Re Alhaji Kabiru Rufai V. Leo Attah Ekpo Otu (1993)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A. 

The applicant Alhaji Kabiru Rufai filed a motion on notice in this court on 30th April, 1992 seeking the following reliefs:

(i) An Order extending the time within which to appeal against the judgment of Sotuminu J. dated 17th May, 1991.

(ii) An Order suspending the order of Sotuminu, J. dated 17th May 1991 setting aside the judgment of that court dated 10th October, 1988.

(iii) An Order suspending the ancillary Orders contained in the Judgment of Sotuminu J. dated 17th May, 1991.

(iv) Suspending the order setting aside the order dated 29th January, 1990 granting leave to sell the immovable property of the defendant/respondent.

(v) An Order of stay of further proceedings of the following suits:-

(a) Suit No. ID/1002/87 between ACB Ltd. v. L.A Ekpo Otu.

(b) Suit No. ID/2455/90 between L.A. Ekpo Otu v. ACB. Ltd. & Ors.

(vi) An order of departure from the Rules of this Honourable Court so that the appeal can be heard on the documents attached to this application.”

The motion is supported by a 35, paragraph affidavit sworn to by the applicant himself in which he deposed in paragraphs 9-15 and 21-32 which are relevant to the application as follows:-

9. On the 27th day of November, 1991 the auction of the property at 24, Western Avenue was conducted by the Deputy Sheriff in front of the premises in the presence of the auditor of the Lagos High Court, the Legal Adviser of A.C.B., the plaintiff herein Court bailiffs, Police officers, members of the public a number of whom have come to bid at the said auction.
10. Several individuals made bids for the property including myself and eventually I ended up as the highest bidder at the price of N 125,000.00 and the property was knocked down and sold to me at that price.
11. That I thereupon paid cash of N 125,000.00 to the Deputy Sheriff who thereupon issued a receipt No. 12945 dated 27/11/90. A copy of the receipt is now produced and shown to me marked “KR 2”.
12. The Deputy Sheriff thereupon in my presence handed over that purchase price less official deduction to plaintiff/respondent counsel.
13. I was thereafter issued by the Court with a certificate of purchase No. 1237 as having purchased the right, title and interest of the defendant in respect of the said property. Now produced and shown to me marked “KR 3” is a copy of the said certificate.
14. That at the time of the sale, there were tenants in the said property and immediately after the sale, my solicitors applied to the court for leave to issue Warrant of Possession against the tenants as vacant possession of the property was necessary before renovation work could commence.
15. That pursuant to an order of Court in Suit No. ID/184m/91 dated 21st day of January, 1991, the Court issued a Warrant of Possession against the tenants in the said premises and the Warrant was duly executed by the Deputy Sheriff of the lower court. A copy of same is now produced and shown to me marked “KR 4”.

XX X X X X X X X X

21. That it was as a result of the search conducted by my Solicitor that I became aware of the decision of Hon. Justice Sotuminu dated 17th May, 1991 setting aside the order of 29th January, 1990 granting leave to attach the immovable property of the defendant/respondent to satisfy the judgment debt. Now produced and shown to me marked “KR 5” is a copy of the order of Sotuminu J. dated 17th May, 1991.
22. That the effect of the decision of the Hon. Justice Sotuminu is to divest me of whatever title, right or interest I had had by virtue of the court’s sale of the said property to me.
23. That I was never served with or ever made aware of the application that went before Justice Sotuminu for an order setting aside the order for the sale of the property in dispute aforesaid.
24. That I was never heard or given an opportunity of being heard in the order which so adversely affects me.
25. That my Solicitor Mr. Okunuga thereupon applied for a Certified True Copy of the proceedings which then led to the setting aside of the sale before Sotuminu J.
26. But by the time he was able to obtain the said papers the time within which to appeal against the decision had expired.
27. That I am almost certain that at the time the application to set aside the proceedings was made to court and the time the order of court was made the defendant in the action was already aware that the property had been sold to me.
28. That being dissatisfied with the ruling of Hon. Justice Sotuminu, J. dated 17th May, 1991, I gave instructions to my Solicitors Mr. Okunuga to appeal against the said decision. A copy of the said Notice is now produced and shown to me marked “KR 6”
29. That since I was not served with processes leading up to the order dated 17th May 1991, I was not aware of the said proceedings hence it was after the time limited by the rules of this Honourable Court that I became aware of same as a result of a search conducted by my solicitors on my behalf.
30. That the records which have been made available to me from the various searches show that the plaintiff/respondent in suit No. ID/1007/87 commenced action by a specially endorsed writ against the defendant for the sum N99,653.85 as overdraft granted to him with interest.
31. The facts also show that judgment in default of appearance was entered against the defendant for the amount claimed.
32. That I have now caused to be compiled a record of proceedings which consist of the Writ of Summons, the proceedings up to the judgment of Sotuminu, J, and the application to set aside the judgment of Sotuminu J. and the Notice of Appeal herein marked as “KR 7”.

In opposing the motion, the defendant/respondent also filed a 27-paragraph counter-affidavit on 22nd October, 1992 in which one Ayodeji Osula learned counsel in the chambers of the defendant/respondent’s counsel deposed in paragraphs 4-5, 9-10,13-17,23-26 as stated below:-

4. That I know that the applicant is not a party in Suit No. ID/1002/87 pending in the lower court and cannot file this appeal.
5. That the substance of Suit No. ID/1002/87 in the lower court does not in any way concern the applicant who cannot under any circumstance be a party therein. Paragraph 1 of the affidavit is not true.
6. That paragraphs 13 & 14 of the affidavit are to deliberately mislead this court as the date of that exhibit is not obvious on same and it came after the defendant/respondent had filed Suit No. ID/2455/90 challenging the said irregular sale which suit the applicant now wants the court to stay AND also after the applicant had filed an application before the substantive judge to set aside the judgment in default.
7. That as a solicitor, I know that it is irregular, a denial of fair hearing and violent contradiction of the Constitution of this great country for possession to be ordered on an ex-parte application and Suit No. ID/18M/91 under which the Warrant for Possession was obtained has nothing to do with Suit No. ID/1002/87. That paragraphs 14, 15,16,17,18,20 and 21 are not true.
8. That paragraphs 21,22,23,24,25,26,27, & 28 are not helpful in this matter as the applicant is still in a position to reclaim the N 125,000.00 paid by him. It is in fact the defendant/respondent herein who has suffered in this matter.
9. That the ruling of Sotuminu J., (the substantive judge in ID/1002/87) only means that the parties therein, not including the applicant, have been allowed to lead evidence and for the matter to be determined on its merit.
10. That paragraph 29 is misleading as the applicant was not a party in the said suit and could not have been served. Applicant cannot use facts in suit No. ID/18M/90 between different parties to appeal in this particular matter.
11. That paragraphs 30 and 31 of the applicant’s affidavit are true.
12. That exhibit ‘KR7’ is not record of proceedings as stated in paragraph 32 of the applicant’s affidavit.
13. That contrary to applicants depositions he was aware of the ruling of 17th May, 1991 immediately after, as he was informed and served with a copy together with other processes but he again attempted to refuse to accept same threatening violence to whoever challenged his title irrespective of any court judgment or order and it was after report to the Police that he realised the futility of avoiding and disobeying the Court Orders. Applicant completely destroyed the property which is available for inspection.
14. That applicant’s affidavit confirms that the applicant has hurriedly put the structure in a position as to damage same after the order of Court restraining him without any Certificate of Occupancy.
15. That paragraph 28, 33 & 34 are clear admission of the applicant’s disobedience to order of Court and also a civil wrong. He used thugs to keep owners out and continued destruction of the place even after becoming aware of the Court’s Order and because of his affluence, the Police at Western Avenue could not do anything. It took the intervention of the Inspector General’s Office to stop him.
16. That I am aware as one of the said defendant/respondent’s Solicitors herein in the firm of Messrs Orok Ironbar & Associates – and I truly and verily believe that:

(i) Applicant is the party still in forceful and illegal occupation of 24, Western Avenue, Surulere Lagos in utter violation of Court Order.

The learned counsel to the applicant Chief G.O.K Ajayi S.A.N, in moving the motion gave a brief outline of the events leading to the application as deposed in the affidavit in support. According to him the order made by Sotuminu J. on 17th May, 1991 which is the subject of this application set aside the order for the sale of the defendant/respondent’s property made by the lower court on 29th January, 1990. The present application is for extension of time within which to appeal against the Order of the lower court of 17th May, 1991. Chief Ajayi S.A.N explained that on 27th November, 1990 the defendant/respondent’s property at 24, Western Avenue was sold to the applicant. Subsequent to the sale the applicant was issued with a receipt and certificate of purchase Ex. KR 3. That the applicant was also issued with a warrant of possession Ex. KR. 4 on the basis of which the applicant went into possession of the property. Thereafter, the applicant demolished the property and commenced redeveloping it before he became aware that the defendant/respondent had gone to court and obtained the order now sought to be appealed against. That the defendant/respondent had in fact put the applicant on notice even though it was not served on him and as such the defendant/respondent, argued Chief Ajayi S.A.N, must have known that the applicant had acquired some interest, in the property. It was therefore submitted that the applicant is entitled to be heard upon an application and appeal to challenge the decision which wholly deprived him of the property which he had bought from the Deputy Sheriff of the High Court acting under a judgment of the court. Finally Chief Ajayi S.A.N urged this Court to extend the time within which to appeal against the Order, order departure from the Rules, accelerate the hearing of the appeal pending the hearing and determination of which, the suspension of the Order of Sotuminu J. setting aside the order of sale. Chief Ajayi S.A.N however withdrew prayer (v) of the reliefs sought which relates to stay of proceedings.

Mr. Sam I. Erugo learned counsel for the defendant/respondent opposed the application relying on a 27 paragraph counter affidavit especially paragraphs 4 and 5. The basis of the defendant/respondent’s opposition to the application is that the applicant not being a party in the court below in the motion leading to the Order now sought to be appealed against, by virtue of Sections 220 and 221 of the 1979 Constitution, he needs leave before he can appeal. In the absence of the leave argued the learned counsel, on the authority of Akinbinu v. Oseni (1992) 1 NWLR (Pt.215) 97 and In Re Ijelu (1992) 9 NWLR (Pt.266) 414, this application is incompetent and therefore urged this court to dismiss it particularly when no similar application was made at the lower court.

Indeed, the right of appeal from the High Court to this court conferred by Sections 220 and 221 of the 1979 Constitution is exercisable in civil matters under Section 222(a) of the 1979 Constitution by 2 categories of persons namely:-

(a) a person who is a party to the proceedings at the High Court; and

(b) any other person who is not a party to the proceedings at the High Court but who has interest in the matter.

See Eyesan v. Sanusi (1984) 1 SCNLR 353. While a person in the first category requires no leave before exercising his right of appeal, leave is required before a person in the 2nd category could exercise his right of appeal. The question now is to which category does the applicant in the present application belong?

Obviously if the applicant belongs to the 2nd category, not having first obtained leave, his application would be incompetent and this court would have no jurisdiction to entertain it. In Re-Ijelu (1992) 9 NWLR (Pt.266) 414. This is because this court is only empowered to make pronouncements in respect of an application or appeal in which it has jurisdiction, and the parties, or the person before it seeking the relief have the locus standi in respect of the matter. See Tukur vs. Governor of Gongola State (1989)4 NWLR (Pt. 117) 517 and Akinbinu v. Oseni (1992) 1 NWLR (Pt. 215) 97.

It is the contention of the learned counsel to the defendant/respondent in this application that the applicant not being a party to the proceedings at the court below has no right to be heard on the application in this court. Chief Ajayi S.A.N however maintained that the applicant was a party at the court below and therefore is entitled to be heard by this court. It is quite clear that on the face of the motion on Notice dated 31st day of January, 1991 which is part of the record compiled by the applicant for the purpose of this application Ex. KR 7 to the affidavit in support of the application, the applicant, Alhaji Kabiru Rufai of 12, Shipeolu Street, Shomolu, Lagos was named as one of the 3 parties to be put on notice at the hearing of the motion. The other 2 parties to be put on notice were the African Continental Bank Ltd, and the Deputy Sheriff of the High Court of Lagos State. Obviously, putting the applicant on notice in that motion might not be unconnected with the 3rd relief sought by the defendant/respondent as applicant in that motion which relate to the setting aside of the order of sale of the defendant/respondent’s property made by the lower court on 29th January, 1990 as the result of which the applicant in this application brought the property in question. Infact even in the ruling of the lower court of 17th May, 1991 which is the subject of this application, paragraph 14 of the counter affidavit filed by the plaintiff/respondent opposing the motion which was quoted in the ruling of the lower court, the applicant was clearly named as the party who bought the property No. 24 Western Avenue, Surulere Lagos from the Deputy Sheriff. This also explains why the applicant and the Deputy Sheriff were named as parties to be put on notice at the hearing of the motion of 31st January, 1991 the determination of which is contained in the Judgment/Ruling of 17th May, 1991, the subject of this application.

From the forgoing therefore, the complaint of the defendant/respondent that the applicant was not a party to the proceedings at the lower court is not borne out of the record. The applicant was indeed named a party. The fact that he was not served to facilitate his participation in the proceedings, did not have the effect of excluding him as such a party to the proceeding that culminated in the decision of 17th May, 1991 which wholly deprived him of the property he had bought from the Deputy Sheriff.

The word ‘party’ in Section 121 E(5)(a) of the 1963 Constitution as amended by Constitution (Amendment) (No.2) Decree, 1976 which is in pari materia with Section 222 (a) of the 1979 Constitution was held by the Supreme Court in Harry Akande v. General Electric Co. & 2 Ors. (1979) 3-4S.C 115 at 125-126 to mean the person named in the record notwithstanding the wide meaning given to the word under Section 2 of the Lagos State High Court Law which defined the word party as including persons not named in the record. The court observed that the definition cannot include a total stranger to the proceedings who is neither named in the record nor has an interest in the matter.

In the present application, the applicant not only has an interest in the proceeding to set aside the order of sale of the property which he had bought from the Deputy Sheriff and in respect of which he was already in effective possession, but is also a person named in the record. Consequently I hold that the applicant having succeeded in bringing himself within the definition of the word ‘party’ under Section 222(a) of the 1979 Constitution, as a person named in the record of the court below, does not require any leave before he could be heard on this application. See Ababa v. Adeyemi (1976) 12 S.C. at 56. The application is therefore competent. I shall now proceed to determine its merit.

In an application for extension of the time within which to appeal from the decision of the High Court to the Court of Appeal, the conditions to be satisfied before this court can exercise its discretion in favour of the applicant as prescribed by sub-rule (2) of Rule 4 of Order 3 of the Court of Appeal Rules, 1981 are:-

1. Good and substantial reasons for failure to appeal within the prescribed period; and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.

See Yesufu vs. Co-operative Bank Ltd. (1989) 3 NWLR (Pt. 110) 483, Ibodo v. Enarofia (1980) 5-7 S.C. 42 at 53 and Bala Dan Abu & Or. vs. Prof. Grace Alele Williams (1992) 5 NWLR (Pt. 241) 340.

The reasons given by the applicant for failure to appeal within the prescribed period are contained in paragraphs 21 – 26 of his affidavit. That he was never served with or even made aware of the application that went before Sotuminu J. for the order of 17th May, 1991 against which he now wants to appeal. That he had to brief a counsel to conduct a search to find out from the records of the High Court what actually happened and by the time the learned counsel was able to obtain the relevant papers, the time within which to appeal against the order had expired.

Although in paragraph 23 of the defendant/respondent’s counter-affidavit it was deposed that the applicant was aware of the ruling of the lower court which was served on him together with other process of the court, there is no indication of the date on which the applicant’s attention was drawn to the order. The averments in the counter affidavit therefore have not countered the assertion of the applicant that he only became aware of the order after the time within which to appeal had expired. When the court is satisfied from the facts deposed by an applicant in the affidavit in support of the application, it will exercise its discretion in favour of the applicant. General Oil Ltd. v. Oduntan (1990) 7 NWLR (Pt. 163) 423. On the whole, I am of the view that the applicant in the present application has given good and substantial reasons for his failure to appeal within the prescribed period.

As for the 2nd condition, the question is whether the proposed grounds of appeal set out in the application as Ex. KR 6 to the affidavit in support, prima facie show good cause why the appeal should be heard. The first ground of appeal raised the question of complete denial of hearing in breach of Section 33(1) of the 1979 Constitution in that the learned trial Judge erred in law in proceeding to hear arguments on the motion on Notice dated 31st day of January, 1991 when there was nothing on the record to show that the applicant, as a party put on notice on the motion papers and who the defendant/respondent knew would adversely be affected by the prayers contained in the motion papers, was duly served with the motion papers. The second ground of appeal on the other hand complained against the failure of the learned trial Judge to resolve apparent conflict recognised in the affidavit and the counter affidavit before the determination of the application of the defendant/respondent to set aside the judgment of the court below. The third and last ground of appeal complained in the main of the alleged determination of the defendant/respondent’s application to set aside the judgment of the court below by the learned trial judge on grounds other than those presented and relied upon by the defendant/respondent.

A determination that the grounds of appeal prima facie show good cause why the appeal should be heard will be without prejudice to any decision which may be arrived at on the merit of the proposed appeal based on the grounds set out in the Notice of Appeal. In other words, in dealing with this application at this stage, this court is not concerned with whether or not the appeal will succeed. That consideration is relevant only at the hearing of the main appeal itself. See Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt. 96) 157. All the applicant needs to show at this stage is that his proposed grounds of appeal disclose arguable issues.

Whether these arguable issues will ultimately result in his success in the appeal is totally immaterial. Yesufu v. Co-operative Bank Ltd. (1989) 3 NWLR (Pt. 110) 483. In the present application, the grounds of appeal Ex. KR 6 to the affidavit in support of the application no doubt prima facie show good cause why the appeal should be heard. The applicant is therefore entitled to relief having satisfied the second condition.

Ordinarily, any court has a discretion to grant or refuse the suspension or stay of execution pending an appeal. However it is a discretion that must have to be exercised both judicially and judiciously bearing in mind the equal rights of the parties before it to justice, Normally a court will not deprive a successful litigant of the fruits of his litigation pending appeal. However, a stay of execution will be granted pending an appeal if the appeal will be rendered nugatory if a stay is not granted. Also, if the subject matter of the action will be destroyed by a refusal to grant a stay of execution, stay will be ordered as such situation will amount to exceptional circumstances. See Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S.C 77, Kigo (Nig.) Ltd. v. Holman Bros (Nig.) Ltd. (1980) 5-7 S.C. 60; (1980) NSCC 204 and Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621.

It is also trite that a discretion that is balanced in favour of the applicant for a stay but does not adequately take into account the respondent’s equal right to justice is a discretion that has not been judicially exercised. Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 at 136 and First Bank of Nigeria Ltd. v. Doyin Investment Nigeria Ltd. (1989) 1 NWLR (Pt. 99) 634. In the present application, the applicant not having satisfied this court that exceptional or special circumstances have been disclosed to justify this court exercising its discretion in his favour, the balance of justice demands that the application to suspend the order of the lower court be refused.

Although the applicant has deposed in paragraphs 33 and 34 of his affidavit that he had to stop further development of the property half way thereby resulting in financial hardship following the order of the lower court setting aside the sale or the property, that alone in my view can not be regarded as exceptional or special circumstances justifying the suspension of the order of the lower court pending the determination of the appeal. Consequently, prayers (ii) (iii) and (iv) of the reliefs sought by applicant must fail.

Prayer (v) of the reliefs sought had been withdrawn in the course of arguing this motion. Therefore only the last prayer(vi) now remains to be considered. The applicant has already compiled relevant documents including the proceedings and ruling of the lower court as Ex. KR 7 in paragraph 32 of the affidavit to facilitate the determination of the appeal. The applicant therefore deserves relief in this respect for departure from the Rules.

For the foregoing reasons, I am satisfied that the applicant has shown good and sufficient reasons upon which this court can exercise its discretion in his favour in respect of his prayers (i) and (vi) only, Accordingly I make the following orders:-

1. The time within which the applicant is to appeal against the judgment of Sotuminu J. dated 17th May, 1991 is hereby extended by 14 days from today.
2. This appeal shall be heard upon the bundle of documents delivered herewith and marked Ex. KR. 7. The defendant/respondent is at liberty to file any documents he may consider necessary for the determination of the appeal.
3. Prayer (v) having been withdrawn is hereby struck out while prayers (ii), (iii) and (iv) having been refused are hereby dismissed.
4. There shall be N500.00 costs to the respondent.

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Other Citations: (1993)LCN/0145(CA)