(2018) LPELR-44758(CA)

Transcription

1 SURU WORLDWIDE VENTURES (NIG) LTD v. ASSET MANAGEMENT CORPORATION OF (NIG) & ORS CITATION: In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON WEDNESDAY, 20TH JUNE, 2018 Suit No: CA/L/1257/2017(R) MOHAMMED LAWAL GARBA JOSEPH SHAGBAOR IKYEGH YARGATA BYENCHIT NIMPAR Before Their Lordships: Between SURU WORLDWIDE VENTURES NIGERIA LTD Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal And 1. ASSET MANAGEMENT CORPORATION OF NIGERIA [AMCON] 2. INSPECTOR GENERAL OF POLICE 3. COMMANDANT- GENERAL OF THE CORPS NIGERIA SECURITY AND CIVIL DEFENCE CORPS 4. LAGOS STATE COMMANDANT OF THE CORPS, NIGERIA SECURITY AND CIVIL DEFENCE RATIO DECIDENDI - Applicant(s) - Respondent(s)

2 1. APPEAL - APPEAL BY INTERESTED PARTY: Whether there is a time limit within which an application for leave to appeal as an interested party may be brought/nature of the application for leave to appeal as an interested party "The right of a party to seek leave to appeal is rooted in the Constitution and particularly Section 243(1) of the 1999 Constitution. It requires that such a party must seek for leave of either the lower Court or the Court of appeal before he can file an appeal, it provides thus: "Any right of appeal to the Court of Appeal from the decision 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 of 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 Attorney General of the Sate to take over and continue or to discontinue such proceedings, at the instance of such other authorities or person 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 the Appeal." The apex Court held in a few cases that there is no time limit as to when a party interested can seek leave to appeal as party interested. That therefore makes the prayer for extension of time within which to appeal as party interested, any such prayer is in appropriate, see CHUKWU & ANOR V INEC &ORS (2014) LPELR (SC) thus: "Pursuant to Section 243 (1) (a) of the Constitution, a party interested in an appeal, who was not originally a party to the decision complained of, must first seek leave as an interested party. There is no time limit within which the application for leave to appeal as an interested party may be brought. See: In re Madaki (1996) 7 NWLR (Pt. 459) 164 A-B. Once he is granted admittance into the proceedings, he must then comply with the requirements of the law in the same manner as any other party. In other words, if he is out of time to appeal, he requires the trinity prayers. See: Owena Bank (Nig.) Plc v. N.S.E. Ltd. (supra). Since he is in the category of persons who require leave, ab initio, in order to participate in the proceedings, the application for leave to appeal as an interested party, cannot be subsumed in the trinity prayers. It is a separate relief." Per KEKERE-EKUN, J.S.C. From above, prayer one seeking enlargement of time is therefore unnecessary and therefore in appropriate in the present circumstance of this case. In the same vein trinity prayers cannot be made at this stage of the proceedings where the applicant is yet to obtain leave to appeal as party interested, since he is not a party and is yet to be joined, he cannot seek trinity prayers which is only available to existing parties in an appeal. The applicant is a party seeking leave to appeal as a party interested because the decision it seeks to appeal against was made in its absence."per NIMPAR, J.C.A. (Pp , Paras. B-G) - read in context

3 2. APPEAL - APPEAL BY INTERESTED PARTY: Duty of a person seeking to appeal as an interested party "In considering leave to appeal, Courts of record have interpreted the Constitutional provision and came up with requirements necessary in an application like this, it is now settled that there are two main requirements an applicant must establish before leave can be granted to appeal, and with particular reference to a party interested the apex Court set the standard in the case of CPC & ANOR V NYAKO & ORS (2011) LPELR (SC) as follows: "...It is trite law that for an Applicant to be granted leave to appeal as a person interested in the matter as prescribed under Section 233(5) of the 1999 Constitution, he must show that he is a person who is aggrieved and has suffered a legal grievance, against whom a decision has been pronounced, which has wrongfully deprived him of something or wrongly refused him something or wrongfully affected his title to something. In Re: IJELU (supra) it was held that the applicant, in short, must show not only that he is a person interested but also that the order made pre-judicially affected his interest. See further: UBAGU & Ors. v. OKACHI & Ors. (1964) 1 All NLR 36; SUN INSURANCE OFFICE LTD v. OJEMUYIWA (1965) 1 All NLR 1; and JARMAKANI TRANSPORT LTD v. ALHAJI KALLA (1965) NMLR 194 IKONNE v. C.O.P & Anor (1986) 4 NWLR (pt.36) 473 at 479 and MAJA v. JOHNSON 13 WACA 194." How to determine a person interested in an appeal is simply whether the person could have been joined as a party in the first place, at the Court below. The applicant must show interest in the subject matter of the dispute to show he might therefore have been a party in the suit at the Court below. A person having interest has been judicially defined as including a person affected or likely to be affected or aggravated or likely to be aggrieved, see HARRY AKANDE V GENERAL ELECTRIC (1979) 4 SC 775. A person aggrieved or a person or a person having an interest means a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something. That a right of appeal has enured to him. The decision must cause the applicant some grief, loss, disadvantage rights or positions, OWENA BANK V NSE LTD (1997) 8 NWLR (Pt. 515) and ONIFADE & ORS V OLORUNFUNMI (2014) LPELR (CA). The Supreme Court in the case of CHUKWU V INEC & ORS (2014) 10 NWLR (Pt. 1405) 385, which also endorsed the position taken in the case of OMOTESHO V ABDULLAHI (2008) 2 NWLR (Pt. 1072) 526 that: "Before a person who was not a party can be permitted to appeal under the provisions of the Constitution, such a party ought to show that he is interested or aggrieved by the decision sought to be appealed against. His interest must be shown from the record before the Court and not materials garnered from the affidavit in support of the application for leave to appeal as an interested party itself. The appeal will not be heard and determined on extraneous matters but on the record of appeal." It obvious from the above quoted portion of the Supreme Court's judgment that relevant materials to support the application are the affidavit which ordinarily should have attached to it required materials. One of such documents to annex to the supporting affidavit as stated by the apex Court is the record of proceedings which along the affidavit are the basic materials from which to determine the application. It has been settled by a plethora of authorities that the applicant can only satisfy the requirement in support of an application to appeal as an interested party by deposing to relevant facts in the affidavit(s) in support. The Applicant must demonstrate his interest from the record of appeal."per NIMPAR, J.C.A. (Pp , Paras. A-A) - read in context

4 3. APPEAL - APPEAL BY INTERESTED PARTY: Duty of a person seeking to appeal as an interested party "What happened on the next adjourned dates leading to the judgment delivered on the 30/5/2017 was not attached to this application. There is judgment without seeing when the originating summons was heard. The judgment has no foundation in the record proceedings attached as Exhibit B1. What is before the Court as record of proceedings is incomplete. There is also Exhibit E which is purported to be Record of proceedings but it is for a different suit- FHC/L/CS/218/14 between AMCON v SURU WORLDWIDE VENTURES NIG. LTD before Idris J., conducted on the 22/6/2015 long before the proceedings leading to the application. The suit that led to this application is FHC/L/CS/1059/2016. Therefore, the record of proceedings is not those conducted behind the applicant for which it now seeks to join, more so, the applicant was a party therein, obviously making it contrary to the application under consideration. There is therefore incomplete record from which the critical issue for consideration here can be determined. The need to have the record of proceedings was reiterated by this Court in the case of OTTI & ORS V OGAH & ORS (2016) LPELR-40846(CA) which held thus: "An applicant seeking to appeal as an interested party has to disclose his interest in the record of proceedings before the Court, and not in an affidavit in support of his application. The reason is simple. The appeal would be determined on the record of appeal and not on affidavits and other extraneous materials." PER YAHAYA, JCA Leave to appeal is simply getting the permission of the Court to present a challenge to the judgment or decision sought to be appealed against. An appeal is a continuation of hearing and in this case, one that was started in the absence of the applicant who now seeks to join to be heard. A party who is a victim of the execution of a judgment of the Court certainly has interest in further hearing of the matter. Whether the appeal will succeed or not is not in issue at this stage, see OBIKOYA V WEMA BANK LIMITED (1989) LPELR-2176(SC) which held as follows: "In principle, when dealing with an application for leave to appeal, an applicant is not required to show that the appeal would succeed if leave is granted. It is sufficient to show that there is an arguable appeal. Or, to put it another way, it is enough to show a prima facie case that the Court from whose decision leave to appeal is sought committed an error of law or has failed to exercise its discretion judicially; or has based the exercise of such discretion on wrong principles." A chance to be heard conforms with fair hearing principle and also our Constitution. A party who has allegedly suffered from the execution of the order of Court should be heard. That would still give the 1st respondent the opportunity to forward its case, justify and defend the judgment sought to to be appealed against. An appeal is a right and in this case subject to leave which the applicant now seeks to enable it appeal but in this case it is conditional to obtaining leave of Court either of the Court below or this Court. In this case, basic and fundamental material needed to enable the Court exercise its discretion is lacking and the Court cannot speculate on the missing aspects of the record. Absence of it has serious impact on the chances of this application. The application cannot be considered in the absence or on incomplete record. This is in addition to the incompetent prayers on the motion paper. The applicant sought for leave to appeal against the judgment of Idris, J and not the Federal High Court as circumscribed by the 1999 Constitution as Altered, Section 240 of the said Constitution provided for the powers of this Court to determine appeals from certain Courts, it states: "240. Subject to the provision of the Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of the State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia court of Appeal of a State and from decisions of a Court martial or other Tribunals as may be prescribed by an act of the National Assembly." It is crystal clear it did not mention the name of any judge but Courts. It is therefore wrong for applicant to not mention the Court but the judge who handed down the decision. In fact, the suit number and parties were not provided thereby making the application vague and lacking material particulars. Granting an application to a party interested to appeal where made out is in line with principles of fair hearing as stated in the Supreme Court case of WAZIRI V GUMEL (2012) LPELR-7816(SC) which held thus: "It is the duty of Courts at all times to ensure a fair determination of issues between the parties and in that regard the purpose of granting leave for a party to be joined as an interested party on appeal is to enable justice to be done between the parties." Per Rhodes- Vivour, J.S.C. However, in the absence of relevant materials, the application for leave to appeal as party interested cannot be considered."per NIMPAR, J.C.A. (Pp , Paras. D-A) - read in context

5 4. EQUITABLE REMEDY - INJUNCTION: Whether an injunction can lie to restrain an event that has already taken place or a completed act "Injunction is defined in the case of KUBOR V DICKSON (2012) LPELR-9817 (SC) thus: "It settled that an injunction is a judicial process or mandate operating in personam by which upon certain established principles of equity, a party is required to do or refrain from doing a particular thing. An injunction is also a writ framed according to the circumstances of the case, commanding an act which regards as essential to justice or restraining an act which it deems contrary to equity and good conscience." Injunction are of various types, the type sought for by the applicant is interlocutory injunction which is simple to restrain the continuation of the execution of the judgment of the Court sought to be appealed against pending the determination of an appeal. It is to regulate the activities of the parties pending determination of a legal process. It is a preventive relief against injury or mischief and to preserve the status quo. There a set of 7 conditions precedent to the grant of an injunction usually with regards to a pending judicial process. The applicant conditioned the order of injunction pending appeal. The question to ask without going far, is whether there is an appeal pending between the parties herein? Obviously, there no appeal yet. An appeal process is initiated by a Notice of Appeal duly filed and there is none here. The applicant has not yet filed a Notice of appeal and therefore cannot consider himself an appellant. Furthermore, execution has been completed concerning No.12 Allen avenue housing the hotel run by Best Western Group. An injunction cannot therefore be issued on a completed act, see IDEOZU & ORS V OCHOMA & ORS (2006) LPELR-1419 (SC) which restated the settled position of law that an injunction is not granted for a completed act. The applicant exhibited pictures of the execution carried by the Respondents, that having carried out, cannot be restrained retroactively and applicant is asking for restorative injunction. Flowing from the fact that there is no appeal pending, the prayer for injunction is premature and cannot be granted."per NIMPAR, J.C.A. (Pp , Paras. F-D) - read in context

6 YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Lead Ruling): This Ruling is premised on an application brought by way of a Motion on Notice by the Applicant praying the Court for the following reliefs: i. AN ORDER of the Honourable Court extending time within which the Appellant/Applicant may apply for leave to appeal Judgment of Hon. Justice M.B. Idris of the Federal High Court delivered on 30/5/2017 as a party having an interest in the case. ii. AN ORDER of the Honourable Court granting leave to the Appellant/Applicant to appeal to this Honourable Court against the Judgment of Hon. Justice M.B Idris of the Federal High Court delivered on 30/5/2017, as a party affected and having an interest in the subject matter of the suit. iii. AN ORDER of the Honourable Court extending time within (sic) the Applicant may file Notice and Grounds of Appeal against the Judgment of Hon. Justice M. B Idris of the Federal High Court delivered on 30/5/2017 as party affected/interested in the case. iv. AN ORDER deeming the already filed and served Appellant/Applicant s Notice of Appeal as properly filed 1

7 and served and/or in the alternative AN ORDER for leave to refile same. v. AN INTERLOCUTORY ORDER OF THE HONOURABLE COURT: (a) Suspending forthwith the execution and/or further continuing execution howsoever of the judgment/orders of the Honourable trial Court made in this suit on 30th day of May, 2017 as per the judgment/enrolled order (Exhibit A ) attached to this application. (b) Restraining the Respondents either by themselves, Agents and/or Officers or servants howsoever described from interfering with or otherwise continuing to interfere with Appellant/Applicant s peaceable possession of the properties contained in the said judgment/order and its businesses being conducted thereat, pending the hearing and determination of the appeal pending before the Honourable Court. The application was founded on the following grounds: i. The Judgment obtained by the 1st Respondent against the 2nd 4th Respondents who have no interest in the subject matter of the suit on 30/5/17, and being appealed against by the Appellant was obtained against the Appellant s properties situate at No. 86, Opebi Road, Ikeja, 2

8 Lagos, No. 12 Rev. Ogunbiyi Street, GRA, Ikeja, Lagos and No. 12, Allen Avenue, Ikeja, Lagos State, without the Appellant who are the owners of the said properties being joined as a party to the suit at the lower Court. To make it impracticable for the Appellant to appeal against the said judgment within time, the 1st Respondent who is being represented by the same law firm of Messrs Joseph Nwobike SAN & Co; who obtained the said judgment on its behalf as well as in suit No. FHC/L/CS/450/11 in which the alleged indebtedness is a live issue kept the said judgment away from the Appellant till 30/8/2017 when the Respondents brought the judgment to the Applicant s premises in purported execution of the said judgment. ii. After the Appellant became aware of the said judgment on 30/8/2017, it timeously filed applications before the lower Court seeking to set aside the said judgment and purported Execution or suspend continuing execution thereof but the lower Court did not accede to these requests in spite of the decision of the Supreme Court in BANQUE GENEVOISE DE COMMERCE ET DE CREDIT V. CIA. MAR. DI ISOLA SPETSAI (1962) 1 ALLWR 496 brought to its attention. 3

9 iii. The said judgment of the lower Court delivered on 30/5/2017 is a nullity ab initio for want of jurisdiction and completely stole a match on the Appellant/Applicant. iv. The Judgment and/or orders of the trial Court obtained by the 1st Respondent on 30th May, 2017 are ostensibly against the Appellant/Applicant and meant to be enforced against it yet the 1st Respondent deliberately chose not to make the Appellant/Applicant a party to the suit. It chose instead to sue the 2nd to 4th Respondents on record, whom the 1st Respondent knew or ought to know have no interest nor stake in the alleged debt or properties in issue in this case and which 2nd 4th Respondents, for obvious reasons, did not defend the suit whereby the 1st Respondent as Plaintiff obtained the judgment as an undefended suit. v. The appellant/applicant who is a necessary party was not joined in the suit nor heard before the judgment obtained by the 1st Respondent and being purportedly executed against it was obtained. vi. The Judgment/or orders were obtained by the 1st Respondent as Plaintiff against the 2nd 4th Respondent 4

10 as a décor when the real target and victim of the suit is the Applicant whom it refused to join thereby deceiving the trial Court. vii. The depositions in support of the Originating Motion upon which the judgment and/or orders of the Trial Court were predicated were untrue but the Applicant had no opportunity of contradicting same. viii. No Demand Notice, known to law or at all, for recovery of any alleged due debt or recovery of possession of the properties in issue, as stipulated by law, was served on the Appellant/Applicant prior to the filing of the said Originating motion. ix. The Respondents exceeded the orders and judgment of the Federal High Court in their purported execution and continuing execution of the said judgment having regard to the excessive force applied against staff, occupiers and innocent Lodgers at the hotel on 12 Allen Avenue, Ikeja. x. The 1st Respondent did not comply with extant provisions of the Judgment (Enforcement) Rules Cap 56 Laws of the Federation of Nigeria 2004 in the purported execution and continuing execution of the orders of this Honourable Court namely: Order XI Rule 5. 5

11 xi. The continuing invasion and/or siege on the Appellant/Applicant s business premises one of which is a four star Hotel (No.12 Allen Avenue, Ikeja, Lagos State) will bring the Appellant/Applicant s business to irredeemable ruin unless the spiral drift is promptly arrested by this Honourable Court. xii. The interest of Justice will be better served with the grant of this Application as the continuing lock down particularly of best Western Hotel on 12 Allen Avenue, Ikeja, Lagos State will do irreparable damage to its international Brand reputation including the perishable goods and equipment therein forcibly shut down. xiii. There is no proven debt till date recoverable by the 1st Respondent against the Appellant/Applicant as the 1st Respondent s claims for recovery of Appellant/applicant s alleged indebtedness to it remains pending before Hassan J. of the Federal High Court, Lagos while its earlier claim was dismissed by the Federal High Court. xiv. To enable Appellant/Applicant exercise it s constitutionally guaranteed Right to fair hearing and unfettered thereby. 6

12 xv. If the Appellant were given the opportunity of being heard by the Trial Court before judgment was given against it, the Appellant would have shown the Court that the Purported Deeds of Legal Mortgage relied upon by the 1st Respondent to obtain the said judgment are not valid in law for want of due Execution and in the terms they purport to represent and that if assuming without conceding that the said Legal Mortgages are valid in law (which is denied) the orders sought and obtained by the 1st Respondent behind the back of the Appellant/applicant are in flagrant disregard of their extant terms given that the Applicant was admittedly in effective, peaceable possession of the properties for its Business before the Plaintiff forcibly entered upon the properties and without any prior Notice to the Appellant/Applicant as required by law and the purported Deeds. xvi. S.32 of the Amcon Act 2010 (as amended) which established the Plaintiff/1st Respondent already provides for sufficient indemnity in favour of the Plaintiff/Respondent having regards to their alleged debt purchase from ECOBANK, Bankers to the Appellant. xvii. That the interest of justice will be better served by the grant of this Applicant. 7

13 xviii. The orders sought ought in the circumstances to be granted ex debito justitiae. This application is supported by an affidavit of 19 paragraphs deposed to by David O. Owoeye and with Exhibits A to F annexed and these are a copy of the judgment being sought to be appealed against; a copy of a letter from Oceanic bank dated 10/10/2008; certified True copy of the Deed of Legal Mortgage; acknowledgement copy of the Appellant s letter forwarding its motion; a copy of the certified True Copy of the Originating process, proceedings and dismissal order and a copy of the Notice of Appeal. The Applicant again filed a further affidavit of 10 paragraphs sworn to by Olutobi Christopher Adeogun filed on 13/12/17, of 10 paragraphs and with Exhibits A, B, C which are Certified True Copies of Ruling, Counter Claim and Notice of Appeal and Exhibits E1 E8, these are pictures. Another further affidavit sworn to by Peace Anomneze filed on the 1/4/18 and of 15 paragraphs with annexures attached and marked as Exhibits A - the Ruling of Hassan J., dismissing the claim; Exhibit B - a copy of a letter disowning another letter; a copy of the 1st 8

14 Respondent Counter affidavit to which some pictures of No.12 Allen Avenue Ikeja, to which some pictures are attached as Exhibit- C1-C4; Exhibit D is the picture of the Managing Director of the Applicant and Exhibit E is a copy of a letter of offer from Oceanic bank dated 10/10/2008. The applicant also filed a 2nd further affidavit on the 28/4/18 of 24 paragraphs with Exhibits A- a copy of the admission card and Exhibit B1 and B2, these are copies of the certified true copies of the record of proceedings before the trial Court, Coram Idris J., dated 31/1/2017 and Application for hearing date by counsel to 1st Respondent. Learned Senior Counsel in making the application relied on the affidavit and further affidavits and all the exhibits attached thereto to urge the Court grant the application. The 1st Respondent in opposition filed a counter affidavit of 9 paragraphs sworn to by Felix Deckon on the 13/4/18 with Exhibits A - E and these are: Exhibit A - copies of 12 offer letters; Exhibit B - 7 copies of irrevocable promissory notes of different dates; Exhibit C are copies of letters and irrevocable Domicilation of Receivables Agreement; Exhibit 9

15 D - copies of the personal guarantees of Mr. Edward Akinlade, the Managing Director of the Applicant; Exhibit E - copies of registered deeds of legal Mortgage over the properties; Exhibit-F are copies of Applicant s letter acknowledging its indebtedness to the 1st Respondent; Exhibit G - a copy of a letter issued by the Respondent in compliance with Clause 5 and 13 of the Deed of Legal Mortgage dated 14th January, 2016; Exhibit - H are copies of pictures which the 1st Respondent took showing the peaceful execution of the judgment of the Court with fixtures and fittings of the property situate at No. 12 Allen Avenue, Ikeja intact and in good condition; Exhibit I- A copy of Applicant counsel s letter dated 4th September, The 1st Respondent also filed a further counter affidavit of 14 paragraphs sworn to by Felix Deckon on the 18/4/18 and attached are Exhibits F1, F2, F3, F4, F5, G and H, these are (F1-F5) letters acknowledging the applicant s indebtedness; 1st Respondent s demand Notice and a copy of Civil Form 6 dated 23rd March, 2018 along a Notice of Appeal dated 23rd March, 2018 served on the 1st Respondent on the 26th March

16 There is also a 2nd Further Counter Affidavit again sworn to by Felix Deckon and filed on the 30/4/18 and of 5 paragraphs. The 1st Respondent relied on all the paragraphs of the counter affidavits to urge the Court to refuse the application. Parties made oral submissions in respect of the application. The reliefs sought were highlighted earlier in this application, fundamentally, it seeks leave to appeal and injunctive reliefs. For a start, the application is made as a party interested seeking leave to appeal against the Judgment of Federal High Court coram: Idris J., given on the 30/5/2017 wherein he made the following orders: AN ORDER is made directing the defendants, jointly and severally whether personally and/or through officers and men under their command and control, to assist the Plaintiff, its officers, agents, and representatives howsoever described in exercising its rights as a legal mortgagee under the Deeds of legal Mortgage registered as 32/32/2033, pursuant to in furtherance of the exercise and/or discharge of its powers functions and duties as the Legal Mortgage of the said properties. 11

17 The 1st Respondent by Originating motion dated 4th August, 2016 prayed for the following orders: i. AN ORDER directing the Defendants jointly and severally, whether personally and/or through officers and men under their command and control, to assist the plaintiff, its officers agents, and representatives howsoever described, in exercising its rights as a legal mortgagee under the Deeds of Legal Mortgage registered as 32/32/2028 respectively. ii. AN ORDER directing the Defendants, jointly and severally, whether personally and/or through officers and men under their command and control, to assist the Plaintiff, whether acting through its officers and control, to assist the Plaintiff, whether acting through its officers, agents and representatives howsoever described in maintaining peace, order and for the protection of its exclusive possessory rights and powers over the properties located at No. 86, Opebi Road, Ikeja, Lagos Sate, No. 12 Reverend Ogunbiyi Street, G.R.A. Ikeja, Lagos state and No.12 Allen Avenue, Ikeja, Lagos Sate pursuant to and in furtherance of the exercise and /or discharge of its powers, functions and duties as the Legal Mortgage of the said properties. 12

18 iii. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances. Looking at the prayers on the motion paper, one can clearly decipher two angles to the application, the first one is for leave to appeal as party interested and the second leg is the prayer for injunction. The right of a party to seek leave to appeal is rooted in the Constitution and particularly Section 243(1) of the 1999 Constitution. It requires that such a party must seek for leave of either the lower Court or the Court of appeal before he can file an appeal, it provides thus: Any right of appeal to the Court of Appeal from the decision 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 of 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 13

19 powers conferred upon the Attorney General of the Federation or Attorney General of the State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or person 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 the Appeal. The apex Court held in a few cases that there is no time limit as to when a party interested can seek leave to appeal as party interested. That therefore makes the prayer for extension of time within which to appeal as party interested, any such prayer is in appropriate, see CHUKWU & ANOR V INEC &ORS (2014) LPELR (SC) thus: Pursuant to Section 243 (1) (a) of the Constitution, a party interested in an appeal, who was not originally a party to the decision complained of, must first seek leave as an interested party. There is no time limit within which the application for leave to appeal as an interested party may be brought. See: In re Madaki (1996) 7 NWLR (Pt. 459) 164 A-B. 14

20 Once he is granted admittance into the proceedings, he must then comply with the requirements of the law in the same manner as any other party. In other words, if he is out of time to appeal, he requires the trinity prayers. See: Owena Bank (Nig.) Plc v. N.S.E. Ltd. (supra). Since he is in the category of persons who require leave, ab initio, in order to participate in the proceedings, the application for leave to appeal as an interested party, cannot be subsumed in the trinity prayers. It is a separate relief." Per KEKERE- EKUN, J.S.C. From above, prayer one seeking enlargement of time is therefore unnecessary and therefore in appropriate in the present circumstance of this case. In the same vein trinity prayers cannot be made at this stage of the proceedings where the applicant is yet to obtain leave to appeal as party interested, since he is not a party and is yet to be joined, he cannot seek trinity prayers which is only available to existing parties in an appeal. The applicant is a party seeking leave to appeal as a party interested because the decision it seeks to appeal against was made in its absence. 15

21 In considering leave to appeal, Courts of record have interpreted the Constitutional provision and came up with requirements necessary in an application like this, it is now settled that there are two main requirements an applicant must establish before leave can be granted to appeal, and with particular reference to a party interested the apex Court set the standard in the case of CPC & ANOR V NYAKO & ORS (2011) LPELR (SC) as follows: "...It is trite law that for an Applicant to be granted leave to appeal as a person interested in the matter as prescribed under Section 233(5) of the 1999 Constitution, he must show that he is a person who is aggrieved and has suffered a legal grievance, against whom a decision has been pronounced, which has wrongfully deprived him of something or wrongly refused him something or wrongfully affected his title to something. In Re: IJELU (supra) it was held that the applicant, in short, must show not only that he is a person interested but also that the order made prejudicially affected his interest. See further: UBAGU & Ors. v. OKACHI & Ors. (1964) 1 All NLR 36; SUN INSURANCE OFFICE LTD v. OJEMUYIWA (1965) 1 All NLR 1; and JARMAKANI TRANSPORT LTD v. ALHAJI KALLA 16

22 (1965) NMLR 194 IKONNE v. C.O.P & Anor (1986) 4 NWLR (pt.36) 473 at 479 and MAJA v. JOHNSON 13 WACA 194." How to determine a person interested in an appeal is simply whether the person could have been joined as a party in the first place, at the Court below. The applicant must show interest in the subject matter of the dispute to show he might therefore have been a party in the suit at the Court below. A person having interest has been judicially defined as including a person affected or likely to be affected or aggravated or likely to be aggrieved, see HARRY AKANDE V GENERAL ELECTRIC (1979) 4 SC 775. A person aggrieved or a person or a person having an interest means a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something. That a right of appeal has enured to him. The decision must cause the applicant some grief, loss, disadvantage rights or positions, OWENA BANK V NSE LTD (1997) 8 NWLR (Pt. 515) and ONIFADE & ORS V OLORUNFUNMI (2014) LPELR (CA). The Supreme Court in the case of CHUKWU V INEC & ORS (2014) 10 NWLR (Pt. 1405) 385, which also endorsed the 17

23 position taken in the case of OMOTESHO V ABDULLAHI (2008) 2 NWLR (Pt. 1072) 526 that: Before a person who was not a party can be permitted to appeal under the provisions of the Constitution, such a party ought to show that he is interested or aggrieved by the decision sought to be appealed against. His interest must be shown from the record before the Court and not materials garnered from the affidavit in support of the application for leave to appeal as an interested party itself. The appeal will not be heard and determined on extraneous matters but on the record of appeal. It obvious from the above quoted portion of the Supreme Court s judgment that relevant materials to support the application are the affidavit which ordinarily should have attached to it required materials. One of such documents to annex to the supporting affidavit as stated by the apex Court is the record of proceedings which along the affidavit are the basic materials from which to determine the application. It has been settled by a plethora of authorities that the applicant can only satisfy the requirement in support of an application to appeal as an 18

24 interested party by deposing to relevant facts in the affidavit(s) in support. The Applicant must demonstrate his interest from the record of appeal. Now to the determination of whether the applicant herein has presented the required materials for the grant of the application? There also the question is whether the applicant herein has shown how the decision sought to be appealed against affects it and the proposed Notice of appeal showing arguable grounds that deserve to be determined. The contention here stems from the application made and granted by the Court below directing the 2nd to 4th Respondents to assist the 1st Respondent in taking over certain properties of the applicant namely, No. 86 Opebi Road, No. 12 Rev. Ogunbiyi Street and No.12 Allen Avenue all in Ikeja, Lagos State. The applicant claims ownership of the properties, it is also not in dispute that the applicant and the 1st Respondent are currently locked in legal battles over mortgage and outstanding loans unpaid by the applicant. It was in exercise of the mortgagee right to take over a mortgaged property that led the 1st Respondent to apply for assistance to take over the property as an unpaid mortgagee pursuant to its right in the Deed of Legal Mortgage. 19

25 The applicant in the affidavit in support and several further affidavits established its interest, how its business is affected and property destroyed by the execution carried out without its knowledge. That position was challenged by the 1st Respondent and both sides annexed so many exhibits in support of their respective positions. I must admit that the deluge of materials went beyond the relevant materials required at the consideration of the application such as this. Going through the affidavits in support, the applicant clearly substantiated his interest in the property the subject of the execution and assisted by the 2nd-4th Respondents pursuant to the judgment sought to be appealed against. The applicant also established the fact that the judgment was entered in its absence as it was not put on notice. That is also obvious from a copy of the judgment attached to the application. The applicant also attached a proposed Notice of Appeal which it proposes to file for the hearing of the appeal. 20

26 The applicant annexed Exhibit B1 and B2 as purported record of proceedings, these are the record of the proceedings, they were attached to the 2nd Further Affidavit filed on the 28/4/18. They are the record of the 31/01/ Exhibit B1 and Exhibit B2 is a copy of the letter from 1st Respondent s counsel applying for a date for hearing. Exhibit B2 shows that the matter when the matter came up that day, the Court s record reads: Parties: Absent Counsel: G.Nwelunyo with K. Kpuadi for the Palintiff Nwelunyo Esq: The parties are discussing settlement. Court: Matter is adjourned to 31/3/17 Signed M. B. IDRIS JUDGE 31/01/2017. What happened on the next adjourned dates leading to the judgment delivered on the 30/5/2017 was not attached to this application. There is judgment without seeing when the originating summons was heard. The judgment has no foundation in the record proceedings attached as Exhibit B1. What is before the Court as record of proceedings is incomplete. There is also Exhibit E which is purported to be Record of proceedings but it is for a different suit- FHC/L/CS/218/14 between AMCON v SURU WORLDWIDE VENTURES NIG. LTD before Idris J., conducted on

27 21

28 the 22/6/2015 long before the proceedings leading to the application. The suit that led to this application is FHC/L/CS/1059/2016. Therefore, the record of proceedings is not those conducted behind the applicant for which it now seeks to join, more so, the applicant was a party therein, obviously making it contrary to the application under consideration. There is therefore incomplete record from which the critical issue for consideration here can be determined. The need to have the record of proceedings was reiterated by this Court in the case of OTTI & ORS V OGAH & ORS (2016) LPELR-40846(CA) which held thus: An applicant seeking to appeal as an interested party has to disclose his interest in the record of proceedings before the Court, and not in an affidavit in support of his application. The reason is simple. The appeal would be determined on the record of appeal and not on affidavits and other extraneous materials. PER YAHAYA, JCA Leave to appeal is simply getting the permission of the Court to present a challenge to the judgment or decision sought to be appealed against. 22

29 An appeal is a continuation of hearing and in this case, one that was started in the absence of the applicant who now seeks to join to be heard. A party who is a victim of the execution of a judgment of the Court certainly has interest in further hearing of the matter. Whether the appeal will succeed or not is not in issue at this stage, see OBIKOYA V WEMA BANK LIMITED (1989) LPELR-2176(SC) which held as follows: In principle, when dealing with an application for leave to appeal, an applicant is not required to show that the appeal would succeed if leave is granted. It is sufficient to show that there is an arguable appeal. Or, to put it another way, it is enough to show a prima facie case that the Court from whose decision leave to appeal is sought committed an error of law or has failed to exercise its discretion judicially; or has based the exercise of such discretion on wrong principles." A chance to be heard conforms with fair hearing principle and also our Constitution. A party who has allegedly suffered from the execution of the order of Court should be heard. That would still give the 1st respondent the opportunity to forward its case, justify and defend the 23

30 judgment sought to be appealed against. An appeal is a right and in this case subject to leave which the applicant now seeks to enable it appeal but in this case it is conditional to obtaining leave of Court either of the Court below or this Court. In this case, basic and fundamental material needed to enable the Court exercise its discretion is lacking and the Court cannot speculate on the missing aspects of the record. Absence of it has serious impact on the chances of this application. The application cannot be considered in the absence or on incomplete record. This is in addition to the incompetent prayers on the motion paper. The applicant sought for leave to appeal against the judgment of Idris, J and not the Federal High Court as circumscribed by the 1999 Constitution as Altered, Section 240 of the said Constitution provided for the powers of this Court to determine appeals from certain Courts, it states: 240. Subject to the provision of the Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the 24

31 High Court of the Federal Capital Territory, Abuja, High Court of the State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia court of Appeal of a State and from decisions of a Court martial or other Tribunals as may be prescribed by an act of the National Assembly. It is crystal clear it did not mention the name of any judge but Courts. It is therefore wrong for applicant to not mention the Court but the judge who handed down the decision. In fact, the suit number and parties were not provided thereby making the application vague and lacking material particulars. Granting an application to a party interested to appeal where made out is in line with principles of fair hearing as stated in the Supreme Court case of WAZIRI V GUMEL (2012) LPELR-7816(SC) which held thus: It is the duty of Courts at all times to ensure a fair determination of issues between the parties and in that regard the purpose of granting leave for a party to be joined as an interested party on appeal is to enable justice to be done between the parties. Per Rhodes- Vivour, J.S.C. 25

32 However, in the absence of relevant materials, the application for leave to appeal as party interested cannot be considered. There is the second angle to the application which has a life of its own. The second arm of the application is prayer 5 which seeks the following: AN INTERLOCUTORY ORDER OF THE HONOURABLE COURT: a) Suspending forthwith the execution and/or further continuing execution howsoever of the Judgment/order of the Honourable trial Court made in this suit on 30th day of May, 2017 as per the Judgment/enrolled order (Exhibit A ) attached to this application. b) Restraining the respondents either by themselves, agents and/or Officers or servants howsoever described from interfering with or otherwise continuing to interfere with Appellant/Applicant s peaceful possession of the properties contained in the said Judgment/order and its businesses being conducted threat, pending the hearing and determination of the appeal pending before the Honourable Court. Injunction is defined in the case of KUBOR V DICKSON (2012) LPELR-9817 (SC) thus: It settled that an injunction is a judicial process or mandate operating in personam by which upon 26

33 certain established principles of equity, a party is required to do or refrain from doing a particular thing. An injunction is also a writ framed according to the circumstances of the case, commanding an act which regards as essential to justice or restraining an act which it deems contrary to equity and good conscience." Injunction are of various types, the type sought for by the applicant is interlocutory injunction which is simple to restrain the continuation of the execution of the judgment of the Court sought to be appealed against pending the determination of an appeal. It is to regulate the activities of the parties pending determination of a legal process. It is a preventive relief against injury or mischief and to preserve the status quo. There a set of 7 conditions precedent to the grant of an injunction usually with regards to a pending judicial process. The applicant conditioned the order of injunction pending appeal. The question to ask without going far, is whether there is an appeal pending between the parties herein? Obviously, there no appeal yet. An appeal process is initiated by a Notice of Appeal duly filed and there is none here. 27

34 The applicant has not yet filed a Notice of appeal and therefore cannot consider himself an appellant. Furthermore, execution has been completed concerning No.12 Allen avenue housing the hotel run by Best Western Group. An injunction cannot therefore be issued on a completed act, see IDEOZU & ORS V OCHOMA & ORS (2006) LPELR-1419 (SC) which restated the settled position of law that an injunction is not granted for a completed act. The applicant exhibited pictures of the execution carried by the Respondents, that having carried out, cannot be restrained retroactively and applicant is asking for restorative injunction. Flowing from the fact that there is no appeal pending, the prayer for injunction is premature and cannot be granted. The application is incompetent and is hereby struck out. MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead Ruling written by my learned brother Yargata Byenchit Nimpar, JCA in this application and agree that it is meritorious and deserves to be granted in respect of leave to appeal. 28

35 I join in granting leave to appeal and in striking the prayers for injunction in terms of the lead Ruling. JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in draft the succinct ruling prepared by my learned brother, Yargata Byenchit Nimpar, J.C.A., with which I agree with nothing extra to add. 29

36 Appearances: LAYI BABATUNDE, SAN with him, TOMIKE LAYI BABATUNDE and DAVID OWOEYE For Appellant(s) TOKUNBO AJIBULU For Respondent(s)