Revival of Abandoned/Waived Right of Appeal

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In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 1st day of February, 2019

Before Their Lordships

Mary Ukaego Peter-Odili

Kumai Bayang Aka’ahs

Kudirat Motonmori Olatokunbo Kekere-Ekun

Amiru Sanusi

Ejembi Eko

Justices, Supreme Court

SC.239/2011

Between

COUNTY & CITY BRICKS DEVELOPMENT

COMPANY LTD APPELLANT

And

1. HON. MINISTER OF ENVIRONMENT,

HOUSING & URBAN DEVELOPMENT

2. ATTORNEY-GENERAL OF THE FEDERATION RESPONDENTS

(Lead Judgement delivered by Honourable Ejembi Eko, JSC)

Facts

The Appellant entered into a contract with the First Respondent, whereby the latter agreed to convey to the Appellant, his interests in 16 hectares of land at Ikoyi for a term of 99 years. Afterwards, the Appellant was informed that the said contract had been superseded by the Deed of Lease dated 13th November, 1993 and the Deed of Rectification dated 19th April, 1999. By the subsequent rectification in the Deed of Lease, the conveyance was reduced to 10.47 hectares of land, instead of the 16 hectares earlier agreed to.

Further to the above, the Appellant filed an action at the Federal High Court, Lagos whereat it challenged the actions of the First Respondent. It sought various declaratory reliefs against the Respondents (and other Defendants at the trial court), with respect to the conveyance of a lesser area of land by the Deed of Lease and Deed of Rectification. It also prayed the court to find that the First Respondent was in breach of the contract for lease of 16 hectares of land to the Appellant.

The trial court found for the Appellant, that it is the owner of the entire land contained in the survey Plan with number MAF/322/95/L. The court also ordered that the Appellant is entitled to the grant of Statutory Right of Occupancy over the 16 hectares of land; that the First Respondent has no interest whatsoever in the subject land, and that the purported grant of the leases over the land to other persons (3rd to 8th Defendant at the trial court) is null and void. The judgement was delivered on 8th June, 2009.

At the trial court, the Acting Chief State Counsel from the office of the Attorney-General of the Federation, represented the First and Second Respondents. Consequent upon the judgement of the trial court, the counsel advised the First Respondent that given the overwhelming evidence in support of the Appellant’s case, the chances of success on appeal was very slim. He therefore, wrote a letter dated 14th August, 2009 to all the parties in the suit at the trial court, informing them on behalf of the First and Second Respondents, that after a careful review of the judgement, the First and Second Respondents have decided not to appeal the judgement and that the Ministry did not have further interest in the matter.

Subsequently, in the year 2010, the First and Second Respondents filed an application at the Court of Appeal, seeking trinity prayer for extension of time to seek leave of court to appeal the decision of the trial court; leave to appeal against the decision; and enlargement of time within which the Applicants may appeal the decision of the Federal High Court. The application was vehemently opposed by the Appellant, on the ground that the Applicants (First and Second Respondents) who had abandoned their right of appeal by consciously electing not to exercise the right, cannot be heard to say that their decision constitutes “good and substantial reasons for failure to appeal within the prescribed time” in line with the provisions of Order 24(2)(b) of the Court of Appeal Act, 2004.

The Court of Appeal, in its consideration of the application, held that the Second Respondent was most complacent and derelict in protecting whatever interest the Government may still have in the case. The Appellate Court found that the deliberate decision of counsel for the Respondents was not a conscious election not to exercise the right of appeal, but a mere mistake of counsel, the consequences of which should not be visited on the clients (Respondents).

Dissatisfied with the decision, the Appellant appealed to the Supreme Court.

Issues for Determination

The Appellant formulated five issues for determination of the appeal, while the Respondents put forward two issues for consideration by the court. The Apex Court determined the appeal based on the following issues, which were considered together by the court:

1. Whether by their letters and conduct, the Respondents had abandoned, extinguished, relinquished and waived their right of appeal.

2. Whether the court has no option but to grant an extension of time to appeal to a party who fails to show good and substantial reasons for not appealing within the prescribed time, so long as a proposed ground of appeal prim facie raises an issue of jurisdiction.

Arguments

The Appellant put forward an argument, for waiver and estoppel by conduct. Counsel submitted that the Respondents communicated their intention not to appeal the decision of the trial court, and that the Respondents had in clear terms, abandoned, renounced and repudiated their right of appeal. Appellant argued that having expressly abandoned their right of appeal, the Respondent should not, in equity, be allowed to seek to exercise the said right.

On their part, the Respondents argued that they did not waive their right of appeal, which is a constitutional right. Relying on the decision of court in ARIORI v ELEMO (1983) N.S.C.C. 1, they submitted that the only right that can be waived is that conferred solely for the benefit of the individual. They reasoned that in this case, the right of appeal vested in the State or public officials, are not such that the State or public officials can waive.

Court’s Judgement and Rationale

Determining the issues, the court examined the principle of estoppel by conduct. Section 169 of the Evidence Act, 2011 provides that when a person has, either by virtue of an existing court judgement … or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing. Estoppel by conduct is a public policy principle, premised on the belief that there must be an end to litigation. Its aim is to hold a party to his undertaking that he will no longer insist on his right to appeal or the accrued right or obligation from the judgement, and not to allow a person benefit from his prevarication. Equity abhors subterfuge, deception and some other unconscionable conduct.

Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) vests a right of appeal against the final decision of a High Court on an aggrieved party. However, this right must be exercised within 90 days in line with Section 24(2)(b) of the Court of Appeal Act, 2004. In this case, the Respondents elected not to exercise this right, and communicated this decision to the other parties in the suit. The legal consequence of the written correspondence and conduct of the Respondents, following the judgement of the trial court, is that they have abandoned or relinquished their right to appeal the judgement. The right of appeal is in personam, and can only be exercised within the prescribed time. The fact that the Respondents are public officers, does not derogate from this fact that they enjoy the same rights and obligations before the law. By Section 17(2)(a) of the Constitution, they can waive the rights conferred on them as litigants, as they did in this instance – ARIORI v ELEMO (supra). “’A right conferred solely for the benefit of an individual’, means the right of appeal conferred on the litigant who may be aggrieved by a decision given or rendered in a suit against him.” There is nothing in the Constitution or the relevant Court of Appeal Act, which forbids waiver of the Respondents’ right of appeal. Thus, the Respondents having voluntarily waived their right of appeal, they cannot be heard to complain that they were deprived of that same right. This is more so, as the incumbents of the office of the Attorney-General of the Federation should be men of candour and valour; they should not fail in their courage to be fair to all concerned.

By law, every counsel has general authority over every cause or matter, he is employed or engaged to prosecute or defend. Unless the authority is expressly limited, the ordinary authority of counsel includes, entering into compromise and settlement – AFEGBAI v A-G EDO STATE (2001) 7 S.C. (Pt. II) 1. The counsel representing the Respondents at the trial court, informed parties of their resolution not to appeal against the decision. It is not for the Court of Appeal, to question the authority and judgement of the Second Respondent as counsel for the First Respondent.

Further, a party seeking enlargement of time within which to appeal, in addition to establishing the two requisites of good and substantial reasons for the delay and ground(s) of appeal which prima facie show good cause why the appeal should be heard, bears an additional burden of ensuring a prima facie compliance with the rules of court – RATNAM v CUMARASAMY (1964) 3 ALL E.R. 933 at 935; BANK OF BARODA v MERCANTILE BANK (1987) 6 S.C. 341 at 350. Even where the application is not opposed, the court is still duty bound to satisfy itself that exceptional circumstances exist to warrant the grant of the indulgence sought – NWABUBA v ENEMUO (1988) 5 S.C.N.J. 154. Prevarication of the Applicant, is definitely not one of the exceptional circumstances provided for in the rules of court.

The Respondents in this case, elected not to activate their right of appeal until over one year after delivery of the judgement by the trial court. The facts in the affidavit in support of the application for extension of time before the Court of Appeal, did not set forth good and substantial reasons for the delay, in line with Order 7 Rule 10(2) of the Court of Appeal Rules 2011. A wilful and inordinate delay, as in this instance, cannot activate a judicial and judicious exercise of discretion by court. Thus, the Court of Appeal should have refused the application, in order to prevent an abuse of judicial process. The authority of UKWU v BUNGE (1997) 8 N.W.L.R. (Pt. 518) 527 at 542 is merely to the effect that, where jurisdictional issues are raised in the proposed Grounds of Appeal, the court will be inclined to take a lenient view of the delay in appealing within the prescribed period. The position does not avail the Respondents, whose delay was both wilful and inordinate.

Appeal Allowed.

Representation

Oluyode Delano, SAN with Mutiu Akinrinade, Esq.; Ahmed Oyebami, Esq. and Alex Ozogwu, Esq. for the Appellant.

Paul Usoro, SAN with Ime Edem-Nse, Esq.; Ayi-Ekpeyona Imah, Esq. and Ezinne Ukwu, Esq. for the Respondents.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)