Lawrence Chukwuma O. Williams V. Gregory Mokwe & Anor (2005)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

By a writ of summons issued out on the 22/12/75 in the High Court of the then East Central State of Nigeria at Onitsha, the appellant as plaintiff claimed against the defendants as per amended statement of claim, the following reliefs:

“(a) A declaration that the defendant is not entitled to build on No. 8 Old Market Road,Onitsha, which forms part of the estate of late E. Egerton Williams, the plaintiff’s father. Plaintiff, as against the defendant is entitled to the possession of the property known as No. 8 Old Market Road, Onitsha, as one of the beneficiaries/successors in title to his father E. Egerton Williams.

(b) An injunction to restrain the defendant, his servants and/or agents from entering into No.8 Old Market Road and /or in any way interfering with the plaintiff’s right to the said property.

(c) General damages in the sum of N50,000.00(Fifty thousand Naira) only”.

It is at this stage pertinent to observe that the original plaintiff in this case Dr. S. S. Olukotun-Williams died on 11th May, 1987 and was by order of the trial court, substituted by the appellant. Also the original defendant, Mr. George C. Mokwe, died on 18/4/88 and was by order of the trial court also substituted by one person named E. Mokwe.

Parties filed their pleadings in the trial court, and before the commencement of trial, they made frantic efforts to settle the dispute between them out of court but this did not materialise. The trial therefore commenced on 27/1/93 and concluded with the appellant’s address on 13/7/94. The suit was undefended by E. Mokwe. On the 28/7/94, the learned trial Judge, (Nwazota, J, as he then was) delivered a considered judgment in favour of the appellant and granted him all the reliefs claimed in his writ of summons.

It is important to state here that the respondent was not a party to this case from its inception to the judgement at the trial. It is clear from the record of proceedings in this matter that by a motion on notice filed in the trial court on 8/7/94, the respondent prayed the trial court to be joined as a co-defendant to the suit. This was after witnesses were heard and the case was closed for address by the appellant. It is however not clear from the record of proceedings what happened to the motion for joinder after it was filed. It was not shown whether it was moved or drawn to the attention of the trial court but it was filed 2 days from the day judgment was given. The motion was however not entertained by the trial court but the appeal against the alleged refusal to hear it was abandoned and struck out by the Court of Appeal. Be that as it may, it is abundantly clear that up to the time of the delivery of the judgment by the trial court on the 28/7/94, only Gregory Mokwe, was the defendant in the case; G.C. Mokwe & Sons Ltd., the present respondent was not a party to the case. However the respondent as a party interested filed its notice of appeal against the judgment on 28/7/94 and then applied on the 24th of June, 1995 to the Court of Appeal under S.222(a) of the 1979 Constitution of Nigeria which is applicable to this case, for an order for leave to appeal against the said judgment as a person interested. That application was granted as prayed on the 5th of February, 1996 more than 6 months after filing the notice of appeal.

The appeal was then heard by the Court of Appeal, Enugu Division; it was allowed and the decision of the trial court was set aside and a retrial was ordered. The notice of appeal filed on 14/7/94 by the party interested/respondent was struck out.

The appellant was dissatisfied with this decision and appealed to this court. The respondent/party interested(hereinafter referred to simply as respondent)also cross-appealed against the decision striking out its appeal filed on 14/7/94, but this was later withdrawn and struck out on the 24/10/2001.

Written briefs were filed in court and exchanged between the parties as required by the rules of court. The appellant formulated 3 issues for the determination of this court which read:

(i) Was the Court of Appeal right to say that it is too late to raise the issue of competence of an appeal even in a brief of argument and with the consent of the appellant’s counsel

(ii) As at the date the notice and grounds of appeal was entered, was the Court of Appeal right to hold that there was an appellant

(iii) Was the Court of Appeal right to hold that the trial court was obliged to hear an application for joinder not brought to its notice either by counsel for the applicant or the clerk of court”

The respondent having abandoned his cross-appeal raised only one issue in its brief which is:

“Whether the court below was justified to have granted leave to the appellant to appeal as a person interested against the Judgment of the learned trial court in the circumstances of this case.”

Having regard to the original and additional grounds of appeal filed by the appellant in this case, I find that the appellant’s issues for determination are more germane to the grounds than the sole issue of the respondent. I shall therefore consider them in the determination of this appeal.

The learned counsel for the respondent submitted in his brief that the grounds of appeal 1, 2, 3 and 4 and the additional ground filed by the appellant in his notice of appeal in this case are at most all of mixed law and fact for which no leave was granted or obtained to file them and should therefore be struck out as incompetent. He cited in support the cases of Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt. 450) 531 at 547: Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 743; Metal Construction (WA.) Ltd. v. Migliore (1990) 1 NWLR (Pt. 126) 299.

The learned counsel for the appellant however submitted in the brief that all the 4 grounds of appeal and the additional ground are grounds of law and are validly filed in this case. He cited a plethora of decided cases in support.

In this court, the appellant filed a notice of appeal and in ground 1 of appeal on page 319 of the record he challenged the order of the Court of Appeal which he said was illegal and occasioned a miscarriage of justice. The main ground read with the particulars, are challenging the competence of the appeal by the respondent in the Court of Appeal. This is no doubt an issue of law which can properly be taken up in this court having failed in the Court of Appeal. The same is true of ground 4 which challenges the jurisdiction of the Court of Appeal to entertain the application for leave to appeal. But ground 2 which challenges the exercise of the discretion of the Court of Appeal in granting the application without the appellant and ground 3 which challenges the finding of the Court of Appeal on failure of the trial court to hear and determine the motion for joinder will appear to me to raise issues of mixed law and fact. They both require leave of the Court of Appeal or this court to be filed and there was no such leave from the record of appeal. They are therefore incompetent and I hereby strike them out accordingly together with issue 3. This leaves grounds of appeal 1, 4 and the additional ground for which leave to file has been granted by this court. From this, we now only have issues 1 and 2 to be canvassed and considered in the appeal.

I will take issues 1 and 2 together. It is not in dispute between the parties that the respondent G. C. Mokwe & Sons Ltd., was not a party to the case in the trial court from the beginning to the day judgement was delivered on 28/7/84. It cannot therefore appeal as of right against that judgment to any higher court. See S. 220(1) of 1979 Constitution. But by virtue of the provisions of S. 222(a) of the 1979 Constitution; it can properly apply to the higher court, in this case, the Court of Appeal, for leave to appeal as an interested party.

It is also not in dispute that the respondent, even though not a party to the case as of 28/7/94 when the judgment of the trial court was delivered, filed a notice of appeal against the said judgment on 28/7/94. The following day on the 29th of July 1994, he filed another motion for leave to appeal as an interested party. This motion was purported to be transferred to the Court of Appeal, Enugu by the trial Judge. Thereafter on the 24th of June, 1995, it filed a motion on notice supported by affidavit praying the Court of Appeal for leave to appeal against the said judgment as a party interested and in prayer 3 asked specifically for:

“An order deeming the notice of appeal dated 28/7/94 and filed on 28/7/94 as properly filed.”

The motion was heard by the Court of Appeal. The appellant’s counsel did not oppose the application and the prayers in the application were granted as prayed. The Court therefore further ruled thus:

“It follows that the applicant G. C. Mokwe & Sons Ltd is hereby granted the leave of this court to appeal against the judgment of the lower court in suit No.0/183/75 as an interested party. Leave is also granted in that capacity against the said judgment. The applicant having filed and served his notices and grounds of appeal against the said judgment of the lower court, the notices and grounds of appeal are deemed to have been properly so filed.”

The appellant did not appeal against this ruling of the Court of Appeal directly but he sought and obtained leave to file an additional ground of appeal which was filed.

The main contention of the learned counsel for the appellant in his arguments in his brief on issues 1 and 2 is that since the respondent filed its notice and grounds of appeal in this case without leave on 28/7/94, and only obtained leave to do so when the Court of Appeal granted its application on 5/2/96, the notice of appeal filed is incompetent and the appeal is a nullity. He cited in support the cases of Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 648; Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt.81) 163 SC; All NLR 254 at 263; In Re-Madaki (1996) 7 NWLR (Pt. 459) 153 at 164. Learned counsel further argued that as the notice of appeal filed by the appellant was invalid having been filed without the necessary leave on 28/7/94, the Court of Appeal would have no jurisdiction and is incompetent to entertain the appeal as it did. He also submitted that the leave granted or obtained by the appellant on 5/2/96 to appeal as a person interested cannot be granted retrospectively. He cited in support the case of Cooperative Bank of Eastern Nigeria v. Ogwuru (1991) 1 NWLR (Pt. 168) 458 at 467. N B.N Ltd. V N E. T (1986) 3 NWLR (Pt. 31) 667; Tukur v. Government of Gongola State (1988) 1 NWLR (Pt. 68) 39. Counsel also submitted that parties to a case, cannot by acquiescence, consent or default, confer jurisdiction to a court where the court’s jurisdiction is only conferred by statute and he relied on the cases of Utih & Ors. v. Onoyivwe & Ors. (1991) 1 NWLR (Pt.l66) 166 at 246; Onyema B & Ors. v. Uwaeze Oputa & Anor. (1987) 3 NWLR (Pt.60) 259, 293. He therefore further submitted that since the issue of jurisdiction of a court is fundamental, it can be raised at any stage of the proceedings at the trial or on appeal and by the court itself suo motu. He relied on the cases, of Ijebu Ode L.G. v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt. 166) 136 at 154; Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508. Learned counsel finally submitted that since the notice of appeal in this case was filed without the leave of court sought and obtained before filing the notice on 28/7/94, there is no appeal and ipso facto, there is no appellant.

For the respondent, it was submitted in the brief that the notice of the application for leave to appeal from the decision of the trial court was duly and promptly given the very day the trial court delivered its judgment. The respondent also submitted that considering the peculiar circumstances of this case, the Court of Appeal was perfectly justified in exercising its discretion to grant the application. The respondent further submitted that the order deeming the notice of appeal as properly filed was legitimately made having regard to the circumstances of the case and that the case of Cooperative Bank of Eastern (Nig.) Ltd (supra) cited by the appellant to invalidate the deeming order cannot apply to the instant case.

The central issue in this appeal therefore, is essentially a complaint against the grant of the leave to appeal by the Court of Appeal to the respondent against the decision of the trial court as interested party.

It is however submitted that the grant of such leave involves an exercise of judicious and judicial discretion on the part of the Court of Appeal taking into consideration all the circumstances of the application before the court. See Metal Construction W A. Ltd. v. Migliore (1990) 1 NWLR Cpt.126) 299 at 325 Comex Ltd. v. (Nig.) Arab Bank Ltd. (1997) 3 NWLR (pt. 496) 643 at 655.

The main contention of the appellant in his brief, is that by filing the notice of appeal against the judgment of the trial court on 27/8/94 before obtaining leave to appeal from the trial court or the Court of Appeal, the appeal filed was incompetent and a nullity. It was further contended that the leave granted by or obtained from the Court of Appeal on 5/2/96, could not sustain or validate the appeal as it was not made retrospectively.

The learned counsel for the respondent explained in his brief that since the respondent was not a party to the case at the time the trial court delivered the judgment in the case on 28/7/94, the respondent could only be made a party, as a person interested in the matter with the leave of the trial court or the Court of Appeal pursuant to the provisions of section 222 (a) of the 1979 Constitution which is applicable to this case. Learned counsel further explained that an application by motion on notice was filed by the respondent for leave to appeal as an interested party against the judgment of the trial court delivered on 28/7/94. All this was conceded by the appellant in his brief. But what the appellant was saying was that the leave granted for extension of time to file the notice of appeal could not be retrospective.

Let me now examine closely the application for the leave to appeal and the order of the Court of Appeal granting the leave. The application which was filed on 29/6/95 was for:

“1. An order extending the time within which the applicant may apply for leave to appeal against the final judgment of the High Court Onitsha dated 28/7/94 as a party interested.

2. An order granting the applicant G. C. Mokwe and Sons Limited leave to appeal against the judgement of the High Court Onitsha dated 28/7/94 as a party interested.
3. An order deeming the notice of appeal dated 28/7/94 and filed on 28/7/94 as properly filed.
4. An order directing a stay of execution of the judgment of the High Court Onitsha delivered in this suit on 28/7/94 pending the determination of the appeal to this Honourable Court.
5. An order for accelerated hearing of this appeal.” (italicising mine)

The application was supported by a 43 – paragraph affidavit sworn to by one Emeka Umejiaku, a legal practitioner. There was no counter-affidavit filed by the appellant. On 5/2/96 when the Court of Appeal heard counsel for the parties on the application, the learned counsel for the appellant (respondent in the application) Mr. Chilota concluded his submission by saying:

“I now say that I am not opposing the motion”.

Thereafter the Court of Appeal ruled thus:

“With the learned counsel for the respondent not opposing, having heard counsel for the applicant, lkwueto Esq., the prayers of the applicant are hereby granted. It follows that the applicant G. C. Mokwe & Sons Ltd is hereby granted the leave of this court to appeal against the judgment of the lower court in suit No. 0/183/75 as an interested party. Leave is also granted to appeal in that capacity against the said judgment. The applicant having filed and served his notices and grounds of appeal against the said judgment of the lower court, the notices and grounds of appeal are deemed to have been properly so filed. Also it is ordered that the execution of the judgment of the lower court in suit No. 0/183/75 delivered on 28/7/94 be stayed pending the determination of this appeal”

This ruling of the Court of Appeal is comprehensive and clear. It granted all the prayers of the respondent and was with the agreement of counsel for the appellant who raised no objection to the grant.

I have carefully examined all the submissions of the learned counsel for the appellant in his brief including the decided cases cited in support thereof and although I found them to be relevant in accordance with the principle of law enunciated in those cases I am of the view that the order deeming the notice of appeal filed by the respondent as properly filed with effect from the day the order was made cannot be seriously faulted. My reasons are these:

“1. The respondent in his application for leave to appeal as party interested has given good and substantial reasons in the affidavit why it failed to appeal within time;

2. It exhibited the notice of appeal containing grounds of appeal which shows good cause why the appeal should be heard;
3. It filed the application for leave to appeal under Section 222 (a) of 1979 Constitution as party interested on 28/7/94, the day the judgment of the trial court was delivered;
4. During the trial of the case and before the said judgment was delivered, precisely on 11/7/94, the respondent filed an application to be joined as a necessary party to the proceedings;
5. When the learned trial judge failed to hear the application mentioned in (5) above, the respondent felt aggrieved and filed a notice of appeal to the Court of Appeal against that on 14/7/94”.
6. By virtue of the provisions of Section 31 of the Court of Appeal Act (cap 75 of 1990 Laws of the Federation) as from 28/7/94, the respondent is deemed to be an “appellant” as defined therein;
7. The case was undefended in the trial court because the then defendant had no interest in the land in dispute.”

All these have been meticulously stated in the affidavit in support of the application for leave to appeal by the respondent in the Court of Appeal.

By Section 31 of the Court of Appeal Act, an “appellant” is defined to mean, any person who desires to appeal or appeals from a decision of the Court below or who applies for leave to appeal, and includes a legal practitioner representing such a person in that behalf’. By filing the motion for leave to appeal in the trial court on 28/7/94, the day the judgment was delivered by that court, the respondent was definitely desirous of appealing against it to the court of Appeal. He was therefore an “appellant” within the meaning of Section 31 of the said Act. It is not in dispute however, that the respondent though not a party to the case then filed its appeal on 28/7/94 before the actual leave to do so was granted by the Court of Appeal. At that stage, the appeal is no doubt a nullity. However, being an “appellant” at that time and having filed its notice of appeal without leave, which is no doubt void, it then filed its application for leave to appeal in the Court of Appeal and in prayer 3 asked for deeming the notice and grounds of appeal it filed earlier, as properly filed in order to regularise the filing of the notice of appeal. This, in my view, makes it unnecessary for the requirement of a separate prayer for enlargement of time to appeal, in the circumstances of this case. Therefore the Court of Appeal having granted the respondent’s prayer for leave to appeal without any objection by the appellant are perfectly entitled in my view, to grant the 3rd prayer deeming the notice of appeal filed on 28/7/94 by the respondent as properly filed in this case. And although it has retrospective application, it was only intended to regularise the filing of the notice of appeal carried out on 28/7/94. The case of Cooperative Bank of Eastern Nigeria Ltd. (supra) cited by the appellant in support of the submission that the grant of leave by the Court of Appeal cannot be retrospective, is a Court of Appeal decision not binding on this court, and is not in all fours with the instant appeal. In the Cooperative Bank case there was an application for extension of time to appeal, but in this case there was none, as the respondent, on filing the application on 28/7/94, became an appellant by law and had earlier filed its notice of appeal though not regular, as no leave to appeal was then granted to it. When the Court of Appeal granted the leave to appeal and deemed the notice of appeal properly filed, the appeal was regularised which has of course, retrospective effect. The appeal was heard by the Court of Appeal and in its judgment Niki Tobi, JCA (as he then was) who read the leading judgment said:

“It is clear from the record book that the motion in question (for leave to appeal) was moved by learned counsel for the appellant on 5/2/96. A. U. Chilota counsel for the respondent did not oppose the motion. This court accordingly granted it as prayed. Leave was therefore granted the applicant. The order was given way back on 5/2/96. The respondent had all the opportunity to appeal if he was not satisfied. But there was no appeal. He now raises the issue in his brief filed on 28/10/96. I do not think the law allows him to do so. The objection on the competence of the appeal therefore fails”.

The facts elicited in the above quotation were perfectly correct according to the proceedings in this case, and I entirely agree with the Court of Appeal that without an appeal against the orders, the objection to the competence of the appeal on that ground cannot be taken. That should be the end of the matter.

In the affidavit in support of the application for leave to appeal as an interested person under Section 222 (a) of the 1979 Constitution, the following paragraphs are pertinent:

“37. That the original defendant in this suit was Chief George C. Mokwe late.

38. That following the death of the said original defendant, the plaintiff in this suit prayed the High Court Onitsha to substitute the deceased defendant with Gregory Mokwe.
39. That by an order of court dated 20/3/89. the High Court Onitsha substituted Gregory Mokwe as a defendant.
40. That the said Gregory Mokwe has no interest whatsoever in the property commonly known as No. 8 Old Market Road Onitsha.
41. That I am informed by the applicant and I verily believe that the said Gregory Mokwe did not make any attempt to defend this suit nor did he bring the pungency of same to the notice of applicant.

42 That late Chief George C. Mokwe was in his lifetime the alter-ego/Chairman/Chief Executive of G. C. Mokwe and Sons limited.

43. That by a Deed of Conveyance dated 26/4/74 and registered as 81/81/712 in the lands registry Enugu (now kept at Awka) Chief George C. Mokwe conveyed the property known as No. 8 Old Market Road Onitsha to the applicant.
44. That hereto annexed and marked as exhibit G. is a copy of the deed of conveyance dated 26/4/74 and registered as 81/81/712 Enugu (now Awka)
45. That I am informed by the applicant I verily believe that the applicant’s application to be joined as a defendant in this suit is to enable the applicant defend its title and interest in the property known as No.8 Old Market Road Onitsha.
46. That I am informed by the applicant and I verily believe that the applicant built a 3 storeyed building at No.8 Old Market Road Onitsha which was awarded to the plaintiff/respondent by the High Court Onitsha without hearing and or determining the applicant’s applications to be joined as a necessary party in this suit”.

From the averments in the above paragraphs, it is abundantly clear that the respondent has a legally cognisable interest which the decision of the trial court seeks to deprive him of if not challenged; hence the filing of the notice of appeal on the day of the judgment, accompanied by the application for leave to appeal. See Societe Generale Bank (Nig) Ltd v. Afekoro (1999) 11 NWLR (Pt. 628) 521. By Order 3 Rule 4 (2) of the Court of Appeal Rules 1981 (as amended) the two conditions which must be fulfilled to justify the grant of extension of time for leave to appeal are good and substantial reasons for failure to appeal within prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. See In Re Adewunmi & Ors (1988) 3 NWLR (Pt. 83) 483; University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156; Co- operative and Commerce Bank (Nig) Ltd v. Ogwuru (1993) 3 NWLR (Pt. 284) 630. These conditions have been satisfied fully in this case, in my view, with particular reference to the averments in the affidavit in support of the application and the notice of appeal attached thereto.

It is also of great importance to emphasise and bear in mind that the failure of the trial Judge to hear and determine the respondent’s application to be joined as co-defendant to the action and for leave to appeal to Court of Appeal has serious effect on the proceedings in this case generally and must be considered in the interest of justice.

By virtue of the provisions of Section 222 (a) of the 1979 Constitution which is applicable to this case, the Court of Appeal has the discretion in granting or refusing an application before it for leave to appeal as an interested party and any such discretion exercised by it remains valid unless it is shown to have been wrongly exercised on erroneous principles or tainted with illegality. See Ndulue v. Ibezum (2002) 12 (NWLR) (Pt.780) 139. And this court does not substitute its own discretion for that of the court below in applications like this, unless the court below did not act in good faith or has been swayed by irrelevant considerations or acted arbitrarily or capriciously or under a misconception of law or misapprehension of fact. See University of Lagos v. Olaniyan (supra); In Re Alase (2002) 10 NWLR (pt. 776) 553; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; Mbadugha v. Nwosu (1993) 9 NWLR (Pt. 315) 110. In the instant case, it is my respectful view, that the Court of Appeal gave adequate considerations to all the relevant circumstances and materials placed before it in the application for leave and came to the right conclusions by exercising the discretion to grant the application as it did. I have earlier in this judgment explained that the grant of prayer 3 of the respondent’s application has obviated the need to ask for enlargement of time to appeal. And looking at the grounds of appeal of the respondent in his application for leave, they appear to me to be substantial and arguable and it would be unjust, in my view, to still shut him up and refuse the application on purely technical ground. For this reason, I cannot find any cause to interfere with the exercise of the discretion of the Court of Appeal in this case. I therefore resolve issues 1 and 2 in favour of the respondent.

For all what I have said above, I find no merit in this appeal having regard to the circumstances. I dismiss it and affirm the decision of the Court of Appeal delivered on 11th August, 1997. I award to the respondent N10,000.00costs against the appellant.

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SC.195/2000