MR. Godwin John & Ors V. Alfa Buremoh Ayinla & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Lead Ruling)

Pursuant to the provisions of Section 243(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 24(4) of the Court of Appeal Act 1976 (as amended) Order 7 Rule 10(1) and (2) of the Court of Appeal Rules of 2011 and the inherent power of this Court, the applicants by motion on notice dated 18/8/2014 and filed in this Court on 28/8/2014, sought for the following orders:-

1. AN ORDER of this Honourable court extending the time within which the Applicants may file their application for leave to appeal as interested parties against the judgment of the High court of Justice of Kwara State, Ilorin Judicial Division in suit No.KWS/138/2007 between ALFA BUREMOH AYINLA, and MR. TOYIN ABDULKAREEM delivered on 18th, December, 2012 as parties affected and having an interest in the matter.
2. AN ORDER of this Honourable court granting leave to the applicants to appeal as interested parties against the judgment of the High court of Justice of Kwara State, Ilorin Judicial Division in suit No.KWS/138/2007 between ALFA BUREMOH AYINLA and MR. TOYIN ABDULKAREEM delivered on 18th December, 2012 as parties affected and having an interest in the matter.
3. AN ORDER of this Honourable Court extending the time within which the applicants may file notice and grounds of appeal as parties affected/interested in the matter against the judgment of the High Court of Justice of Kwara State, Ilorin Judicial Division in Suit No.KWS/138/2007 between ALFA BUREMOH AYINLA and MR. TOYIN ABDULKAREEM delivered on 18th December, 2012.
4. SUCH FURTHER ORDERS(S) (Sic) as this Honourable Court may deem fit to make in the circumstances of this matter.

The grounds of bringing the application are:-

1. The Applicants have various buildings on the land which they presently occupy on the adjudged lands.
2. The Applicants have constructed their respective buildings and occupied same at various time since 2006.
3. The Applicants are not aware of the pendency of the matter at the Lower Court and were not served with any of the court processes.
4. The Applicants only became aware of the matter when the judgment creditor/Respondent, brought bulldozer to demolish their houses in execution of the Judgment of the Kwara State High Court, Ilorin Judicial Division in Suit No.KWS/138/2007 between ALFA BUREMOH AYINLA and MR. TOYIN ABDULKAREEM delivered on 18/12/2012.
5. An application for leave to appeal as interested parties has been made to the trial court, but same was refused.
6. The Applicants were unable to collect the ruling of the Kwara State High Court refusing their application within the time prescribed by Rules of this Honourable Court in order to file similar application before this Court.
7. The lands claimed by the Judgment creditor is (sic) different from the land of the Applicants.
8. The Applicants did not derive their title from the Judgment debtor.

The application is supported by a 31 paragraph affidavit deposed on 28/8/2014 to which various processes including the Notice of Appeal and the Ruling of Kwara State High Court (herein referred to as the Lower Court) refusing leave to appeal as interested parties were exhibited as Exhibits A – F, and a further and Better affidavit dated and filed 25/9/2014 contained 10 paragraphs but no Exhibits attached.

In opposing the motion, the 1st Respondent filed a counter affidavit of 19 paragraphs through his learned Counsel on 15/9/2014 and in which various processes were also exhibited as Exhibits 1 – 8. In the same vein, the 2nd Respondent also opposes this application through its counter affidavit of 11 paragraphs.

Arguing the application, learned Counsel for the applicants submitted that the application was brought pursuant to Section 243(a) of the said 1999 Constitution (as amended) for the applicants who were not parties in the case at the Lower Court to be given leave to appeal against the decision of the Lower Court delivered on 18/12/2012 as parties having interest in the matter.

Relying on paragraphs 6, 7, 12, 15, 29, 24, 25, 26, 27, 28 of the original affidavit in support, and Exhibits ‘E’ (the Notice of Appeal) ‘D’ (the C. T. C. of the Judgment of the Lower Court), learned Counsel urged this Court to find that the applicants have satisfied the requirements of the law that they are parties having interest in the matter to justify granting the application. He also submitted that the applicants have shown sufficient reason for their delay in filing this application.

Learned counsel for the 1st Respondent, however, in opposition, pointed out that the judgment of the Lower Court relates to the ownership of the identified land belonging to the 1st Respondent and which was not part of the land the applicants claimed to have built on their respective houses. See part 12 of the original affidavit in support of the motion. Therefore, the applicants have no interest whatsoever in the land in issue between 1st and 2nd Respondents. He urged this court to refuse the application.

As for the 2nd Respondent, it’s learned counsel is also of the view that the applicants have no business coming into this matter at this stage, the matter being purely a dispute between 2nd Respondents on the ownership of the land in dispute the 1st and 2nd Respondents on the ownership of the land in dispute and urged this Court to dismiss the application.

From the submissions and counter-argument exchanged by the Counsel, parties are ad-idem that an application was filed before the Lower Court, seeking extension of time to apply for leave to appeal, leave to appeal and extension of time to file Notice of Appeal as an interested party. However, the bone of contention, in my view, will be whether the said application before the Lower Court, in view of the fact that ‘leave’ at first was not sought within the time allowed to appeal (as provided in Section 24(4) of the Court of Appeal Act 2004 as amended) contained the “trinity prayer” as enunciated in the case of OWENA BANK PLC VS. N.S.E. LTD. (l997) 8 NWLR (PT.515) and in RE: MADAKI (1996) 7 NWLR (PT.459) 153.

I think it is useful to start by saying that the following points are not in dispute in this case. They are thus:-

1. That the original parties to this case at the Lower Court were Alfa Buremoh Ayinla (as plaintiff) AND Toyin AbdulKareem (as Defendant).
2. That the applicants were not parties to the said Suit before the Lower Court.
3. That judgment of the Lower Court was delivered on 18/12/2012.
4. That the applicants, thereafter, brought an application for extension of time to seek leave to appeal, leave to appeal, and extension of time to file notice of appeal.
5. That the Lower Court refused the application, hence this application.

That being the case, it is my view that, the applicants ought to have, first asked before the Lower Court, for leave to appeal only as an interested party under Section 243(a) of the said Constitution. This is because the 1st prayer sought by the applicant before the Lower Court through their Counsel is misconceived in that no law prescribes any period within which an interested party may bring his application for leave to appeal as interested party in a matter. SEE IN RE: MADAKI (1996) 7 NWLR (PT.459) 153 AT 164 and OJORA VS. AGIP PLC (2005) ALL F.W.L.R. (PT.267) 1433.

Having refused to grant the said applicants’ application, by the Lower Court, the applicants pursuant to Order 7, Rule 3 of the Court of Appeal Rules 2011 filed in this Court a similar application for a similar purpose after the time prescribed for appeal expired.

Since it is not in dispute that the applicants were seeking leave to appeal as an interested party and the time within which they should have appealed had expired, Section 243(b) of the said Constitution comes into play. This sub Section provides: