King Remy Igbokwe V. Arch. David O. Kehinde & Anor (2007)

LawGlobal-Hub Lead Judgment Report

GALINJE, J.C.A.

By a notice of motion pursuant to section 243 (a) of the Constitution of the Federal Republic of Nigeria 1999: section 24 (4) of the Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria, 2004, Order 3 rules 3 and 4 of the Court of Appeal Rules, 2004 and the inherent jurisdiction of the court, dated 5th day of January, 2006 and filed on the 9th January. 2006, the applicant herein sought for the following reliefs:-

“1. An order extending time within which the applicant (King Remy Igbokwe) as a person interested may apply for leave to appeal against the decision of the High Court of Lagos State contained in the judgment of Olateru-Olagbegi, J. dated 14-7-2005.

2. An order granting leave to the applicant as a person interested to appeal against the decision of the High Court of Lagos State contained in the judgment of Olateru-Olagbegi, J. dated 14-7-2005.
3. An order enlarging the time within which the applicant as a person interested may appeal against the decision of the High Court of Lagos State contained in the judgment of Olateru-Olagbegi, J. dated 14-7-2005.
4. Any further order or orders as this Honourable Court may deem fit to make in the circumstances-”

As an addendum to his prayers, the applicant set out the following as the grounds of his application –

“1. The applicant purchased the land in dispute with the building on it from the defendant/appellant in 1999 without knowledge of any suit pending in the High Court of Lagos State in respect of the property.

2. The applicant became aware of the judgment of the High Court of Lagos State dated 14-7-2005 in suit No. ID/377/94 concerning the property in dispute in the second week of December 2005.
3. The applicant is a person having an interest in the matter within the meaning of section 243(a) of the Constitution of the Federal Republic of Nigeria 1999.
4. The decision of the High Court of Lagos State contained in the judgment dated 14-7-2005 prejudicially affects the interest of the applicant.
5. The applicant is a desirable and also necessary party who could have been joined as a defendant in the High Court.
6. The applicant as a desirable party who has an interest in the action has two distinct rights namely (a) the right to apply to be joined as a party in the trial court and (b) the right to seek leave to appeal pursuant to section 243(a) of the 1999 Constitution.
7. By the time the applicant became aware of the suit in the High Court and the judgment thereof the time within which to appeal had expired.
8. There are good and substantial reasons for the applicant’s failure to appeal within the prescribed period.
9. The grounds of appeal proposed by the applicant prima facie show good cause why the appeal should be heard.”

In support of this application is a twelve paragraphed affidavit deposed to by Allwell Arubalueze, a counsel in the law firm of the applicant’s solicitors. Annexed to the supporting affidavit are –

1. a letter dated 13th December. 2005 from the applicant’s solicitors in which they applied to search the court’s file;
2. a certified true copy of the judgment which the applicant is seeking to appeal against:
3. the applicant’s proposed grounds of appeal.

These documents are marked exhibits R1, R2 and R3 respectively.

In reaction to the application aforesaid, the 1st respondent, who is the claimant/respondent deposed to a counter affidavit of 10 paragraphs, which is dated and filed on the 19th of September, 2006.

The applicant then filed a 10 paragraphed reply to the counter affidavit dated 27th September, 2006 to which he attached a deed of assignment made in 1999 and three letters which are marked exhibits R5, R4, R6 and R7 respectively.

From the affidavit evidence of both parties and the exhibits annexed thereto, I make a finding of the following facts that culminated in10 this application as follows: –

Sometimes in May 1994, the 1st respondent herein commenced suit No. ID/1377/94 against the 2nd respondent at the Lagos State High Court in which he prayed for among other things, an injunction restraining the 2nd respondent from further acts of trespass on the piece of land subject matter of that suit.

That order was granted on the 2nd of December, 1994.

Despite the order aforesaid. the 2nd respondent, James O. Farodoye proceeded to erect a story house on the disputed land in 1996, which he purportedly sold to the applicant in 1999.

Judgment in suit No. 10/1377/94, which was pending at the Lagos High Court was delivered on the 14th July, 2005 in favour of the 1st respondent herein wherewith the following orders were made in favour of the 1st respondent, who was the claimant against the 2nd respondent, who was the defendant as follows: –

“1. Special damages of N500,000.00 be and are hereby awarded in favour of the claimant against the defendant.

Order of perpetual injunction be and is hereby made in favour of the claimant restraining the defendant by himself, agents or privies from committing further acts of trespass on the land the subject of this suit which land is shown in exhibit M, survey plan No, LAT 3675/LA/83 dated 2/10/83 drawn by licensed survey, (six) Ademola Ashipa.”

The 2nd respondent has since appealed against the judgment aforesaid.

Before this application was heard, the applicant withdrew one in the motion paper, same was accordingly struck out.

In arguing the application, Okoroafor, Esq. of counsel for the applicant relied on all the paragraphs of the supporting affidavit particularly paragraphs 3-11 and the documents exhibited therein.

Learned counsel submitted that the order of perpetual injunction made by the lower court clearly affected the interest of the applicant in the subject matter. In aid, learned counsel cited Akande v. General Electric Ltd. (1979) 3-4 SC 115 at 125: Jadesimi v. Okorie-Eboh & Ors (1989)4 NWLR (Pt. 113) 113 at 123: In Re: Yinka Folawiyo & Sons Ltd. (1991) 7 NWLR (Pt.202) 237 and Ijukwu v. Gov. of Lagos State (1985) 2 NWLR (Pt. 10) 806 at 815-816.

In a further argument learned counsel submitted that the applicant’s contention is that his interest is proprietary. Learned counsel referred this court to the definition of the word interest in Osborne Concise Dictionary, 7th Edition at page 183 and concluded that even if the applicant is a trespasser, he is an agent of the defendant at the lower court. Learned counsel finally urged the court LO grant the application.

Otuyelu, Esq. of counsel for the 1st respondent in his reply, submitted that the 2nd respondent was declared a trespasser by the lower court and anybody who comes under S. 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 must show that he has a legal interest. However, by section 8(a) of the reply to the counter affidavit, the applicant has no interest.

In a further argument, learned counsel submitted that the evidence of purchase which is the Deed of Assignment, exhibit R5 is not signed and not dated. There is no consent of Lagos State Government as required by law, as such exhibit R5 cannot transfer interest not to talk about legal interest. Exhibit R7 attached to the reply to counter affidavit is only a letter seeking the consent of the Lagos State Governor.

Still in argument, learned counsel submitted that the applicant has no interest in law to seek for leave to appeal against the decision of the lower court because in 1994, the 2nd respondent who sold the land in 1996 had been restrained from further tampering with the disputed piece of land by a competent court and therefore his subsequent sale of the land to the applicant was without authority. In conclusion, learned counsel argued that the applicant has not shown sufficient interest to be allowed to appeal. Learned counsel finally urged the court to dismiss the application.

Mr. Ade-Ademuwagun, learned counsel for the 2nd respondent adopted the submission of Mr. Okoroafor, learned counsel for the applicant and in addition submitted that the effect of section 15 of the Land Instrument Registration Law of Lagos State is to make a document touching on land which is not registered inadmissible ordinarily in evidence. According to him, when a beneficiary is in possession of such document, he automatically acquires equitable interest. Finally, learned counsel submitted that S.243 (a) of the Constitution says any person having an interest. It does not talk of legal interest and so the court should avoid reading into the Constitution what it does not contain.

In reply on point of law. Okoroafor submitted that the question of effective transfer of title during the pending of a suit at the lower court was answered in the case of Olori Motors & Co. v. U.B.N Plc (2006) 10 NWLR (Pt.989) 586. (2006) 6 MJSC 37 at 56. Learned counsel further submitted that on a Case decided on affidavit evidence, documents exhibited are not formerly tendered and ought not to be dismissed. In aid, he cited Ojuva v. Nzeogwu (1996) 1 NWLR (Pt. 427) 713 at 722.

Having read through the affidavit evidence of both parties and upon hearing counsel for the applicant and the respondents herein, I am of the firm view that the only issue for determination in this application is whether the applicant is a desirable party in the suit No. ID/1377/94, the judgment against which he seeks to appeal.

Section 243(a) of the Constitution of Nigeria, 1999 provides that any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be exercisable in the case of civil proceedings at the instance of a party thereto or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter.

In Jadesimi v. Okotie-Eboh (supra) which was cited by learned counsel for the applicant, this court cited with approval the Supreme Court case of Ojukwu v. Military Governor of Lagos State (supra) where at page 815 a person having an interest in the matter was held to be a person who could have been joined as a party to the suit. See Maja v. Johnson (1957) 13 WACA 194.

In the same case, Jadesimi v. Okotie-Eboh (supra) this court, quoted extensively the comment of Oputa, JSC in Green v. Green (1987) 3 NWLR (Pt. 61) 480 at 492. I find the comment very instructive and illuminating and I wish to set same out here as follows:-

“A plaintiff who conceives that he has a cause of action against a particular defendant is entitled to pursue his remedy against that defendant only and should not be compelled to proceed against other persons whom he has no desire and no intention to sue.”

However, the learned jurist opined that when the suit has been filed the trial Judge becomes,

“dominus litis and he assumes the duty and responsibility to ensure that the proceedings agree with the justice of the case by joining either as plaintiffs or defendants all the persons who may be entitled to or who claim some share or interest in the subject-matter of the suit or who may likely be affected by the results if they had not already been made parties.”

At page 493, Oputa, JSC said that desirable parties are those who have an interest or who may be affected by the result of the case.

In the instant application, is the applicant a desirable party that should have been joined in the suit? I do not think so. The judgment against which the applicant seeks to appeal is a product of a suit that began in May, 1994. The 1st ground of the appellant’s application says that the appellant purchased the land in dispute from the 2nd defendant in 1999 without knowledge of any suit pending in the High Court of Lagos State in respect of the property. Even though the applicant claimed that he was not aware of the suit, there is no such denial by his vendor. Indeed the 2nd respondent, his vendor has not denied that he was restrained in 1994 from entering into the disputed land.

By paragraph 7(c) of the supporting affidavit, the applicant has admitted that the suit began in 1994. At that time, the applicant herein was not connected with the disputed land up to the time the 2nd respondent was restrained. The subsequent purported purchase of the land by the applicant amounted to buying nothing, as such he cannot be said to be a person interested in the suit.

At paragraph 4(e) of the supporting affidavit, the applicant deposed to the following fact-

“Furthermore, the applicant obtained an indemnity from the defendant/applicant concerning the purchase.”

Indemnity is defined by the Black’s Law Dictionary 6th Edition as. “Reimbursement.

An undertaking whereby one agrees to another upon the occurrence of an anticipated loss.” Since the applicant obtained an indemnity from the defendant/applicant who is the 2nd respondent in this application, his interest is subsumed in the interest of the 2nd respondent who has been adjudged a trespasser. The 2nd respondent knew that the property he was selling to the applicant was encumbered and indeed he was subject to an order of court not to tamper with the disputed piece of land and he flagrantly disobeyed the court order by not only erecting a house on the piece of land, but had the affront to sell the property. This clearly is a practice reserved for the old stone age where might was right and the rule of law was unheard of. If this is allowed and the beneficiaries of such show of might are left to jubilate on such illegalities, monumental chaos will

be let loose in the society.

Exhibit “R3” annexed to the supporting affidavit is the proposed notice of appeal. All the grounds of appeal in the said notice of appeal complain about error of law or misdirection on the part of the trial Judge in his decision against the appellant/2nd respondent herein.

There is no ground of appeal that complains that the applicant has suffered or will suffer as a result of the judgment of the lower court.

On the whole therefore. I am satisfied that the applicant is not an interested party as envisage by S.243 (a) of the Constitution of the Federal Republic of Nigeria, 1999. Accordingly, this application is without merit and it is hereby dismissed.

I award N2,500.00 to the 1st respondent as cost against the applicant.

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Other Citations: (2007)LCN/2473(CA)