OCHAL v. M. L. MANDE ENTERPRISES LTD & ORS (2021)LCN/15536(CA)
In The Court Of Appeal (ABUJA JUDICIAL DIVISION)
On Wednesday, June 02, 2021
CA/A/709/M/2018(R)
Before Our Lordships:
Moore Aseimo Abraham Adumein – Justice of the Court of Appeal
Peter Olabisi Ige – Justice of the Court of Appeal
Mohammed Mustapha – Justice of the Court of Appeal
Between
BENJAMIN OCHAL – Appellant(s)
And
- Mande Enterprises Ltd & 3 ORS. – Respondent(s)
Appearances:
- S. SPEH ESQ. – For Appellant(s)
IBRAHIM IDAIYE ESQ. – For the 1st Respondent.
UGOCHUKWU ISIGUZO ESQ. – For the 2nd Respondent
AKINTUNDE AJAYI ESQ – For the 3rd and 4th Respondent. For Respondent(s)
Mohammed Mustapha, J.C.A. (Delivering the Leading Judgment): This is an application brought pursuant to Section 243 of the Constitution of the Federal Republic of Nigeria, Order 6 Rule 1 of the Court of Appeal Rules and the inherent jurisdiction of this Court. It prays for the following orders:
- AN ORDER of this Court extending time within which to seek leave to appeal against the judgment of the High Court of the Federal Capital Territory, by Hon. Justice Peter O. Affen, delivered on the 26th day of September, 2016, in suit No. FCT/HC/CV/2291/2013, M.L. MANDE ENT. LTD V REG TRUSTEES OF SEVENTH DAY ADVENTIST CHURCH IN NIG.& 2 ORS as interested party or person affected.
- AN ORDER of this Hon. Court extending the time within which the Applicant herein, Mr. BENJAMIN OCHAI can seek leave to appeal under Section 243 of the Constitution of the Federal Republic of Nigeria, 1999, the judgment of the High Court of the Federal Capital Territory, Coram Hon. Justice Peter O. Affen delivered on the 26th day of September, 2016, in Suit No. FCTIHC/CV/2291/2013, M. L. MANDE ENTERPRISES LIMITED vs The Registered Trustees of Seventh Day Adventist Church in Nigeria and 2 Ors as a person having an interest in the case, and under the rules of Courts.
- AN ORDER of this Hon. Court granting leave to the applicant herein Mr. BENJAMIN OCHAI to appeal under Section 243 of the Constitution of the Federal Republic of Nigeria, 1999, the judgment of the High Court of the Federal Capital Territory, Coram Hon. Justice Peter O. Affen delivered on the 26th day of September, 2016 in Suit No. FCT/HC/CV/229112013, M. L. MANDE ENTREPRISES LIMITED vs. The Registered Trustees of the Seventh Day Adventist Church in Nigeria and 2 Ors as a person having an interest in the case, and under the rules of Courts.
- AN ORDER of this Hon. Court extending the time within which the applicant herein Mr. BENJAMIN OCHAI can appeal under Section 243 of the Constitution of the Federal Republic of Nigeria, 1999, the judgment of the High Court of the Federal Capital Territory, Coram Hon. Justice Peter O. Affen delivered on the 26th day of September, 2016 in Suit No. FCT/HC/CV/2291/2013, M. L. MANDE ENTREPRISES LIMITED vs. The Registered Trustees of the Seventh Day Adventist Church in Nigeria and 2 Ors as a person having an interest in the case, and under the rules of Courts.
The application is supported by twelve paragraph affidavit deposed to by Eke Joy Adah Esq., with exhibits A, B, C, D, E, F, G, H, I, J, K, L and M attached.
While referring to BELLO V INEC (2010) 8 NWLR part 1196 page 342 learned counsel contended that the Applicant was not a necessary party to the suit, as such cannot claim that he was denied fair hearing; ONAH V OKOM (2012) 8 NWLR part 1301 page 169 and ADAMU V FRN (2020) 2 NWLR part 1707 page 129.
Resolution:
It should be noted that an application for leave to appeal ought to be made first at the trial Court, unless special circumstances dictate otherwise. This is by virtue of Order 6 Rule 4 of the Court of Appeal Rules, 2016, which provides that:
“Wherever under these Rules, an application may be made either to the Court below or to the Court, it shall not be made in the first instance to the Court except where there are special circumstances, which make it impossible to apply to the Court below.”; see SUBURBAN TELECOMS LTD & ORS V SOLUTION PLUS LTD (2016) LPELR-40336-CA.
The rules of this Court, and indeed that of every Court are important, they are not merely fanciful, they are meant to be obeyed. Learned counsel for the 2nd Respondent contends that this Court granted leave to the Applicant to appeal the judgment of the Federal High Court in FBN LTD V RESORT INTL LTD supra, and so the Applicant in this case deserves to be granted leave to appeal.
It is important not to lose sight of the fact that the exercise of discretion, more often than not, varies with facts and circumstances. Justice, as is often said, is a double edged sword that cuts both ways; and in the absence of ‘exceptional circumstances’, not least because the affidavit in support of the application, in spite paragraphs 4(xiii),(xx),(xxi), (xxiv), (xxv),(xxvi) and (xxii) put forward as proof by learned counsel for the applicant, still fell short; because the affidavit did not disclose any special circumstances of note to excuse the failure or refusal to file the application before the trial Court as required by Order 6 Rule 4.
Furthermore, for an application of this nature to succeed, the Applicant has to establish sufficient interest in the judgment of the trial Court. Section 243(a) of the Constitution recognizes two categories, parties who can appeal as, those who can do so as of right and those who can do so with leave of Court.
The applicant’s only interest apart from his ‘integrity’, as contended is the fact that title was traced through him; there is nothing apart from that to show that the Applicant lost anything in the land, subject of the suit at trial.
The claim of medical challenges without more on the part of the applicant cannot explain away why it took the applicant more than three years to bring this application, even though the Applicant was aware of the judgment. Leave to appeal or application for leave to appeal is not granted as a matter of course. The grant or denial of such application is subject to the judicious exercise of discretion by the Court; See OJORA V. ODUNSI (1964) 3 NSCL 34 AT 48.
To succeed in this application, the Applicant has to show, by his supporting affidavit, that he has good and substantial reasons for failure to appeal or apply for leave to appeal within the prescribed period, unfortunately, the reasons so far advanced have fallen short; See ADEOJO V. AWOTOREBO & ANOR (1975) 1 NMLR 54 AT 55.
On whether the Applicant is a necessary party or not, it is trite that a necessary party to a case is a person whose presence is necessary for the effectual and complete adjudication of the questions involved in the cause or matter; See: O.K. CONTACT POINT LIMITED VS. PROGRESS BANK PLC (1999) 5 NWLR (PT. 604) 631 (CA); B.O.N. LIMITED VS. SALEH (1999) 9 NWLR (PT. 618) 331 (CA); and MOBIL OIL PLC VS. D.E.N.R. LIMITED (2004) 1 NWLR (PT. 853) 142 (CA).
A necessary party to a suit is a party who is not only interested in the subject matter of the proceedings but also a party in whose absence the proceedings could not be fairly dealt with. Consequently, without his being a party to the suit, the Court may not be able to effectually and completely adjudicate upon and settle all questions involved in the suit; the Applicant cannot be said to be one of such parties by any stretch of imagination, at least not from the facts deposed to in the affidavit in support of the application; See: OJO VS. OGBE (2007) 9 NWLR (PT. 1040) 542 (CA); and BIYU VS. IBRAHIM (2006) 8 NWLR (PT. 981) 1 (CA).
A necessary party is not just any person but must be one against whom a link relating to a cause of action must be sustained. In JIDDA VS. KACHALLA (1999) NWLR (PT. 599) 426 at 432, it was held that:
The rule is that, persons against whom complaints are made in an action must be made parties to the suit. There is a duty to bring before a Court parties whose presence are crucial to the resolution of the case otherwise the action is liable to be struck out. See: ADISA VS. OYINWOLA (2000) 6 SC (PART 11) 47 and MOBIL OIL PLC VS. D.E.N.R. LIMITED (2004) 1 NWLR (PT. 853) 142.
It is the considered opinion of this Court that the Applicant is not a necessary party to the appeal he seeks leave to join; he is at best a desirable witness. So the question of denying him fair hearing does not arise in the least, because his rights or obligations were never up for determination.
In my considered view, there is no basis for assuming that leave to appeal is granted as a matter of course. The decision by this Court regarding whether or not leave to appeal is granted to an Applicant is always based on good and substantial reasons disclosed in the affidavit in support, for not appealing within the prescribed time, and grounds of appeal which prima facie show why the appeal should be heard.
Oftentimes, applicants saunter into this Court brandishing a motion whose affidavit is bereft of the barest requirements for the grant of leave to appeal, forgetting that leave to appeal is not a given. It is ridiculous for an Applicant who wastes valuable time fretting about other things to suddenly wake up from his slumber, expecting the Court to grant an application for leave as a matter of course, on account of entitlement. It does not work that way.
This application lacks merit, and it is accordingly dismissed.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now, the ruling just rendered by my learned brother, Mohammed Mustapha, JCA.
I agree that the application lacks merit and I also dismiss it.
PETER OLABISI IGE, J.C.A.: I agree.
