CHRISTIAN IWUAGWU v EMEZIE OKOROAFOR & 5 Others (CA/OW/342M/2011) [2012] NGSC 3 (11 November 2012)

UWANI MUSA ABBA AJI

....... Justice, Court of Appeal

MOJEED A. OWOADE

....... Justice, Court of Appeal

HARUNA S. TSAMMANI

....... Justice, Court of Appeal

CHRISTIAN IWUAGWU

Appellants

1. EMEZIE OKOROAFOR 
2. DR. MRS. HELEN OKOROAFOR (Suing by their Attorneys Wng. Cdr. Engr. Vincent Okoroafor, Lawrence Okoroafor and J. J. LYN Nig. Ltd.) 
3. COMMISSIONER FOR LANDS, SURVEY AND URBAN PLANNING, IMO STATE 
4. GOVERNOR OF IMO STATE 
5. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, IMO STATE 
6. THE REGISTERED TRUSTEES OF THE MUSLIM COUNCIL OF IMO STATE OF NIGERIA

Respondents

RATIO DECIDENDI

1

COURT - DISCRETION OF COURT: Who has the burden of making material evidence available to the court

"It is the Applicant who has the burden of making available to the court such material evidence which should satisfy the court as to properly exercise its discretion in his favour." Per TSAMMANI, J.C.A. (P. 57, paras. B-C)

2

LEGAL PRACTITIONER - DUTY OF COUNSEL: Effect of inadvertence of counsel in failing to take steps to file an appeal

"It is now settled that, once a party has done what is required of him by acting promptly to secure the services of counsel and further instructing counsel to carry out his instructions, and the counsel acted inadvertently or even negligently by failing to take steps to file the appeal within time, such a party is absolved of any blame. Accordingly, I am of the view that the inadvertence of counsel of the nature advocated in this application should be resolved in favour of the Applicant as qualifying as a good and substantial ground to warrant the grant of this application. See LAWAL v. U.B.N (supra) at Pg.718 and 719 and AKINPELU v. ADEGBORE (supra) at Pg. 555." Per TSAMMANI, J.C.A. (Pp. 61-62, paras. G-C)

3

APPEAL - EXTENSION OF TIME TO APPEAL: What should be included in a motion paper of a person seeking for extension of time to appeal as an interested party

"It is settled therefore that, it is a wrong procedure and a misconception of procedure and the law, for a person seeking for extension of time to appeal as an interested party, to include in his motion, a prayer seeking for extension of time within which to seek leave to appeal as an interested party." Per TSAMMANI, J.C.A. (P. 53, paras. F-G)

4

APPEAL - GROUND OF APPEAL: Whether an applicant must proceed to show that the grounds of appeal prima facie show good cause why the appeal should be heard

"Having satisfied the requirement that an applicant must show good and substantial grounds, he must proceed to show that the grounds of appeal prima facie show good cause why the appeal should be heard. What is required to be shown here is not that the appeal is likely to succeed. In other words, all that is required of an Applicant in this respect is to show that the proposed grounds of appeal disclose an arguable issue. The fact that the appeal may succeed or not is immaterial at this stage. Thus, Nwodo; JCA in the case of F.C.M.B. PLC. v. N.I.M.R (supra) put the position succinctly at pages 521-522 Paras. H-A as follows: "Grounds of appeal provide the mirror through which the court takes a peep at the appeal, not to determine the strength of the appeal but to provide useful information on the trend of the appeal. This is why good reason must be disclosed for hearing of the appeal not that the appeal will succeed. All the court should be concerned with is the strength of the grounds of appeal and not the success." That being so, the only duty of the court is limited to seeing whether the grounds of appeal are substantial and reveal arguable grounds. The court should therefore avoid considering or deciding on the success of the grounds of appeal, for to do so would amount to deciding the substantive appeal in an interlocutory application. See N.N.P.C v. O.E (NIG) LTD (2008) 8 NWLR (Pt. 1090) Pg. 583; MICRO-LION INT'L (NIG) LTD v. GADZAMA (supra) at Pg. 501; SAVANNAH BANK (NIG) PLC v. C.B.N (supra) at Pg. 39; E.F. CO. LTD v. N.D.I.C (2007) 9 NWLR (Pt. 1039) Pg. 216 and MAJEKODUNMI v. CHRISTLIEB PLC (supra) at Pg. 129." Per TSAMMANI, J.C.A. (Pp. 62-63, paras. C-D)

5

APPEAL - RIGHT OF APPEAL: Whether a right of appeal is conferred on a person aggrieved by a determination or decision of a court pronounced against him

"Now, it is the constitutional right of a party or person to appeal against the judgment given against him or his interest. Such right is generally jealously guarded and protected by the courts. Courts of law, and indeed the appellate courts are often disposed to interpret such Constitutional or statutory provisions granting the right of appeal in favour of any person aggrieved. In other words, the right of appeal is conferred on the person aggrieved by a determination or decision of a court which has been pronounced against him, and the substance of which has denied such an aggrieved person his right to something or has wrongly affected his title to something." Per TSAMMANI, J.C.A. (Pp. 42-43, paras. F-A)

6

APPEAL - RIGHT OF APPEAL: Whether a right of appeal is specifically donated by the Constitution or the Statute that created either the trial court or the appellate court

"The right of appeal and the person who can exercise such right of appeal is constitutionally and in some instances statutorily circumscribed. It is not a right enuring to all comers, but is a right specifically donated by either the Constitution or the Statute that created either the trial court or the appellate court. See IFEKANDU v. UZOEGWU (2008) 15 NWLR (Pt 1111) Pg. 508; N.I W.A v. S.P.D.C (NIG.) LTD (2007) 1 NWLR (Pt. 1015) Pg.305; ISULIGHT (NIG) LTD v. JACKSON (2005) 11 NWLR (Pt. 937) Pg. 631 and EKUNOLA v. C.B.N (2006) 14 NWLR (Pt 1000) Pg. 292." Per TSAMMANI, J.C.A. (P. 43, paras. B-E)

7

INTERPRETATION OF STATUTE - SECTION 24 (4) AND ORDER 7 RULE 10 (2) OF COURT OF APPEAL ACT AND RULES, 2011: Statutory provisions of Section 24(4) of the Court of Appeal Act and Order 7 Rule 10(2) of the Court of Appeal Rules, 2011

"Happily, Section 24(4) of the Court of Appeal Act (supra) gives power to this court to extend the periods prescribed in sub-section 2 for the giving of the notice of appeal or the notice of application for leave to appeal. However, for the court to exercise its power granted by Section 24(4) of the Court of Appeal Act (supra), its jurisdiction must be activated by the person seeking to appeal, by way of a Motion on Notice in the manner prescribed by order 7 Rule 10(2) of the Court of Appeal Rules, 2011, which stipulates as follows: "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 cause why the appeal should be heard...." It is to be understood from the above cited provision of the Court of Appeal Rules (supra) that, in considering whether or not to grant an extension of time to appeal or to seek leave to appeal, the court must always bear in mind that rules of court must prima facie be obeyed. Though the Court of Appeal Act and the Court of Appeal Rules have given powers to the court to extend time for doing anything to which the Rules of the court apply, the grant of such a relief is at the discretion of the court, and like all judicial discretions, it must be exercised judiciously and judicially always bearing in mind the interest of justice to the parties in the case. In that respect, for a party to secure the favour of the court in the exercise of its discretion whether or not to grant the extension of time to appeal or to seek leave to appeal (as in the instant case), to justify the exercise of the court's discretion in the exercise of its power to extend such time, he must supply sufficient material upon which the court will base its discretion. This is so because, an application for extension of time within which to appeal or seek leave to appeal is not granted as a matter of course. That being so, the Applicant must satisfy the requirements of Order 7 Rule 10(2) of the Court of Appeal Rules (supra). By that Rule of this court, an applicant seeking the grant of an order of extension of time within which to appeal or to seek leave to appeal must satisfy two mandatory conditions, as follows: (a) He must disclose by his affidavit evidence in support of the application, good and substantial reasons for his failure to appeal within the prescribed period; and (b) The grounds of appeal must prima facie disclose good cause why the appeal should he heard See SCOA (NIG) PLC v. OMATSOLA (2009) 11 NWLR (Pt. 1151) Pg.106; SAVANNAH BANK (NIG) PLC v. C.B.N (2007) 8 NWLR (Pt. 1035) Pg.26; F.C.M.B PLC v. N.I.M.R (2009) 9 NWLR (Pt. 1147) Pg. 509; MAJEKODUNMI v. CHRISTLIEB PLC (2009) 9 NWLR (Pt. 1145) Pg. 121; MICRO-LION INT'L (NIG) LTD v. GADZAMA (2009) 15 NWLR (Pt. 1162) Pg. 481; AKINPELU v. ADEGBORE (2008) 10 NWLR (Pt. 1096) Pg. 531 and LAWAL v. U.B.N PLC (2008) 12 NWLR (Pt. 1102) Pg. 707." Per TSAMMANI, J.C.A. (Pp. 55-57, paras. B-B)

8

INTERPRETATION OF STATUTE - SECTION 241, 242, AND 243 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA: Statutory provisions of Sections 241, 242, and 243 of the 1999 Constitution of the Federal Republic of Nigeria

"The right of appeal to the Court of Appeal from the decision of either the Federal High Court, High Court of the Federal capital Territory or the High Court of a State is donated by Sections 241, 242, and 243 of the 1999 Constitution of the Federal Republic of Nigeria. Section 241 enshrines situations where a person can appeal from the decision of the Federal High Court or a High court to the Court of Appeal as of right, while other appeals emanating from the right granted by Section 242 lie with leave of either the High Court or the Court of Appeal. Section 243(a) of the Constitution (supra) circumscribed the persons who can exercise such rights of appeal. For the purpose of this Application, it is the provision of Section 243(a) of the 1999 Constitution (supra) that calls for interpretation. That provision states that: "243. 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- (a) exercisable in the case of civil proceedings at the instance of a party thereto, or with 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, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this constitution and any powers conferred upon the Attorney General of the Federation or the Attorney-General of the State to take over and continue or to discontinue such proceedings at the instance of such other authorities or persons as may be prescribed." It would be seen therefore that Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 confers a right of appeal to the Court of Appeal from the decisions of the Federal High Court or High Court of a state arising from civil proceedings at the instance of a party thereto, or with the leave of the High Court or the Court of Appeal at the instance of any other person having an interest in the matter. It means therefore that, where the person affected by the decision of the lower court was a party to the case and in the proceedings before the lower court, he need not seek leave to appeal provided he appeals within the time allowed by either the Statute or Rules of Court regulating the powers, practice and procedure of the Court of Appeal. However, the person seeking the exercise of the right of appeal does so as "a person having an interest in the matter," he must first of all, seek and obtain the leave of the High Court or of the Court of Appeal. See EKUNOLA v. C.B.N (supra) at Pg.315; UWAGBA v. F.R.N (2009) 15 NWLR (Pt. 1163) Pg.91 and E.F.P CO. LTD. v. N.D.I.C (2009) 9 NWLR Pg.216." Per TSAMMANI, J.C.A. (Pp. 43-45, paras. E-C) - read in context

9

INTERPRETATION OF STATUTE - SECTION 243 (A) OF THE 1999 CONSTITUTION:Interpretation of the phrase "person having an interest" as used in section 243(a) of the 1999 Constitution

"The courts have generously interpreted the phrase "person having an interest" within the intendment of Section 243(a) of the 1999 Constitution to mean or synonymous with "person aggrieved", and that "a person aggrieved" is a person who has suffered a legal grievance, a person against whom a decision has been given which has deprived him of something or refused him something or affected his right or title to something. Thus, Belgore, JCA in the case of BAIDO v. I.N.E.C (2008) 12 NWLR (Pt. 1101) Pg.379 at Pg. 400 Paras. A-D cited and relied on the decision of the Supreme Court in SOCIETE GENERAL BANK v. AFEKORO NWLR (Pt. 628) Pg.521 at 524 where the Supreme Court held thus: "The expression "person having an interest" for the purpose of an appeal by an interested party is synonymous with "person aggrieved". It does not really mean a man who is disappointed of a benefit which he might have received if some order had been made. A "person aggrieved" is a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully refused him something or wrongfully affected his title to something. Such a person will be granted leave to appeal against a decision given in a proceeding to which he was not a party". See also NGIGE v. OBI (2006) 14 NWLR (Pt. 999) Pg. 1 at 206 per Alagoa, JCA (as he then was); OJORA v. AGIP (NIG) PLC (2005) 4 NWLR (Pt. 916) Pg.515 and OZUEH v. EZEWEPUTA (2005) 4 NWLR (Pt. 915) Pg. 221." Per TSAMMANI, J.C.A. (Pp. 46-47, paras. A-A)

10

PRACTICE AND PROCEDURE - STAY OF EXECUTION: Principles guiding the grant or refusal of an application for stay of execution

"Now, I wish to restate that, the principles guiding the grant or refusal of an application for stay of execution and injunction are the same. Both are granted as a matter of discretion of the court and which discretion is usually exercised based on a consideration of same conditions. Generally however, the court are loath to deny a successful litigant from enjoying the fruits of the judgment. The court should also consider the effect of refusal of the application on the appellant/applicant if he eventually succeeds in the appeal. In the determination of whether or not to grant an order of stay of execution, the court should therefore do a balancing act between the contending interests of the parties. In doing that balancing act, the court would consider whether the Applicant has disclosed special circumstances which would attract the determination of the application in his favour. Some of the circumstances under which an application for stay of execution or injunction pending appeal may be made are: (a) Whether the subject matter of the dispute will be destroyed if injunction or stay of execution is not granted; (b) Where a situation of helplessness would be foisted on the court, especially an appellate court; (c) Where execution will paralyze right of appeals; (d) Where the order of the court would be rendered nugatory; or (e) Where execution will prevent a return to the status quo if the appeal eventually succeeds. By the use of the word "or" it means that these conditions are considered disjunctively. It means therefore that the Presence of any of the above stated requirements will suffice for the grant of the injunction. The burden is on an applicant to depose to an affidavit which discloses any of the above stated special circumstances. See AJUMA v. S.P.D.C.M. LTD (2011) 18 NWLR (Pt.1279) Pg. 797; OLOJEDE v. OLALEYE (2010) 4 NWLR (PT. 1183) Pg. 1; HO v. ABUBAKAR (2011) 12 NWLR (Pt. 1261) Pg. 323 and S.P.D.C.N. LTD v. AMADI (2011) 14 NWLR (Pt. 1266) Pg. 157)." Per TSAMMANI, J.C.A. (Pp. 64-65, paras. B-E)