In The Court of Appeal

(Owerri Judicial Division)

On Monday, the 12th day of November, 2012

Suit No: CA/OW/342M/2011

Before Their Lordships

 Between

 And

HARUNA SIMON TSAMMANI, J.C.A.: (Delivering the Lead Ruling): By a Motion on Notice dated the 14/12/2011 and filed the 21/12/2011, the Applicant sought the following reliefs:

1. AN ORDER extending time within which the applicant may seek leave to appeal as an interested party against the judgment and the Ruling of Hon. Justice C. I. Durueke made on the 30th day of October, 2009 and 8th of July, 2010 in HOW/229/2009.

2. LEAVE to the applicant to appeal against the judgment and the Ruling as an interested party.

3. EXTENSION of time within which the applicant may appeal against the judgment and ruling in the Suit HOW/229/2009.

4. AN ORDER deeming as duly and properly filed and served the Notice of Appeal annexed as exhibits to the supporting affidavit of this motion, as appropriate fees have been paid.

5. AN ORDER consolidating Notices of Appeal filed by the applicant against the judgment of 30/10/2009 and the Ruling of 08/7/2010, all filed on 19th of August, 2011.

6. AN ORDER staying further execution, setting aside as wrongful any execution made pursuant to the said judgment, restoring the applicant to his property at Plot 638 and 639 Works Layout, Owerri Imo State, and restraining the respondents from acting on the said judgment pending the determination of the appeal.

7. AND for such further order(s) that this court may deem fit to make in the interest of justice and in the circumstances of this matter.

THE GROUNDS in support of the application are:

(a) The applicant bought and developed his property lying at Plot 638 and 639, Works Layout, Owerri, Imo State without any notice of adverse interest since 2003 and was in possession and occupation of this property since then even before the institution of the suit in 2009.

(b) The applicant was not made a party to the proceedings leading to the judgment and was not aware of the suit.

(c) The applicant was never served with the judgment and only become aware of a judgment during invasions of the property after the statutory time allowed to appeal had lapsed.

(d) The applicant has a constitutional right of appeal as given by Section 243 of the Constitution of the Federal Republic of Nigeria.

(e) The applicant has suffered embarrassment and is aggrieved and affected by the judgment against his property without his being a party - FUNDUK ENGR. LTD. V. JAMES MCARTHUR & ORS. (1990) 4 NWLR (Pt.143) Pg. 266; A.G. EKITI V. OSHO; IN RE: OBA ORISHAGBEMU (2001) 2 NWLR (Pt.698) 546; AKANDE V. GENERAL ELECT. CO. LTD. (1979) 3-4 S.C. 115; NIG. BOTTLING CO. PLC. V. OSOFISAN (2000) 10 NWLR (Pt.675) 370.

(f) The applicant has filed Notice of Appeal over the judgment of the court and the Ruling of the court.

(g) The Grounds of Appeal raises (sic) very serious and fundamental issues of law. 

(h) That if the 1st and 2nd Respondents are allowed they will be taking advantage of their wrong.

(i) The Court of Appeal has the power to grant the prayers in the application.

In support of the Application, the Applicant filed a 47 paragraphs affidavit to which he annexed 11 documents marked as Exhibits A, B, C, D, E, F, G, H, J, K and L, The 1stb and 2nd Respondents (1st set of Respondents filed a 35 paragraphs Counter Affidavit on the 17/2/2012 to which they annexed 15 document marked as Exhibits A, B, C, D, E, F, G, H, J, K, M, N, O, and P respectively. The 1st and 2nd Respondents also filed a further counter Affidavit dated and filed 26/3/2012 and a 2nd Further Counter Affidavit on the 30/5/2012. By order of this court the parties were directed to file Written Addresses. The Applicant's Written Address is dated the 7/3/2012. The 1st and 2nd Respondents (now referred to as Respondents) also filed a Written Address dated the 26/3/2012 and filed on the same day. In response, the Applicant filed a Written Reply Address dated the 02/4/2012 and filed the 04/4/2012.

At the hearing of the motion on the 09/10/2012, the Applicant adopted the Written Address and the Applicant's arguments in this motion, and urged us to grant same. The Respondents also adopted their Written Address in opposition to this Application and urged us to dismiss same.

In arguing the motion, the Applicant nominated only one issue for determination as follows.

"Whether in the circumstances of this application, the court of appeal can grant the prayers sought in this application."

The 1st set of Respondents on the other hand nominated three issues for determination. They are as follows:

1. Whether the application is competent and proper before the honourable court.

2. Whether the appellant/applicant has any interest in the property known as Plot P10 Works Layout, Owerri, the subject matter of Suit No. HOW/229/2009, to bring the appellant/applicant within the class of "Person Having Interest" as provided for by Section 243 of the Constitution of Federal Republic of Nigeria, 1999.

3. Whether appellant/applicant has established good and substantial reason for his failure to bring this application within time.

Upon a careful and sober consideration of the issues nominated by the parties, I am of the view that issues 2 and 3 nominated by the Respondents can be subsumed into 'the sole issue formulated by the Applicant. The first issue formulated is a challenge to the competence of the Application and therefore synonymous with an objection to the hearing of the Application. In that respect, it shall be considered on its own. Thus, apart from issue 1 as formulated by the Respondents, this motion shall be determined on the sole issue nominated by the Applicant. Perhaps I should point out that the 3rd - 6th Respondents did not file any Address in this motion. Before, I proceed to determine on the issues formulated and which are germaine in this motion, I find it incumbent to consider certain issues raised by the Applicant at the hearing of this motion and in his Reply Address. At the hearing, Mr. Akponye of learned counsel for the Applicant had pointed out that the Respondents' Counter Affidavit did not oppose this motion because, the Counter Affidavit did not counter the facts deposed to by the Applicant. In other words, that the Counter Affidavit filed by the Respondents is not in respect of this Application. Learned counsel for the Respondents did not respond to this issue.

The law is that in an action or proceeding determined on affidavit evidence, and where the Plaintiff or Applicant as the case may be, deposed to facts in an affidavit is support of the relief or reliefs he seeks, the defendant or respondent has a legal duty to depose to facts in a counter affidavit, if he intends to dispute the facts deposed in the plaintiff or applicant's affidavit. The facts deposed in the counter affidavit must condescend upon particulars and must therefore specifically meet and deny the specific depositions in the plaintiff or applicant's affidavit. Thus, in the case of NISHIZAWA LTD v. JETHWANI (1984) All N.L.R Pg. 470 at Pg. 484, the Supreme Court held that a counter -affidavit;

"Must condescend upon particulars and should as far as possible deal specifically with the plaintiffs claim and affidavit, and state clearly whether the defence goes to the whole or part of the claim, and in the latter case, it should specify the part..."

It therefore means that specific facts in an affidavit must be specifically controverted by way of a counter-affidavit. Thus where facts deposed to in a counter-affidavit are extraneous, foreign or not directed at the facts in an affidavit, they are irrelevant and the court will disregard them as such. Where the facts deposed to in a counter-affidavit are disregarded and discountenance, it would mean that the specific facts in the affidavit remain uncontroverted. See F.B.N PLC v. NDAREKE & SONS (NIG) LTD (2009) 15 NWLR (Pt. 1164) Pg.406; OGUNSOLA v. USMAN (2002) 14 NWLR (Pt. 788) Pg. 636 and OKONKWO v. FRN (2011) 11 NWLR (Pt. 1258) Pg. 215.

In the instant case the Respondents deposed at paragraphs 5, 6, 7, 8, 9, 11, 12, and 32 of the counter- affidavit as follows:

"5. That the 1st sets of Respondents are the bona fide owners of the property known as and called Plot P10 Works Layout, Owerri (Plot 643) Works Layout Owerri, subject matter of this appeal inclusive).

6. That I know as fact that paragraph 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 18, 19, 23, 24, 27, 28, 29, 30, 31, 33, 34, 37, 39, a, b, c, d, e, f, g, h and 40, of the supporting affidavit are false.

7. That Kelechi Iheanacho the purported caretaker/agent of the appellant/applicant never shared any residence with anybody in Plot P10 Works Layout, Owerri or any part thereon, Plot 643 Works Layout, Owerri inclusive.

8. That the appellant/applicant is neither owner of the property known as Plot 643 Works Layout, Owerri nor in possession of it.

9. That the appellant/applicant and his workers broke and entered a portion of Plot P10 Works Layout, Oweni (they are the property the appellant/applicant now refers to as Plot 643 Works Layout, Owerri)...

11. That thereafter the appellant/applicant used massive labour force thugs to erect structure on the said Plot 643 Works Layout, Owerri in utter defiance to the said suit pending against the purported acquisition of the Plot P10, Works Layout, Owerri.

12. The Plot 643 Works Layout, Owerri is a portion of the large parcel of land known as Plot P10 Works Layout, Owerri.

32. That on 28th day of April 2010, when the bailiff of High Court of Imo Stale Owerri, executed the judgment delivered in Suit No. HOW/229/2010, the two tenants namely: Michael Nwoko and Magnus Aguwa who were occupying the twin one bedroom flats in the said Plot 643 Works Layout, (which is one of the plots parcelleted from Plot P10 Works Layout) had their belongings thrown out of the said flats."

These depositions in the Counter-Affidavit of the Respondents are said to be a response to the Application's depositions in the principal affidavit in support of the Motion on Notice. When the entire affidavit of the Applicant is read it would be seen from paragraphs 1, 3, 4, 5, 7, 9, 10, 15, 17, 18 and 23 that, the Applicant's depositions relate to his claim with respect to Plot 638 and 639, Works Layout, Owerri, while the Respondents' deposition of facts in their Counter Affidavit relates to Plot 643, Works Layout, Owerri. The only logical conclusion is that the Applicants' affidavit has remained unchallenged as the facts deposed to in the Counter-Affidavit of the Respondents are irrelevant to the facts deposed to in the Applicant's affidavit. They are therefore discountenanced as being extraneous and irrelevant. The ultimate result therefore is that, the Applicant's affidavit remains unchallenged and therefore deemed admitted. See ADAMS v. A.G; FED (2006) 11 NWLR (Pt. 991) Pg. 341; OJO v. F.R.N (2006) 9 NWLR (Pt.984) Pg.103; NIKA FISHING CO. LTD v. LAVINA CORP. (2008) 16 NWLR (Pt. 1114) Pg. 509 and C.P.C v. LADO (2011) 14 NWLR (Pt.1266) Pg. 40 see also OKONKWO v. F.R.N. (supra).

Learned counsel for the Applicant further argued at pages 2 - 4, paragraphs 2.0 - 2.9 of the Reply Address that, the Further Counter Affidavit filed by the 1st and 2nd Respondents after the Applicant had made his submissions and argument for the motion is incompetent. That the depositions in the said Further Counter-Affidavit are not new facts that are just coming to the knowledge of the respondents. He then cited the cases of MAJAROH v. FASASSI (1986) 5 NWLR (Pt. 40) P9. 243; RAMON v. JINADU (1985) 5 NWLR (Pt.39) Pg. 100 and NWADIOGBU v. ANAMBRA L.R.B.D.A (2010) 189 LRCN Pg. 1 at 24 Paras JJ per Rhodes-Vivour, JSC, to submit that the Further Counter Affidavits should be discountenanced having been discountenanced in the application. That to allow the use of those counter-affidavits filed after the Applicant had filed and served his Written Address will prejudice the Applicant, as his fundamental right to fair hearing will be impeded. He also relied on the case of INAKOJU v. ADELEKE (2007) 143 LRCN Pg. 1 at 108 and 113 to further submit that, the attempt by the Respondents to introduce new facts in a Further Counter Affidavit, in an attempt to introduce a new issue after the Applicant had concluded and filed his Written Address to the motion amounts to laying mines in the litigation process. We were then urged to discountenance all the facts contained in those Further Counter Affidavits.

I have read the cases cited by learned counsel for the Applicant in support of his objection to the Further Affidavits filed by the Respondents. It is true that the Further Counter Affidavit and the 2nd Further Counter Affidavits were filed after the Applicant had filed his Written Address. The said Written Address was filed on the 08/3/2012, while the Further Counter Affidavit and the 2nd Further Counter Affidavits were filed on the 26/3/12 and 30/5/12 respectively. In the case of MAJAROH v. FASSASSI(supra) was a contempt proceeding and in the course of the proceedings, and after issues had been joined by the parties, the learned trial Judge ordered the Appellant thereon to swear to a further affidavit of certain facts that arose in the course of the proceedings. This Court per Nnaemeka-Agu, JCA, (as he then was) considered that the proceeding was quasi-criminal and the further affidavit was ordered at a stage when the argument on the motion had opened and the parties were not heard before the order was made. What is instructive to note in that case is that the order to file a further affidavit was made after argument in the motion for contempt had commenced. Similarly, this court held in the case of RAMON v. JINADU (supra) that it is grossly irregular for a party to file an affidavit in support of a motion when addresses on the motion has closed or opened without the leave of court as that would offend the audi alteram partem rule. The general rule as enshrined in the cases cited by the Applicant is therefore that, after argument had commenced on a motion or matter determined on affidavit evidence, a party is not permitted, except with the leave of court, to file any affidavit.

In the instant case, while it is true that the Further Counter Affidavits were filed after the Applicant's Written Address had been filed, it cannot be seriously argued that those affidavits were filed during the hearing of the motion or thereafter. Indeed, those Further Counter Affidavits were filed the same day as the Respondents' Written Address in opposition to the motion. At that stage, the Applicant still had time to have another bite at the cherry, and he indeed did that when he filed a Reply to the Respondents' Written Address filed in opposition to his motion. The door was still open for him to file a Further Affidavit in response to the Counter Affidavits filed by the Respondents. He chose to raise objection rather than taking the benefit of the time still left for him to respond, because at that time issues were yet to be conclusively joined between the parties. Perhaps counsel was misconceived on when the hearing of the Motion on Notice commenced. The hearing in my view took place on the 09/10/2012, when the parties adopted their Written Addresses. I therefore hold that the Fundamental Right of the Applicant was in no way impeded by the filing of those Further Counter Affidavits by the Respondents. This ground of objection is therefore discountenanced.

I now return to the issues for determination in this application. As I pointed out earlier, the first issue to be considered is that raised by the Respondents. The issue is akin to an objection to the hearing of the motion itself; and it is; whether the application is competent and properly before the court. In arguing this issue, learned counsel for the Respondents contended that, the Applicant is not a party to the Suit No. HOW/229/2009 and therefore has no right to amend the writ in that suit, and thus make himself a party before bringing this application. He referred to the cases of IN RE: F.R.A. WILLIAMS (2001) FWLR (Pt.67) Pg. 867 and IN RE: YINKA FOLAWIYO & SONS LTD (1991) 7 NWLR (Pt. 201) Pg. 237, to show that applications of this nature a.re usually brought in the format of "IN RE: THE APPLICANT." In that respect, he submitted that, it is trite law that, no party has the right to alter the Writ of Summons after same has been issued out, without the leave of court. He then relied on "ESSAYS ON CIVIL PROCEEDINGS" by Obi Okoye at page 202 Paras. 33, to submit that, any such alteration will render the writ so altered void. Order 3 Rule 10(2) of the Imo State High Court (Civil Procedure) Rules, 2008 was also cited in support. On that score, learned counsel contended that the Applicant has no right to alter the writ of Summons in this suit by adding his name as a party without the leave of court and therefore, the writ on which this application has been brought is void for all purposes. He also cited the case of ADEGOKE MOTORS v. ADESANYA (1989) 3 NWLR (Pt. 109) Pg. 250 at 265 in support of this contention.

The response of the Applicant to this contention of the Respondents is at pages 5-6, Paras. 2.11-2.21 of the Written Reply Address of the Applicants. Therein, learned counsel submitted that, the Respondents failed to disclose or show the law that makes it mandatory that the only FORM of bringing an application as the instant one be titled or headed "IN RE: THE APPLICANT." That heading an application such as this, as "IN RE: "does not mean that it is the only form of bringing such application before the Court of Appeal. That, the Applicant properly described himself at the head of the Application, and that it is not the case of the Respondents that the Applicant is not whom he claims to be.

It is therefore the contention of the Applicant's counsel that, the argument of the Respondents on amendment of writ of summons is strange because, the action, the subject of this application was done by Originating Summons at the lower court and not by Writ of Summons. Secondly, that this Application is not a pending action at the High Court, but only an application to enable the Applicant appeal the decision of the lower court as required by law. He then submitted that the Rules of the High Court do not govern the present Application in terms of procedure and therefore order 3 rule 10(2) of the Imo State High Court (Civil Procedure) Rules, 2008 is inapplicable. That in any case, the argument of the Respondent that the writ is void is self-defeating as it would imply that the action filed was void. He then drew our attention to the cases of NIGERIAN BOTTLING CO. PLC v. OSOFISAN (2000) 10 NWLR (Pt. 675) Pg.370; FUNDUK ENGR. LTD v. MCARTHUR (1990) 4 NWLR (Pt. 143) Pg.266 and ENYIBROS. FOODS PROCESSING CO. LTD & ANOR v. NIG. DEPOSIT INS. CORP. & ANOR (2007) 153 LRCN Pg.62, where applications of this nature were considered without same being headed "IN RE:...." and made in similar form in which this Application has been brought.

My simple answer to the contention of learned counsel for the Respondents is that the contention is grossly misconceived. In the first place, learned counsel did not refer us to any judicial authority or rule of this court which makes it mandatory that an application such as this court must be brought in the manner contended by learned counsel or in any particular manner. It is my humble view that, heading an Application such as this as "IN RE: THE APPLICANT" is only one method or form of initiating this type of application. In any case, learned counsel for the Respondent did not contend that the cases of IN RE: F.R.A. WILLIAMS (supra) and IN RE: YINIKA FOLAWIYO laid it as a judicial rule that all applications such as this must be titled or headed "IN RE: THE APPLICANT." My understanding of the term "IN RE," simply means, "In the matter of' or "In the application of." Thus captioning an application with that simple Latin term is to draw the attention of the court to the person making the application. It is therefore my humble view that, where an application shows clearly on the face of it the person making the application, and the nature of the application, it should suffice.

It is also a total misconception to contend, as done by learned counsel for the Respondents that, by making the application, the Applicant has altered any process arising from the proceedings of the lower court. Clearly, the process before this court is neither a Writ of Summons or Originating Summons. It is an independent process permitted by the Rules of this court. I therefore agree with learned counsel for the Applicant that the contention of the Respondents on alteration of the Writ of Summons is strange indeed. It is not only strange but meaningless and therefore cannot be countenanced. The first leg of the Respondents' objection as argued in their issue No. 1 is entirely unmerited.

Learned counsel for the Respondents further argued that, this Application is incompetent, as is trite law that an applicant is bound by the prayers on his motion paper and that the case of a party is considered on the reliefs sought by him. The cases of GAMU v. HAUSA (2006) All FWLR (Pt. 293) Pg. 378 at 380; OKOYA v. SANTILLI (1990) 2 NWLR (Pt. 131) Pg. 172 at 183 and F.U.N.B. LTD v. AEROBELL (NIG.) LTD (2005) All FWLR (Pt. 281) Pg. 1651 were cited in support. It was then contended that, the 1st prayer on the Applicant's motion paper is seeking for leave to appeal as an interested party against the Ruling delivered on the 8th July, 2010. That the Applicant was the 5th Applicant in the said Ruling and being a party to the said ruling, he cannot appeal as an interested party or as a party having interest.

On the 2nd prayer, it is the contention of the learned counsel for the Respondents that, the prayer does not refer to any specific judgment or ruling of any court. Learned counsel then submitted that, the prayer is not only clumsy but vague and therefore incompetent and should be struck out.

Learned counsel for the Respondents also contended that the 3rd prayer which seeks for extension of time within which to appeal against the judgment and ruling in Suit No. HOW/229/2009, is not predicated on any valid leave and therefore incompetent. That there are several rulings in Suit No. HOW/229/2009, but the Applicant did not identify the particular ruling he is seeking the indulgence of the court. It was therefore submitted that having failed to do so has rendered the Application vague and incompetent. We were then urged to adjudge the Applicant's motion as grossly incompetent and to have same struck out.

Learned counsel for the Applicant's response is that, the Respondents' contention that the Applicant's application to appeal the Ruling of 08/7/2010 as an interested party is erroneous, because the prayer for extension of time to seek leave to appeal is for an applicant who seeks leave to appeal the Ruling out of time as held in the case of AGU v. ODOFIN (1992) 3 SCNJ Pg. 161. That the leave to appeal as an interested party is clearly stated on the face of the prayer as referring to the judgment.

It is the further contention of the Applicant's learned counsel that, the attack on prayers 2 and 3 is unnecessary, since the motion has clearly stated in prayer 1, the name of the judge, the Suit No., the dates of the judgment and Ruling being appealed against. That the arguments in the Respondents' issue No. 1 are inchoate and unmeritorious, since the Respondents have joined issues with the Appellant over the Application by filing Counter-Affidavits. The cases of ARIORI v. ELEMO (1983) 1 SCNLR Pg. 1 and ODUA INVESTIMENT CO. LTD v. TALABI (1997) 10 NWLR (Pt. 523) Pg. 1 were cited to further submit that the Respondents having joined issues with the Applicant on the Application, have waived their right to complain. That in any case, the Respondents have not shown how they have been prejudiced by the defects in the form they complain of especially when the courts have now deviated from strict adherence to technicality in favour of the carrying out of substantial justice. The cases of MAJA v. SAMOURIS (2002) 3 SCNJ Pg. 29 at 45; UTC (NIG.) LTD. v. PAMOTAI (1989) 2 NWLR (Pt. 103) Pg.244 at 249; SALAMI V. BUNGINI & ANOR. (1998) 9 NWLR (Pt.565) Pg. 235; SAUDE V. ABDULLAHI (1989) 4 NWLR (Pt.116) Pg. 387 and NWOSU v. ISESA (1990) 2 NWLR (Pt. 135) Pg. 688 at 717 per Nnaemeka - Agu; JSC were cited in support. We were then urged to resolve issue No. 1 of the Respondents against the Respondents.

I have carefully read and reflected on the submissions of counsel and the contents of the motion paper. It is clear on the face of the prayer 1 that the Applicant seeks the leave of this court "to appeal as an interested party against the Judgment and the Ruling of ..." A cursory and plain reading of the prayer would agree with the Respondents that the Applicant seeks to appeal both the Judgment and the Ruling as an interested party. To that end, I will agree with the respondents that the Applicant being a party in the Ruling of the lower court dated 08/7/2010 can only appeal as of right qua party, and not "as an interested party" as to bring his appeal within Section 243(a) of the 1999 constitution of the Federal Republic of Nigeria. However, it should be noted that, this court has a duty to interpret any document, including the motion under consideration, in such a manner as to save the document by ascribing to it such a meaning as to bring out the intention of the maker. In doing that, I am to accord the document a liberal construction, unless the intention of the maker is clearly recorded in the document without any ambiguity. This court should therefore avoid undue adherence to technicality at the expense of the justice of the case. See NWOLE v. IWUAGWU (2004) 15 NWLR (Pt.895) Pg. 61; IDRIS v. A.N.P.P. (2008) 8 NWLR (Pt. 1088) Pg. 1 and NIG. BANK FOR COMMERCE & INDUSTRY v. INTERGRATED GAS (NIG.) LTD & ANOR (1999) 8 NWLR (Pt. 613) Pg. 119 at 127. To achieve that purpose, the document must be read as a whole, and interpreted in that light, so as to achieve harmony among the parts of the document. The document should be construed as a whole and given an interpretation which will be consistent with the object and general context of the entire document. See BAKARE v. I.N.E.C (2007) 7 NWLR (Pt. 1064) Pg. 606; JAMB v. ORJI (2008) 2 NWLR (Pt. 1072) Pg. 552; ADAMS v. UMAR (2009) 5 NWLR (Pt. 1133) Pg. 41 and MBANI v. BOSI (2006) 11 NWLR (Pt.991) Pg. 400.

In the instant application, if the motion is construed liberally, it would reveal that the purport of prayer 1 is to seek leave to appeal the judgment as an interested party. It should not be construed as applying to the Ruling of 08/7/2010, in which the Applicant was a party. To do otherwise would defeat the purpose of the motion with a collateral damage to the entire Application. I must admit that the prayers on the motion paper are clumsily drafted, but that should not be allowed or construed in such a way as to terminate the Application in limine. This application should therefore be considered on its merit. Having thus done, I declare that the Judgment and Ruling referred to in prayer 2 are the judgment delivered on the 30/10/2009 and the Ruling delivered on 08/7/2010 in Suit No. HOW/229/2009. On the whole therefore, the Respondents' first issue should be and is accordingly resolved against the Respondents.

Now, the sole issue nominated for determination by the Applicant is, whether from the entire circumstances of this application, the Court of Appeal can grant the prayers sought in this application. In arguing same, learned counsel for the Applicant contended that, this Application is principally seeking for the exercise of the discretionary power of this court relating to the exercise of right of appeal of the Applicant. That for the court to invoke the provision of Section 243 of the 1999 Constitution of the Federal Republic of Nigeria, he has to disclose that he has a legal and substantive interest in the matter. He then submitted that the Applicant has shown that he has sufficient interest in the subject matter having disclosed in exhibits A, B, C, and D to his supporting affidavit his registered title to the two (2) plots of land, his registered survey plan, his development plan and the pictures of his building on the land and also his approved building plan for the other plot.

Learned counsel went on to submit that, the Applicant has deposed to facts in the entire body of his supporting affidavit, and more particularly paragraphs 1-20 therefore, and which facts were not opposed, his interest which has been directly affected by the conduct of the 1st and 2nd Respondents who filed an action in 2009 without joining him, whereas he has been in the property since 2003 without let or hindrance. He then cited the case of KALU v. ODILI (1992) 5 NWLR (Pt. 240) Pg.130 at 194 Para. C; RE: YINKA FOLAWIYO & SONS LTD (1991) 7 NWLR (Pt. 202) Pg. 237; FUNDUK ENGR. LTD v. MCARTHUR (1990) 4 NWLR (Pt.143) Pg. 266; RE: OJUKWU v. OJUKWU (1998) 5 NWLR (Pt. 551) Pg.673 at 682 - 683; and NIGERIAN BOTTLING CO. PLC. v. OSOFISAN (2000) 10 NWLR (Pt. 675) Pg. 370 at 381 -383, to submit that the Applicant is a person having an interest as contemplated by the Constitution of the Federal Republic of Nigeria, and that the facts supporting the interest of the Applicant have not been denied by the Respondents.

It was further submitted by learned counsel for the Applicant that, the Applicant has also sought for extension of time to appeal and has deposed to sufficient and strong facts on the reason for the delay in filing of the appeal. For that, he referred to the depositions of the Applicant at paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 28, 30, 31, 33, 36 of the supporting Affidavit as well as paragraphs 13, 14, 16, and 17 of the Applicant's Reply affidavit. That Suit No. HOW/229/2009 was filed and judgment delivered on the 30/10/2009 without making him a party or bringing the fact of the existence of that suit to his knowledge. That the Applicant only became aware of the judgment in October, 2010 following inquiries at the High Court after the 3 months statutory period allowed him to appeal had lapsed. It is also his contention that those facts were not denied by the Respondents in their Counter Affidavits, and should therefore be deemed and accepted as true. That rather, the Respondents confirmed those facts when they deposed that they had executed the judgment against the Applicant. He relied on the case of NORWOOD (NIG) LTD & ORS v. SAHLBAU GMBH & CO. K.G (1991) 5 NWLR (Pt. 194) Pg. 767; WILLIAMS v.

HOPE RISING VOLUNTARY SOCIETY (1982) 1-2 S.C Pg. 145, to urge us to hold that the Applicant has given sufficient reasons for the delay in bringing the application.

The Applicant further contended that another reason for the delay was due to the advice of his counsel who advised that the Applicant await the outcome of Suit No. HOW/92/2010 which had challenged the judgment on grounds of fraud. That it was in July, 2011 that his new counsel advised that he appeals against the judgment and Ruling. That those facts have been deposed in paragraphs 35, 36, 37, 40 and 41 of the supporting affidavit and which facts remain uncontroverted by the Respondents. It was therefore submitted that, since the further delay was occasioned by error in advice by learned counsel, it should not be visited on him. The cases of DOHERTY v. DOHERTY (1964) 1 All NLR Pg. 299; HARUNA v. LADEINDE (1987) 4 NWLR (Pt.67) Pg. 941; SOY AGENCIES & INDUSTRIAL SERVICES LTD v. METALUM LTD & ORS (1991) 3 NWLR (Pt. 177) Pg. 35 and NORWOOD (NIG.) LTD v. STALLBAU GMBH & CO. KG (supra) were cited to submit that courts are slow to punish the sin of counsel on the party who had retained his professional services.

It has also been submitted by learned counsel for the Applicant that, the Grounds of Appeal have raised very serious and substantial issues of law including the issue of breach of fair hearing. That those grounds of law are of such exceptional nature as to attracts the positive exercise of the court's discretion in his favour. 

Learned counsel for the Respondent contended that it is not in dispute that following the compulsory acquisition of the piece of land known as and called Plot P10 Works Layout, Owerri, from Dr. Godwin Okoroafor, he promptly filed a Suit in the High Court challenging the said acquisition vide Suit No. HOW/47/88. That it is also not in dispute that when Suit No. HOW/47/88 was pending, the 6th Respondent to whom the land so acquired was allocated, sold same to Chief Emmanuel N. I. Njoku who, in conjunction with the 3rd Respondent parcellated and further sold same to several individuals including the Applicant as evidenced by Exhibit B of the supporting Affidavit and Exhibits E of the Further Counter Affidavit. That by the doctrine of lis pendens, the 6t Respondent was precluded from transferring the right of ownership and possession of the land to any person at all, while the dispute involving the land was still pending in Suit No. HOW/47/88. It was further submitted that, the purported transfer of the said right to Chief Njoku by the 6th Respondents was caught by the doctrine of lis pendens and therefore null and void. The cases of AMAECHI v. I.N.E.C (2008) All FWLR (Pt. 407) Pg. 1 at 199 Paras C-F; AKINKUGBE v. EWURUM (2008) 4 SCNJ Pg. 404 at 409; ALAKIJA v. ABDULAI (1998) 6 NWLR (Pt 552) Pg. 1 at 4 and ENYI BROS FOODS PROCESSING CO. LTD & ANOR v. N.D.I.C. & ANOR (2007) All FWLR (Pt.367) Pg. 793 at 823 were cited in support.

It is further argued by the Respondents that, by the doctrine of lis pendens, the Applicant cannot claim to have acquired any interest in the property known as Plot P10, Works Layout, Owerri or any part thereof since Chief Njoku who sold the land to him had not acquired any legal interest in the said property which he could transfer to the Applicant as to warrant the Applicant making this application as an interested person or person interested. He again relied on the case of AMAECHI v. INEC (supra) at Pg. 69 to further submit that, in the eyes of the law, the Applicant and his landlord (Chief Njoku) do not exist as persons with any interest in the property known as Plot P10, Works Layout, Owerri. We were then urged to hold that, the Applicant has not shown any legally recognized interest in the property or any part thereof as to bring him into the class of persons having interest as provided by Section 243 of the 1999 Constitution (supra).

On whether the Applicant has proffered any reason for the delay or failure to bring the application within time, it is the contention of the learned counsel for the Respondents that the only reason is as deposed to in paragraphs 29, 30, 31, 33, 35 and 36 of the Supporting Affidavit. That comparing those paragraphs with certain documents contained in certain court processes filed by the Applicant, it is obvious that the Applicant is economical with the truth. That the Applicant did not tell the court that he and 7(seven) others brought in Suit No. HOW/229/2009 on the 04/5/2010, staying of further execution of the judgment and lost, and thereafter went to sleep. That the Applicant also filed an application in July, 20ll for enforcement of his Fundamental Rights and also falsely claimed through his present counsel in a motion filed at the Magistrate Court Owerri in Suit No. HOW/486/2010, that he had filed an appeal against the judgment. Learned counsel then submitted that the Applicant became aware of the judgment in Suit No. HOW/229/2009, delivered on the 30/10/2009, in May, 2010 when he challenged the execution of same and lost.

On the contention of the Applicant that the delay in bringing the application was occasioned by error of his counsel, learned Respondents' counsel disagreed, and submitted that the delay is rather caused by indolence of the Applicant arising from the fact that he realized that he has no interest in the property in dispute, as well as ineptitude of counsel. That there is a distinction between incompetence of counsel and error of counsel, and that an applicant cannot rely on the incompetence of his counsel to ask for the indulgence of this court. That it is not an error in a situation where leave of court is required to file an appeal, for counsel to proceed to file the appeal without the leave of court, and then proceed to seek advantage as in the instant case. He then cited the case of HON. MINISTER OF THE F.C.T v. ABDULLAHI (2010) All FWLR (Pt. 507) Pg. 179 at 196-199; IROEGBU v. OKWODU (1990) I0 SCNJ Pg. 89; UMAR INT. LTD v. BENDEL CEMENT CO. LTD (2009) All FWLR (Pt.500) Pg. 89 at 808 and WILBAHI HAULAGE LTD v. ANAMCO LTD (2009) All FWLR (Pt. 485) Pg. 1790 at 1798 - 1799, to submit that the Applicant has not established any good and substantial reason for his failure to bring this application within time. We were then urged to dismiss the application.

In Reply, learned counsel for the Applicant contended that the argument of the Respondents that Suit No. HOW/47/88 will operate as lis pendens against the interest of the applicant cannot be taken at this stage, in view of the fact that the issue of interest in the subject matter of the appeal being sought in respect of the Ruling of the High Court on 8/7/10. That there is a constitutional right of appeal enuring to the Applicant in respect of the ruling made on the 08/7/10, and all that the Applicant now seeks is for leave to exercise that right of appeal as a party to that Ruling out of time. That the issue of interest in the subject matter is unnecessary in respect of the appeal against the Ruling of 8/7/10 as disclosed in the Grounds of Appeal exhibited as Exhibit J to the supporting Affidavit. That the question of satisfaction of interest as required by Section 243 of the 1999 Constitution (supra) does not therefore relate to the Ruling of which the Applicant was a party. He cited the case of HARRY AKANDE v. GENERAL ELECTRIC CO. & ORS (1979) 3-4 S.C Pg. 115, to further submit that, since the Ruling of the lower court in July, 2010 pronounced on the locus standi of the Applicant and his interest in the subject matter, he has a right of appeal as of right being a party to that proceeding. It was further submitted that, any argument at this stage in respect of interest in the subject matter of the judgment which is the subject matter of this application will amount to prejudging the matter or the substantive appeal at an interlocutory stage, which courts are enjoined not to do. The cases of ORJI v. ZARIA INDUSTRIES LTD (1993) 1 NWLR (Pt. 216) Pg. 124; HART v. T.S.K.J (NIG) LTD (1997) 8 NWLR (Pt. 517) Pg. 424; S.C. (NIG) LTD v. OUR LINE LTD (1995) 5 NWLR (Pt. 395) Pg. 364; ICON LTD MERCHANT BANKERS v. F.B.N. MERCHANT BANKERS LTD (1995) 6 NWLR (Pt. 401) Pg. 370 and NIG. BOTTLING CO. v. OSOFISAN (supra) at 383-384 Para. F, were cited in support.

Learned counsel for the Applicant further submitted that, the basis of the assertion of the Respondents on lack of interest of the Applicant in Suit No. HOW/47/88 which is not the subject matter of this application, and therefore is arguable only at the time of taking the substantive appeal. That the Applicant has shown in Exhibit B annexed to the Supporting Affidavit that he bought and paid for the property, and also spent millions of naira in developing same since, 2003, while the judgment sought to be appealed against was filed in 2009 and therefore lis pendens cannot apply to his case, nor can it be determined at this stage, being an arguable issue to be determined at the hearing of the substantive appeal. He relied on ENYI BROS FOODS PROCESSING CO. v. NIG DEP. INS. CO. (supra) at Pg. 87, to further submit that, a right having been conferred on the Applicant over his specific plots of land is enforceable unless otherwise determined. He therefore submitted that, reference by Respondents to Suit No, HOW/47/88 as a basis for denying the Applicant interest is aimed at misleading the court, especially when there is no evidence shown by the Respondents as to whether Suit No. HOW/47/88 had been determined or is still pending.

On the point that the Applicant did not disclose reasons for the delay in filing the Application, it was contended by the Applicant that, by the authorities of UKAEGBU v. UGOLI (1991) 6 NWLR (Pt. 196) Pg.12 at 143 -144 and HON. MINISTER OF F.C.T v. ABDULLAHI (supra) cited by the Respondents, the fact of knowledge of the suit is sufficient reason to grant leave to appeal as a person interested. That since the Grounds of Appeal discloses serious issues of law, some of which border on the jurisdiction of the lower court, this Application should be granted. He relied on the cases of UKWU v. BUNGE (1997) 8 NWLR (Pt. 517) Pg.527; C.B.N v. AHMED (2001) 11 NWLR (Pt. 724) Pg. 369 at 392-393; OLANIYAN v. AWAH (1989) 5 NWLR (Pt. 122) Pg. 493 and UNILAG v. OLANIYAN (1985) 1 NWLR (Pt. 1) Pg. 156 at 163. It was finally submitted by the Applicant that, as the Counter Affidavit and the Written Address of the Respondents do not concern or relate to this applicant, but on one Tochukwu Anyanwu, this Application should be taken or regarded as unopposed, and to grant the Application accordingly.

Now, it is the constitutional right of a party or person to appeal against the judgment given against him or his interest. Such right is generally jealously guarded and protected by the courts. Courts of law, and indeed the appellate courts are often disposed to interpret such Constitutional or statutory provisions granting the right of appeal in favour of any person aggrieved. In other words, the right of appeal is conferred on the person aggrieved by a determination or decision of a court which has been pronounced against him, and the substance of which has denied such an aggrieved person his right to something or has wrongly affected his title to something. 

The right of appeal and the person who can exercise such right of appeal is constitutionally and in some instances statutorily circumscribed. It is not a right enuring to all comers, but is a right specifically donated by either the Constitution or the Statute that created either the trial court or the appellate court. See IFEKANDU v. UZOEGWU (2008) 15 NWLR (Pt 1111) Pg. 508; N.I W.A v. S.P.D.C (NIG.) LTD (2007) 1 NWLR (Pt. 1015) Pg.305; ISULIGHT (NIG) LTD v. JACKSON (2005) 11 NWLR (Pt. 937) Pg. 631 and EKUNOLA v. C.B.N (2006) 14 NWLR (Pt 1000) Pg. 292.

The right of appeal to the Court of Appeal from the decision of either the Federal High Court, High Court of the Federal capital Territory or the High Court of a State is donated by Sections 241, 242, and 243 of the 1999 Constitution of the Federal Republic of Nigeria. Section 241 enshrines situations where a person can appeal from the decision of the Federal High Court or a High court to the Court of Appeal as of right, while other appeals emanating from the right granted by Section 242 lie with leave of either the High Court or the Court of Appeal. Section 243(a) of the Constitution (supra) circumscribed the persons who can exercise such rights of appeal. For the purpose of this Application, it is the provision of Section 243(a) of the 1999 Constitution (supra) that calls for interpretation. That provision states that:

"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 leave of the Federal High Court or the 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 the State to take over and continue or to discontinue such proceedings at the instance of such other authorities or persons as may be prescribed."

It would be seen therefore that Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 confers a right of appeal to the Court of Appeal from the decisions of the Federal High Court or High Court of a state arising from civil proceedings at the instance of a party thereto, or with the leave of the High Court or the Court of Appeal at the instance of any other person having an interest in the matter. It means therefore that, where the person affected by the decision of the lower court was a party to the case and in the proceedings before the lower court, he need not seek leave to appeal provided he appeals within the time allowed by either the Statute or Rules of Court regulating the powers, practice and procedure of the Court of Appeal. However, the person seeking the exercise of the right of appeal does so as "a person having an interest in the matter," he must first of all, seek and obtain the leave of the High Court or of the Court of Appeal. See EKUNOLA v. C.B.N (supra) at Pg. 315; UWAGBA v. F.R.N (2009) 15 NWLR (Pt. 1163) Pg. 91 and E.F.P CO. LTD. v. N.D.I.C (2009) 9 NWLR Pg. 216.

In the instant case, it is not in dispute that the Applicant seeks the leave of this court to appeal the judgment of the Imo State High Court in Suit No. HOW/229/2009, as an interested party. It is also not in dispute that he was not a party to Suit No. HOW/229/2009 before the lower court. That being so, he has to satisfy this court that he is an interested party within the context of Section 243(a) of the 1999 Constitution. This is so because, he will not appeal as of right but as an interested party. In other words, not being a party to Suit No. HOW/229/2009 but seeks leave of Court to appeal by reason of the effect of the judgment which he contends has affected his interest, his right of appeal is subject to the condition as stipulated in Section 243(a) of the 1999 Constitution. To succeed in getting the court's favour, he has to satisfy the court that he is an interested party. The courts have generously interpreted the phrase "person having an interest" within the intendment of Section 243(a) of the 1999 Constitution to mean or synonymous with "person aggrieved", and that "a person aggrieved" is a person who has suffered a legal grievance, a person against whom a decision has been given which has deprived him of something or refused him something or affected his right or title to something. Thus, Belgore, JCA in the case of BAIDO v. I.N.E.C (2008) 12 NWLR (Pt. 1101) Pg. 379 at Pg. 400 Paras. A-D cited and relied on the decision of the Supreme Court in SOCIETE GENERAL BANK v. AFEKORO NWLR (Pt. 628) Pg. 521 at 524 where the Supreme Court held thus:

"The expression "person having an interest" for the purpose of an appeal by an interested party is synonymous with "person aggrieved". It does not really mean a man who is disappointed of a benefit which he might have received if some order had been made. A "person aggrieved" is a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully refused him something or wrongfully affected his title to something. Such a person will be granted leave to appeal against a decision given in a proceeding to which he was not a party".

See also NGIGE v. OBI (2006) 14 NWLR (Pt. 999) Pg. 1 at 206 per Alagoa, JCA (as he then was); OJORA v. AGIP (NIG) PLC (2005) 4 NWLR (Pt. 916) Pg. 515 and OZUEH v. EZEWEPUTA (2005) 4 NWLR (Pt. 915) Pg. 221.

In the instant application, the Applicant disclosed his interest in the land in dispute which has been affected by the judgment in Suit No. 229/2009, at paragraphs 1, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the principal Affidavit in support of this facts to the fore, I endevour to reproduce them below:

"1. That I am the owner of the land described as Plot 638 und 639 Works Layout, Owerri Imo State the subject matter of this application. That as the owner of the 2 two plots of land as described in paragraph 1 above, I know the entire circumstances of this matter and familiar with all the facts as I averred above.

3. That sometime in 2003, I entered into negotiations with Mr. Chigozie Joseph Ogoke Onukagha of Umualaocha Amanze in Obowo Local Government Area of Imo State for the purchase and acquisition of interest over the property known as Plot 638 and 639 Works Layout, Owerri, Imo State which was for sale then. 

4. That the said vendor Mr. Chigozie Joseph Ogoke Onukagha gave me the copies of his title documents which he bought from one Chief Emmanuel Njoku, in respect of the 2 plots of land for, me to make a search at the Lands Registry of Imo State at Owerri.

5. That I conducted diligently a search at the Registry of Deeds and discovered that Plot 638 was duly registered by the said vendor, Mr. Onukagho, as No. 52 at page 52 in volume 875, while Plot 639 was also registered as No. 56 at page 56 Volume 875 at the Register of Deeds in January, 2003,

6. That there was no caveat or any indication of encumbrance or adverse interest over the property at the location of the property or at the Registry of Deeds or at any other place.

7. That I proceeded to pay for the 2 (two) plots of land and also registered the title documents, which are two different Irrevocable Power of Attorney issued to me by the then owner at the registry of deeds without any indication of encumbrances. Plot 638 was registered in my name as No. 39 at page 39 in volume 884 of the Register while Plot 639 was registered as No. 38 at pages 38 in volume 884 of the Register of Deeds.

8. That this registration is still the position at the moment at the Lands Registry as the two properties have title assigned to me.

10. That in the same 2003, I proceeded to fence the property and commenced the construction of a massive two storey duplex building consisting of 5 three bedroom flats with the rooms in suite on Plot 638 of my property under the supervision and approval of Owerri Capital Development Authority. I installed iron doors on and completed the building about 2004 and let in tenants into the building in 2006. A picture taken of the building upon completion is annexed to this affidavit as exhibit C.

11. That I put in over N70 million (seventy million naira) in the acquisition and building of this my house on my land.

12. That throughout the period of my inspection for the purchase of the land, the surveying of the land, the fencing of the land, registration and construction of the building, I was not disturbed by any person neither was there any notice of any other adverse interest over the land, since the 2003 I have been in possession of the land.

13. That my building in the land is a massive project that spanned more than a year of continuous construction, yet the claimants/respondents did not for one day disturb me in any way.

14. That after the building, I interviewed and let in tenants into the house without any disturbance, let or hindrance from anybody.

15. That in the same 2003, I made a building plan for my family house for the other Plot 639 Works Layout. I also submitted my said family house plan for approval of the Owerri Capital Development Authority (OCDA), the government body in charge of construction of building and development in the capital city of Owerri in line with ownership and master plan.

16. That I submitted along with my said building plan, which is the usual practice, to the OCDA for approval, my title documents. Before the approval of a building plan, the OCDA investigates and confirms title, survey plan, size of the land and specifications and design to be in line with layout design of the area.

17. That in 2004 the OCDA approved this building plan for my building of my family house over my Plot 639. A copy the 13 paged approved building plan for this my Plot 639 Works Layout, Owerri Imo State is annexed to this affidavit as exhibit D.

18. That I had concluded plans to build my family house in my Plot 639 Works Layout, Owerri as approved by the OCDA based on my approved building plan when in 2010 I travelled to Spain on a business trip outside the country. Upon my return about March, 2011, I discovered that my tenants have been forcefully thrown out and evicted without recourse to me by the 1st set of Respondents, who place different people in my house, who told me in the same March, 2011 claiming that the house has been given to them by a judgment of court.

It is clear from the depositions of the Applicant above that he has disclosed his interest in Plots 638 and 639, Works Layout, Owerri and which Plots form part of a larger parcel of land hitherto known as Plot P10, Works Layout, Owerri. The Applicant has also deposed to the circumstances under which his interest in Plot 638 and 639 arose. The fact of the Applicant's interest in those plots of land was never challenged. The Counter Affidavit filed by the Respondents do not go to challenge any of the depositions of the Applicant Supporting Affidavit. As had been determined earlier in the course of this Ruling, the Respondents' Counter Affidavit do not refer to the Affidavit of the Applicant but one Tochukwu Anyanwu who is neither a party to this application nor did he depose to any affidavit in respect of same. The logical end result is that the depositions of the Applicant as to his interest in the land has not been disputed or controverted in any way. I find no deposition in the Further Counter-Affidavit and the 2nd Further Counter Affidavit of the Respondents that is of any help to the Respondents in this matter of interest of the Applicant in the subject matter. The facts deposed to by the Applicant show clearly that, before the judgment in Suit No. HOW/229/2009, he had acquired title to Plot Nos. 638 and 639, Works Layout, Owerri, but was deprived of his said plot including all appurtenances thereon by virtue of the said judgment. I am of the view and do hold that, the Applicant has made out a case that he is a person having an interest in Plot 638 and 639, Works Layout, Owerri, a component part of Plot P10, Works Layout, Owerri which is the subject of the suit and judgment in Suit No. HOW/229/2009. He is therefore a person who is justifiably aggrieved by that judgment, and as that judgment was arrived at in his absence, he qualifies to be granted the leave of this court to appeal as "a person having an interest" in the subject matter of that judgment, within the context of Section 243(a) of the 1999 Constitution.

The issue of lis pendens raised by the Respondents is, in my view, an issue that cannot be countenanced at this stage. Indeed, I agree with the Applicant that lis pendens is one issue that should be raised as a defence by the Respondent at the hearing of the substantive matter or appeal. To consider it now would be prejudging the substantive matter at this interlocutory stage. What is required now is whether or not, the Applicant has disclosed that he is a person having an interest in the matter, Proof of such interest is a different issue which is not our concern at this stage. 

It is pertinent at this juncture to reiterate that judgment in Suit No. HOW/229/2009, the Applicant and others had, by a motion on notice dated 04/5/2010, prayed the lower court for an order staying further execution of the judgment pending the hearing and determination of another Suit No. HOW/92/2010, which was a suit challenging the validity of the judgment in Suit No. HOW/229/2009.That motion was refused by the lower court. The Applicants filed the instant Application on the 21/12/2011, which is a date far outside the time allowed by the Rules of this court to file any appeal, either in respect of Suit No. HOW/229/2009 or in respect of the Ruling on the motion for stay of further execution. It is also germaine for the purposes of this Application to note that, judgment in Suit No. HOW/229/2009 was delivered on the 30/10/2009, while Ruling on the motion, also sought to be appealed against was delivered on the 08/7/2010.

It should also be noted that, the prayer for extension of time is in respect of the judgment and the Ruling of 8th July, 2010. The Applicant seeks extension of time to`appeal the judgment of the lower court in Suit No. HOW/229/2009, as an interested party. This court has held in the case of OJORA v. AGIP (NIG) PLC (supra) that, it is wrong and a misconception of procedure for a person to apply for an extension of time to seek leave to appeal as an interested party. Thus, Aka'ahs; JCA (as he then was) in the above cited case stated the position of the law clearly in his contribution at page 547 Paras. C-G, as follows:

"The application cannot be defeated on the ground that he did not apply for extension of time within which to seek leave to appeal because there is no time limit within he should do so. See Section 242(1) and 243(a) of the 1999 Constitution. IN RE: MADAKI (1996) 7 NWLR (Pt.459) 153 which interpreted order 3 Rule 3(3) Court of Appeal Rules and Section 221 und 222(a) of 1979 Constitution (which are the same as Section 243(1) and 243(a) of the 1999 Constitution) Uwais CJN stated clearly at page 164 thus:

"Neither the constitution nor the Court of Appeal Act or the Court of Appeal Rules prescribe any period within which an interested party may bring application for leave to appeal as "a person having an interest in the matter."

It is settled therefore that, it is a wrong procedure and a misconception of procedure and the law, for a person seeking for extension of time to appeal as an interested party, to include in his motion, a prayer seeking for extension of time within which to seek leave to appeal as an interested party. That being so, I am of the view and do hold that the prayer for extension of time within which to seek leave to appeal as an interested party, the judgment of the lower court made on the 30/10/2009, is a misconception and therefore procedurally wrong. That prayer (prayer 1) is only relevant when it seeks for extension of time within which to seek leave to appeal the Ruling made on the 8th of July, 2010. In the same vein, prayers 1, 2, and 3 are relevant with respect to the Ruling of 8/7/2010, while prayers 2 and 3 are the relevant prayers with respect to the judgment of 30/10/2009. The prayer seeking for leave to appeal as an interested party has been considered earlier in this Ruling. What remains to be considered for the purpose of this Application, is prayer 3, which seeks for extension of time to appeal both the judgment and the ruling in Suit No. HOW/229/2009. I now proceed to consider same below.

It therefore follows that after showing that he qualifies as an interested party, for his appeal to be competent, it must be further shown that the Applicant is within the time stipulated for filing of the appeal as prescribed by Section 24(2)(a) of the Court of Appeal Act, 2004, which stipulates that:

"24(2).The periods for the giving of notice of appeal or notice of application for leave to appeal are-

(a) In an appeal in a 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."

It therefore follows that the Applicant had three months within which to file his application for leave to appeal the judgment in Suit No. HOW/229/2009, while he had 14 days to appeal the Ruling delivered on the 08/7/2010. As noted earlier in the course of this Ruling time had elapsed when the Applicant brought the motion now under consideration. Happily, Section 24(4) of the Court of Appeal Act (supra) gives power to this court to extend the periods prescribed in sub-section 2 for the giving of the notice of appeal or the notice of application for leave to appeal. However, for the court to exercise its power granted by Section 24(4) of the Court of Appeal Act (supra), its jurisdiction must be activated by the person seeking to appeal, by way of a Motion on Notice in the manner prescribed by order 7 Rule 10(2) of the Court of Appeal Rules, 2011, which stipulates as follows:

"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...."

It is to be understood from the above cited provision of the Court of Appeal Rules (supra) that, in considering whether or not to grant an extension of time to appeal or to seek leave to appeal, the court must always bear in mind that rules of court must prima facie be obeyed. Though the Court of Appeal Act and the Court of Appeal Rules have given powers to the court to extend time for doing anything to which the Rules of the court apply, the grant of such a relief is at the discretion of the court, and like all judicial discretions, it must be exercised judiciously and judicially always bearing in mind the interest of justice to the parties in the case. In that respect, for a party to secure the favour of the court in the exercise of its discretion whether or not to grant the extension of time to appeal or to seek leave to appeal (as in the instant case), to justify the exercise of the court's discretion in the exercise of its power to extend such time, he must supply sufficient material upon which the court will base its discretion. This is so because, an application for extension of time within which to appeal or seek leave to appeal is not granted as a matter of course. That being so, the Applicant must satisfy the requirements of Order 7 Rule 10(2) of the Court of Appeal Rules (supra). By that Rule of this court, an applicant seeking the grant of an order of extension of time within which to appeal or to seek leave to appeal must satisfy two mandatory conditions, as follows:

(a) He must disclose by his affidavit evidence in support of the application, good and substantial reasons for his failure to appeal within the prescribed period; and

(b) The grounds of appeal must prima facie disclose good cause why the appeal should he heard.

See SCOA (NIG) PLC v. OMATSOLA (2009) 11 NWLR (Pt. 1151) Pg.106; SAVANNAH BANK (NIG) PLC v. C.B.N (2007) 8 NWLR (Pt. 1035) Pg. 26; F.C.M.B PLC v. N.I.M.R (2009) 9 NWLR (Pt. 1147) Pg. 509; MAJEKODUNMI v. CHRISTLIEB PLC (2009) 9 NWLR (Pt. 1145) Pg. 121; MICRO-LION INT'L (NIG) LTD v. GADZAMA (2009) 15 NWLR (Pt. 1162) Pg. 481; AKINPELU v. ADEGBORE (2008) 10 NWLR (Pt. 1096) Pg. 531 and LAWAL v. U.B.N PLC (2008) 12 NWLR (Pt. 1102) Pg. 707. 

It is the Applicant who has the burden of making available to the court such material evidence which should satisfy the court as to properly exercise its discretion in his favour.

In the instant case, the Applicant deposed at paragraphs 18, 19, 20, 21, 22, 23 and 32 of the principal affidavit in support of the motion as follows:

"18. That I had concluded plans to build my family house in my Plot 639 Works Layout, Owerri as approved by the OCDA based on my approved building plan when in 2010 I travelled to Spain on a business trip outside the country. Upon my return about March, 2011, I discovered that my tenants have been forcefully thrown out and evicted without recourse to me by the 1st set of Respondents, who place different people in my house, who told me in the same March, 2011 claiming that the house has been given to them by a judgment of court.

19. That my tenants who were forcefully evicted told me when I visited them in their different homes in Owerri where that relocated to after the unlawful eviction, in the same March, 2011 and I verily believe them that while I was away, that the 1st and 2nd respondents stormed the house severally between 2010 and 2011 with thugs and armed men and brandished a judgment which they say has given the house to them and threw sway their belongings even willfully damaged and vandalized the iron doors.

20. That till date I was not served with the judgment in this suit, which I was not aware of and the 1st and 2nd respondents have taken over my property collecting rents from tenants in the name of execution of a judgment I am of a party to.

21. That I had to visit the Registry of the High Court, Owerri and made inquiries on matters instituted by the 1st and 2nd respondents and it was confirmed the existence of the judgment in this matter, HOW/229/2009 at the High Court Registry, among other judgments and pending suits over the same subject matter in respect of Plot P10, Works Layout, Owerri Imo State.

22. That I also disclosed that the judgment in respect of one Plot P10 Works Layout, Owerri, Imo State as designated by the government of Imo State since 1980 as shown by the notice of revocation of 1986, which by the time the claimant/respondents instituted the action in 2009 was no longer in existence as the same government has since 2002 redesignated the area into different plots of land of which the appellant/applicant's Plots 638 and 639 Works Layout, Owerri are among them.

23. That to the knowledge of the claimant/respondents I have been in possession since 2003 of this registered Plot 638 and 639 Works Layout, Owerri, Imo State without any notice of adverse interest and  had developed the land, yet in 2009 when they instituted the action, they did not make me a party neither did they properly describe the property.

32. In all these suits, including the present Suit HOW229/2009 the basis of this appeal, the claimant/respondents did not sue me or join me despite my being in possession of land occupation of my land since 2003 through registered titles."

The crux of the above depositions of the Applicant is that he had been in lawful possession and occupation of the two plots of land; to wit: Plot 638 and 639 which form a part of the larger Plot P10, Works Layout, Owerri since 2003, with the full knowledge of the 1st and 2nd Respondents. That the said Respondents filed a suit in respect of the said Plot P10 which includes Plot 638 and 639 without joining him (Applicant) as a party, knowing fully that he has an interest in the subject matter. Those facts have not been challenged or controverted by the Respondents whose Counter Affidavit which purport to challenge same, does not relate to the case of the Applicant.

The Applicant also deposed at paragraphs 34, 35, 40, 41 and 42 of the Supporting Affidavit as follows:

"34. That I went to Mr. Chigozie Onukagha from whom I bought the plots and together we went to Chief Emmanuel Njoku, the man from whom he bought the property sometime on 20th April, 2011, being a Wednesday, over the development on the property, he told us in his house at about 6.00p.m and I verily believed him, that himself and 2 other owners of the property affected by the judgment had sued in HOW/92/2010 upon realizing the judgment and that he also joined all persons who acquired interest in different plots of the land that constitute the former Plot P10, including myself in un application to stay further execution and to set aside the writ of attachment issued and that the court refused the application...

35. That my learned counsel then, Mr. Okeji advised that I await the decision of the court in this Suit HOW/92/2010 which is pending before the Hon. Justice Nonye Okoronkwo of the High Court of Imo State which is challenging the judgment in HOW/229/2009. 

40. That sometimes towards the end of November, 2011, I retained another Solicitor, I. F. Akponye; Esq. who advised that since my properties are titled to me I should appeal against the Judgment and the Ruling in HOW/229/2009.

4. That by the time the 1st set of respondents invaded my property in late 2010 and 2011 I was away and time to appeal against the Judgment that was delivered in 2009 and the Ruling in 2010 had elapsed.

42. That I diligently undertake to pursue my appeal if leave I given to me."

I think the gravamen of the Applicant's case as can be seen in the depositions reproduced above is that, the delay in filing of the application to seek leave to appeal out of time, was predicated upon or informed by the advice of his former counsel. He had also deposed that, he was never joined as a party in Suit No. HOW/229/2009 and only became aware of the existence of the judgment affecting his interest in Plots 638 and 639, when upon his return from Spain, he discovered that the Respondents had evicted the tenants put on the house he had built on Plot 638. That when he briefed his former counsel, Mr. Okeji, the said counsel advised that he stays action on the matter, so as to await the outcome of Suit No. HOW/92/2010 which was then pending before the High court and which suit was challenging the legality of the judgment sought to be appealed against. It is therefore clear that the delay by the Applicant to appeal within the period for filing the appeals as prescribed by Section 24 of the Court of Appeal Act (supra) was informed by the advice of counsel. It is now settled that, once a party has done what is required of him by acting promptly to secure the services of counsel and further instructing counsel to carry out his instructions, and the counsel acted inadvertently or even negligently by failing to take steps to file the appeal within time, such a party is absolved of any blame. Accordingly, I am of the view that the inadvertence of counsel of the nature advocated in this application should be resolved in favour of the Applicant as qualifying as a good and substantial ground to warrant the grant of this application. See LAWAL v. U.B.N (supra) at Pg.718 and 719 and AKINPELU v. ADEGBORE (supra) at Pg. 555.

Having satisfied the requirement that an applicant must show good and substantial grounds, he must proceed to show that the grounds of appeal prima facie show good cause why the appeal should be heard. What is required to be shown here is not that the appeal is likely to succeed. In other words, all that is required of an Applicant in this respect is to show that the proposed grounds of appeal disclose an arguable issue. The fact that the appeal may succeed or not is immaterial at this stage. Thus, Nwodo; JCA in the case of F.C.M.B. PLC. v. N.I.M.R (supra) put the position succinctly at pages 521-522 Paras. H-A as follows:

"Grounds of appeal provide the mirror through which the court takes a peep at the appeal, not to determine the strength of the appeal but to provide useful information on the trend of the appeal. This is why good reason must be disclosed for hearing of the appeal not that the appeal will succeed. All the court should be concerned with is the strength of the grounds of appeal and not the success."

That being so, the only duty of the court is limited to seeing whether the grounds of appeal are substantial and reveal arguable grounds. The court should therefore avoid considering or deciding on the success of the grounds of appeal, for to do so would amount to deciding the substantive appeal in an interlocutory application. See N.N.P.C v. O.E (NIG) LTD (2008) 8 NWLR (Pt. 1090) Pg. 583; MICRO-LION INT'L (NIG) LTD v. GADZAMA (supra) at Pg. 501; SAVANNAH BANK (NIG) PLC v. C.B.N (supra) at Pg. 39; E.F. CO. LTD v. N.D.I.C (2007) 9 NWLR (Pt. 1039) Pg. 216 and MAJEKODUNMI v. CHRISTLIEB PLC (supra) at Pg. 129. I have perused the grounds of appeal as drawn in the two notices of appeal annexed to the principal affidavit in support of the Applicant's motion. I am of the view that the notices of appeal disclose good and substantial reasons why the application be granted, so that the appeal be heard. Such good and substantial grounds touch on, inter alia, locus standi in the subject matter of the appeal, want of fair hearing, want of jurisdiction and abuse of court process. Having thus found, I am of the view that the Applicant has satisfied me that he is entitled to be granted an extension of time to appeal both the judgment in Suit No. HOW/229/2009 and the Ruling of 08/7/2010.

On the issue of stay of execution and injunction, it is the submission of learned counsel for the Applicant, relying on the case of GOV. OF LAGOS STATE v. OJUKWU (1986) 1 NWLR (Pt. 18) Pg. 621, that the purpose is to maintain the status quo ante belum pending the determination of the appeal. Learned counsel for the Respondents did not say anything on the issue of stay of execution.

Now, I wish to restate that, the principles guiding the grant or refusal of an application for stay of execution and injunction are the same. Both are granted as a matter of discretion of the court and which discretion is usually exercised based on a consideration of same conditions. Generally however, the court are loath to deny a successful litigant from enjoying the fruits of the judgment. The court should also consider the effect of refusal of the application on the appellant/applicant if he eventually succeeds in the appeal. In the determination of whether or not to grant an order of stay of execution, the court should therefore do a balancing act between the contending interests of the parties. In doing that balancing act, the court would consider whether the Applicant has disclosed special circumstances which would attract the determination of the application in his favour. Some of the circumstances under which an application for stay of execution or injunction pending appeal may be made are:

(a) Whether the subject matter of the dispute will be destroyed if injunction or stay of execution is not granted;

(b) Where a situation of helplessness would be foisted on the court, especially an appellate court;

(c) Where execution will paralyze right of appeals;

(d) Where the order of the court would be rendered nugatory; or

(e) Where execution will prevent a return to the status quo if the appeal eventually succeeds.

By the use of the word "or" it means that these conditions are considered disjunctively. It means therefore that the Presence of any of the above stated requirements will suffice for the grant of the injunction. The burden is on an applicant to depose to an affidavit which discloses any of the above stated special circumstances. See AJUMA v. S.P.D.C.M. LTD (2011) 18 NWLR (Pt.1279) Pg. 797; OLOJEDE v. OLALEYE (2010) 4 NWLR (PT. 1183) Pg. 1; HO v. ABUBAKAR (2011) 12 NWLR (Pt. 1261) Pg. 323 and S.P.D.C.N. LTD v. AMADI (2011) 14 NWLR (Pt. 1266) Pg. 157).

It would be seen that the rationale behind the above stated requirements is primarily aimed at protecting the res from being destroyed, demolished or annihilated. The court therefore has the duty to protect the res, so that the res is kept intact for the benefit of the party who finally secures victory at the end of the litigation process. As stated earlier, it is the affidavit evidence of the parties which the court will consider in the determination of whether any of the above stated requirements exist.

I have carefully read and considered the Supporting Affidavit filed by the Applicant, the Further Counter Affidavit and the 2nd Further Counter Affidavit filed by the Respondents. It should again be noted that the Counter Affidavit of the Respondents had been discountenanced as not relating to or applicable to the instant application. It is also pertinent to note that, the subject matter of this dispute are Plots 638 and 639, Works Layout, Oweri, and which form part of a larger parcel of land known as Plot P10, Works Layout Owerri, which is the land granted the 1st and 2nd Respondents in the judgment sought to be appealed against. The Applicant's affidavit does not disclose any fact establishing the existence of any of the requirements for the grant of the order for injunction or stay of execution. This is moreso when the Applicant's affidavit discloses that execution of the judgment had been carried out. There is therefore no special circumstance disclose by the Applicant as to attract the grant of the order of stay of execution. In that respect, the 6th prayer, which seeks for an order of stay of execution is hereby refused and accordingly dismissed. Prayer 1, 2, 3 and 5 are however granted.

On the whole therefore, I hereby order as follows:

1. AN ORDER is granted extending the time within which the Applicant may seek leave to appeal against the Ruling of Hon. Justice C. I. Durueke delivered on the 8th day of July, 2010, in Suit No. HOW/229/2009.

2. LEAVE is granted the Applicant to appeal against the judgment of C. I. Durueke, J of the Imo State High Court sitting at Owerri in Suit No. HOW/229/2009, as an interested party; and the Ruling delivered on the 8th day of July, 2010 in Suit No. HOW/229/2009.

3. AN ORDER is granted extending the time within which the Applicant may appeal the judgment and Ruling in Suit No. HOW/229/2009. 

4. AN ORDER is granted CONSOLIDATING the Notices of Appeal against the judgment delivered on the 30/10/2009 and the Ruling delivered on the 08/7/2010 in Suit No. HOW/229/2009.

5. THE NOTICE OF APPEAL is to be filed within seven (7) days from today.

I make no order as to costs.

UWANI MUSA ABBA AJI, J.C.A. (PRESIDING): I have read in advance the Ruling of my learned brother H. S. Tsammani, JCA just delivered.

I entirely agree with his reasoning and conclusion that the application has merit and it is also granted by me as prayed save the application for stay of execution of the judgment of the Lower Court.

I endorse the consequential order to costs.

MOJEED A. OWOADE. J.C.A.: I read in advance the Ruling delivered by my learned brother HARUNA S. TSAMMANI, JCA. I agree with the reasoning and conclusion and I abide with the consequential orders.
 

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