Facts

By a motion on notice dated and filed on 9th June, 2022, the Applicants prayed the Supreme Court for an order granting enlargement of time within which they may seek leave to appeal as interested parties, against the judgement of the Court of Appeal delivered on 15th September, 2020 in Appeal No. CA/IB/19/2014 between Mr Saibu Olugbode & Anor v Chief Taoridi Dada & Anor.; an order granting them leave to appeal the said judgement as interested parties and; an order granting enlargement of time within which they may lodge their Notice of Appeal before the Supreme Court.

The case of the Applicants was that the judgement of the Court of Appeal in the said appeal, affected their vital interests and they were not joined as parties or made aware of the suit at the High Court of Ogun State in Suit No. HCT/IB/19/2015 and Appeal No. CA/IB/19/2014, which emanated therefrom. The grounds of the Applicants’ application were that the Applicants are the owners of a large parcel of land measuring about 464.77 hectares, upon which the Court of Appeal affirmed the judgement of the trial court which gave the 2nd Respondent title thereto, to the detriment of the Applicants. The Applicants claimed that they only became aware of the judgement and the proceedings that led to it on 5th February, 2021 when the 2nd Respondent instituted an action against the Applicants asserting title to the land.

The 1st Respondent did not file any opposition to the Applicants’ application. The 2nd Respondent on his part, filed a counter-affidavit with 22 annexures attached thereto together with a written address, in opposition to the Applicants’ application. In reaction, the Applicants filed a reply affidavit and a reply address.

Issue for Determination

The Supreme Court adopted the sole issue distilled by the Applicants as follows:

Whether the Putative Appellant/Applicants have disclosed sufficient reasons, for a favourable exercise of discretion of the Honourable Court to allow the application in its entirety.

Arguments

Counsel for the Applicants submitted that the Applicants satisfied the necessary conditions, gave substantial reasons for their failure to apply for leave to appeal within time and showed arguable grounds of appeal, entitling them to a grant of the application. He cited SHANU v AFRICABANK NIGERIA PLC (2000) 13 NWLR (PT. 684) 392. Counsel argued that the four grounds of appeal in the proposed Notice of Appeal were predicated on breach of fair hearing, perversity of the decision of the Court of Appeal and grant of reliefs in excess of the claim, and these are grounds of mixed law and fact which required leave of court. The Applicants’ Counsel contended that all the grounds concern fresh issues, not raised in the lower courts, which the Applicants would have raised if they were made parties in the lower courts. Counsel argued further that the Applicants were necessary parties to the suit and the appeal before the two lower courts, but the Respondents concealed that fact from the lower courts and it would be in the interest of justice for the Applicants’ application to be granted.

Responding, Counsel for the 2nd Respondent contended that the Applicants are privy to a pending appeal before the Supreme Court in Appeal No. SC/CV/79/2022, which was lodged by the 1st Respondent against the decision of the Court of Appeal that the Applicants were seeking leave to appeal against; and that they knew about the proceedings that led to the appeal and are bound by it. Counsel argued that the Applicants had imputed notice of the proceedings through their surveyor who was the 1st Respondent’s 14th witness in the consolidated suits that led to the appeal. Counsel submitted that the Applicants’ application is a duplication of the 1st Respondent’s appeal in Appeal No. SC/CV/79/2022 and another action in Suit No. HCT/185/2021 pending before the High Court of Ogun State, and is thus, an abuse of court process.

Replying on points of law, Counsel for the Applicants argued that the Applicants were necessary parties in the suit, and the appeal before the lower courts and their non-joinder robbed the lower courts of jurisdiction to hear the suit and the appeal, even as the decisions would not bind them. Counsel relied on GASSOL v TUTORE (2013) 14 NWLR (PT. 1374) 221. The Applicants’ Counsel also argued that imputed notice only exists in an agency relationship, and this was not what existed between the Applicants and the 1st Respondent’s 14th witness.

Court’s Ruling and Rationale

The Supreme Court noted that the 2nd Respondent’s opposition to the Applicants’ application was that the application is a duplication of pending actions and appeal and thus, an abuse of court process; and considering that an issue of abuse of court process touches on the court’s jurisdiction, it was necessary for the court to first attend to said issue raised by the 2nd Respondent. The Court held that indeed, multiplication of actions on the same subject-matter between the same parties, even where there exists a right to bring the action, is regarded as an abuse of court process.

Expounding on the connotation and classes of parties in litigation, the Apex Court held that in law, parties include privies which are classified into (1) Privies in blood (as ancestor and heir); (2) Privies in law (as testator and executor; intestate and administrator) and; (3) Privies in estate (as vendor and purchaser, lessor and lessee). 

The Court reasoned that in the same vein, parties to an action embrace privy in estate. The Apex Court relying on the Blacks Law Dictionary, 10th Edition (USA West Publishing Co. 2014), page 1394, described a privy as a person having a legal interest of privity in any action, matter or property; a person who is in privity with another.

The Court held that from Exhibit OBJ 5 annexed to the Applicants’ application, it was obvious that the Applicants derived their title to the land in dispute in 1978 from the 1st Respondent, who substituted and supplanted the Applicants’ vendors who were the original parties in the consolidated Suits No. HCT/7/89 and HCT/212/96 which birthed the trial court’s judgement in Exhibit OBJ 4. The Court noted that the 1st Respondent’s appeal against the judgement midwifed Appeal No. CA/IB/19/2014 – Exhibit OBJ 3, and the 1st Respondent’s dissatisfaction with the Court of Appeal’s decision in Exhibit OBJ 3 parented Appeal No. SC/CV/79/2022 which was subsisting before the Apex Court.

The Court found that in essence, the Applicants as evidenced by Exhibit OBJ 5, trace the root of their interest and right which ignited their application, to the 1st Respondent who is the 1st Appellant in the pending Appeal No. SC/CV/79/2022 which questioned the propriety of the Court of Appeal’s affirmation of the trial court’s decision that awarded customary title to the land in dispute encompassing the land the Applicants were claiming, to the 2nd Respondent. The Court held that it is therefore, not in doubt from the foregoing, that there is an existential contractual privity in estate between the Applicants and the 1st Respondent vis-à-vis the land they claim; and the legal implication is that the Applicants, as purchasers/vendees who purchased part of the disputed land from the 1st Respondent, will be ultimate beneficiaries of the decision in Appeal No. SC/CV/79/2022. The Court held that this means that the Applicants will swim or sink with the decision, such that, if it favours the 1st Respondent, they will gain therefrom in that their interest will be sheltered against the 2nd Respondent; and if, on the other hand, the 1st Respondent loses, the Applicants’ right in the disputed land will drown with the failure, in accordance with the Latin maxim – Qui sentit commodium sentire debit et onus – he who derives the advantage ought to also bear the burden.

The Apex Court held that, put bluntly, the Applicants’ application which aims to appeal the Court of Appeal decision in Exhibit OBJ 3, shares a common mission with the 1st Respondent’s appeal, which is to puncture the decision and reclaim title to the disputed land from the 2nd Respondent, and this means in effect, that the Applicants’ application is a classic exemplification of duplication of the pending appeal in SC/CV/79/2022.

The Court also noted that there is a pending suit before the High Court of Ogun State in Suit No. HCT/185/2021, filed by the 2nd Respondent’s family against the Applicants – Exhibit OBJ 1, in which the Applicants counter-claimed against the 2nd Respondent’s family as manifest in Exhibit OBJ 2. The Court held that even though the parties in Exhibit OBJ 2 are not numerically the same in Exhibit OBJ 1 with the addition of the Bureau of Lands and Survey, Ogun State as a party in Exhibit OBJ 2 – the Applicants’ counter-claim, it does not derogate or alter the sameness of the parties in both Exhibits OBJ 1 and Exhibit OBJ 2, and the Applicants’ application before the Court. The Supreme Court relied on ABUBAKAR v B. O. & A. P. LIMITED (2007) 18 NWLR (PT. 1066) 319.

The Apex Court held further that, even though the wordings of the reliefs in Exhibit OBJ 4 which led to the judgement of the Court of Appeal in Exhibit OBJ 3 that necessitated the Applicants’ application and Appeal No. SC/CV/79/2022, are not precisely the same with those in Exhibits OBJ 1 and OBJ 2, they all have the same substance and seek to achieve the same end result. Relying on its decision in MINISTRY OF WORKS v TOMAS (NIG) LTD (2002) 2 NWLR (PT. 752) 740, the Supreme Court held that the settled position of the law is that issues in matters are to be taken to be the same even though the wordings of the reliefs are different; provided that the substance and end results are the same.

The Apex Court found that the claims revolve around the ownership of the disputed land which warehouses the land the Applicants bought from the 1st Respondent; such that a court’s pronouncement thereon shapes the destiny of other tributary reliefs and ancillary claims. The Court held that a decision in Exhibits OBJ 1 and 2 will settle the rights of the parties; hence, the Applicants’ application is a multiplication of the grievances in Exhibits OBJ 1 and OBJ 2.

In conclusion, the Apex Court found that the Applicants’ application is a gross abuse of court process of Appeal No. SC/CV/79/2022 and Suit No. HCT/185/2021 both in the configuration of the parties and claims, and is thus, liable to an order of dismissal without an opportunity to relist it.

Applicants’ Application Dismissed.

Representation

Dr Olumide Ayeni, SAN with Olutunde Abegunde and others for the Applicants.

Olufemi O. N. Olabisi for the 1st Respondent.

M. I. Hanafi, SAN with O. A. Omolase and others for the 2nd Respondent.

No representation for the 3rd Respondent.

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

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