➥ CASE SUMMARY OF:
County & City Bricks Development Co. Ltd v. Hon. Minister Of Environment Housing & Urban Development & Anor (2019) – SC
by “PipAr” B.C. Chima
Supreme Court – SC.239/2011
➥ JUDGEMENT DELIVERED ON:
Friday, 1st February, 2019
➥ AREA(S) OF LAW
Motion for extension of time.
Estoppel by conduct.
➥ NOTABLE DICTA
⦿ PRINCIPLE OF ESTOPPEL BY CONDUCT – WAIVER OF RIGHT
The principle of estoppel by conduct is based on the public policy that says that there must be an end to litigation. Its aim is, not only to hold a party to his undertaking that he will no longer insist on either his right to appeal or the accrued right or obligation from the judgment, but also not to allow a person benefit from his prevarication. Equity, generally abhors subterfuge, deception and some other unconscienable conduct. Equity acts in personam … It operates thus: if a person with full knowledge of the rights, interest, profits or benefits conferred upon or accruing to him by and under the law, intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his right, or that he has suffered by his not having exercised his rights. In the circumstance, just like in the instant case, he should be held to have waived his rights and consequently estopped from raising the issue subsequently. — Ejembi Eko, JSC.
⦿ ELEMENTS TO SHOW BEFORE EXTENSION FOR GRANT OF TIME WILL BE ALLOWED
Let me add, before I log out, that a party asking for enlargement of time within which to appeal not only does he have the burden of proving two facts before he gets the indulgence, that is: good and substantial reasons for the delay, and a ground(s) of appeal which prima facie show good cause why the appeal should be heard; he shares additional burden with the Court to ensure that the Rules of Court must prima facie be obeyed: RATNAM v. CUMARASAMY (1964) 3 ALL E.R. 933 at 935; BANK OF BARODA v. MERCANTLE BANK (1987) 6 S.0 341 at 350. Even where the application is not opposed, the Court still bears the onerous responsibility of satisfying itself that exceptional circumstances exist to warrant the grant of the indulgence because the Rules of Court must prima facie be obeyed: NWAWUBA v. ENEMUO (1988) 5 S.C.N.J. 154. — Ejembi Eko, JSC.
⦿ WRONGFUL EXERCISE OF DISCRETION MUST BE SHOWED FOR COURT TO INTERFERE IN FINDING OF FACT
On the other side which is that of the respondents is that this Court should affirm the Ruling of the Court of Appeal and dismiss the appeal as frivolous and unmeritorious. This appeal throws up very interesting facets as one is mindful of the fact that an appellate Court will not easily interfere with the exercise of discretion by a lower Court such as presented in the case in hand. To interfere, this Court has to be satisfied from the showing of materials that a wrongful exercise of that discretion has been made such as where the Court below acted under a misconception of the law or under a misapplication of fact such that it is seen that the lower Court gave weight to irrelevant or unproved matters or it omitted to take into account issues that are relevant or where it exercised or failed to exercise the discretion on wrong or insufficient materials and so it behoves the appellate Court the duty in the interest of justice to disturb that earlier decision. I rely on Enekebe v Enekebe (1964) 1 All NLR 102 at 106; Demuren v Asuni (1967) All NLR 94 at 101; Mobil Oil v Federal Board of Inland Revenue (1977) 3 SC 97 at 141; Sonekan v Smith (1967) 1 All NLR 329; Solanke v Ajibola (1968)1 ALL NLR 46 at 52. — M.P. Odili, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Ejembi Eko, JSC.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
Paul Usoro SAN.
➥ CASE HISTORY
The Federal High Court (Coram: Abdullahi Mustapha, CJ) delivered its final judgment in the suit No. FHC/L/CS/368/2007 on 8th June, 2009; wherein it found inter alia that:
i. That there was a contract between the Plaintiff and the 1st Defendant wherein the 1st Defendant agreed to convey to the Plaintiff 16 Hectares of land at lkoyi, Foreshore, lkoyi for a term of 99 years with effect from 1st January 1993 at a premium of N4,500.000.00 and annual Ground Rent of N180,000.00 and that the contract has not been superceded or overriden by the Deed of Lease dated 13th November, 1993 and the Deed of Rectification dated 19th April, 1999.
ii. The conveyance of a lesser area of land in the Deed of Lease dated 13th November, 1993 and the Deed of Rectification dated 19th April, 1999 totaling 10.47 Hectares of Land is not a discharge of the 1st Defendant’s contractual undertaking to convey 16 Hectares of Land to the Plaintiff.
iii. That the 1st Defendant is in breach of the contract for the lease of 16 Hectares of land to the Plaintiff.
Thereafter, it is indubitable that the 2nd Respondent’s office defended the suit against both the 1st and 2nd Respondents at the trial Court. After judgment of the trial Court the 2nd Respondent found no basis for appealing the judgment. The office of the 2nd Respondent accordingly advised the 1st Respondent. The Plaintiff, herein the Appellant, was further informed that the Respondents had “decided not to appeal (against) the Federal High Court Judgment.”
After one year, the same Respondents brought a motion for extension of time to appeal, which same was granted by the lower courts.
Aggrieved, this is an appeal by the Plaintiff/Appellant.
➥ ISSUE(S) & RESOLUTION
I. Whether the Respondent motion at the trial court to appeal ought to be granted?
RULING: IN APPELLANT’S FAVOUR.
A. “Section 241 of the Constitution vests in the Respondents a right of appeal from the decision of the trial Federal High Court. There is no doubt about the fact that they had 90 days under Section 24 (2) (b) of the Court of Appeal Act, 2004 to exercise that right, if they are mindful to. In the instant case, the Respondents elected not to exercise that right and had expressly let the Appellant and other parties in the suit know that they intended not to appeal and would not appeal the decision of the Federal High Court. They further expressly told all concerned that they were, from the facts of the case, satisfied with the judgment. The Appellant submit, and I agree with them, that the legal consequence of the written statements and conduct of the Respondents communicated to the Appellants following the judgment of the trial Court is that they had relinquished and abandoned their right of appeal and had thereby relinquished same irretrievably. I do not agree with the Respondents that the right of appeal is not a personal right vested in them as parties in the suit at the trial Court. That right enures to them to exercise, and it can only be exercised within 90 days or such longer time as the Court may extend. The fact that the Respondents are public officers does not derogate the truth of the matter that as parties to the suit they, like all parties in the suit are at par and do enjoy “the equality of rights, obligations and opportunities before the law” as assured by Section 17 (2) (a) of the Constitution, as amended. They can waive the right conferred on them, as litigants, by law. In the instant case they can waive the right of appeal conferred on them, as litigants and like all other litigants, by Section 241 of the Constitution read together with Section 24(2)(b) of the Court of Appeal Act.”
B. “My Lords, from the facts of this case, wherefrom it is abundantly clear that the Respondents having voluntarily waived their right of appeal, they cannot be heard to complain that they were deprived of that same right. They communicated their election to waive their right of appeal to the Appellant and other parties in the suit at the trial Court. They are in the circumstances estopped from insisting on the same right of appeal. The incumbents of the office of the Attorney-General of the Federation are men of honour who should be seen to be so.”
C. “In judicial chemical laboratory, operated by equity, a waiver of right produces an irreversible permanent change in favour of the third party. Equity will not allow a party to trap and overreach the other. HRH UMEANADU v. A.G. ANAMBRA STATE (2008) 34 N.S.C.Q.R. 1 at 24.”
“I allow the appeal. The decision of the Lower Court in the appeal No. CA/L/763M/2010, delivered on 24th May, 2011, granting the Respondents extension of time within which to appeal the judgment of the Federal High Court delivered on 8th June, 2009 in the suit No. FHCA/CS/368/2007, is hereby set aside. Parties shall bear their respective costs.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
S. 25 Court of Appeal Act.
➥ REFERENCED (CASE)
⦿ A PERSON HAS FULL COMPETENCE TO WAIVE HIS RIGHTS
ARIORI v. ELEMO (1983) 14 N.S.0 8, particularly the opinion of Eso, JSC at page 37 thereof: “The next enquiry is to what extent to which a person could waive rights conferred on him by law? When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such right. The right is for his benefit. He is sui juris. He is under no longer disability. He should be able to forego the right; in otherwords waive it either completely or partially, depending on his choice. The extent to which he has foregone his right would be a matter of fact and each case will depend on its peculiar facts. A beneficiary under statute should have full competence to waive those right once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of its statutory provisions”.
⦿ DELIBERATE DECISION TAKING BY COUNSEL FOR CLIENT IS BINDING
Supreme Court made this very clear in Akanbi v Alao (1989) 3 NWLR (Pt.108) 143, Per Eso JSC as follows: – “I think it would be extending Ibodo v Enarofia case beyond reason if every considered or assumed considered professional decision of a counsel which has gone wrong should qualify as ground of appeal. We did say once, and I am still of the firm view that the conduct of a case lies wholly with counsel. The rule really should be “caveat client”. If you choose a counsel, you should permit him, once seised of the case to conduct the case in the manner of his professional ability. Indeed that is part of the independence of the Bar. If there is lapse in his office, his clerk forgetting to file some papers, he forgetting the date of hearing or such like procedural errors, of course the client should not be made to suffer. If however, he takes a deliberate decision and loses thereby, then, it is his privilege to lose and that will constitute a right for the client for utilization as a ground of appeal. For, if it were not so, the profession would be in jeopardy”.
⦿ DECISION BY PREDECESSOR IN OFFICE TIES SUCCESSOR
Ikongbe JCA reported in A.G. Rivers State v Ikenta Best (Nig.) Ltd (2005) 2 NWLR (Pt.911) 1 at 25, who in part said: “If the happening of such events brought about by the deliberate and considered decision of that person or his predecessor in office, I do not think he or his successor-in-office should be allowed to use this as excuse for failure to do what enquired of him within time the offending decision by him of his predecessor in office.”
⦿ COUNSEL (APPEARING FOR HIMSELF) WILL HAVE HIS MISTAKES VISITED ON HIM
In Kotoye v Saraki 1995 NWLR (Pt.395) 256, in circumstances where the party (who is also a legal practitioner) took a decision not to appeal. Uwais J.S.C (as he then was) at Pages 7 and 8 said: “Any act of gambling involves risk taking and no gambler can claim not to be aware of that. When a counsel makes a mistake, such mistake or its consequence should not, in general, be visited on his client who, in most cases is a layman. Can the defendant/applicant who has been or is a legal practitioner be such a client? I certainly think not. There is therefore, no good reason given for the delay bringing this application.”
➥ REFERENCED (OTHERS)
⦿ DEFINITION OF WAIVER
Halsbury’s Laws of England 4th Edition, Vol. 16 stated in its way thus: – “The primary meaning of waiver has been said to be the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct, it may arise by virtue of a party making an election, for example whether or not to exercise a contractual right”.