard to complain that they were deprived of that same right. They communicated their election to waive their right of appeal to the Appellant and other parties in the suit at the trial Court. They are in the circumstances estopped from insisting on the same right of appeal. The incumbents of the office of the Attorney-General of the Federation are men of honour who should be seen to be so. Like Caesar’s wife, those men who occupy that hallowed seat since its inception in England in 1461, should be seen to live above board. These persons are expected to be men who should, like Thomas More-King Henry V111’s Attorney-General (who at the pain of death resisted every effort by the King to break the law of the realm) not be seen to publically lick their own spittum. They should be men of candour and valour. The prevarications, the hallmark of the instant case, created the unfortunate impression that those incumbents occupying the seat of the 2nd Respondent who succumbed to the cajolery of the 3rd – 8th Defendants had failed, in their courage, to be fair to all concerned.
This case, subtly, raises yet another issue – the general authority every Counsel has over every cause or matter he is employed or engaged to prosecute or defend. Unless his authority has been expressly limited the ordinary authority of Counsel in any matter he has been engaged includes entering into to comprise or settlement: AFEGBAI v. A.G. EDO STATE (2001) 7 S.C. (Pt. II) 1; (2001) 14 N.W.LR. (Pt. 733) 425. it is indubitable that the 2nd Respondent’s office defended the suit against both the 1st and 2nd Respondents at the trial Court. After judgment of the trial Court the 2nd Respondent found no basis for appealing the judgment. The office of the 2nd Respondent accordingly advised the 1st Respondent. The Plaintiff, herein the Appellant, was further informed that the Respondents had “decided not to appeal (against) the Federal High Court Judgment”. The lower Court had no business questioning the authority and judgement of the 2nd Respondent, as the Counsel for the 1st Respondent, in their considered decision to compromise their undoubted right of appeal, as it did suggesting that the 2nd Respondent did not take into consideration “public interest” that was allegedly affected by the decision not to appeal.
Let me add, before I log out, that a party asking for enlargement of time within which to appeal not only does he have the burden of proving two facts before he gets the indulgence, that is: good and substantial reasons for the delay, and a ground(s) of appeal which prima facie show good cause why the appeal should be heard; he shares additional burden with the Court to ensure that the Rules of Court must prima facie be obeyed: RATNAM v. CUMARASAMY (1964) 3 ALL E.R. 933 at 935; BANK OF BARODA v. MERCANTLE BANK (1987) 6 S.C 341 at 350. Even where the application is not opposed the Court still bears the onerous responsibility of satisfying itself that exceptional circumstances exist to warrant the grant of the indulgence because the Rules of Court must prima facie be obeyed: NWABUBA v. ENEMUO (1988) 5 S.C.NJ. 154. Prevarication of the applicant is not one of such exceptional circumstances.
It is obvious from the entire gamut of the decision of the lower Court that both the lower Court and the Respondents conceded one fact to the Appellant, and that is: the fact that the Respondents had elected not to appeal; and standing on that election or waiver of their right to appeal the judgment delivered on 8th June, 2009, they did nothing any more to exercise or activate their right of appeal until the application, the subject of this appeal, was filed on 28th July, 2010 — more than a year after the judgment. The delay of over one year was rather inordinate. In my firm view, the Respondents, in the affidavit supporting their application for extension of time within which to seek leave to appeal et. al.; did not set forth, in their affidavit, good and substantial reasons for the delay. Upon the effluxion of the period of 90 days within which the Respondents had, by dint of Section 24(2)(b) of the Court of Appeal Act, to appeal; the right of appeal they hitherto had, had dissolved. From that moment they depended on or were at the grace of the Lower Court by virtue of Order 7 Rule 10(2) of the Court of Appeal Rules, 2011. The discretion of the Lower Court to accede to the application like, any other discretion, must be exercised judicially and judiciously. I am of the firm that view when the delay is inordinate and wilful, as in this case, the Lower Court should have refused the application, in order to prevent the abuse of judicial process that –this application apparently smacks of. Taking into consideration extraneous matters in a purported exercise of discretion would render the exercise perverse, injudicious and/or reckless.
Generally, the attitude of appellate Courts to the exercise of discretion by lower courts is that, unless the exercise of discretion by the lower court is manifestly wrong, arbitrary, reckless or injudicious, or where it does occasion miscarriage of justice to the Respondent, the appellate Court would not interfere merely because, faced with similar circumstances, it would have reacted differently: UNIVERSITY OF LAGOS v. OLANIYAN (1985) 1 N.W.LR. (Pt. 1) 156; WILLIAMS v. MOKWE (2005) 14 N.W.LR. (Pt. 945) 249 at 269; ENYIBROS FOOD PROCESSING CO. LTD v. N.D.I.C. (2007) 9 N.W.LR. (Pt. 1039) 216. The delay in the instant case is inordinate and wilful. In addition, the Respondents, as the applicants, had clearly waived their right of appeal, a fact that not only estops them from resiling from their decision which they communicated to the Appellant, but also makes it inequitable for the Lower Court to indulge them in their toxic prevarication.
This Court, as can be seen from the In re: ADEWUNMl & ORS. (1988) 3 N.W.LR. (Pt. 83) 483; UNIVERSITY OF LAOGS v. OLANIYAN (supra); (Pt. 284) 630; WILLIAMS v. MOKWE (supra), has consistently maintained that the two conditions, under Order 7 Rule 10(2) of the Court of Appeal Rules, 2011 or its equivalent, which must be fulfilled to warrant the grant of an application for extension of time for leave to appeal are good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie good cause why the appeal should be heard. The two conditions are statutory and conjunctive, and they are intended to be given effect to by the Courts interpreting them. The Judge’s duty being merely to interpret the statute, and not to make a statute; the Judge when interpreting a statutory provision, as Order 7 Rule 10(2) of the Court of Appeal Rules, 2011, is only to bring out the natural meaning of words in the statutory provision where the words are clear and unambiguous: ABAYOMI BABATUNDE v. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD. & ORS. (2007) ALL F.W.LR. (Pt. 372) 1721 at 1752. With this in mind, it is my firm view that UKWU v. BUNGE (supra) was not intended to have laid a new ground rule to the effect that the applicant for extension of time within which to appeal, particularly under Order 7 Rule 10(2) (supra), is no longer required to show good and substantial reasons for delay when he raises, by his proposed grounds of appeal, a jurisdictional issue or any other substantial issue of law. All Ogbuagu, JSC stated in UKWU v. BUNGE (supra) at page 542 is that where such jurisdictional issue is raised in the proposed grounds of appeal he “will be inclined to take a lenient view of the delay in appealing within the prescribed period”. In the instant case the delay was both wilful and inordinate. It was actuated by the deliberate decision or election not to appeal. That is my reason for not taking “a lenient view” of the inordinate delay in not appealing within the prescribed period. I agree with the Appellant that the Respondents could not waive their right of appeal and still want or expect to exercise it. They cannot have both in the circumstances. In judicial chemical laboratory, operated by equity, a waiver of right produces an irreversible permanent change in favour of the third party. Equity will not allow a party to trap and overreach the other. HRH UMEANADU v. A.G. ANAMBRA STATE (2008) 34 N.S.C.Q.R. 1 at 24.
I allow the appeal. The decision of the Lower Court in the appeal No. CA/L/763M/2010, delivered on 24th May, 2011, granting the Respondents extension of time within which to appeal the judgment of the Federal High Court delivered on 8th June, 2009 in the suit No. FHC/L/CS/368/2007, is hereby set aside. Parties shall bear their respective costs.
SC. 239/2011
