PAX EDUCATION RESOURCES LTD v. F.R.N & ORS
(2020)LCN/15210(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, March 20, 2020
CA/A/174C/M/2019(R)
Before Our Lordships:
Adamu Jauro Justice of the Court of Appeal
Tinuade Akomolafe-Wilson Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
PAX EDUCATION RESOURCES LIMITED APPELANT(S)
And
1. FEDERAL REPUBLIC OF NIGERIA 2. PATRICK PILLAR 3. LUGARD EDEGBE RESPONDENT(S)
RATIO
WHETHER OR NOT INTEREST DEPOSED TO IN AN APPLICATION FOR LEAVE TO APPEAL MUST BE A LEGALLY RECOGNIZABLE INTEREST
It is a well settled principle, that the interest deposed to in an application for leave to appeal as an interested party under Section 243(a) of the 1999 Constitution (supra) must not only be genuine (cogent), but also a legally recognizable interest regarding a decision which prejudicially affects the Applicant. The person or party interested must specifically depose in an affidavit and establish in what manner the decision he seeks to appeal or challenge would or did affect the interest thereof.
In the interpretation of Section 243(a) of the 1999 Constitution, the literal meaning must be applied to get a clear and unambiguous meaning. It is clearly stated that “…and in the case of criminal proceedings at the instance of on accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney General of the Federation or the Attorney General of a State to take over and continue or discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;”PER IDRIS, J.C.A.
PERSONS ALLOWED BY THE CONSTITUTION TO APPEAL IN A CRIMINAL MATTER
From the above extract, it is clear that only three persons are allowed by the Constitution to appeal in a criminal matter. They are:
(a) the accused person;
(b) the Prosecutor or Complainant; and
(c) the Attorney General of the Federation or the Attorney General of a State to take over and continue or discontinue such proceedings.
Unlike in civil cases where a person can appeal as an interested party even if he was not a party at the trial Court as long as he can sufficiently prove that he must have been aggrieved by the decision of the Court below and his interests must have been directly affected, persons who can appeal in criminal matters are only limited to the three mentioned above. PER IDRIS, J.C.A.
WHETHER OR NOT AN APPLICANT WHO WAS NOT A PARTY TO THE PROCEEDINGS AT THE TRIAL COURT, HAS THE RIGHT TO APPEAL AS OF RIGHT
Since the Applicant was not a party to the proceeding at the trial Court, he does not have the right to appeal as of right, he does not have the right to appeal with leave either, because the right to appeal with leave relates to civil proceedings. As such, because the Applicant was not a party to the criminal trial at the lower Court, neither was he, an accused person at the trial Court, he does not have the right to appeal as a party having an interest. See SOYODE & ORS VS. DADA & ORS (IN RE: SAJA ALUFOHAI & COMPANY) (1999) LPELR – 6728 (CA) Pp. 9 – 10, PARAS. D – A). See also MBA VS. SPRING BANK PLC & ORS (2012) LPELR – 7951(CA) (Pp. 15 – 17, PARAS. A – D). PER IDRIS, J.C.A.
THE PRINCIPLE OF FAIR HEARING
Fair hearing involves not only the twin pillars of justice – audi alterem partem and nemo judex in causa sua but also, in its broad sense, what is not only right and fair to all concerned but also seems to be so. See ETIM VS. REGISTERED TRUSTEES OF PRESBYSTERIAN CHURCH OF NIGERIA (2004) 11 NWLR (PT. 883) P. 79, 92.
A party that decided to “sleep” on his right when he had ample time and opportunity to make himself heard in the matter. The Applicant never attempted to be heard. The onus lies on the Applicant to prove that it was denied the opportunity of being heard which it has failed to discharge. It is my decision that the issue of fair hearing cannot be said to have been breached in this instant case. PER IDRIS, J.C.A.
WHETHER OR NOT TEH DISCRETION OF THE COURT MUST BE EXERCISED JUDICIALLY AND JUDICIOUSLY
The discretion of the Court must be exercised judicially and judiciously. Discretion is understood to be liberty to act at pleasure, the power to make free choices unconstrained by external agencies. In the case of AFRICAN CONTINENTAL BANK VS. NNAMANI (1991) 4 NWLR (PT. 189) PAGE 486, it was held that:
“The exercise of the Court’s discretion is said to be judicial if the judge invokes the power in his capacity as judge qua law. In other words, an exercise of a discretionary power will be said to be judicial if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it carries or conveys the intellectual wisdom and prudent intellectual capacity of the judge as judex. In this second situation, the exercise of the discretion must be replete with such wisdom and tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view of doing justice to the parties.” PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Applicant in this appeal, although not a party to the charge at the trial Court filed a Motion on notice on the 7th of March, 2019 with Number: CA/A/174C/M/2019, seeking to appeal as an interested party against the judgment of the High Court of the Federal Capital Territory, Abuja Judicial Division, in Suit No. FCT/HC/CR/43/12 delivered on the 10th day of December, 2018 by Honourable Justice D. Z. Senchi, wherein the trial Judge voided the title documents of a property described as Plot No. SS1, Jikwoyi Extension III purported to belong to the Applicant, and declared that Fine Trust Academy who is the nominal complainant was validly granted title to the said property.
The facts of the case leading to this appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect that on the 19th day of November 2015, the case with Charge No. FCT/HC/CR/43/12 commenced de novo and the 2nd and 3rd Defendants were arraigned on a three count charge for offences bordering on conspiracy for using their positions as public officers in Abuja Municipal Area Council Abuja to confer corrupt advantage on the relatives and associates of the 2nd Respondent contrary to Sections 19 and 26 of the Corrupt Practices and Other Related Offences Act 2000 and forgery. The charge read as follows:-
COUNT ONE
That you Patrick Pillar (m) and Lugard Edegbe (m) on or about the month of July, 2000 while being Public Officer at Abuja Municipal Area Council Abuja as Secretary of Committee for Resolution of Disputes involving land and Zonal Land Manager respectively conspired to use your said positions to confer corrupt advantage upon relations and associates of Patrick Pillar by causing the title documents of Plot SS1 Jikwoyi Extension III to be made in favour of Pax Education Resources Limited, an unregistered company belonging to Patrick Pillar’s relations and associates and you thereby committed an offence contrary to Section 26(1) (c) and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.
COUNT TWO
That you Patrick Pillar (m) and Lugard Edegbe (m) on or about the month of July, 2000 at Abuja while being public officers in Abuja Municipal Area Council Abuja as Secretary of Committee of Resolution of Disputes involving Land and Zonal Land Manager respectively used your said Office to confer corrupt advantage upon relations and associates of Patrick Pillar by causing title documents of Plot SS1 Jikwoyi Extension III to be issued in favour of Pax Education Resources Limited, an unregistered company belonging to Patrick Pillar’s relations and associates and you thereby committed an offence contrary to and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.
COUNT THREE
That you Patrick Pillar on or about the month of October 2005 forged the Application for land form of Fine Trust Academy in its Policy File Number 9764 from 1997 to read 2005 with intent to cause damage or injury to Effiong Nsungusi the promoter of Fine Trust Academy so as to support your claim of ownership to Plot SS1 Jikwoyi Extension III in favour of Pax Education Resources Limited and you thereby committed an offence contrary to Section 363 and punishable under Section 364 of Penal Code Act.
The 2nd and 3rd Defendants pleaded not guilty to the 4th amended charge, presided over by Honourable Justice D. Z. Senchi. The Applicant was not a party to the charge at the trial Court. After the hearing of the case, the trial Court convicted the two defendants, made an order for the restitution or compensation for the loss or destruction of the victim’s property and ordered the return of the property to the nominal complainant. The Court further ordered that all the title documents in possession of Pax Education Resources Limited are hereby declared null and void.
Dissatisfied with the decision of the trial Court, the Applicant has brought a motion, seeking to appeal as an interested party and has filed a Notice of Appeal against the decision of the trial Court.
The Notice of Appeal contains three (3) grounds of appeal. In the said Motion on Notice, the Applicant is seeking to appeal as an interested party and asking for stay of execution of the judgment of the trial Court. The Applicant filed a written address in support of the said Motion. A sole issue for the determination was distilled thereof to wit:
Whether this Honourable Court has powers to grant the Applicant’s reliefs as contained in its applications.(Relates to Ground 1, 2 and 3) Learned Counsel for the Applicant submitted that of all the six reliefs sought, the counter affidavit filed by the 1st Respondent seems only to challenge the grant of relief one (1) as contained on the motion paper and reliefs 2 to 6 however remain unchallenged by the Respondents.
Learned Counsel for the Applicant argued that it is trite that where the averments in an affidavit are not countered by way of specific denials in the counter-affidavit, they remain unchallenged and the Court is bound to act on them.
The Applicant’s counsel buttressed the fact that the crux of the Applicant’s application, seeking leave to appeal as an interested party can be seen unambiguously from the judgment of the trial Court as the interest of the Applicant is affected. It was further argued that the Applicant was not given the opportunity of being heard, thus, it constituted a complete violation of the right of fair hearing of the Applicant as enshrined under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, and submitted that it is akin to the proverbial idiom of shaving one’s head in their absence and same cannot be allowed to stand.
Additionally, the Applicant’s Counsel contended that being a legal personality registered under Nigerian laws, the Applicant enjoys the right to own property in any part of Nigeria as guaranteed under Section 43 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
The Applicant’s counsel maintained that Section 44 of the 1999 Constitution frowns at situations where moveable or immovable property shall be taken possession of compulsorily from anyone without the due process of the law followed in doing so.
The Applicant’s counsel submitted that its application has merit as the interest of the Appellant is the issue in the main appeal, hence, the application for leave to appeal the judgment of the trial Court as an interested party.
The Applicant’s counsel argued that the Supreme Court in BABABE vs. F. R. N. (2019) 1 NWLR (PT. 1652) made it very clear that a limited liability company is a legal entity distinct from its members and urged the Court to discountenance the 1st Respondent’s claim that the company was aware of the existence of the case at the lower Court.
Learned Counsel to the Applicant also submitted that this Honourable Court is empowered to grant the application in the interest of justice. Counsel maintained that the Court can grant the Applicant leave to appeal as an interested party as the facts in the circumstances of this case is such that the Applicant’s interest is affected by the decision of the trial Court reached without the presence of the Applicant as a party in the case at the trial Court.
Furthermore, the Applicant’s Counsel submitted, that the appropriate Court at the moment, that has jurisdiction to grant leave is this Court, since the record of appeal had been compiled and transmitted and time to appeal has elapsed.
Additionally, the learned Applicant’s Counsel, urged the Court to grant their application going by the provisions of Section 243(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and that the Court has discretionary powers to grant or refuse the instant application.
Additionally, the Applicant’s Counsel submitted that having not been a party at the trial Court, leave is required by the Applicant to appeal the decision of the trial Court as enshrined under Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Counsel urged the Court to exercise discretion in favour of the Appellant and grant all the 6 reliefs sought on the face of the motion paper since the Applicant has been able to canvass sufficient argument and adduce convincing reasons in accordance to the law and also, Counsel appealed to the Court to exercise its favourable discretion in support of this application as it is in the best interest of justice to grant the reliefs sought.
The following authorities were relied upon by the Applicant:
1. LAWAL V. FEDERAL REPUBLIC OF NIGERIA (2013) 3 NWLR PT. 1342, P 451.
2. IBIDOYE V. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR PT. 1399, P. 30.
3. RE ABDULLAHI (2018) LPELR – 45202 (SC) PP. 38 – 40 AT PARAS. B – E.
4. CHUKWU& ANOR V. INEC & ORS (2014) LPELR – 25015 (SC) P. 86.
5. FUNDUK ENGINEERING LTD V. JAMES MCARTHUR & ORS (1990) 4 NWLR (PT. 143) 266 AT P. 277, PARAS E – G.
6. BABABE V. F. R. N. (2019) 1 N.W.L.R PT. 1652, P. 109.
7. ALIOKE V. OYE (2018) 18 NWLR PT. 1651, P. 247 AT 264 PARAS A – C.
8. OSALUMHENSE V. AGBORO (2005) LPELR – 7536 (CA).
- BLUE-CHIP ACQUISITION & INVESTMENT CO. LTD V. ZENITH BANK PLC & ORS (2008) LPELR – 8529 (CA).
10. EKEMEZIE V. IFENACHO & ORS (2009) LPELR – 8916 (CA).
11. AG KWARA STATE & ORS V. POPOOLA & ORS (2019) LPELR – 48472 (CA).
The 1st Respondent filed a counter affidavit and written address dated the 26th of November, 2019 opposing the motion on the grounds that the depositions contained in it were false, fabricated and misleading. Also, the 1st Respondent argued that the Applicant is a meddlesome interloper that has failed to establish its interest in the case and thus, the application of the stay of execution should not be granted on its request. The 1st Respondent also argued that the other reliefs sought by the Applicant are not grantable by this Court and will amount to an academic exercise.
In his written address, the 1st Respondent formulated one issue for the determination of this Court reproduced below:
Whether the Applicant has the right of appeal in a criminal trial which it did not participate at the lower Court and which the trial Judge ordered restoration of the property to the victim of the crime?
Counsel for the 1st Respondent contended that the right of appeal is a creation of statute and the right of appeal is constitutional, and the applicable law is Section 243(a) of the 1999 constitution.
The 1st Respondent’s counsel argued that where the provision of a statute is clear and unambiguous, it should be given its plain, ordinary and natural grammatical meaning. The right of appeal recognized by Section 243(a) of the Constitution of the Federal Republic of Nigeria, is right of appeal of parties to civil proceedings, right of appeal in favour of interested parties in civil proceedings only, right of appeal of accused person or the prosecutor in criminal trial, and right of appeal of the Attorney General Federation, or State as the case may be to take over, to continue or discontinue any criminal trial pursuant to its power in the Constitution.
Learned Counsel for the 1st Respondent contended that Section 243(a) of the 1999 constitution of the Federal Republic of Nigeria did not recognize the Applicant who was neither the accused nor the Complainant before the lower Court and did not participate in the trial before the lower Court.
The 1st Respondent’s Counsel maintained that the Applicant was not allocated Plot SS1 Jikwoyi Extension III which is the land in issue in the year 2000 and does not acquire any interest in the plot.
Furthermore, learned Counsel for the 1st Respondent contended that the Applicant was not a legal entity in the year 2000 and cannot hold property neither can it acquire interest in any land and that the Applicant did not deny being registered in 2012.
The 1st Respondent’s counsel further argued that the plot was no longer available for the Applicant upon its registration in 2012 because it had been acquired by the competent party before the year 2000 and urged the Court to hold that the Applicant does not have any interest in the subject matter and so is a meddlesome interloper.
Additionally, the 1st Respondent’s counsel, argued that the Applicant had not disclosed any interest to accord it any right of appeal in this case as an interested party and urged the Court to dismiss this application as lacking in merit, and that the present application is frivolous.
The 3rd Respondent while supporting the Applicant’s motion filed a written address filed on the 17th of January, 2020 and submitted the following issue for the determination of this Court to wit:
Whether having regards to the decision of the Court ordering restoration of Plot SS1 Jikwoyi Extension III, Abuja to the nominal complainant; the constitutional rights of the applicant to fair hearing, Section 32(1)(b)(c) of the Administration of Criminal Justice Act and the entire circumstances of the case, the applicant having not been part of the criminal proceedings leading to the annulment of its title and subsequent conferment of the title on the nominal complainant ought to be given opportunity by this Court to be heard on merit.
Learned Counsel for the 3rd Respondent maintained that the plot of land which the Court below ordered to be restored to the nominal Complainant was allocated to the Applicant who was neither made a party nor participated in the proceedings leading to the decision.
The 3rd Respondent’s counsel argued that it is trite that the rights of every citizen germinates from and are nurtured by the Constitution which is the grund norm of all laws in our society.
The 3rd Respondent’s Counsel argued, that amongst the rights guaranteed by the Constitution include the right to own property and the right of the citizen not to deprived of the right to property except by an order of a Court of competent jurisdiction.
The 3rd Respondent’s counsel also submitted that the right to fair hearing includes the right to be given the opportunity to be heard by a Court or any authority, before a decision that affects any constitutional rights is taken.
The 3rd Respondent’s Counsel argued that it is beyond contest that Plot SS1, Jikwoyi Extension III, Abuja was allocated, whether rightly or wrongly to the Applicant, and it is also beyond doubt that the Applicant was not a party before the Court below in the criminal proceedings leading to the decision restoring, the ownership to the plot to the nominal complainant without hearing the Applicant.
The 3rd Respondent’s counsel submitted that the decision, given by the trial Court, which affected the Applicant’s ownership, or right to the said plot without hearing it amounts to a breach of its rights to property and fair hearing.
Learned Counsel for the 3rd Respondent maintained that having not been part of the proceedings at the Court below, the only way the Applicant can intervene in the matter is through the constitutional approach granted by Section 243(a) of the 1999 Constitution which entitled the Applicant to appeal with the leave of this Court as an interested person.
The 3rd Respondent’s counsel submitted that the only way the Applicant can prove that its rights have been breached is, when it is allowed to come before this Court to present his case.
The 3rd Respondent’s Counsel further submitted that denying the Applicant the opportunity of contesting the decision of the lower Court, before this Court will amount to a further denial of its rights.
The 3rd Respondent’s Counsel also submitted that learned Counsel to the 1st Respondent misconceived and misconstrued the provisions of Section 243(a) of the 1999 Constitution. It was further submitted that assuming, but without conceding that the framers of the Constitution did not, contemplate the right of a non accused person to appeal under Section 243(a) of the 1999 Constitution, this Court can still give effect to the provision of Section 243(a) to enable a non accused person, as it accords more with public policy and justice.
Learned Counsel to the 3rd Respondent argued that to decline to hear the Applicant’s appeal by refusing this application will melt greater injustice than the injustice melted by the lower Court depriving the Applicant the right to its property without hearing its side of story.
Learned Counsel to the 3rd Respondent urged the Court to place reliance on the case of OBADARA VS. PRESIDENT IBADAN WEST DISTRICT GRADE B, CUSTOMARY COURT (1965) NWLR 39 to the extent of its definition of the Applicant as an accused person even though the suit was a civil suit.
The 3rd Respondent’s counsel urged the Court to hold that this is a clear case where the Court could grant the application as the interest of justice will be more served in granting it than refusing it.
The Applicant on the 28th of November, 2019 filed a reply to the written address of the 1st Respondent and contended that Sections 312 and 416 of the Administration of Criminal Justice Act 2015 (ACJA) as cited by the 1st Respondent are not applicable in this case, and that the Applicant has the right to fair hearing as provided in Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The Applicant’s counsel then argued that by virtue of Section 6(6) of the Constitution of the Federal Republic of Nigeria (1999), the only option open to the Applicant is to seek the intervention of this Court to review the judgement of the lower Court that compulsorily transferred her interest in the property to a third party (Fine Trust Academy), by allowing it to appeal as an interested party.
The Applicant’s counsel submitted that Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria as cited is not applicable to the case at hand. Counsel further argued that because the Applicant is a limited liability company with legal personality, the lower Court ought to have joined it as a party.
Learned counsel to the Applicant submitted that the doctrine of stare decisis is to the effect that lower Courts are bound by the decision of the higher Court.
The Applicant’s counsel submitted that a Court cannot go into the merits of the matter at an interlocutory stage and urged the Court to exercise its discretion favourably to the Applicant and grant the Applicant leave to join as an interested party, and grant all the reliefs sought on the face of the motion paper.
JUDGMENT
Having read and thoroughly digested the processes filed by the parties herein, I shall therefore adopt the issue for determination distilled by the 1st Respondent and I shall go ahead to resolve same. It is reproduced hereunder thus:
Whether the Applicant has the right of appeal in a criminal trial which it did not participate at the lower Court and which the trial Judge ordered restoration of the property to the victim of the crime?
The pertinent question to be asked and answered is: Does the Applicant have the right to appeal as an interested party against a decision delivered in a criminal trial in which he was not a party to? My answer is in the negative. The Applicant does not have the right to appeal.
Rights of parties and persons to appeal against the judgments and decisions of Courts is contained under Sections 240 to 246 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
However, the provision of Section 243(1)(a) of the Constitution is applicable to this instant case. It provides that by virtue of the provisions of Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 as amended:
Any right of appeal to the Court of appeal from the decisions of the Federal High Court or a High Court conferred by this constitution shall be-
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of on accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney General of the Federation or the Attorney General of a State to take over and continue or discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
In the case of AKANDE VS. GENERAL ELECTRIC COY (1979) 3 LNR 187, the Apex Court was recorded to have aptly held that the person who exercises the right of appeal to the Court of Appeal under Section 243(a) (supra) “must be one named in the record” or, with leave having “an interest in the proceedings”. And that the phrase “a person having an interest in the proceedings”, includes a person affected or likely to be affected, aggrieved or likely to be aggrieved by the proceedings. The phrase, thus, excludes a total stranger, (a busy body) who is neither named in the record, nor has any interest therein. It is a well settled principle, that the interest deposed to in an application for leave to appeal as an interested party under Section 243(a) of the 1999 Constitution (supra) must not only be genuine (cogent), but also a legally recognizable interest regarding a decision which prejudicially affects the Applicant. The person or party interested must specifically depose in an affidavit and establish in what manner the decision he seeks to appeal or challenge would or did affect the interest thereof.
In the interpretation of Section 243(a) of the 1999 Constitution, the literal meaning must be applied to get a clear and unambiguous meaning. It is clearly stated that “…and in the case of criminal proceedings at the instance of on accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney General of the Federation or the Attorney General of a State to take over and continue or discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;”
From the above extract, it is clear that only three persons are allowed by the Constitution to appeal in a criminal matter. They are:
(a) the accused person;
(b) the Prosecutor or Complainant; and
(c) the Attorney General of the Federation or the Attorney General of a State to take over and continue or discontinue such proceedings.
Unlike in civil cases where a person can appeal as an interested party even if he was not a party at the trial Court as long as he can sufficiently prove that he must have been aggrieved by the decision of the Court below and his interests must have been directly affected, persons who can appeal in criminal matters are only limited to the three mentioned above.
In the application for determination before this Court, the Applicant was not a party in the charge before the lower Court as he was neither a defendant nor the prosecutor. Even though its name was mentioned during the trial and contained in the judgment, it was not a party to the charge before the trial Court.
Thus, it is my decision that having not been named as a party in the criminal matter at the trial Court, the Applicant has no locus standi to attempt to appeal against the decision therefrom as an interested party.
To buttress its point and to aid his assertion that it can appealed as an interested party, the Applicant has cited the case of RE ABDULLAHI (2018) LPELR – 45202 (SC) PAGE 38 – 40 AT PARAS B – E. I have read the facts and circumstances of the said case and I do not see how it is applicable in this instant appeal. In the said case, the Applicants brought an application seeking to substitute the deceased Appellant on the ground that there were administrators of the deceased Appellant’s estate. Judgment had been awarded against the deceased Appellant and he had filed an appeal, challenging amongst other things, the order of forfeiture made in respect of his property. Upon his death, his wife and children filed an application to be substituted and made a party so as to continue to pursue the appeal since they are directing affected by the order made against the deceased appellant.
The above case is a Supreme Court decision and it is the final Court in Nigeria. Its decisions are binding on every Court in the country. By the doctrine of Stare decisis, all Courts must follow its decisions. This ensures regularity, uniformity and certainty in our legal system. However, before following precedent, the facts of each case must be examined. This is so because judgments can only be understood in the light of the facts on which they are decided.
It is crystal clear that the facts in RE-ABDULLAHI (2018) (SUPRA) are totally different from this instant case. In the former, the Applicant seemingly wanted to “take over and continue” from the junction the deceased Appellant stopped from. They filed an application for substitution and not an application to appeal as an interested party.
Anyway one decides to look at it, the facts in RE-ABDULLAHI (2018) (SUPRA) are different from the facts of this case and so, it cannot be followed.
The Applicant in this case cannot be allowed to appeal as an interested party as it is a clear violation of the provisions of Section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria. Also, even though it has made heavy weather of its point by relying on the case of RE-ABDULLAHI (2018) (SUPRA), this Court cannot follow the position made by the Supreme Court in the said case as it is not on all fours with the instant case.
The Applicant has also cited the Supreme Court case of CHUKWU & ANOR VS. INEC & 0RS (2014) LPELR – 25015 (SC) PAGE 86 AT PARAS B – F, stating that going by the provisions of Section 243(1)(a) of the Constitution, a person interested in an appeal, who was not originally a party to the decision complained of must first seek leave as an interested party. Needless to start explaining and stating the facts of this case, one thing remains clear, this case is an election matter which is sui generis. It has nothing to do with criminal trials. Thus, not being on all fours with this instant case, this Court will not follow the points raised by the Applicant’s reliance on this case.
I agree with the position of the 1st Respondent that the right of appeal is a creation of statute, and that the right of appeal is constitutional and the applicable law is Section 243(a) of the 1999 constitution. Since the Applicant was not a party to the proceeding at the trial Court, he does not have the right to appeal as of right, he does not have the right to appeal with leave either, because the right to appeal with leave relates to civil proceedings. As such, because the Applicant was not a party to the criminal trial at the lower Court, neither was he, an accused person at the trial Court, he does not have the right to appeal as a party having an interest. See SOYODE & ORS VS. DADA & ORS (IN RE: SAJA ALUFOHAI & COMPANY) (1999) LPELR – 6728 (CA) Pp. 9 – 10, PARAS. D – A). See also MBA VS. SPRING BANK PLC & ORS (2012) LPELR – 7951(CA) (Pp. 15 – 17, PARAS. A – D).
Relying on the above, it is clear that since the Applicant was not named in the record of appeal he cannot be said to have an interest in the decision of the trial Court in Suit NO: FCT/HC/CR/43/12.
Also, the Applicant kept on emphasizing on the fact that his right of fair hearing was breached by the decision of the trial Court which has robbed it of its title to land without giving him the opportunity to be heard. The Applicant’s counsel had argued that the interest of the Applicant was affected when it was not given an opportunity to be heard thus resulting in a breach of its right to fairing enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.
A quick perusal of the processes before me, it is clear that the charge at the trial Court was first initiated in 2012 before starting de novo on the 19th of November, 2015 and judgment was finally delivered on the 10th of December, 2018. For the period of roughly 6 years that the matter went on, there is nothing on record to show that the Applicant ever filed a motion seeking to be joined as a party at the trial Court. Can it be said that the Applicant only became aware of the case when the judgment of Court was delivered in 2018? If that is the case, the Applicant cannot be heard saying that it was not given the opportunity to be heard.
Fair hearing involves not only the twin pillars of justice – audi alterem partem and nemo judex in causa sua but also, in its broad sense, what is not only right and fair to all concerned but also seems to be so. See ETIM VS. REGISTERED TRUSTEES OF PRESBYSTERIAN CHURCH OF NIGERIA (2004) 11 NWLR (PT. 883) P. 79, 92.
A party that decided to “sleep” on his right when he had ample time and opportunity to make himself heard in the matter. The Applicant never attempted to be heard. The onus lies on the Applicant to prove that it was denied the opportunity of being heard which it has failed to discharge. It is my decision that the issue of fair hearing cannot be said to have been breached in this instant case.
I must say that the 3rd Respondent must have misinterpreted the provision of Section 243(a) of the 1999 Constitution when he argued that the Applicant qualified to appeal as an interested party based on the “any powers conferred upon the Attorney General of the Federation or the Attorney General of a State to take over and continue or discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.”
I can also say that the 3rd Respondent made a fundamental error by saying in paragraph 4.19 of his written address that “assuming without conceding that the framers of the constitution did not contemplate the right of a non accused person to appeal under Section 243(a) supra. This Court can still give effect to the provision of Section 243(a) to enable a non accused person, as it accords more with public policy and justice.”
The discretion of the Court must be exercised judicially and judiciously. Discretion is understood to be liberty to act at pleasure, the power to make free choices unconstrained by external agencies. In the case of AFRICAN CONTINENTAL BANK VS. NNAMANI (1991) 4 NWLR (PT. 189) PAGE 486, it was held that:
“The exercise of the Court’s discretion is said to be judicial if the judge invokes the power in his capacity as judge qua law. In other words, an exercise of a discretionary power will be said to be judicial if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it carries or conveys the intellectual wisdom and prudent intellectual capacity of the judge as judex. In this second situation, the exercise of the discretion must be replete with such wisdom and tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view of doing justice to the parties.”
However, can it be said that the Court can clearly flaunt and disregard constitutional positions which are crystal clear all in the name of “doing it for public policy”? That is unheard of.
The Applicant’s application is a violation of Section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria which makes the Applicant’s application, unconstitutional, null and void. This application is lacking in merit, and frivolous. I hereby resolve this issue in favour of the 1st Respondent. In its entirety, the motion fails.
For all the reasons given above, the motion with number; CA/A/174C/M/2019 is hereby dismissed for lack of merit.
ADAMU JAURO, J.C.A.: I had the privilege of reading in draft the ruling just delivered by my learned brother, Mohammed Baba Idris, JCA. I am in full and complete agreement with the reasoning and conclusion contained in the said ruling to the effect that the application is lacking in merit.
I adopt the said ruling as mine and join my brother in dismissing the application. I abide by all consequential orders made therein.
Application Dismissed.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I agree.
Appearances:
AGBONHESE ESQ., with him, I. A. AYOGU ESQ. and I. C. OYEFESO ESQ. For Appellant(s)
ADESOLA ESQ. – for 1st Respondent
F. JUMBO ESQ., with him, R. KINYA ESQ. and R. V. AKINBORO ESQ. – for 2nd Respondent
P. O. ESHIEMOMOH ESQ., with him, J. T. MCHIANAN ESQ. – for 3rd Respondent For Respondent(s)
