Benevolent Electronic Law Report

16/12/2019

"There must be an end to litigation. Parties are not permitted to bring fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances."
MAHMUD vs. HAUSAWA & ORS.(2018)LPELR-46073(CA)




ISSUE: ESTOPPEL PER REM JUDICATAM/RES JUDICATA-Meaning, nature and the conditions for the application of estoppel per rem judicatam










PRINCIPLE:
"As already adverted to by me at the debut of this judgment, it is the contention of the Appellant that, the land in dispute had earlier on been litigated upon to conclusion between the same parties, that
is, before the Respondents again filed Suit No. ADSM/16/2010 against them at the trial Court over the same property. The Appellant is therefore raising as a shield, the plea of "estoppel per rem
judicatam". However, the Respondents' reaction to this is that, the rights of the parties in the earlier action filed by them at the Upper Area Court, Gombi against the Appellant over the disputed land was
not finally determined by the latter Court. The doctrine of "estoppel per rem judicatam" a latin maxim, connotes that where a Court of competent jurisdiction has settled by a final decision, the matter in
controversy between the parties in an action, the said parties or their privies cannot relitigate that matter again by bringing a fresh action. See the cases of: (1) Adigun v. AG, Osun State & Ors. (1995) 3
NWLR (Pt. 385) P. 513 at 533-534 and (2) Osunrinde v. Ajamogun (1992) 6NWLR (Pt. 246) P.156 at P.183. The rationale behind the doctrine was long ago underscored by Aniagolu, JSC (of blessed
memory) in the case of:Aro v. Fabolude (1983)1 SCNLR p.58 in the following words:
There must be an end to litigation. Parties are not permitted to bring fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what
should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If those were permitted, litigation would have no end
except when legal ingenuity is exhausted. Black's Law Dictionary Eighth Edition defines "res judicata" as: "a thing adjudicated". In other words, the phrase means "an issue that has been definitely settled
by judicial decision". It is an affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions
that could have been, but was not, raised in the first suit. Generally, "estoppel" means "a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what
has been legally established as true. A bar that prevents the re-litigation of issues." Therefore, "estoppel" per res judicatam" is a doctrine barring a party from litigating an issue determined against that
party in an earlier action. See pages 1336 to 1337 and 589 of Black's Law Dictionary (supra) and the cases of: (1) Cole v. Jibunoh (2016) LPELR-40662 (SC); (2) Tukur v. Uba (2013) 4 NWLR (Pt. 1343) p.
90; (3) Makun v. FUT Minna (2011) 18NWLR (Pt. 1278) P. 190 and (4) Balogun v. Adejobi (1995) LPELR-724 (SC). On the doctrine under discourse, the Supreme Court restated the well-established position
of the law in the case of: Cole v. Jibunoh (supra) as follows:
Where a Court of competent jurisdiction has finally settled a matter in dispute between parties, neither party nor privy may litigate that issue under the guise of bringing a fresh action, since the matter is
said to be res judicata. The judgment in Suit No. ID/1082/90 is a final judgment of a competent Court, which is a judgment in rem. The finding of Martins J. in Suit No. ID/1082/90 is binding on the
Appellant in this case and estops her from raising in Suit No. ID/3228/94 the issue that have been finally decided in that earlier case-See: K Flow Farm Industries Ltd. v. University of Ibadan (1993) NWLR
(Pt.290) 719 at 724.
In the earlier decision of the Apex Court in the case of: Makun v. FUT Minna (supra), the doctrine of "res judicata" was exposited in the following succinct words:
It is a foregone conclusion in law that based on the doctrine of res judicata, where a Court of competent jurisdiction has settled, by a final decision the matters in dispute between the parties, none of the
parties or his privies may re-litigate that issue again by bringing a fresh action. The estoppel created is said to be by record inter parties. The rule of estoppel per rem judicatam requires that where a
final decision is given by a Court of competent jurisdiction, the parties thereto cannot be heard to contradict that decision in any subsequent litigation between them respecting the same subject-matter.
As a plea, the decision operates as a bar to a subsequent litigation and as evidence; it is conclusive between the parties to it. The plea applies where a Court has given a final decision on the matter like
deciding that it has no jurisdiction to entertain a matter and there is no appeal against it over the suit.
The application of the doctrine of "estoppel per rem judicatam" is based on the four conditions which must exist cumulatively for the plea to be successful. The conditions are as follows:
1. The parties must be the same in the earlier action as in the second action;
2. The issue or subject-matter must be the same in the earlier action as in the second action;
3. The judgment or decision in the earlier action must be a final one; and
4. The Court which adjudicated upon the earlier suit must possess the requisite jurisdiction over the suit.
See the cases of: (1) Manson v. Halliburton Energy Services Ltd (2007) 2 NWLR (Pt. 1018) P. 211 at P. 243; (2) Makun v. FUT Minna (supra); (3) Madukolu v. Nkemdilim (supra) and (4) Omokhafe
v. Esekhomo (1993) 8NWLR (Pt. 309) P.58 at P.68.
I have exhaustively searched the record of appeal, the only bundle of documents to which I am legally confined in the matter of the appeal. There is no single material therein to support the claim of the
Appellant that the rights of the Respondents and Appellant in the subject-matter in dispute between them had been conclusively determined by the Upper Area Court, Gombi, prior to the institution of
Suit No. ADSM/16/2010 by the Respondents at the trial Court. It can be gleaned from the record of appeal that the Respondents filed a motion "ex parte" in respect of the land in dispute at the Upper
Area Court, Gombi in Suit No. UAC/GMB/CVF1/10/2010. The motion was for: 1. Interim injunction restraining the respondents, servants, agents, workmen or anybody claiming through them from further
trespassing on the house of the applicants the subject matter of this suit or from dealing in any manner whatsoever in including destroying or building of room or any construction thereon pending the
hearing of the motion on notice.
2. Any other order or orders, the Court may deem fit to make in the circumstance of the case.
It is also decipherable from the same record that, the Respondents had previously at the same Court, filed a substantive action against the Appellant "vide" Suit No. UAC/GMB/CVF1/80/2008. However,
other than the said "ex parte" application which was granted on the 22nd of February, 2010, there is no proof that, the substantive suit was prosecuted and determined by the said Upper Area Court,
Gombi. Contrariwise, both the application and substantive suit were discontinued by the Respondents. See page 57 through to page 60, particularly pages 59 and 60 of the record of appeal.
Therefore, the suits before the Upper Area Court, Gombi having been discontinued on the 25th of March, 2010 before the rights of the parties therein were ever determined one way or the other, Suit No.
ADSM /16/2010 vide the Writ of Summons/2nd Amended Joint Statement of Claim issued/filed by the Respondents against the Appellant in respect of the same property on the 29th of March, 2010 and
7th of November, 2013 respectively was without any encumbrances - see pages 3, 4, 31 to 35 of the record of appeal. There is no question in my mind that, the reliefs sought against the Appellant, by
the Respondents, in the said Writ of Summons/2nd Amended Joint Statement of Claim, are within the very vast powers conferred on the trial Court, a State High Court, by Section 272 of the 1999
Constitution to adjudicate upon. What is more, the Appellant has not challenged the power of the said trial Court to entertain the suit per se. Hence, as earlier on noted above in this paragraph, the shield
of "estoppel per rem judicatam" can not avail the Appellant as, not one of the reliefs sought by the Respondents against him in Suit No. ADSM/16/2010, had been entertained, let alone determined by the
Upper Area Court, Gombi or any other Court at that prior to the filing of the said suit against him by the Respondents at the trial Court. This is the firm position of the law with the antecedents of this
matter and notwithstanding, the so-called evidence of the 3rd Respondent as PW1 at the trial Court regarding what transpired at the Upper Area Court, Gombi. It should be noted though that, I do not
agree with the Appellant's position that the intendment of the said evidence is that, the rights of the parties herein had already been determined at the Upper Area Court, Gombi. For the said action at
the Upper Area Court, Gombi did not as much proceed to trial, let alone conclusion or determination. The Court did not give any decision one way or the other in the action of the Respondents against the
Appellant. Hence, an inconclusive and indeed discontinued action cannot be a bar to a subsequent one duly commenced before a Court of competent jurisdiction. What is more, in the instant matter, the
Appellant as defendant at the Upper Area Court, Gombi did not file a counter claim to the action of the Respondents as plaintiffs against him. As a matter of fact, the Appellant did not enter any
appearance before that Court in defence of the said action of the Respondents against him. It is thus unconscionable for him to want to profit under the proceedings of the Upper Area Court, Gombi. On
whether an abandoned claim in a previous suit can constitute "res judicatam" in a later suit, the Supreme Court in the case of: Nwokedi v. Okugo (2002) 16 NWLR (Pt. 794) p. 441, held that:
Where a claim or claims are abandoned by the plaintiff in a suit consequent upon which the trial Court fails to adjudicate upon the claims though those claims are directly in dispute, that case will not
operate as res judicata in a later suit against a defendant who did not counter-claim. In other words, where a trial Court did not give any decision one way or the other on the claim before it and there is
no counter-claim the case cannot be construed as res judicata in a later case.
The stress must equally be put on the point brought to the fore by the Respondents' learned counsel that, the Appellant is not entitled to the plea of "estoppel" herein, the issue and its particulars not
having been pleaded by him before the trial Court. This is quite on point and I am again at one with the Respondents' learned counsel. The law is trite that, "estoppel" must be pleaded before the trial
Court, otherwise, it cannot be raised on appeal for the first time. See the cases of: (1) Obanye v. Okwunwa (1930) 10 NLR p. 8; (2) Sowa v. Amachree (1933) 11 NLR P. 82; (3) Dedeke v. Williams (1944)
10 WACA P. 164 and (4) Clay Industries (Nig.) Ltd. v. Aina (1997) 8 NWLR (Pt. 516) p. 208. The age-long legal position was restated as follows by the Supreme Court in the case of:Gbemisola v. Bolarinwa
& Anor. (2014) LPELR-22463:
It is indeed the law that where pleadings are necessary, estoppel should properly be set up as a plea in defence with sufficient particulars to apprise the plaintiff the basis on which he is estopped from
relitigating the particular case or issue. Where there are no pleadings, the defence should be raised by evidence at the earliest opportunity. See J. O. Awiawo & Anor. v. Attorney General North Central
State & 2 Ors. (1973) 6 SC 34 at 38 and 39; Sosan & Ors. v. Ademuyiwa (1986) 1 NSCC 673 and Okafor Adone & Ors. v. Ozo Gabriel Ikebudu & Ors. (2001) 7 SC (Pt.111) 22. In Clay Ind. (Nig.) Ltd. v. Aina
(1997) 8 NWLR (Pt. 516) 208 at 229, this Court held that as a general principle of the law, estoppel must be pleaded before the trial Court otherwise it cannot be raised on appeal. More particularly, in Odi
v. Iyala (2004) 8NWLR (Pt. 875) 283 at 306, the Court specifically held thus:- "Is the brief the forum to raise the special defence of estoppel per rem judicatam? I think not. The case must be made out in
the pleadings before argument can be taken on it in the brief on appeal. The law is elementary that estoppel per rem judicatam is a special defence available to a defendant, which must be specifically
pleaded in the statement of defence. See Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1; Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298. (The
underlining is supplied by me for emphasis).
It is decipherable from the record of appeal that, the Appellant herein who was the defendant at the trial Court failed to specifically plead the defence of "estoppel per rem judicatam" in his pleadings at
that Court - See page 18 of the record of appeal for the Appellant's statement of defence in response to the Respondents' 2nd Amended Statement of Claim. Not only that, the Appellant had the
opportunity during the trial of the action to adduce evidence in regard of the said plea in defence of the action against him but he equally failed to avail himself of that opportunity. He is legally
foreclosed from raising the plea in the brief of argument of his counsel in this appeal for the first time as he has clearly wrongfully done. He cannot be heard on this plea, the argument of his learned
counsel that this issue touches on the jurisdiction of the trial Court notwithstanding.
The learned counsel for the Appellant has also argued that the action of the Respondents against him at the trial Court was an abuse of judicial/Court process. An abuse of judicial process means that the
process of the Court has not been used "bona fide" that is, in good faith and properly. The implication of the objection is that, the Court should not allow the appeal on the ground of abuse of its process.
Now, the legal concept of the abuse of the judicial process or the abuse of the procedure of the Court is very wide and infinite in variety. However, it is a general principle that an abuse of the process of
the Court is constituted when more than one suit/appeal are instituted by a plaintiff/appellant against a defendant/­respondent, as the case may be, in respect of the same subject-matter, to the
harassment, irritation and annoyance of the defendant/respondent and in such a manner as to interfere with the administration of justice. See the cases of: (1) FRN v. Abiola (1997) 2 NWLR (Pt. 488) P.
444; (2) Okafor v. A.-G., Anambra (1991) 6NWLR (Pt. 200) p. 659 and (3) Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) P. 156. This is also known as multiplicity of actions. Therefore, it is generally accepted
that, abuse lies in the multiplicity of the actions per se and "ipso facto", multiplicity is "prima facie" an abuse. See also the cases of: (1) Morgan v. W.A.A & Eng. Co. Ltd. (1971) 1 NMLR p.219 and (2) NV.
Scheep v. MV. "S. Araz" (2000) 15 NWLR (Pt. 691) P. 622. In the case of: Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 966) P. 205, the Supreme Court per Mohammed, JSC had the following to say on this
point: ...Abuse consists in the intention, purpose, and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice, such as instituting
different actions between the same parties simultaneously in different Courts even though on different grounds. See Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6. Similarly so held was where two
similar processes were used in respect of the exercise of the same right. (The underlining is supplied by me for emphasis).
However, there is an exception to the above general principle that instituting a multiplicity of actions per se against an adversary concurrently is an abuse of the process of Court and that is, where there
is a valid notice to discontinue one action and the plaintiff/appellant will at the end of the day be left with just one action against the defendant/respondent. See the cases of: (1) NV. Scheep v. MV. "S.
Araz" (supra) and (2) Aghadiuno v. Onubogu (1998) 5 NWLR (Pt. 548) P. 16.
I consider it apposite to bring to the fore the very sound reasoning of Karibi-Whyte, (JSC Rtd.) in the case of: NV. Scheep v. MV. "S. Araz" (supra) that: ...the legal concept of the abuse of the judicial
process or the abuse of the procedure of the Court is very wide. The scope and content of the circumstances of the material facts and conduct which will result in such abuse is infinite in variety. It does
not appear that the category can be closed. New unforeseen conduct from the stratagem of plaintiffs can give rise to the abuse. An abuse may be constituted through a proper and legitimate conduct in
bringing actions even in the exercise of an established right in the manner or time of instituting actions. It may also be constituted by irregularities in the pursuit of actions....The abuse lies in the
multiplicity of the actions rather than in the exercise of the right. See also Kotoye v. Saraki (1992) 9 NWLR (Pt. 264) 156. (The underlining is supplied by me for emphasis).
From the antecedents of the instant matter already laid out above by me in this judgment, since abuse of process contemplates multiplicity of actions between the same parties in regard to the same
subject-matter and on the same issues, the argument of the Appellant's counsel is absolutely misconceived and amounts to a misperception of the law. For the so-called actions before the Upper Area
Court, Gombi had been discontinued by the Respondents and were no longer pending at the time the action filed before the trial Court was instituted by the Respondents against the Appellant on the
subject-matter in dispute between them. See also the cases of: (1) Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt. 1224) P. 1 and (2) Umeh v. Iwu (2008) 8 NWLR (Pt. 1089) P. 225.
Consequent upon my above enunciation, I hold that the trial Court's requisite jurisdiction in entertaining and determining the action of the Respondents against the Appellant in Suit No. ADSM/16/2010
was intact and was duly exercised by it. From on all fronts, the defence of "estoppel per rem judicatam" cannot avail the Appellant in the given circumstances of this matter."Per OMOLEYE, JCA(Pp.21-37,Paras.C-E).






ZUBAIR vs. KOLAWOLE(2019)LPELR-­­46928(SC)






ISSUE: ESTOPPEL PER REM JUDICATAM/RES JUDICATA: Principles of estoppel per rem judicatam




PRINCIPLE:
"Estoppel per rem judicatam or res judicata arises where an issue
of fact has been judicially determined in a final manner between the parties or their privies by a
Court or Tribunal having jurisdiction in the matter and the same issue comes directly in question in
subsequent proceedings between the parties and their privies. The principle operates where the
subject matter and the question raised in the second matter are the same as the subject matter
and question raised and decided in the first matter. Where successfully raised, it ousts the
jurisdiction of the Court to determine the matter. See: Coker Vs. Sanyaolu (1976) LPELR-877 (SC) @
20 D - E; Ajiboye Vs. Ishola (2006) 13 NWLR (Pt. 998) 628; Igbeke Vs. Okadigbo (2013) 12 NWLR
(Pt.1368) 225 0 254 D; Oleksandr & Ors. Vs. Lonestar Drilling Co. Ltd. & Anor. (2015) LPELR-24614 (SC) @ 50 A - B. There are two types of
estoppel: cause of action estoppel and issue estoppel. Cause of action estoppel arises where the
same cause of action has been held to lie (or not to lie) in a final judgment between the same
parties, or their privies, who are litigating in the same capacity (and on the same subject matter).
Issue estoppel, on the other hand, arises where an issue has earlier on been adjudicated upon by a
Court of competent jurisdiction and the same issue comes incidentally in question in any
subsequent proceedings between the same parties or their privies. See: Fadiora Vs. Gbadebo (1978)
3 SC 219 @ 228 & 229; Oshodi Vs. Eyifunmi (2000) 7 SC (Pt. II) 145. The applicable estoppel in
this case is cause of action estoppel. There were specific findings by a Court of competent
jurisdiction (the Kwara State High Court per Exhibit D25), that the cause of action arose in 1978,
that it was a chieftaincy matter and that the Court lacked jurisdiction to entertain it. The findings are binding and subsisting between the parties in the absence of an appeal. See: Durbar Hotel Plc.
Vs. Ityough & Ors. (2016) LPELR - 42560 (SC) @ 7 8 - F- A; Uwazurike Vs. Nwachukwu (2013) 3
NWLR (Pt. 1342) 503; Adedayo Vs. Babalola (1995) LPELR - 85 (SC) @ 40 A - C. In Adedayo Vs.
Babalola (Supra) reference was made to an earlier decision of this Court in Odjevwedje Vs.
Echanokpe (1987) 3 SC 47 @ 72; (1987) 1 NWLR (Pt. 52) 633, per Eso, JSC, to wit: "A decision of a
Court of competent jurisdiction not appealed against or which appealed against has not been set
aside, exists forever between the parties." It is evident from the finding of the learned trial Judge
that His Lordship only adverted his mind to issue estoppel. The Court below at pages 441 - 443 of
the record per Ignatius Igwe Agube, JCA, held inter alia: I shall round up this issue of estoppel by
referring to the lead judgment of Mukhtar, JSC at page 368 in the said Abubakar Vs. B.O. & A.P.
Ltd. (2007) 18 NWL R (Pt. 1066) (319) when she posited that once a matter is struck out for
want of jurisdiction, as was done on June 12th 1985 by Oyeyipo emeritus CJ, the only option opened
to the Plaintiff/Respondent and his family as an aggrieved party was to proceed on appeal rather
than reopen the case as they did before Fabiyi, J. (as he then was) in 1990. The judgment of the
Court of Appeal that set aside that of Fabiyi, J., has not enhanced their status in this case." Indeed,
the present suit is a replica of suit no. KWS/121/80 that was struck out by Oyeyipo, CJ for want of
jurisdiction. All the ingredients of a successful plea of Estoppel per rem judicatam exist mutatis
mutandis... With the greatest respect, by the decision of the Supreme Court earlier cited, it has
been settled that by striking out the first suit for want of jurisdiction, which decision has not been
appealed against, the status quo ante still subsists. Moreover, since the claim of the Plaintiff is
statute barred it is stale, dead and buried, never to be revived. The rights of the parties have been
settled for good and by the Latin maxim "interest rei publica ut sit finis- litium" it is for the common
good that there should be an end to litigation." I am unable to fault the sound reasoning above. It
was the proceedings in Exhibits D1 and D2 that gave rise to the suit and the judgment of Oyeyipo,
CJ in Exhibit D25. The parties, their privies and the cause of action in all three were the same as in
the suit before the learned trial Judge. In the absence of any appeal against the decision in Exhibit
D25, the trial Court was estopped from entertaining the suit. The decision of Oyeyipo, CJ that the
Court lacked jurisdiction to entertain the suit because the cause of action was not justiciable is
valid and subsisting. The learned trial Judge ought to have struck out the suit." Per KEKERE-EKUN, JSC.(Pp. 39-43, Paras. B-B).

02/12/2019

"...at the point a no case submission is raised, the Court cannot go into the strength of the evidence adduced to determine whether there are verifiable allegations against the accused. What is to be considered by the Court is not whether the evidence produced by
the prosecution against the accused is sufficient to justify conviction but whether the prosecution has made a point requiring, at least, some explanation from the accused person as regard his conduct or otherwise..."
AZUBUIKE vs. FEDERAL REPUBLIC OF NIGERIA(2018)LPELR-43512(CA)








ISSUE: NO CASE SUBMISSION-Position of the law on a no case submission"...at the point a no case submission is raised, the Court cannot go into the strength of the evidence adduced to determine whether there are verifiable allegations against the accused. What is to be considered by the Court is not whether the evidence produced by
the prosecution against the accused is sufficient to justify conviction but whether the prosecution has made a point requiring, at least, some explanation from the accused person as regard his conduct or otherwise..."
AZUBUIKE vs. FEDERAL REPUBLIC OF NIGERIA(2018)LPELR-43512(CA)








ISSUE: NO CASE SUBMISSION-Position of the law on a no case submission

27/10/2019

""Where a statute confers a power, and particularly one which may be used to deprive the subject of proprietary rights, the Court will confine those exercising the power to the strict letter of the statute."
THE REGISTERED TRUSTEES OF MARINE MODERN MARKET TRADERS ASSOCIATION vs. OBANYE & ORS.(2018)LPELR-44688(CA)






ISSUE: APPEAL BY INTERESTED PARTY: Position of the law where an applicant is seeking leave to appeal as an interested party when the time to appeal has expired






PRINCIPLE:
"This decision is founded on an application filed by the Registered Trustees of Marine Modern Market Traders' Association on 13th March, 2015 praying for certain remedies against the 1st set of plaintiffs/respondents namely: (1) Ben Obanye (2) Vincent Sunday Aniegboka Ononye and (3) Nnaji Obanye ("For themselves and on behalf of the
members of the Mgbeleke family of Onitsha") and (4) Attorney-General of Anambra State (5) Central Water Transportation Company Limited (6) United Africa Company Limited (7) Dr. Hamza R. Rayyad (8) Chief O.A. Kuyi (9) Jacob Threley-Gyado ("For themselves and on behalf of the members of the Technical Committee on Privatization and
Commercialization") (10) Onitsha North Local Government and (11) The Governor, Anambra State. The application is founded on the provisions of Section 243(A) of the Constitution of the Federal Republic of Nigeria, 1999 as amended; Order 4 rule (1) and Order 7 Rules (1), (2), (7) and (10) of the Court of Appeal Rules, 2011 and under the
inherent jurisdiction of the Honourable Court.
The applicant's are seeking the following remedies against the "plaintiffs/­respondents" and the "defendants/­respondents" to wit:-
"(a) AN ORDER extending the time within which the applicant herein/a party interested can lawfully apply for leave to appeal against the judgment of Anambra State High Court of Justice in Suit No.O/349/1991: Ben Obanye & 2 Ors. vs. A-G. Anambra State & 7 Ors. delivered on 21st January, 2013 by Hon. Justice Peter Chudi Obiorah.
(b) AN ORDER granting leave to the applicant herein/a party interested, to appeal against the said judgment as a person having an interest in the matter.
(c) AN ORDER extending the time within which to appeal against the said judgment of the lower Court delivered on the 21st day of January, 2013 in the manner shown in the proposed Notice and Grounds of Appeal exhibited and marked "C" in the supporting affidavit.
(d) AN ORDER staying the ex*****on of the said judgment entered in favour of the 1st - 3rd respondents by the lower Court on the 21st day of January, 2013, pending the hearing and determination of the appeal to be filed in this matter.
(e) AND FOR SUCH FURTHER ORDER(S) as the Honourable Court may deem fit to make in the circumstances."
The remedies or reliefs clearly show that the decision of Peter Chudi Obiorah, J., in the substantive suit was rendered in the High Court of Justice of Anambra State on 21st January, 2013. The applicant describes himself as "a party interested" in paragraphs (a) and (b) of the motion and as a "party having an interest in the matter" in ground (iii)
upon which this application was brought. Between 21st January, 2013 when the learned trial Judge rendered the decision to 13th March, 2015 when this application was filed is about 2 years and some months interval. The application is verified by the affidavit of Simeon Omekaodimma, a member of the Incorporated Trustees of the applicant as
well as the immediate Chairman of Marine Modern Market Trader's Association. Paragraph 2 of the supporting affidavit deposes that; "2. I am familiar with the facts and circumstances of this case and do hereby depose to this affidavit with the knowledge and approval of the applicant as well as that of her numerous members."
The motion and the affidavit of Simeon Omekaodimma makes it abundantly clear who the plaintiffs and defendants were when the suit was filed in the Court below. The plaintiffs and the defendants in the Court below are co-respondents in the application in this Court of Appeal. Exhibit "A" is the Certificate incorporating Marine Modern Market
Traders Association (the applicant) with the Corporate Affairs Commission on 22nd December, 2004. Exhibit "B" is the record of proceedings of the Court below delivered on 21st January, 2013 by the learned trial Judge. The Notice of Appeal (not proposed Notice of Appeal) is Exhibit "C". The grounds of Appeal are as follows:-
"(A) ERROR IN LAW: The Honourable trial Court erred in law when it held thus:- "I grant an order of injunction restraining the 1st, 2nd, 4th, 5th, 6th, 7th, and 8th defendants, their servants, agents or any person claiming under or through them from entering or remaining on the land verged red in Plan NO.AC/LD/38/2007 or from doing anything
on the said land inconsistent with the plaintiffs' right of ownership."
PARTICULARS OF ERROR:
(i) The injunctive order was not only against respondent on record but against persons/appellant whom the trial Court had earlier found to have constructed structures on the land and without affording such person/appellant opportunity to be heard.
(ii) The injunctive order was a clear violation of third parties'/appellant's constitutional right to fair hearing.
(iii) The plaintiffs were at all material times, not in possession of the land in dispute and as such not entitled to the relief for injunction.
(iv) The said error has occasioned a gross miscarriage of justice.
(B) MISDIRECTION IN LAW: The learned trial Court misdirected itself in law which resulted in a gross miscarriage of justice when it held that: "It simply means that the compulsory acquisition of the land in dispute which was made without service of the notice of revocation or acquisition either on the owners/lessors (plaintiffs) or lessees (3rd
defendant) is invalid."
PARTICULARS OF MISDIRECTION:
(i) The plaintiffs were neither holders of a certificate of occupancy nor deemed holders of same over and concerning the land in dispute as to be entitled to the service of notice of revocation of the land in dispute.
(ii) The plaintiffs lacked the locus standi to institute the suit as constituted.
(iii) The 3rd defendant who was a deemed holder of a certificate of occupancy over and concerning the land in dispute was neither the plaintiff in the case nor did he counter claim against 1st and 8th defendants in the case for non-service of notice of revocation of the land on her.
(iv) The Court not being a Father Christmas, cannot and could not grant the 3rd defendant/respondent a relief he never sought for.
(v) That the said misdirection has occasioned a gross miscarriage of justice.
(C) ERROR IN LAW: The learned trial Court erred in law when it held that the plaintiffs' case succeeded in part and proceeded to enter judgment in favour of plaintiffs accordingly.
PARTICULARS OF ERROR:
(i) The plaintiffs/respondents lacked the locus standi to institute the suit as constituted.
(ii) The plaintiffs/respondents did not make out a case that entitled them to the judgment entered in their favour.
(iii) The appellant whose members, obtained the permission of the appropriate government authorities to erect structures on the land were not given opportunity to be heard before an order of injunction was slammed on them.
(iv) The error has occasioned a grave miscarriage of justice.
(D) JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE."
RELIEF SOUGHT:
To allow the appeal, set aside the judgment of the trial Court and make an order striking out the case being incompetent.
OR IN THE ALTERNATIVE:
To allow the appeal, set aside the judgment of trial Court and remit the case back to Anambra State High Court of Justice for trial de novo by another Judge of the said High Court of Justice."
The applicant exhibited photocopies of Exhibits "A"-"C" to the application. They are certified as true copies but very much illegible. I have tried in vain to trace the date the suit was filed in the Court below but cannot decipher from the processes annexed to this application. But page 3 of Exhibit "B" which is the record of proceedings of the
Court below is to the effect that the statement of claim was amended on "25th June, 2007". The 1st and 8th defendants amended the joint statement of defence on "12th January, 2008." The 3rd defendant's statement of defence was filed on "4th February, 2007". The parties called evidence. Learned Counsel to the plaintiffs and defendants
addressed the Court before the decision was rendered on 21st January, 2013 in favour of the plaintiffs/respondents in this application against the defendants/­respondents. The learned trial Judge held at page 26 lines 15 to page 27 lines 1-9 of the record of proceedings as follows:-
"In the final analysis, the plaintiffs' action succeeds in part only in respect of the validity of the statutory certificate of occupancy granted to the 2nd defendant. The prayer for injunction can only be against the other defendants, except the 3rd defendant who has an undetermined lease agreement with the plaintiffs over the land in dispute.
Accordingly, I hereby declare that the statutory certificate of occupancy registered as No. 7 at page 7 in volume 1120 of the Lands Registry in the office at Enugu but now kept in the office at Awka is null and void ab initio. I grant an order of injunction restraining the 1st, 2nd, 4th, 5th, 6th, 7th and 8th defendants, their servants, agents or any
person claiming under or through them from entering or remaining on the land verged red in Plan No.AC/LD/38/2007 or from doing anything on the said land inconsistent with the plaintiffs' right of ownership."
Between 21st January, 2013 when the learned trial Judge rendered the decision in favour of the 1st set of respondents/­plaintiffs to when the plaintiffs/­respondents amended their Joint Statement of Claim on 25th June, 2007 is an interval of about six (6) years. The grounds for bringing this application are set out on the motion as follows:-
"(i) That the land in dispute is a market place where the members of the applicant's association stay and carry on their daily trading activities and have been doing so since 1985.
(ii) That the members of the applicant's said association, with the consent and approval of appropriate government authorities, erected permanent structures on the land in dispute running into billions of naira.
(iii) That the applicant, who was not a party in the case in the Court below, is a party affected by the order of injunction made in the case and therefore, desires to appeal against the judgment as a party having interest in the matter.
(iv) That the time within which the applicant is to bring the application for leave to appeal against the said judgment has long lapsed without her doing so due to inadvertence on the part of her Counsel.
(v) That the 1st - 3rd respondents are presently making frantic efforts to use the said judgment to the disadvantage of the applicant and her members in two other cases now pending at Anambra State High Court holden at Onitsha, to wit: O/202/2008: The Registered Trustees of Marine Modern Market Traders Association & 9 Ors. vs. G.U.
Okeke & Sons Limited & 9 Ors. and O/92/2014: Vincent Sunday A. Ononye & 2 Ors. vs. G.U. Okeke & Sons Limited & 3 Ors.
(vi) That there are good and substantial reasons for failure to appeal within the prescribed period.
(vii) That there are grounds of appeal which prima facie show good cause why the leave to appeal should be granted.
(viii) That a grant of the application will best met the ends of justice in the case."
Paragraphs 3-10 of the supporting affidavit of Simeon Omekaodimma deposed to the following facts:-
"3. That in 1985, the then Onitsha Local Government, to the knowledge of all and sundry, established a Relief Market on the land in dispute for traders affected by the fire disaster that occurred at the Onitsha Main Market in or about 1982.
4. That following the averment in paragraph 3 above, the members of the applicant association (who were among the traders affected by the said fire disaster) were let into lawful possession of the few stalls that were erected at the said Relief Market by Onitisha Local Government and at a very great expense (and with the consent and
approval of the relevant government authorities) erected additional permanent structures on the property in dispute and occupied same.
5. That on the 9th of July, 1987, the then Military Governor of Anambra State Group Captain Sampson Emeka Omeruah, cut the tape to commission and declared open the said Relief Market. From then onwards, the Relief Market continued to grow from strength to strength. The members of the applicant's association, as law abiding citizens,
continued to pay their stallage fees, rates, and taxes to the appropriate government authority as and at when due.
6. That in 1994, the said Relief Market was also gutted by fire. Thereafter, Onitsha Local Government rebuild part of it and re-allocated it to members of the applicant's association.
7. That due to the poor financial condition of the said Onitsha Local Government, she could not complete the re-construction of the market, she therefore, granted approvals to the members of the applicant's association to build additional stalls, office complex, etc, on the property in dispute at a cost running into billions of naira. In other words,
that members of applicant's association have investments on the land that runs into billions of naira.
8. That the said Relief Market was later renamed Marine Modern Market with all the traders therein forming one umbrella body known as the Marine Modern Market Traders' Association and which was later registered as such with the Corporate Affairs Commission. Exhibited and marked "A" is a copy of our Incorporation Certificate.
9. That until recently, none of our members was aware of the pendency of suit No.O/349/1991, the relief sought therein and the judgment delivered in it on 21st January, 2013 as none of us was either made a party in the suit or served with any of the processes filed in the said suit.
10. That it was recently when the 1st - 3rd respondents started making some efforts to use the judgment delivered in the said suit to our disadvantage in two cases now pending at Anambra State High Court of Justice sitting in Onitsha (to wit: O/202/2008: The Registered Trustees of Marine Modern Market Traders Association and O/92/2014:
Vincent Sunday A. Ononye & Ors. vs. G.U. Okeke & Sons Ltd. & Ors.) that our Counsel T.U. Oguji, Esq., JP informed us about it and the need for us to appeal against it as a party having interest in the matter."
If the members of the applicant's association stay and carry on their daily trading activities and have been doing so since 1989 within the land in dispute it is preposterous for the applicant to convince this Court that though they were not parties to the proceedings covered by Exhibit "B" they did not hear rumours that the plaintiffs/respondents
and the defendants/respondents were contesting the ownership of the land they now seek to challenge the decision on appeal if this application is granted. The Supreme Court has recognized the importance of rumour-mongering at construction sites and market places in Nigeria in Adesanya vs. President Federal Republic of Nigeria (2001)
FWLR (Pt. 46) 859 per Fatayi-Williams, CJN at page 886 as follows:-
"With these observations in mind, I take significant cognizance of the fact that Nigeria is a developing country with a multi-ethnic society and a written Federal Constitution, where rumour-mongering is the pastime of the market places and the construction sites. To deny any member of such a society who is aware or believes, or is led to
believe, that there has been an infraction of any of the provisions of our Constitution, or that any law passed by any our legislative Houses, whether Federal or State is unconstitutional, access to a Court of law to air his grievance on the flimsy excuse of lack of sufficient interest is to provide a ready recipe for organized dis-enchantment with the
judicial process."
Rumour is "1. Information, often a mixture of truth and untruth, told by one person to another. 2. Gossip or common talk... 3. To be rumoured" is "to be circulated as a rumour..." See Collins English Dictionary, 2009 edition, page 661. "Rumour" can also be "1. Information or a story that is passed from one person to another and which may or
may not be true... 2. The rumour will the people, considered as a group, who discuss something and pass rumours to each other... if something is rumoured to be true, people are saying secretly or unofficially that it may be true..." A "rumour-monger" is "...someone who tells other people rumours..." See Longman Dictionary of Contemporary
English, 2007 edition, pages 1440-1441.
A "rumour" may also be "a piece of information, or a story, that people talk about but that may not be true..." but could be told or retold by a rumour-monger(s), namely, a person(s) who spreads rumours."- See Oxford Advanced Learner's Dictionary, 9th edition, page 1358. This Court may presume that the institution or existence of the suit
between the plaintiffs/respondents and the defendants/respondents in the Court below could have been the subject of discussion or rumours in Onitsha the market or construction sites or homes, etc, or where the applicant's members carry out their daily trading activities and had been doing so since 1985. The rumours could have persisted
during the course of trial to the delivery of the decision of the learned trial Judge. If the applicant had any interest in the matter in litigation they could have applied to be joined as a party in the Court below to protect their interests but certainly not to wait for the hearing and conclusion of the suit in favour of the plaintiff/respondents. Besides
the applicants is presumed to have become aware of the outcome of the decision, namely, that it favoured the plaintiffs/respondents to their detriment, hence the need to apply timeously for leave to appeal as an interested party in the proceeding. The applicant did not do so but waited from 21st January, 2013 to file this application on 13th
March, 2015. Section 167(1)(c) of the Evidence Act, 2011 provides as follows:-
"(1) The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that:-
(c) The common course of business has been followed in particular cases."
A Court of Justice is usually interested in determining the rights and interests of the parties in litigation. The title or interest of the actual parties is what the Court seised with jurisdiction, is to determine. In Anukanti vs. Ekwonyeaso (1978) 1 LRN 346, Idigbe, JSC held at pages 351 to 352 as follows:
"In the instant case, the respondent who admittedly is in possession of the land in dispute while denying the appellant's assertion that he (i.e the respondent) is on the land by permission of the appellant's ancestors maintains that he is in possession by authority of Ajuwanta who, although not a party to these proceedings, duly gave evidence
in support of the respondent's case. While on the other hand, Patrick Okoroma a descendant of Ukegbu, who, according to the respondent, was a co-pledge of the land in dispute from Ajuwana testified in support of the appellant's case and, not only confirmed the appellant's claim to ownership of the land but said, in addition, that it was the
appellant (not Ajuwana) who pledged the land to the respondent
although he soon admitted under cross-examination that the pledge incident did not take place in his presence. Be that as it may there was therefore evidence before the trial Court on which to make a categorical finding on the issue whether or not as between "A" (the appellant)
and "B" (the respondent), "B" was on the land in dispute by the grace of "C", i.e. Ajuwana (who although not a party in these proceedings was, however, a person through whom "B" (the respondent) claimed). Equally, he had inter alia, the evidence of Patrick Okoroma on which he could also have resolved the issue whether "B" (the respondent)
was on the land by the grace of "A" (the appellant). The trial Court apparently did not realize it had a duty in the circumstances to make express findings on these vital issues, and not merely to rely, in the peculiar circumstances of these proceedings, on the general principles of law enshrined in the Ekpo vs. Ita (1932) XI NLR 68 and Kodilinye
vs. Mbanefo Odu (1935) 2 WACA 336 cases. It is, however, not open to this Court which has not had the opportunity of observing the witnesses in this case give evidence, to make these important specific findings.
Again, it is the law that where one party obtains possession of land by permission of another he cannot, in law, use that possession to support a plea of jus tertii against that other. Adverting therefore to the evidence before the trial judge,we are of the view that he had a duty, in the circumstances of this case, to make express findings on the
issue whether, as claimed by the appellant, the respondent obtained possession of the land in dispute by the grace of his ancestors (i.e the appellant's ancestors); and had he made any express finding on this issue he would have been in a position to apply the above principle of law which prevents a party who is in possession of land (in this
case, the respondent) from using such possession to support a plea of jus tertii against the party from whom he obtained such possession (i.e as alleged, the appellant and his ancestors). As already stated the trial Judge had abundant evidence on which to resolve these vital issues; he however failed to do so because, in our view he did not
appreciate that he had a duty in the circumstances of these proceedings to go beyond the general principles of law enshrined in the Ekpo vs Ita and Kodilinye vs. Mbanefo Odu cases and make specific findings on the issues. Had he done so, his conclusions on the claims, based on the evidence before him, might or might not have been the
same as stated in his judgment; the fact, however, remains that the judgment from which the appellant appeals neither took into consideration nor resolved the vital issues in this case. In the circumstances, we find ourselves unable to support the judgment of the Court below. It is our view that this is a proper case for an order for re-trial in the
High Court of Imo State before another Judge.
Accordingly, this appeal succeeds."
In Okpala vs. Ibeme (1989) 3 SCNJ 152 appears the following statement of the law at page 160 as follows:
"I must begin my consideration of this issue in this appeal by pointing out that the catch expression enunciated long ago in the case of Kodilinye vs. Mbanefo Odu (supra) that in a claim for the declaration of title the onus is on the plaintiff who must rely on the strength of his own case and not on the weakness of the defence now admits of at
least two qualifications. The first is that the plaintiff can quite perfectly take advantage of those facts in the defence's case which support the plaintiff's. The second which is relevant in this appeal, is that where an issue of title to land arises in litigation the Court is concerned only with the relative strengths of the titles proved by adverse parties
in the litigation and not the titles of those not before the Court. Idigbe, JSC put this principle very succinctly in the case of Madam I. Arase vs. Peter U. Arase (1981) 5 SC 33, at p.35 where he held:
"It ought to be borne in mind always that at common law, where questions of titles to land arise in litigation the Court is concerned only with the relative strengths of the title proved by the rival claimants. If party "A" can prove a better title than party "B", he (party "A") is entitled to succeed: Per Lord Diplock in Ocean Estates Ltd. vs. Norman
Pinder (1969) 2 A.C. 19, at pp.240-25."
Decided cases show that this common law principle has been fully received in our law. In addition to Arase vs. Arase (supra) in which it was cited with approval, reference may be made to the following cases: Anukanti vs. Ekwonyeaso (1980) 1 LRN 346 p.351. Karimu vs. Fajuba (1968) NMLR 151 p.152-153; Ramonu vs. Akinwunmi" SC 106/1965
of the 23rd of June, 1966.
Applying the principle to the present appeal, it appears clear to me that the matter ought to have been decided by comparing the competing clams to the title to the land in dispute as between the appellants who have been adjudged to be part owners, and the respondents, who have been found to be strangers to the land in dispute. The
appellants have in this appeal not asked us to declare title in their favour. Rather, they are contending that an order of dismissal which has the effect of shutting them off completely from the land in dispute of which they are part owners is wrong. I have no difficulty in agreeing with them. We have not been asked to pronounce on the peculiar situation which has arisen in this case which several members of the larger unit which PW1 alone says owns the land have testified that the land is in fact exclusive property of the appellants. Nor have we been asked to declare title in this appeal in favour of the appellants. For the limited relief which is sought in the appeal, I have no difficulty
in saying that the appellants were at least entitled to an order of non-suit and that the order of dismissal is wrong."
See also Arase vs. Arase (1981) 5 SC 33 at 55 and Karimu vs. Fajuba (1968) NMLR 151 at pages 152-153.
This application is to be proved or disproved by affidavit evidence supported by documentary exhibits. The Court of Appeal ordered written addresses which the learned Counsel filed and adopted when this application was heard on 13th February, 2018 and adjourned for decision. Section 107, 116, 121(a)-(c) and 124(1)-(3) of the Evidence Act,
2011 provides as follows:-
"107. A Court may, in any civil proceeding make an order at any stage of such proceeding directing that specified facts may be proved at the trial by affidavit with or without the attendance of the deponent for cross-examination:
Provided that where a party desires the attendance of such deponent for cross-examination the Court shall require his attendance for that purpose where this would not result in unjustifiable delay or expense
116. When there are before a Court affidavits that are irreconcilably in conflict on crucial facts, the Court shall for the purpose of resolving the conflict arising from the affidavit evidence, ask the parties to proffer oral evidence as to such facts, and shall hear any such oral evidence of the deponents of the affidavits and such other witnesses as may be called by the parties.
121. A fact is said to be:-
(a) "Proved" when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does exist.
(b) "Disproved" when, after considering the matters before it, the Court either believes that it does not exist or considers its non-existence so probable that a prudent man ought in the circumstances of the particular case, to act upon the supposition that it does not exist.
(c) "Not proved" when it is neither proved nor disproved.
124(1) Proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is:-
(a) Common knowledge in the locality in which the proceeding is being held, or generally; or
(b) Capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The Court may acquire, in any manner it deems fit, knowledge of a fact to which Subsection (1) of this section refers, and shall take such knowledge into account.
(3) The Court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of such knowledge, as is necessary to ensure that the party is not unfairly prejudiced." I have not seen any material or irreconcilable conflict on any crucial facts in
the affidavit or counter-affidavit the parties have relied upon in this application. Proof shall not be required of a fact the knowledge of which is not reasonably open to question which is a common knowledge in the locality at Onitsha Market Square or where the land is situate or where the proceedings is being held, or generally among the
members of the Marine Modern Market Traders Association as provided in Section 124(1)-(3) read together with Section 121(a)-(c) and 167 of the Evidence Act, 2011. The Court of Appeal is under a mandate to take judicial notice of "the course of proceedings..." in any Court of competent jurisdiction. See Section 122(1)(m) of the Evidence Act,
2011. The onus is on the applicant to show how it is "a party interested" or "having an interest in the matter" from the record of proceedings (Exhibit "B") of 21st January, 2013. The applicants are not listed as parties or privies in the record of proceedings (Exhibit "B"). None of the exhibits tendered in the Court below by any of the
plaintiffs/respondents or defendants/­respondents in this application have mentioned the name of the applicant as a person, corporate or incorporate (See Section 18 of the Interpretation Act, Cap 128 and Section 318(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended) as a party interested or to be affected by the orders
made by the learned trial Judge on 21st January, 2013 in favour of the plaintiffs/­respondents in this application. I shall read Sections 242(1)-(2) and 243(1)(a)-(b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended to determine this application. The sections read as follows:-
"242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court Appeal
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the
Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.
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 the leave of the Federal High Court or 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 a state to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal."
The Court of Appeal is enjoined to rely on the provisions of the application under Section 242(1) and 243(1)(a)-(b) of the Constitution if the application is "(a) exercisable in the case of civil proceedings at the instance of a party thereto... or at the instance of any other person having an interest in the matter..." Section 243(1)(b) of the Constitution confers powers and authority on the Court of Appeal to be "exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal." The phrase "any Act of the National Assembly" means the Court of Appeal Act, 2004 which is
defined under Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended to wit:-
"318(1) In this Constitution, unless it is otherwise expressly provided or the context otherwise requires-
"Act" or "Act of the National Assembly" means any law made by the National Assembly and includes any law which takes effect under the provisions of this Constitution as an Act of the National Assembly."
The "rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal" in Section 243(1)(b) of the Constitution is the Court of Appeal Rules, 2016. This is defined in Order 1 Rule 5 of the Court of Appeal Rules, 2016 to mean "...these Rules or any amendment thereto or any additional Rules under the
Constitution of the Federal Republic of Nigeria, and include the Fees and Forms as contained in the Schedules to these Rules." I am conscious of the fact that this application is not brought by a party in the proceedings in the Court below (Exhibit "B") but is "...at the instance of any other person having an interest in the matter...." under Section
243(1)(a) of the Constitution. Order 6 Rule 9(1) of the Court of Appeal Rules, 2016 provides that "The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16." Order 16 Rule 1 of the Court of Appeal Rules, 2016 provides that:-
"(1) Only civil appeals in respect of breach of contract, liquidated money demand, matrimonial causes, child custody, parental actions, inheritance, chieftaincy or personal actions in tort are, at any time before an appeal is set for hearing, eligible for reference to the Court of Appeal Mediation Programme.
(2) In all cases eligible for appellate mediation programme, the appellant or the respondent to the appeal, desiring mediation, shall file with the Registrar of the Court within twenty-one days of the entering of the appeal and serve on all the parties to the appeal a request for Alternative Dispute Resolution as in Form 15 in the First Schedule to
the Rules.
(3) Any party served with a request for Alternative Dispute Resolution may, within 7 days, file a response.
(4) Pursuant to Sub-rules (1), (2) and (3) of this Rule, the Court may refer the appeal to the Court of Appeal Mediation Programme (CAMP)."
Order 6 Rule 9(1) aforementioned is referring to the Court of Appeal Rules, 2016. Time for appealing against an interlocutory or a final decision of any Court below is not provided under the Court of Appeal Rules, 2016 but under Section 24(1), (2)(a), (b)-(4) of the Court of Appeal Act, 2004 which reads as follows:-
"(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:
(a) In an appeal in civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
(b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) Where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another
application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this section."
My candid opinion is that the provisions of Order 6 Rule 9(1) of the Court of Appeal Rules, 2016 cannot be invoked by the applicant to seek leave to appeal as a person interested or as having an interest in the subject-matter in dispute except under Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. But
the applicant can invoke the provisions of Order 6 Rule 9(2) of the Court of Appeal Rules, 2016 to support the application brought under Section 242(1)-(2) and 243(1)(a) or (b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Order 6 Rule 9(1)-(2) of the Rules (supra) is couched in the following manner:-
"1. The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
2. 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. When time is so enlarged a copy of the Order
granting such enlargement shall be annexed to the Notice of Appeal."
Order 6 Rule 9(2) of the Court of Appeal Rules, 2016 covers "Every application for an enlargement of time within which to appeal..." etc. This could be under Section 24(1)(a), (b), (2)-(4) of the Court of Appeal Act, 2004 or Section 242(1)-(2) and 243(1)(a)-(b) of the Constitution. The provisions of Order 6 Rule 9(2) of the Court of Appeal Rules,
2016 and Section 24(1)-(4) of the Court of Appeal Act, 2004 are of general application. Section 243(1)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended is a specific provision governing an application for leave to appeal "at the instance of a party thereto" or "...at the instance of any other person having an
interest in the matter..." See Section 243(1)(a) of the Constitution. In Government of Kaduna State vs. Kagoma (1982) 6 SC 87 Fatayi-Williams, JSC held at pages 107-108 as follows:-
"It is now trite that where there are two enactments one making specific provisions, the specific provisions are by implication excluded from the general provisions." In Osadebay vs. Attorney-General of Bendel State (1991) SCNJ 102, Nnaemeka-Agu, JSC held at page 218 to wit:-
One of the basic principles of interpretation of our construction and statutes is of course that the law maker will not be presumed to have given by the right in one Section and taken it in another.
In Attorney-General of the Federation vs. Abubakar (2007) All FWLR (Pt. 375) 405 at 472, Onu, JSC expounded the law as follows:
For the Court to enact or write into the Constitution what its makers failed to insert would amount to the Court enacting laws and as Lord Simmons described such an act a naked usurpation of legislative functions under the thin disguise of interpretation, and it is the less justifiable when it is guess work with what material the legislature would
if it had discovered the gap, have filled it in. if a gap is disclosed, the remedy lies in an amending Act. See Magor & St. Mellons Rural District Council vs. Newsport Corp. (1951) 2 All ER 839 at 841.
It is not the function of the Court to make law but to interpret the words used by the legislature whose primary function is to make the law while that of the Court is to declare it. Assuming the Court has the power of making a legislation, without so deciding, it is doubtful if the law given as a result of the interpretation of Section 146(3)(c) would
affect the plaintiffs right or interest which it had vested. The enactment purportedly made in the course of this judgment would clearly not be applicable to the circumstances of this case. See Samuel Ekeocha vs. Civil Service Commission, Imo State & Anor. (1981) 1 NCLR 154, 165 per Oputa, CJ(as he then was). See also Re Cuno (1889) 43
Ch.D 12, 19 where Bower, LJ remarked thus: In the construction of statutes you must not construe the words so as to take away right which already existed before the statute was passed unless you have plain words which indicate that such was the intention of the legislature.
Another factor militating against the contention of the counter-claimant is that where there are two enactments one making specific provisions and the other general provisions, the specific provisions are impliedly excluded from the general provisions. See Government of Kaduna State vs. Kagoma (1982) 6 SC 87 at 107-108 per Fatayi-Williams,
CJN:
"It is now trite that where there are two enactments one making specific provisions, the specific provisions are by implication excluded from the general provisions. Similarly, in Osadebay vs. Attorney-General, Bendel State (1991) SCNJ 102 at 218, Nnaemeka-Agu, JSC stated inter alia thus:
"One of the basic principles of interpretation of our construction and statutes is of course that the law maker will not be presumed to have given by the right in one Section and taken it in another."
The sum total of these authorities is that the general provision contained in Section 146(3)(c) will by implication be excluded from the previous specific provisions enacted in Section 146(3)(a) and (b) because it cannot be presumed that the intention of the makers of the construction is to give a right with one hand and take same away by
another. See pages 277-279 of the records. It is submitted that the above findings and pronouncements are correct and unassailable in law." The inherent jurisdiction of the Court of Appeal is provided in Section 6(1) and (5)(b) and (6)(a)-(d) of the Constitution of the Federal Republic of Nigeria, 1999 as amended in the following manner:-
"6(1) The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation.
(5) This section relates to:-
(b) The Court of Appeal;
(6) The judicial powers vested in accordance with the foregoing provisions of this section:-
(a) Shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law
(b) Shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;
(c) Shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution;
(d) Shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law."
Where there is specific provision in the Constitution or an Act of the National Assembly or the Rules of Practice and Procedure of a Court of Justice, it is not within the province of a party or the Court to purport to derive or exercise powers, authority or jurisdiction from the general provisions of the Constitution, the Act of the National Assembly,
the Rules of Practice and Procedure of the Court of Appeal nor to invoke the inherent (equitable jurisdiction) of the Court to obtain a remedy.
There can be no inherent jurisdiction to appeal or to seek extension of time to appeal, in this case, outside the provisions of Section 243(1)(a) or (b) of the Constitution "...at the instance of any other person having an interest in the matter..." outside the provisions of the Constitution which confers powers of granting leave on the Court of
Appeal. The right of appeal or the right to obtain extension of time to appeal as a person interested in the matter in dispute is restricted to Section 243(1)(a)-(b) of the Constitution. See Maja vs. Johnson 13 WACA 194; Johnson vs. Aderemi 13 WACA 297; Akande vs. General Electric Co. (1979) 3 LRN 187 at 192-193; Jarmakani vs. Kalla (1965)
NMLR 194 and Sun Insurance Co. vs. Ojemojina (1965) 1 All NLR 1. In Maxwell on the Interpretation of Statute by P. St. J. Langan, 12th edition, page 285 appears the following statement:-
"Where a statute confers a power, and particularly one which may be used to deprive the subject of proprietary rights, the Court will confine those exercising the power to the strict letter of the statute. So in discussing the Town and Country Planning Act, 1947, Viscount Simonds approved the proposition that it "was highly technical and, as it encroached on private rights, the Court must insist on strict and rigid adherence to formalities."
See East Riding County Council vs. Park Estate (Bridlington), Ltd. (1957) A.C. 223. The applicant has to show how her interest arose in the subject-matter covered by the proceedings in Exhibit "B" before this Court will grant her leave to appeal under the provisions of Section 243(1)(a) of the Constitution of the Federal of Nigeria, 1999 as
amended as"...any other person having an interest in the matter. "The applicant has to also comply with the provisions of Order 6 Rule 9(2) of the Court of Appeal Rules, 2016. These three conditions precedent must be shown to co-exist for the application to be granted." Per TUR, JCA.(Pp.1-41,Paras.A-C).

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