Chief Geoffrey Ozueh & Ors. V. Chief Anthony Ezeweputa & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

The motion on notice in this application is brought pursuant to sections 242(1) and 243(a) of the 1999 Constitution of the Federal  Republic of Nigeria and Order 3 rule 3(3) of the Court of Appeal Rules, 2002 praying for the following orders:
“(a) extension of time within which to apply for leave to appeal and to appeal against the decision of the High Court of Enugu State;
(b) leave to appeal as interested persons against the judgment of High Court of Enugu State delivered on 11th August, 2003;
(c) leave to appeal against a judgment said to be made with the consent of the parties;
(d) extension of time within which to file notice and grounds of appeal.
And for such further and/or other order as to the court may seem fit.”

The grounds of the application are contained in the attached schedule.

In support of the application is an affidavit of 19 paragraphs sworn to by Chief Geoffrey Ozueh and chief Afam Ogene, the 1st and 9th applicants respectively who are registered members of the 1st defendant and therefore deposing at the request of the other applicants and on behalf of the registered members of the 1st defendant. Four exhibits “A”, “B”, “C”, and “D” are also attached to the motion paper.

On the 10th of February, 2004 when the motion was called up for hearing, the learned counsel Mr. I. E. Ogbuli on behalf of the applicants relied on all the paragraph’s of the affidavit in support as well as the exhibits also attached thereto. He also sought to rely on the further document, reply to counter-affidavit, of Chief Anthony Ezeweputa filed on the 19th November, 2003 as well as the exhibits “E” and “F” also attached.

The said learned counsel submitted and re-affirmed the constitutional right to appeal which avail the applicants as interested parties as long as they, either feel aggrieved or are affected by the decision complained against. Reference in support was made to section 243(a) of the 1999 Constitution. Also under reference is exhibit “C”, a certified true copy evidencing the motion on notice before the lower court for leave to appeal against the said decision, as well as exhibit “D” a certified true copy of the proceedings of the court refusing the said application. The counsel also relied upon the schedule attached to the motion paper and which states the proposed grounds of appeal.

The learned counsel on his submission asserted affirmatively that the applicants have complied with the conditions precedent in the bringing of this application. To support the constitutional right availing the applicants, he cited the decision in the authority of Goni v. Gambo (2003) 17 NWLR (Pt. 849) 411 at 418 paragraphs (g) ratio 2 where the right of appeal is constitutional and that which cannot be taken away so long as they can show that they are aggrieved parties or parties interested.
For the definition of parties interested, same is restated in Re-Madaki (1990) 4 NWLR (Pt. 143) 266 at 277 paragraphs (b-g) ratios 5 and 6. A further reference is the case of Ogunbiyi v. Mustapha (1996) 4 NWLR (Pt.442) 337 at 347 paragraph (e) ratio 1. Exhibits “E” and “E1” were also in reference for purpose of evidencing the bona fide nature of the identity cards of the applicants as members of Nigerian Association of Road Transport Owners (NARTO).

The learned counsel urged before us to hold that the applicants are either interested, aggrieved, or parties likely to be aggrieved. That with the purported judgment of the 11th August, 2003 having been signed by the consent of both parties, the provision of section 242(1) of the 1999 Constitution allows an appeal with leave of court sequel to same therefore.

The learned counsel finally argued in favour of the application to allow the applicants exercise their constitutional rights. While the plaintiff/respondent filed a counter-affidavit in reply to the motion, the 2nd defendant/respondent filed both counter and further counter-affidavits on his part and attached a number of documents.

Mr. Chuma Oguejiofor, Esq. of counsel on behalf of the plaintiff/respondent rightly conceded to the constitutional right to appeal, availing the applicants. However, he went further to reiterate the same law which lays down certain requirements as necessary prerequisite to allow the lee way to appeal. That the four prayers sought for are not specific enough especially with the application being out of time, and thus, the necessity of the trinity prayers. That the applicants were too much in a haste to have jumped into section 243(a) of the Constitution without first adhering to the necessary pre-ambles and consequent to which the motion is incompetent even on this ground alone.

The learned counsel further argued that prayer C had not also complied with section 241(2)(c) of the Constitution. That by section 242(1) of the same Constitution, leave is mandatory where an appeal is on mixed law and facts. Reference to substantiate his arguments was made to the provision of section 303(1) and (2) of the Companies and Allied Matters Act (CAMA) 1990, wherein sub-section (2) in particular is mandatory in respect of a corporate company. That by the very nature of paragraph 12 of the affidavit in support of the motion, leave is also of a necessity and which same has not been sought for.

The counsel on this score urged that the application should also be struck out, as being incompetent.
On the merit of the application the learned same counsel argued and submitted that no good reasons were proffered for the exercise of the court’s discretion in the applicants’ favour. The authorities in support are Obodu v. Enarofia (1980) 5 – 7 SC 42, and Mobil Oil Ltd. v. Agadaigho (1988) 2 NWLR (Pt. 77) 383. That the deposition at paragraph 18 of the affidavit to the effect that the Judge went on leave is not sufficient a cogent and good reason to go by. The learned counsel further relied on section 243(a) of the Constitution, which same presupposes that the application for leave before the lower court must have been refused.

This he argued is not the case with exhibit “D”, where the application was struck out for non-proper service. Furthermore, that by paragraph 12 of the same affidavit in support, it was required of the applicants to have attached the said resolution stated therein especially being a registered company, and which by section 303 of CAMA, the expectation is very imperative.

In further reference also made to sections 213(2) and 215(2) of the said CAMA, the learned counsel emphasized the incompetent nature of this application in the light of section 299 of the same CAMA. That going through the resume of the facts, there is no indication that the applicants are in the minority and therefore, are oppressed by the majority. That both parties are agreed that the company is part of the consent judgment.