ADO LOCAL GOVT COUNCIL & ORS v. INJO & ORS
(2020)LCN/14520(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Wednesday, July 15, 2020
CA/MK/111/2016(R)
Before Our Lordships:
Adzira Gana Mshelia Justice of the Court of Appeal
Tani Yusuf Hassan Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
- ADO LOCAL GOVERNMENT COUNCIL 2. AGATU LOCAL GOVERNMENT COUNCIL 3. APA LOCAL GOVERNMENT COUNCIL 4. BURUKU LOCAL GOVERNMENT COUNCIL 5. GBOKO LOCAL GOVERNMENT COUNCIL 6. GUMA LOCAL GOVERNMENT COUNCIL 7. GWER LOCAL GOVERNMENT COUNCIL 8. GWER WEST LOCAL GOVERNMENT COUNCIL 9. KATSINA – ALA LOCAL GOVERNMENT COUNCIL 10. KONSHISHA LOCAL GOVERNMENT COUNCIL 11. KWANDE LOCAL GOVERNMENT COUNCIL 12. LOGO LOCAL GOVERNMENT COUNCIL 13. MAKURDI LOCAL GOVERNMENT COUNCIL 14. OBI LOCAL GOVERNMENT COUNCIL 15. OGBADIBO LOCAL GOVERNMENT COUNCIL 16. OJU LOCAL GOVERNMENT COUNCIL 17. OKPOKWU LOCAL GOVERNMENT COUNCIL 18. OHIMINI LOCAL GOVERNMENT COUNCIL 19. OTUKPO LOCAL GOVERNMENT COUNCIL 20. TARKA LOCAL GOVERNMENT COUNCIL 21. UKUM LOCAL GOVERNMENT COUNCIL 22. USHONGO LOCAL GOVERNMENT COUNCIL 23. VANDEIKYA LOCAL GOVERNMENT COUNCIL AND FIDELITY BANK PLC APPELANT(S)
And
- AONDOHEMBA AGBA INJO 2. EMMANUEL U. ODEH 3. FRANCIS OCHAI 4. ROBERT ALFA 5. WILFRED IORCHER 6. FRANCIS AGBANYI 7. AGBER ANDREW 8. JOSHUA ATIME 9. AUGUSTINE IORZUA 10. NAKUJE SUNDAY 11. MSONTER GAFERA – (SUBSTITUTED BY THE ORDER OF THE COURT DATED 6th FEBRUARY, 2018) 12. ISAAC TSEE 13. YATOR SHAGBAOR 14. SAMUEL IORTYOM 15. JOHN ABAYOL 16. JOSEPH DAAGEMA 17. FRANCIS INALEGWU 18. TIVLAHA KUMUN 19. PATRICK ONAH 20. WILFRED ACHAKU 21. PAULKOSE 22. DAVID ABAYOL 23. PETER A.TYEM 24. SAMSON OCHE 25. EMMANUEL GYUNGU 26. MOHAMMED UMAR 27. PETER AMEE 28. BONIFACE AKASE 29. FRIDAY MKOMON – (SUBSTITUTED BY THE ORDER OF THE COURT DATED 6TH FEBRUARY, 2018) 30. DENNIS ASHIWE 31. MATHEW ORBUM 32. BITMUS ADONGO 33. TERLUMUN APIR 34. DAVID T. CHIA 35. RICHARD KA’KAAN 36. JACOB A. ABELA 37. JOSEPH ABAHIA 38. NICHOLAS AKOUGH 39. APEV HUR 40. FRANCIS SHAAHIA 41. MICHAEL OGBOLE 42. PATRICK UWUA 43. IORTSWAM MBAMAA 44. MOSES ABE 45. SAMUEL ATTAH 46. AMOS AKOR 47. SALE YUSUFU 48. TARHEMBA UHANGE 49. GRACE ATTU OKA 50. JOHN A. KPOGA – {SUBSTITUTED BY THE ORDER OF THE COURT DATED 6TH FEBRUARY,, 2018) 51. SAMUEL AZUA WANKIN 52. DAVID IJACHE 53. SUNDAY INYANDA 54. SAMUEL SHAIBU 55. ANTHONY IJIGA 56. DOMINIC ANHWANGE 57. TERNENGE AGEMA {SUBSTITUTED BY THE ORDER OF THE COURT RESPONDENTS DATED 6th FEBRUARY, 2018} 58. ORTSERGA DEKAAN 59. PATRICK ERNYAM 60. FRANCIS SWENDE 61. SIMON ZAKI 62. AKOR SHILIMA 63. TERKIMBI TINDI – (SUBSTITUTED BY THE ORDER OF THE COURT DATED 6TH FEBRUARY, 2018) 64. MARGARET S. AGEBE 65. PRISCILLA AKOR 66. JOHN AGILE 67. UHUNA KENTI – [SUBSTITUTED BY THE ORDER OF THE COURT DATED 6TH FEBRUARY, 2018) 68. DANIEL A. AGBO 69. JOHN ALOBO 70. AGNES ADOLE 71. TERKAR SHIMA – {SUBSTITUTED BY THE ORDER OF THE COURT DATED 6TH FEBRUARY, 2018} 72. CLEMENT T.ATSEN 73. SUNDAY AKPENWUAN– {SUBSTITUTED BY THE ORDER OF THE COURT DATED 6TH FEBRUARY, 2018} 74. DANIEL UJAH 75. DAVID ACHINYA 76. TARAKAA ORNGUGA 77. MFEYINA JEBU 78. CALEB IORLUMUN AKULE 79. ORSEERAONDOOR 80. AONDONA ADZER 81. AMOS NORMA 82. TERSOO ALAGHGA 83. ZUNGWENEN NYAM– {SUBSTITUTED BY THE ORDER OF THE COURT DATED 6TH FEBRUARY, 2018} 84. JOSEPH T. NJIE 85. ALICE OTAKWU 86. MATTEW TYODUGH 87. AKERIGBA SUE 88. ORBAN ANCHOGHER 89. DOOSHIMA TORIGWA 90. EDWIN AGBO ABA 91. JOHN GYUDU 92. MIRIAM IORHEMEN 93. FERDINAND LUKERA 94. TERLUMUN BIGILA 95. MOSES ANGBELA 96. BENJAMIN IORVIHI 97. YAHAYA MOHAMMED 98. FRANCIS D.YONGO 99. AUGUSTINE AKUTSA 100. MOSES GBENDA 101. NELSON ADUE 102. NAKPA KISHAKYA 103. TERSUGH DAA– {SUBSTITUTED BY THE ORDER OF THE COURT DATED 6TH FEBRUARY, 2018} 104. STEPHEN ORKEGHEN 105. DONALD ALLAM 106. PETER ATSUKU 107. MATHIAS SHOMBON 108. JACOB ORBUM 109. JACOB AUDU 110. SHAAPELA AJIJI 111. IORAPUU KWAGHTAGHER 112. VIASHIMA ORKEGHEN 113. TERSTEA AMASE 114. JAMES ANYAKPA 115. MORIS ASEN 116. EUNICE IORSULA UTANGE 117. JOSEPH IGBER 118. SUNDAY AGBO 119. RAYMOND AMOUGH 120. MAMMY ANYA 121. BENARD T. TYAVYAR 122. JULIUS IAMEGH 123. MOSES GIRGI 124. FELIX AJIFKEN 125. AKORTSAHA AAKA 126. SAMUEL NYITARAKASE 127. FELIXAGUM 128. REGINA EDOH 129. CHARLES UGWU 130. GODFREY ONOJA 131. BAR. EMMANUEL VEMBE – (SUBSTITUTED BY THE ORDERS OF THE COURT DATED 6TH FEBRUARY, 2018] 132. DAVID KYULA 133. FRANCIS ORKAA 134. RICHARD GBISHE 135. AMODU SHAIBU 136. SAMUEL AGIRKWA 137. OKOPI OGBE 138. ABU EGBE 139. GEOFFREY TAVER 140. JOSEPH SHAGBA 141. CYPRAIN ASHWA 142. BEM TSEEN 143. EMMANUEL ORTSERGA 144. TERWASE AKPUR 145. JAMES OCHE 146. CAROLYN APEH 147. JOHN KWAGHFAN 148. TERKURA ADIKPO 149. GEOFFREY EKWO 150. PHILIP AKUHWA 151. GRACE KPAKOR A 152. UWUAVE ULLAM 153. JOHN T. JOGO 154. MICHAEL ADEKAA 155. MARY OMENKA O. 156. KENNEDY IORTYER 157. PAULINUS ANEWE 158. LAZARUS TSAGA 159. GUMA AKPENLAMEN 160. GODWIN TYOAKOSU 161. DAVID IDIKWU 162. EMMANUEL ODE – (.SUBSTITUTED BY THE ORDER OF THE COURT DATED 6TH FEBRUARY, 2018] 163. RICHARD HIICHI 164. PETER OJENEGBON 165. TERKURA ASO 166. PETER EJEH 167. JOHN EIMONYE 168. TERZUNGWEANYAMV DOOWUESE ADAGA 169. MABEL OCAHI 170. DENNIS AHAR 171. AUGUSTINE DEKWAGH 172. ANGELA OGBOLE 173. ADOGAS. OGA 174. VICTOR AKIGHIR – (.SUBSTITUTED BY THE ORDER OF THE COURT DATED 6th FEBRUARY, 2018) 175. MARTINA DICKSON 176. NELSON IGOMU 177. ANNEAJOKO 178. HARUNA EDOGBO 179. ANDREW NJIE 180. CHRISTOPHER AOR 181. ABRAHAM AKOR 182. SAMVICTOR URRAH- (.SUBSTITUTED BY THE ORDER OF THE COURT DATED 6TH FEBRUARY, 2018) 183. KENNETH ACHAN 184. MATHIAS ASONGO 185. NAAONDO TULE – {SUBSTITUTED BY THE ORDER OF THE COURT DATED 6th FEBRUARY, 2018} 186. J.O OCHONO 187. LEONARD ABUUL 189. ALEXANDER ABAYOL 190. AUGUSTINE ABE 191. WILLIAM UTANGE 192. MICHAEL SHIMA 193. JUDEGAYNAM 194. JONATHAN ICHAVER 195. MEMBER AKAAKAR 196. RICHARD ASEMA 197. MRS. IEMBER ASONGO – (SUBSTITUTED BY THE ORDER OF THE COURT DATED 6TH FEBRUARY, 2018] 198. JOSEPH IORPUU 199. UDAMGBE SWENDE 200. BENEDICT GAGAOR 201. TERWASE ASUA 202. JOSEPH UGBAUN 203. BARR. THEOPHILUS ANDYAR – (SUBSTITUTED BY THE ORDER OF THE COURT DATED 6th FEBRUARY, 2018] 204. TARHULA HARGA 205. MRS. MARY SEMALI – (SUBSTITUTED BY THE ORDER OF THE COURT DATED 6TH FEBRUARY, 2018) 206. RICHARD KAKAAN – (SUBSTITUTED BY THE ORDER OF THE COURT DATED 6TH FEBRUARY, 2018) 207. JOHN TERNGU AZUM 208. ABRAHAM UHEMBE 209. TYOKULA SOO 210. ISAAC IORJAA 211. BENUE STATE GOVERNMENT 212. MINISTRY OF COMMERCE AND INDUSTRIES, MAKURDI 213. TARAKU MILLS LIMITED 214. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, BENUE STATE. RESPONDENT(S)
RATIO
WHETHER OR NOT THE EXERCISE OF APPELLATE JURISDICTION IS ENTIRELY STATUTORY
It is also well settled that in this country the exercise of appellate jurisdiction is entirely statutory and is be derived either from the 1999 Constitution or a particular statute: see Henry Tai Ajomale v. John Ethakpemi Yaduat & Anor (No 1) (1991) LPELR-305(SC) p.7; Adeyemi (Alafin of Oyo) & Ors v. A.G. of Oyo State & Ors (1984) LPELR-169 (SC).
In line with the forgoing position, the 1999 Constitution of this Country states clearly in its Sections 243(1) and 243(1)(a) that:
243(1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred on by this Constitution shall be-
(a) exercisable in the case of civil proceedings at the instance of the a party thereto, or with the leave of the Federal High Court or a High Court or the Court of Appeal at the instance of any person having an interest in the matter… (italics mine). PER UGO, J.C.A.
CONDITION TO QUALIFY AS A PERSON INTERESTED IN A MATTER TO BE GRANTED LEAVE TO APPEAL
Now, to qualify as persons interested in a matter to be granted leave to appeal, an applicant must show that he has a legal interest in the subject matter of the dispute. Such a person must be one who suffered a grievance or against who judgment has been pronounced: see In Re: Alhaja Afusat Ijelu & Ors v. Lagos State Development and Property Corporation & Ors (1992) LPELR-1464(SC); Chukwu v. INEC (2014) 10 NWLR (PT 1415) 385.
That duty is on the applicant who wants the discretion of the Court to be exercised in his favour. PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): The applicants, all twenty-three Local Government Councils of Benue State by this application seek:
(1) Leave of this Court to appeal as interested persons against the decision of R.B. Haastrup, J., of the National Industrial Court of Nigeria sitting in Makurdi contained in his ruling delivered on 3/6/2016 in Suit No NICN/MKD/45/2014 between Aondohemba Agba Injo & 209 Others and Benue State Government & 3 Others granting a Garnishee Order absolute attaching Account No 5030058730 with Fidelity Bank Plc in satisfaction of the judgment debt of 211th – 214th Respondents (Benue State Government, Ministry of Commerce & Industries Benue State, Taraku Mills Ltd and Attorney General of Benue State) to 6th to 210th Respondents.
(2) Extension of time within which they can seek leave to appeal against the said ruling.
(3) Leave to appeal against the same ruling.
(4) Extension of time within which they can file Notice and Grounds of Appeal against the same ruling.
(5) An order joining them as applicants or as co-appellants or second set of appellants in Appeal No.
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CA/MK/111/2016, alternatively an order consolidating their own appeal with the Appeal No. CA/MK/111/2016 if this Court grants them the leave they are seeking.
(6) Any further order or others as this Court may deem seek deem fit to make in the circumstances of this case.
Their Ground for the application is that the said Account No. 5030058730 against which the Garnishee Order absolute of the National Industrial Court was made and which account is called Benue State Government Joint Local Government Account is exclusively theirs, that neither Benue State Government nor its other co-judgment debtors have legal title or access to it; that the garnishee order absolute in question of the National Industrial Court was made on misrepresentation of facts and without jurisdiction in the lower Court. They said when they became aware of the attachment and took steps to have it set aside, the lower Court held that it was functus officio in view of Appeal No CA/MK/111/2016 already pending here at the instance of the garnishee Fidelity Bank Plc against its decision.
In his five-paragraphed affidavit in support of the application deposed to on their behalf by
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one Joseph Valentine Ogizi, a legal Practitioner in the Law Firm of their Counsel, applicants particularly in paragraph 4 therein, further revealed that the said garnishee Order absolute was in respect of a judgment actually entered by way of Consent Judgment of 10/6/2015 between the Judgment Debtors, 211th – 214th Respondents (Benue Sate Government and its co-defendants) and 1st to 210th Respondents Judgment Creditors on 10/6/2015 and same was agreed upon by the parties to be liquidated in six installments, with penalty of 10% interest in case of default; that the National Industrial Court granted the order absolute attaching the sum of ₦955,272,521.89, which sum included the post judgment interest of 10% per annum calculated from August 2015 to 29 February 2016.
Mr. Ogizi swore that the National Industrial Court made the vexed Garnishee Order Absolute on 3/6/2016 believing wrongly that the account attached belongs to Benue Sate Government and its co-defendants/Judgment Debtors; that upon learning of the said wrongful attachment of their funds, they filed an interpleader application to have the funds released to them but the lower Court ruled
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that it was functus officio by reason of the order absolute it had granted and the pendency of Appeal No. CA/MK/111/2016 in this Court. He said applicants are necessary parties to CA/MK/111/2016 pending in this Court having not been heard as to their ownership of the said attached funds before the order absolute was made, that their right to far hearing was breached in that funds meant for their exclusive benefit were attached by the National Industrial Court without affording them the opportunity to be heard; that they are desirous of challenging the 03/6/2016 decision of Haastrup, J., and have formulated proposed grounds of appeal as shown in Exhibit C annexed to their application.
The garnishee Bank and the Judgment debtors are not opposed to granting the application but the Judgment Creditors who are 1st to 210th Respondents in the application are vehemently opposed to it and have filed a 4-paragraph counter affidavit deposed to by one Nyikyaa Torkwase a Litigation Secretary in their lawyers’ Law firm. There they branded as false the assertions of applicants that the National Industrial Court wrongly attached their funds or that their interest
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was adversely affected by the 03/6/2016 Order of the lower Court, or even that applicants are desirous of appealing the said decision or wishing to do so with good faith. They then went on to depose that the interpleader application of the applicants before the lower Court was actually dismissed by that Court and an appeal lodged by them to this Court in Appeal No. CA/MK/68/2019 against that dismissal was also dismissed by this Court on 21/1/2019. They annexed to their application and marked as Exhibits ‘A’ & ‘B’ applicants’ Notice of Appeal in that Appeal No CA/MK/68/2019 and also the ruling of the Court below dismissing it. They swore that the present application is brought on the same facts as that appeal dismissed by this Court.
They also pointed out that the Judgments Debtors, Benue State Government and its co-defendants, have not even challenged the 03/06/2019 garnishee order absolute of the lower Court by way of appeal to this Court.
In arguing the application, Mr. Pepe for applicants citing Chukwu v. INEC (2014) 10 NWLR (PT 1415) 385 @ 415 (SC) submitted that in an application of this nature, the applicants
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are required to establish the nature of their interest in the subject matter and same should also be clear on the records. Counsel submitted that even the name of the account attached by the garnishee order absolute of the lower Court, ‘Benue State Joint Local Government Account’, it is clear that it belongs exclusively to applicants.
In specific response to 1st – 210th Respondents/Judgment Creditors’ contention that the same facts underlie this application and applicants appeal in CA/MK/68/2017, Mr. Pepe argued that that is not true, that the two appeals are different, that whereas that appeal was against the 10/1/2017 decision of the lower Court dismissing applicant’s interpleader application, the appeal for which leave is sought to be filed upon the grant of the instant application is against the 03/6/2016 decision of that Court making a garnishee order absolute attaching their funds.
When asked by this Court whether Section 243(2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria which provides for right of appeal supports an application by an interested person to appeal against a decision of the National
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Industrial Court of Nigeria to this Court as the same Constitution clearly provides for in its Sections 243(1)(a), 244(a) and 245 (a) in respect of appeals from the State and Federal High Courts and Sharia and Customary Courts of Appeal respectively, Mr. Pepe first conceded that no such right exists only to later recant, during reply on points of law, that Section 254D(1) of the 1999 Constitution which says “For the purpose of exercising any jurisdiction conferred upon it by the Constitution or as by an Act of the National Assembly the National Industrial Court shall have all the powers of a High Court” read together with Section 243(1)(a) of the same Constitution confers a right on interested persons to also appeal to this Court from decisions of the National Industrial Court of Nigeria with leave.
Mr. Usha for 1st -210th Respondents in reply, after adopting his clients’ counter affidavit, attacked the application on three major fronts. He first argued, in line with the depositions in the counter affidavit, that (1) this application of applicants and their proposed appeal is brought on similar facts as their earlier Appeal No.
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CA/MK/68/2016 dismissed by this Court on 21/1/2019 so this appeal constitutes an abuse of process; (2) that Mr. Joseph Valentine Ogizi who swore to applicants’ affidavit being a lawyer was bound by Rule 10 of the Legal Practitioners Rules of Professional Conduct to affix his Lawyers stamp and seal on his said affidavit and his failure to so affix it invalidated his affidavit thus rending this application incompetent as it does not have any affidavit to support it, and (3) that assuming but without conceding that the said supporting affidavit was properly before this Court, the application was porous and does not show the exact interest of the applicants. He said they ought to show by clear evidence that applicants’ interest in the said account was attached.
On the Constitutional issue raised by this Court on the right of persons who were not parties to a proceeding in the National Industrial Court to appeal to this Court as parties interested, Mr. Usha submitted that Section 243(3) of the Constitution provides no such accommodation and not even the decision of the apex Court in Skye Bank v. Iwu (2018) ALL FWLR (PT 922) 1, (2017) 15 NWLR (PT
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1509) 24, (2017) LPELR-42595 (SC) allows for such.
As indicated earlier, Mr. Pepe in reply on points of law submitted that Section 254D(1) of the 1999 Constitution of this country read alongside Section 243(1)(a) confers power on the High Court to allow non-parties in proceedings before the National Industrial Court to appeal to this Court as interested parties.
Resolution of Issues
The first question that needs resolution is the one raised by this Court, namely whether the 1999 Constitution of the Federal Republic of Nigeria (as amended) confers a right on persons who were not parties in a proceeding at the National Industrial Court of Nigeria to appeal (albeit with leave) to this Court.
As shown earlier, Mr. Pepe for applicants who had earlier conceded that no such right exists for appeals from the National Industrial Court to this Court did a volte face during reply on points of law to submit that Section 254D(1) of the 1999 Constitution read alongside Section 243(1)(a) of the same Constitution confers such power. It does not at all seem to me that learned counsel is correct in this interpretation of
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Section 254D (1) of the 1999 Constitution. The said Section 254D (1) of the 1999 Constitution says:
“For the purpose of exercising any jurisdiction conferred upon it by the Constitution or as by an Act of the National Assembly the National Industrial Court shall have the all the powers of a High Court.” (Italics mine)
This provision it must be noted only confers on the National Industrial Court ‘powers’, and not the jurisdiction of the High Court on the National Industrial Court, when the National Industrial Court sits to exercise its own jurisdiction conferred on it by the Constitution or National Industrial Court Act. Power of the High Court, which this provision confers on the National Industrial Court, is not coterminous with jurisdiction of the High Court. That much has been well highlighted by the apex Court in several cases. See particularly Tukur v. Government of Gongola State (1989) LPELR-3272 p.48-49, 50-51 where Oputa, J.S.C., said:
“Judicial power is not coterminous with ‘jurisdiction’, though the former embraces the latter but they are not interchangeable.
“A Court may only exercise judicial power within its
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authorized jurisdiction i.e. its authority to determine a particular case.
“Section 6 of the 1979 Constitution is not concerned with jurisdiction of Courts. Consequently, the concept of reference to the judicial powers of the Courts is completely extraneous to the spirit of the whole Constitution having regard to the various provisions of the 1979 Constitution conferring jurisdiction on various Courts.
…“There is a ‘fine distinction’ between the jurisdiction of a Court and the powers it can exercise in the exercise of its undoubted jurisdiction. There ought first and foremost to exist jurisdiction before the issue of judicial powers exercisable under that jurisdiction can arise.” (Italics mine)
His brother, Nnamani, J.S.C, in the same case at p. 47 drew the same distinction, saying:
“The distinction between judicial power and jurisdiction must always be kept in mind. That Section [referring to Section 231 of the 1979 Constitution which was couched in similar terms like Section 254D (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended] only confers on the Federal High
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Court the same power which the State High Court has while exercising its own jurisdiction, i.e, like powers to do things like issue a writ of summons, etc. It does not confer jurisdiction on the Court itself which the Constitution has conferred on the State High Court.” (Italic mine)
See also Ajomale v. Yaduat (No 1) (1991) 5 NWLR (PT 191) 254 @ 263-264 where similar pronouncements were made. See also Babalola v. Obaoku-Ote (2005) NWLR (PT 927) 386 @ 402 where it was said by this Court (Adekeye, JCA, as he then was) that “though Courts often use the two terms interchangeably, the two terms are not the same, there is a clear distinction.”
Now it is settled law that the jurisdiction of Court is never granted in obscurity. That much the apex Court (Obaseki, JSC) made very clear in Alhaji Zanna Bukar Umoru Mandara v. Attorney General of the Federation (1984) 1 SCNLR 342 (quoted with by his Brother Oputa, JSC., in Tukur v. Government of Gongola State (1989) LPELR-3272 p.48-49, 50-52) again made clearly when it said:
“Jurisdiction is never granted in obscurity. The language of the law must be clear and positive. …..
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Jurisdiction is a power clearly visible to all beholders of the Constitution and the Law that confers it. Microscopic eyes are not required in order to unearth it.”
“Jurisdiction” as it was again stated by the apex Court per Tobi, JSC, in Arjay Ltd v. A.M. S. Ltd (2003) 7 NWLR (PT 820) 577 @ 633 para B-C, is ‘a hard matter of law which is donated by the Constitution and the statute establishing the Court.”
It is also well settled that in this country the exercise of appellate jurisdiction is entirely statutory and is be derived either from the 1999 Constitution or a particular statute: see Henry Tai Ajomale v. John Ethakpemi Yaduat & Anor (No 1) (1991) LPELR-305(SC) p.7; Adeyemi (Alafin of Oyo) & Ors v. A.G. of Oyo State & Ors (1984) LPELR-169 (SC).
In line with the forgoing position, the 1999 Constitution of this Country states clearly in its Sections 243(1) and 243(1)(a) that:
243(1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred on by this Constitution shall be-
(a) exercisable in the case of civil proceedings at the
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instance of the a party thereto, or with the leave of the Federal High Court or a High Court or the Court of Appeal at the instance of any person having an interest in the matter… (italics mine)
The same Constitution in its Sections 244(a) and 245(a) employs the same ‘at the instance of any person having an interest in the matter’ expression to confer a similar right of appeal on persons who were not parties to proceedings in the Sharia Court of Appeal and Customary Court of Appeal to appeal to this Court with the leave of those two Courts or this Court.
Meanwhile the same Constitution makes no similar provisions in respect of appeals from the National Industrial Court of Nigeria to this Court even as the provisions of Section 243(2) (3) and (4) of the 1999 Constitution guiding appeals to this Court from the National Industrial Court are hemmed in between the provisions of Section 243(1) (a) making that provision for the Federal High Court and State High Court on one hand and Section 244(2) (a) for the Sharia Court of Appeal. That deliberate omission suggests to that it was not the intention of the framers of the 1999 Constitution of
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this Federal Republic of Nigeria to confer right on non-parties in proceedings at the National Industrial Court to appeal to the Court of Appeal as they would do from the Federal High Court, State High Court or Sharia and Customary Courts of Appeal. The legal maxim still remains that what is expressed excludes whatever is not omitted.
Permit me once again to quote Obaseki, JSC, in Alhaji Zanna Bukar Umoru Mandara v. Attorney General of the Federation (1984) 1 SCNLR 342 that jurisdiction is a power ‘clearly visible to all beholders of the Constitution and the Law that confers it; Microscopic eyes are not required in order to unearth it,’ and not as Mr. Pepe for applicants tried to do on it with his ‘There is no such right of appeal in the Constitution and there seems to such right after all’ submission.
I shall not also fail to observe that as if conceding that there is no right of the appeal of the type sought by applicants from the National Industrial Court, the title of their application did not indicate the statutory provision that allows them to make this application. Their application simply stated there that it is
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brought pursuant to the general provisions of Order 6 Rule 1 of the Court of Appeal Rules 2016, which Rule simply says application to the Court shall be made by motion to the Court supported by affidavit.
The summary of the foregoing is this Court lacks jurisdiction to grant applicant’s instant application for leave to appeal to it as interested parties from a decision of the National Industrial Court of 03/6/2016 and the application is incompetent.
But assuming for purposes of argument that we are wrong in that decision, I now proceed to consider the merits of the application. In doing that, I shall start from the three issues raised by Mr. Usha for 1st to 210th respondents against it. I shall take them in the order counsel argued them. Mr. Usha’s first contention was that the appeal for which leave is sought to be filed constitutes abuse of process of Court because it is brought on similar grounds with Appeal No. CA/MK/68/2017 which was dismissed by this Court on 21/1/2019. I do not agree with him on this ground, at least not on the bare bones of the law. While it true that abuse of process may lie in both a proper or improper use of
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the judicial process in litigation, the employment of the judicial process is only generally regarded as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of the opponent, and the efficient and effective administration of justice. Such will include instituting a multiplicity of actions on the same matter against the same opponent on the same issues: see Saraki v. Kotoye (1992) LPELR-3016(SC) p.33. That is not the situation here. Applicants’ dismissed Appeal No. CA/MK/68/2017 was only against the decision of the lower Court delivered by P.O. Lifu, J., on 10/1/2017 dismissing their interpleader application. The appeal they now seek to file questions the correctness of the 3/6/2016 decision of Haastrup, J., of the same Court granting a garnishee order absolute attaching what they claim are their funds with Fidelity Bank Plc. At best the two appeals emanated from the same transaction but certainly brought on similar grounds as not to constitute abuse of process. At any rate, as it was also pointed out in Saraki v. Kotoye (supra) at p. 22, the Constitution of this country and the law and the practice in
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the administration of justice in this country have vested in an aggrieved party a right to appeal against any decision in respect of which he considers the Court is in error. That is the right the applicants are trying to exercise by appealing the 3/6/2106 decision of the National Industrial Court, even as their appeal in CA.MK/68/2017 against a subsequent decision of that same Court was dismissed by this Court on 21/1/2019. That, I hold, is not abuse of process.
I am also unable to subscribe to Mr. Usha’s second argument that Mr. Joseph Valentine Ogizi being a lawyer was bound by Rule 10 of the Legal Practitioners Rules of Professional Conduct to affix his Lawyers stamp and seal on his affidavit supporting applicants’ application and his failure to do that invalidated the said affidavit and left the application bereft of facts to support it. It is settled beyond dispute that a deponent to an affidavit by whatever name called is ordinarily a witness in the matter in which he made his deposition (seeJimoh v. Minister of Federal Capital Territory (2019) 5 NWLR (PT 1664) 45 @ 64 para H (Eko, J.S.C), it cannot therefore be correctly said that
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such a witness, because he happens to be a legal practitioner, is expected to affix his professional stamp and seal to his deposition even if his deposition has nothing to do with his core professional calling or activities as a legal practitioner. In fact this argument of Mr. Usha necessarily suggests that even a lawyer who only wishes to depose to an affidavit to be frontloaded in support of his family’s land litigation will have to affix his legal Practitioner’s stamp and seal otherwise his deposition will be unacceptable. That is an absurd interpretation of Rule 10 of the Legal Practitioners Rules of Professional Conduct whose main purpose is to weed out the menace of fake lawyers from engaging in legal practice. The law does not accept absurd interpretations of statutes or instruments: see Maxwell on The Interpretation of Statutes, 12th Edition by P. St. Langan, p.210; Ndoma-Egba v. Chukwuogor (2004) 2 S.C. (PT 1) 107 @ 114-115.
Mr. Usha’s third issue is that applicants have not supplied materials to the Court to show their interest in the subject matter of the decision of the lower Court of 3/6/2016 to warrant the grant of this
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application. Mr. Pepe on the other hand asserts strongly that they did; that the name of the account attached by the vexed garnishee Order absolute of the lower account, namely Benue State Joint Local Government Allocation Account No 5030058730, on its own shows that it is an exclusive account of the applicants’ 23 Local Governments of Benue State; that the said account is not owned by Benue State Government who through its Attorney General (the 214th Respondent), according to counsel, simply erroneously entered into Consent Judgment with 1st to 210th Respondents that culminated in the Garnishee Order absolute of attachment applicants seek to appeal against.
Now, to qualify as persons interested in a matter to be granted leave to appeal, an applicant must show that he has a legal interest in the subject matter of the dispute. Such a person must be one who suffered a grievance or against who judgment has been pronounced: see In Re: Alhaja Afusat Ijelu & Ors v. Lagos State Development and Property Corporation & Ors (1992) LPELR-1464(SC); Chukwu v. INEC (2014) 10 NWLR (PT 1415) 385.
That duty is on the applicant who wants the discretion
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of the Court to be exercised in his favour. At least that much Mr. Pepe for applicants also conceded when arguing his application.
So did applicants disclose that interest with sufficient materials or even any material at all? I think not. Applicants’ ground for their assertion that Account No 5030058730 attached by the order of the National Industrial Court is theirs and their interest is affected seems to be founded only on the name of the account nothing more. That to my mind is mere speculation. It is even more so when by their own admission the Benue State Government, to which all of them belong and are part of, through its Chief Law Officer the Attorney General of the State, claimed the same account as its own and even entered into a Consent Judgment with 1st to 210 Respondents on that basis. It will be thus be fairly ridiculous to suggest as is being done by applicants that Benue State Government and its Attorney General may and did not know its own bank accounts and so simply wrongly entered into consent judgment with 1st to 210th Respondents on that account. Applicants should have at least tendered the statements of that account to
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demonstrate to this Court that they and not Benue State have been the ones controlling that said Account No 5030058730 and that payments and disbursements from it have been habitually made to and by only them and not Benue State Government. At the very least, and I mean just the very least, they should have disclosed to by concrete evidence the signatories to the said account that they claim is exclusively theirs.
In the absence of all that, I do not see how their interest in the said account can be said to have been made out for this Court to permit them to appeal against the 03/6/2016 decision of the National Industrial Court of Nigeria attaching Account No 5030058730 with Fidelity Bank Plc. That is assuming the 1999 Constitution of this country allowed this Court to grant leave to non-parties to proceedings in the National Industrial Court to appeal to this Court from decisions of that Court.
In summary and for reasons that neither the 1999 Constitution of the Federal Republic of Nigeria nor the National Industrial Court of Nigeria Act permits leave to appeal to persons who were not parties to a proceeding in that Court to appeal to this Court,
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this appeal is struck out. Assuming such a right of appeal exists applicants have not made out a case for this Court to exercise its discretion in granting it to them, accordingly, this application fails even on its merits and is dismissed on that ground.
First to 210th Respondents are entitled to costs of this appeal which I assess at N100,000.00 against the applicants.
ADZIRA GANA MSHELIA, J.C.A.: I agree.
TANI YUSUF HASSAN, J.C.A.: I agree.
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Appearances:
O.D. Eje, Esq., with him, I.S. Mbawuike, Esq. For Appellant(s)
Usha, Esq., with him, S. A. Abatur – for the 1st to 210th Respondents
M.T. Assoh, Esq. – for the 211th to 214th Respondents
T.D. Pepe with him, N.L. Ikyaagba, Esq., O.N. Nur, Esq., and Mrs A.H. Gabriel Kpum – for the parties seeking leave to appeal as Interested Parties For Respondent(s)
