IN THE SUPREME COURT OF NIGERIA
SUIT NO: SC32/2005
PETITIONER: ALHAJI MOHAMEMD MAINA WAZIRI
RESPONDENT: IBRAHIM TAHIR GUMEL & ORS
DATE: DELIVERED: 2012-03-23
WALTER SAMUEL NKANU ONNOGHEN, IBRAHIM TANKO MUHAMMAD, OLUFUNLOLA OYELOLA ADEKEYE, BODE RHODES-VIVOUR, MARY UKAEGO PETER-ODILI
This is an appeal against the ruling of the Court of Appeal, Abuja Division in Appeal/Motion No CA/A/77/2001 delivered on Monday, the 30th day of June 2003 wherein the Court of Appeal granted the 1st Respondent extension of time to appeal as an interested party against the decision of the High Court of the Federal Capital Territory, Abuja delivered on 26th September 1994 and 31st October, 1994.
The appellant being dissatisfied with the said Ruling of the Court below lodged an appeal against it on18th May 2006.
Facts briefly stated are that on 20th January 1993 the 2nd Respondent, as the allottee of the property situated at Asokoro District and measuring 2251.81 square metres and covered by Certificate of Occupancy No MFCT/ABU/FCT/272 dated 17th December 1993 transferred all his interest therein to him (the 1st Respondent) for a consideration of Nl,000,000.00 (One million naira).
A receipt which the 1st Respondent claimed the 2nd Respondent issued to him was attached as Exhibit ITG I, no deed of assignment was shown by the 1st Respondent in spite of the allegation in paragraph 5 (a) of the supporting affidavit that the 2nd Respondent ‘transferred all his rights and interest in the said property to him.’
The 1st Respondent further stated that he discovered sometime in 1996 that someone else, i.e. the Appellant herein, was claiming possession of the property and was making obvious efforts to develop the property and instructed his counsel, the firm of A. A. Umar & Co. to institute an action against the Appellant and the said firm filed Suit No FCT/HC/CV/460/96.
1st Respondent further stated that it was in the course of proceedings in the suit he discovered that the Appellant had a Judgment of the trial Court in Suit No FCT/HC/CV/34/93 vesting title to the property in question in the Appellant. He said he instructed A. A. Umar & Co to appeal against the judgment of the lower court. The date the instruction was given was not demonstrated by the Respondent. Four years (4) later, sometime in May 2000, the 1st Respondent said his Lawyers complained of logistic problems and ceased representing him. He said he therefore engaged the firm of Messrs Sunny Wonrenwu & Associates in September 2000 to take up his matters, but that in January 2001, the new firm declined further representation in view of a Community Land matter its Principal Counsel was involved in in his home town and returned the case files to him. According to the 1st Respondent, he therefore briefed the firm of Messrs Rickey Tarfa & Co to take up his representation in February, 2001 and later after studying the file, said nothing had been done to protect his interest and advised him to file an application for extension of time to appeal as an interested party. The Deponent of the Affidavit in Support concluded by stating that the delay in bringing the application was not out of disrespect for the Court below.
The 1st and 2nd Further Affidavits earlier referred to were filed by Sunny Worenwu Esq. and Nasiru A. Umar & Co explaining their roles in the matter. These further affidavits were based on the advice of the Court below on 30th January 2002.
The Appellant filed on the 20th May 2002, a counter-affidavit in opposition to the application. Therein it was deposed that the 2nd Respondent sold the property to the Appellant on 28th October 1992 upon the payment of an initial deposit of N205,000.00 but because the 2nd Respondent refused to collect the balance on ground that he needed to first seek and obtain the consent of the Minister of the Federal Capital Territory (FCT) and since no such consent had been obtained he was no longer completing the sale, the Appellant sued the 2nd Respondent for specific performance of the contract of sale via suit No FCT/HC/CV/34/93.
It was further deposed that throughout the proceedings there was no mention of the 1st Respondent herein or any interest held by him. After the trial Court\’s Judgment, the 2nd Respondent collected the balance of the sale. Relevant copies of documents conveying the 2nd Respondent’s rights and interests in the property to the Appellant were annexed to the Counter-affidavit.
Importantly, the Appellant further deposed that it is not true that the 2nd Respondent sold the property to the 1st Respondent and that there is no record of any such sale in the records of the Land Registry of the F.C.T. and that in any event the Appellant’s interest on the land was prior in time over and above that of any other person including the 1st Respondent herein. The Appellant in the said Counter – Affidavit also deposed that he had been in possession of the property since 1992 and has carried out extensive development thereon.
Most importantly, and in showing the abuse of Court process inherent in the 1st Respondent\’s application at the lower Court, the Appellant at paragraph 17 of his Counter-Affidavit deposed as following:
‘That the Applicant/Interested party instituted a suit at the Federal Capital Territory High Court, Abuja wherein his claim to the land will be decided one way or other. A copy of the writ of summons and the amended statement of claim are hereby annexed as Exhibit to ‘D’.’
Lastly, the Appellant dismissed the depositions in the First and Second Further Affidavits filed by Sunny Wonrenwu, Esq. and Nasiru A. Aliyu, Esq. as being entirely false and a bundle of afterthoughts. The 1st Respondent’s Reply to this Counter-Affidavit is reproduced at pages 59- 60 of the Record.
The 2nd Respondent also filed a Counter-Affidavit to the 1st Respondent’s application. Therein the 2nd Respondent deposed that the 1st Respondent herein did not take any step to appeal against the trial Court’s Judgment since becoming aware of it and was only applying for leave to do so after eight (8) years. He also urged the Court below to refuse the application. See page 45 of the Record.
On 7th April 2003, the court below entertained the 1st Respondent’s motion and reserved Ruling in the matter. See page 61 of the Record. On 30th June 2003, that Court delivered its ruling on the application. In the said Ruling delivered by His Lordship, the Honourable Justice G.A. Oguntade, JCA (as he then was), with whom their Lordships, Z.A. Bukachuwa and A.G. Oduyemi, JCA agreed, the Court below granted the 1st Respondent’s application in the following terms:
‘Accordingly, leave is granted to the applicant to appeal as an interested person against the judgments of lower court given on 26/7/94 and 31/10/94, time within which to seek the leave to appeal is extended till today 30/6/03; and time to appeal is extended by 14 days from today.’
The Ruling is at pages 62-69 of the Record.
The Appellant herein is dissatisfied with the Ruling and to that extent filed an appeal against the same, with the leave of Court, on 18th May 2006.
On the 23rd January 2012, date of hearing, learned counsel for the Appellant adopted the Brief of Argument settled by S. T. Ologunorisa Esq. filed on 10/9/08 and deemed filed on 26/6/09. He also adopted the Appellant’s Reply Brief of 19/1/12. In the Appellant\’s Brief were distilled two issues for determination:
- Whether having regard to the fact that a Suit No FCT/HC/CV/460/96: Ibrahim Tahir Gumel v Mohammed Waziri & Anor had been filed by the 1st Respondent and was pending at the time the Lower Court entertained the 1st Respondent’s motion for leave, the trial court was right in granting rather than dismissing the application for abuse of court process.
- Whether the Court below was right in granting the 1st Respondent leave to appeal against as an interested party when the judgment he sought leave to appeal against was a judgment in personam and strictly a judgment against the 2nd Respondent who has already complied with the said judgment.
The 1st Respondent’s Brief was settled by O. O. Jolaawo Esq, filed on 18/11/11 and deemed filed on the 23/1/12. In it was raised what learned counsel termed ‘Preliminary Points’ and said the Court should strike out ground 3 and the issue formulated therefrom on the basis that the said ground did not relate to the decision or judgment of the lower court delivered on 30th June 2003. That a careful reading of the said ground 3 would reveal that the Appellants grouse is centered on the allegation that the judgment of the trial Court delivered on 26th September 1994 is a judgment in personam and not in rem. He cited Manhattan Inv. Ltd v Co-operative Development Bank Plc (2009) All FWLR (Part 483) 1381 at 1404 – 1405 paras F ‘ C.
Learned counsel for the 1st Respondent however stated that if the Court did not agree with the submission on the preliminary point then they would utilize two (sic!) issues for determination which are as follows:-
- Whether or not having regard to the circumstance of this appeal, the 1st Respondent therein (as applicant at the lower Court) is in law an interested party entitled to obtain the leave of Court to appeal against the judgment of the trial Court in Suit No FCT/HC/CV /34/93.
The issues as couched by the Appellant seem of simpler language and easier to understand and shall be used in the discourse hereunder.
Whether having regard to the fact that a Suit No FCT/HC/CV/460/96: Ibrahim Tahir Gumel v Mohammed Waziri & Anor had been filed by the 1st Respondent and was pending at the time the Lower Court entertained the 1st Respondent’s motion for leave the trial Court was right in granting rather than dismissing the application for abuse of Court’s process.
Arguing, learned counsel for the Appellant submitted that the issue above was distilled from grounds 1 and 2 of the Notice of Appeal and that at paragraph 17 of the appellant\’s Counter – Affidavit to the 1st Respondent’s Motion at the Court below the Appellant’s deponent deposed as follows:-
‘That the Applicant/Interested party instituted a suit at the Federal Capital Territory High Court Abuja wherein his claim to the land will be decided one way or the other. A copy of the writ of summons and the amended statement of claim are hereby annexed as Exhibit ‘D’.
- A. Aremo- For the Appellant
Kunle Kolawole, Adeola Adawara, O. O.
Jolaawo – For the 1st Respondent
- Aduloju,A. Okubote, Samuel Zibiri – For the 2nd Respondent
Sonny Idasiefiema, Ikechukwu Kanu