Whether Leave to Appeal Granted to an Aggrieved Party can Inure to the Benefit of a Party Not Aggrieved

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CASE TITLE:  THE REGISTERED TRUSTEES OF THE NIGERIAN INSTITUTION OF ESTATE SURVEYORS AND VALUERS v. MR. BODE ADEDIJI & ORS (2022) LPELR-57072(CA) 

JUDGMENT DATE: FRIDAY, 18TH FEBRUARY, 2022

JUSTICES:

  • FATIMA OMORO AKINBAMI, JCA
  • ABUBAKAR MAHMUD TALBA, JCA
  • PETER OYINKENIMIEMI AFFEN, JCA

COURT DIVISION: KADUNA

PRACTICE AREA:  LEAVE OF COURT/ LEAVE TO APPEAL 

FACTS:

The 3rd – 5th Respondents (as plaintiffs) instituted an action against the 1st and 2nd Respondents (as 1st and 2nd defendants and the Appellants as 3rd and 4th defendants), at the Federal High Court challenging their expulsion from the Nigerian Institution of Estate Surveyors and Valuers. The matter was initially pending before Ijeoma L. Ojukwu, J. who granted an order substituting the 1st and 2nd Respondents herein, Bode Adediji and Rowland Abonta (sued as 3rd and 4th Defendants) with two other persons (Emeka Eleh and Kunle Awolaja.) The latter were said to have taken over from the former as National President and National Secretary of the Appellant at that time; and the substitution was not opposed by counsel for the plaintiffs.

Sequel to the transfer of Ojukwu, J. from the Kaduna Division of the Federal High Court and the eventual reassignment of the case to Anyadike, J., the 4th – 6th Respondents (as plaintiffs) applied by way of motion of notice to set aside the order granted by Ojukwu, J. “for incompetence and lack of jurisdiction”. In a considered ruling delivered on 30/1/13, Anyadike, J. set aside the earlier order of substitution, thereby restoring them as 3rd and 4th defendants in the suit.

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The ruling of 30/1/13 was the subject matter of the sister appeal in Appeal No. CA/K/531/14: Bode Adediji & Anor v Registered Trustees of the Nigerian Institution of Estate Surveyors and Valuers & Ors lodged by the 1st and 2nd Respondents herein pursuant to the leave granted by the Court of Appeal on 2/10/14.

The matter meanwhile proceeded to trial before Anyadike, J., who eventually handed down a final judgment on 10/12/14 and entered judgment in favour of the 4th- 6th Respondents (as plaintiffs).

Dissatisfied, the Appellants appealed.

The notice of appeal filed by the Appellant is against the final judgment delivered on 10/12/14. No mention is made of the ruling delivered on 30/1/13. The Appellant however referred to the leave granted on 2/10/14 by the Court of Appeal to the 2nd and 3rd Respondents to appeal the ruling of 30/1/13 as warrant for raising grounds of appeal in respect thereof in the instant appeal.

ISSUES:

The Appellant raised three issues for determination while the 4th – 6th Respondents filed a Notice of Preliminary Objection challenging the competence of the appeal as well as some grounds raised by the Appellant and issue one distilled therefrom.

COUNSEL SUBMISSIONS:

The Appellant contended that the leave granted leave by the Court on 2/10/14 to the 2nd and 3rd Respondents (with whom it jointly defended the case at the lower Court) to appeal the ruling of the trial Court obviated the necessity to procure leave afresh to raise a ground of appeal relating to that same interlocutory ruling. The Appellant insisted that issues arising from the interlocutory ruling for which leave to appeal had already been granted can be incorporated into a subsequent notice of appeal; and that it is permissible to combine an interlocutory ruling with a final judgment in an appeal, citing various cases in support.

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On the other hand, the 4th – 6th Respondents contend that whereas this appeal is said to be against the judgment delivered by Anyadike J. on 10/12/14, the Appellant’s grounds of appeal do not emanate from the said judgment with which they are allegedly dissatisfied, but relates to a ruling delivered on 30/1/13 which, at any rate, did not affect the Appellant. They maintain that issue one formulated in the Appellant’s brief (which, incidentally, is the only issue argued in the Appellant’s brief) does not relate to the judgment of 10/12/14 appealed against but to the ruling of 30/1/13, and is consequently incompetent and liable to be struck out.

DECISION/HELD:

In the final analysis, the preliminary objection succeeded and the appeal was struck out for being incompetent.

RATIO:

APPEAL – LEAVE OF COURT/LEAVE TO APPEAL: Whether leave to appeal granted to a party inures to the benefit of another party not aggrieved by the decision merely because they filed a joint statement of defence as co-defendants at the lower Court

“The Appellant has harped on the leave granted on 2/10/14 by this Court to the 2nd and 3rd Respondents to appeal the ruling of 30/1/13 as warrant for raising grounds of appeal in respect thereof in the instant appeal. But the Appellant is clearly standing on a weak wicket, if it is standing at all. The Appellant is not at liberty to appropriate the leave granted by this Court to the 2nd and 3rd Respondents (which provides the substratum for the sister appeal in Appeal No. CA/K/513/14) as basis for raising ground 9 and formulating issue one therefrom.

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The point that must be vigorously emphasised is that right of appeal is a constitutional prerogative available only to a person who is aggrieved by the decision of a lower Court. See MOHAMMED ABACHA v FEDERAL REPUBLIC OF NIGERIA (2014) LPELR-22014(SC) and IN RE: ALHAJA AFUSAT IJELU & ORS v LSDPC & ORS [1992] NWLR (PT. 266) 414. A fortiori, leave to appeal can only be granted to a person who is aggrieved by the decision of a lower Court. Thus, leave to appeal granted to a party aggrieved by a decision does not necessarily inure to the benefit of a party not aggrieved by the decision merely because they filed a joint statement of defence as co-defendants at the lower Court.” Per AFFEN, J.C.A.

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