Ifeanyichukwu Okonkwo V. Mode Nigeria Limited & Anor(2002)
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JOHN AFOLABI FABIYI, J.C.A.
Vide his notice of motion dated 8th February, 2002, the plaintiff/appellant prayed for:-
“(a) Extension of time within which to apply for leave to appeal against only a part of the decision of Hon. J.C.N Ugwu – Chief Judge High Court of Enugu State, delivered on 26th July, 2000.
(b) Leave to appeal against only a part of the said decision. Extension of time within which to file the notice and grounds of appeal against only a part of the said decision, the time allowed by the statute to file such appeal has expired.
(c) Leave of the honourable court for the appellant/applicant to appeal in person to conduct his case in person/through representative agent”.
The applicant deposed to an affidavit of 24 paragraphs. Exhibits 1-10, both inclusive, were annexed.
A motion on notice dated 19th February, 2002 was filed on the same date on behalf of the third party/respondent. Therein, the third party indicated that it will apply that the plaintiff/applicant’s motion be struck out on the ground that he is a person aggrieved by the ruling of the High Court. The motion is supported by an affidavit of 7 paragraphs. One exhibit, marked CJA 1, was annexed.
In moving his application, the plaintiff/applicant placed reliance on his 24 paragraph affidavit in support as well as the 10 exhibits annexed by him. He referred to Section 343 (a) of the 1999 Constitution and Section 25 (2)(a) of the Court of Appeal Act, 1976. Mr. A. N. Anyamene, senior counsel for the third party/respondent, referred to exhibit 3 to plaintiff/applicant’s motion. He further referred to Order 12 Rules 10 and 12 of the High Court Rules of Anambra State, 1988 applicable to Enugu State. He pointed it out that the applicant has no interest in exhibit 3 and that exhibit 9 is a ruling staying the execution of the judgment contained in exhibit 3. To cap it, he maintained that vide exhibit CJA 1, the defendant/judgment creditor has discontinued execution.
Replying briefly, the applicant maintained that he is a party and that he was served.
I need to state it right away that by Section 243(a) of the 1999 Constitution heavily relied upon by the applicant, it is only an interested party that can make move to appeal. Refer to Military Governor, Ondo State v. Ajayi (1998) 3 NWLR (Pt.540) 27, Ogunbiyi v. Mustapha (1996) 4 NWLR (Pt.442) 337.
In Owena Bank (Nig.) Plc v. N.S.E. Ltd. (1997) 8 NWLR (Pt.515) 1 at Pp.11-12, 18-19, the Supreme Court laid it down that a person who has no legal function to perform or whose interest has expired or lapsed could not be a person aggrieved and therefore cannot appeal as a person interested. For an applicant to be entitled to appeal as “a person having an interest in the matter” under Section 222(a) of the 1979 of the Constitution; now Section 243 (a) of the 1999 Constitution, he needs to show that the order made affects his interest prejudicially. The interest referred to must be a legally recognisable interest. Refer to Ikonne v. Commissioner of Police, & Nnanna Wachukwu (1986) 4 NWLR (Pt.36) 473 at 503; IN Re: Ijelu (1992) 9 NWLR (Pt.266) 414.
The third party proceeding was between the defendant/respondent and the third party. Order 12, rule 12(1) of the High Court Rules, 1988 is here relevant. I reproduce same as follows:-
“12 (1)Where the case is tried, the court that tries the action may, at or after the trial, enter such judgment as the nature of the case may require for or against the defendant giving the notice or for or against the third party; and may grant to the defendant or to the third party, any relief or remedy which might properly have been granted if the third party has been made a defendant to a suit duly instituted against him by the defendant.”
It is clear and extant on the face of exhibit 3 attached to applicant’s motion that Ugwu, C.J, complied with this Rule of court by giving his judgment, in the main, as follows:-
“(i) The third party to wit United Bank for Africa Plc shall pay the sum of N13,700,000 in favour of the defendant/applicant being the amount owed. (other awards relate to interest and costs)
In Exhibit 9, the trial Chief Judge stayed the execution of his judgment. The applicant herein desires to appeal against part of the ruling contained in exhibit 9. It is clear that as far as the main judgment is concerned, he is not connected with it. He is not an interested party. He has no legal function to perform in respect of the judgment. He cannot meddle with it. The defendant/respondent in whose favour the judgment was entered and thereafter stayed, should be allowed to bear it’s cross. After all, it discontinued its action against the third party vide exhibit CJA 1. I say no more.
The plaintiff/applicant’s application is misplaced. And it is hereby dismissed. He is hereby to pay N2,000 costs to the third party/respondent.
Other Citations: (2002)LCN/1108(CA)
