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: –