INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) v. ADMIRAL MURTALA NYAKO (RTD) & ANOR (2011)

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) v. ADMIRAL MURTALA NYAKO (RTD) & ANOR

(2011)LCN/4437(CA)

In The Court of Appeal of Nigeria

On Thursday, the 31st day of March, 2011

CA/A/117/2011 (R)

RATIO

INTERPRETATION OF STATUTES : INTERPRETATION OF S. 243 (A) AS IT REGARDS THE RIGHT OF A PERSON TO APPEAL AGAINST A DECISION GIVEN BY A COURT IN WHICH HE WAS NOT A PARTY AT THE HEARING AND OF WHICH HE DID NOT PARTICIPATE

The right of a person to appeal against a decision given by a court in which he was not a party at the hearing and of which he did not participate is derived from the provision under S243(a) of the 1999 constitution of the Federal Republic of Nigeria. This S243(a) provides thus: “Any right of appeal to the Court of Appeal from the decision 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, an in the case of criminal proceedings at the instance of an accused person or, subject to powers conferred upon the Attorney- General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed This S243(a) provides for two situations requiring the exercise of the right of appeal in civil proceedings. They are: (i) At the instance of a party to the proceedings and (ii) At the instance of a person having interest in the matter, but not being a party thereto. The key phrase in construction of the provisions of S243(a) is “person having interest in the matter” This expression has been construed by the appellate courts in several cases. In the case of Oloja -Oriri v. Itshekiri 1 Communal land trustees and Ors (1973) 1 All NLR (Pt 2) 272 at 281 the appellate court on construction of who is not a “person interested” held that the phrase” a person interested does not apply to a person who stands by and allows his battle to be fought to his knowledge and on his behalf in a representative capacity and because he does not like the judgment applies for leave to appeal against it. In Re – Ogbuzuru Ugadu & Anor. (1988) 9 NWLR (Pt.93) 189. The Supreme Court per Karibi-Whyte JSC held: “Concisely stated the interest which will support an application under the provision must be a genuine and legally recognizable interest, in respect of a decision which prejudicially affects such interest” Therefore S243(a) of the constitution gives to a person who was not a party to a decision in a Civil Proceedings before the High Court a right to appeal. However it is not an automatic right as it is dependent on fulfillment of certain conditions for the right to be exercised. The applicant who is not a party at the High Court must seek leave first and in doing so must show that he is a person “having an interest in the matter.” From the judicial decisions in a catalogue of cases the phrase has been defined as synonymous with the phrase “person aggrieved.” In other words a person against whom a decision has been wrongfully pronounced against which has deprived him of something or a person who such decision has affected his title to something is a person interested in a matter. His interest must be one that is legally recognizable. See Re: Makaki 1996 7 NWLR (Pt459) 153 Williams v Mokwe 2005 14 NWLR (Pt 945) 249. See Re: Williams (No1) (2001) 9 NWLR (Pt.718) C4329. It is trite law that the interest envisaged under S243 is that of a legally recognizable interest. The applicant must be a person who has a genuine grievance because an order has been made which prejudicially affects his interest. A decision must have been pronounced in a case in which he is not a party and that decision has wrongfully deprived him something or refused him wrongfully something he is entitled to or wrongfully affected his title to something. See Re: Afolabi (1987) 4 NWLR (Pt.63) 18 CA Re : Eke (1993) 4 NWLR (Pt.286) CA 176 Gwando v. Maidoya (1990) 4 NWLR (Pt. 147) 805. PER REGINA OBIAGELI NWODO, J.C.A.

PARTY AGGRIEVED: MEANING OF THE WORD “PARTY AGGRIEVED”

I am also well guided in the description of the expression “person aggrieved” by the words of Oputa JSC in Fawehinmi v. NBA & others (No1) 1989 2 NWLR pt.105 494 at 551 where he said: There is also another expression which has to be properly understood and that is ‘Party aggrieved’ some statutes permit a person or a para aggrieved to appeal, any person having an interest recognized by law in the subject-matter of a judgment which interest is injuriously affected by the judgment can appeal if he is a party or apply for leave to be heard on appeal not as a party properly so called bat rather as a person interested: See Section 117(6)(a) of the 1963 Constitution and the case of Sun Insurance office Ltd. v. Victoria Olayibo Ojemuyiwa (1965) NMLR 452. This case highlighted the point that a party to the original suit either as plaintiff or defendant appeals against the ensuing judgment as of right while a person interested cannot launch an appeal in the name of the party but must obtain leave to appeal as a person interested:- see also Section 213(5) and 222(a) of the 1979 constitution and the case of Christopher Ede v. Ogenyi Nwidenyi & ors. In Re Ogbuzare Ugadu (1988) 5 NWLR (pt.93) 189 at p.203 at p. 270. PER REGINA OBIAGELI NWODO, J.C.A.

APPEAL: WHAT ARE THE MAIN PREREQUISITES THAT MUST BE ESTABLISHED BY APPLICANTS WHO ARE PERSONS AGGRIEVED AND WHAT THE COURT WILL CONSIDER IN DETERMINING WHETHER THEY HAVE SATISFIED THE PREREQUISITES FOR THEM TO BE ENTITLED TO APPEAL

LEGAL GRIEVANCE: MEANING OF “LEGAL GRIEVANCE”

Legal grievance means a person against whom a decision is pronounced and that decision has deprived him of something or has wrongfully refused him something which he had a right to demand. See Re: Madaki (1990) 4 NWLR (Pt.144) 266, SGBN v. Afekoro (1999) 7 SC (pt.111) Pg 95. Owena Bank Nigeria Plc. v. Nigeria Stock Exchange Ltd. (1997) 7 SCNJ 160. PER REGINA OBIAGELI NWODO, J.C.A.

JOINDER OF PARTY: WHEN WILL A PERSON BE JOINED AS A PARTY TO AN ACTION

The general rule is that a person will be joined as a party to an action if his presence before the court is necessary for the effectual determination of the matter or if he will be affected directly, legally or financially by any order made in the proceedings or when the person is a desirable party and ought to be given opportunity to be heard. See Green v. Green (1987) 3 NWLR (Pt.61) 480 at 493. PER REGINA OBIAGELI NWODO, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Appellant(s)

AND

1. ADMIRAL MURTALA NYAKO (RTD)
2. PEOPLES DEMOCRATIC PARTY

IN THE APPLICATION OF:

1. CONGRESS FOR PROGRESSIVE CHANCE
2. BRIG. GEN. BUBA MARWA
INTERESTED PARTIES/APPLICANTS
(Seeking leave to appeal and join as Co-Appellants) Respondent(s)

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Lead Ruling) : By motion on notice filed on 22nd March 2011, the applicant prays for the following orders:
(1) AN ORDER granting leave to the interested Parties/Applicants to appeal against the judgment of the Federal High Court, Abuja delivered on 23rd February, 2011 by Hon. Justice Adamu Bello in suit No: FHC/ABJ/CS/650/2010.
(2) AN ORDER granting leave to the interested Parties/Applicants to be joined as Co-Appellants to Appeal No: CA/A/117/2011 already entered before this court against the judgment of the Federal High Court, Abuja delivered on 23rd February, 2011 in suit No: FHC/ABJ/CS/650/10.
(3) AND FOR SUCH FURTHER or other orders as this Honourable Court may deem fit to make in the circumstances of this case.
The grounds of the application reads thus:
(i) The Federal High Court, Abuja, presided over by Hon. justice Adamu Bello delivered judgment on 23rd February, 2011 on the Originating Summons filed by the Plaintiff/Respondent herein on 11th September, 2010, and granted all the reliefs sought therein.
(ii) The said judgment radically affects and inhibits the interest of the Applicants.
(iii) Applicants have shown their interest to contest the Adamawa State Governorship election slated for April 16, 2011 by the Independent National Electoral Commission (INEC).
(iv) Plaintiff/Respondent has also signified his interest to participate in the said election slated for April 16, 2011.
(v) Financial, human and material resources have been committed by the Applicants into the preparation for the election.
(vi) 1st Applicant has conducted its primaries for the said election and has forwarded the name of the 2nd Applicant to INEC as its candidate for Adamuwa State Governorship poll.
(vii) INEC has accepted the name of the 2nd Applicant as the flag bearer of the 1st Applicant for the said election slated for April 16, 2011.
(viii) By a Motion dated 28th February, 2011, and filed on the same date, Applicants prayed the lower Court for leave to allow them appeal against the said judgment as interested parties.
(ix) Applicants supported the said Motion by an Affidavit of Urgency and also followed same by a letter of appeal to the Chief Judge of the Federal High Court of accelerated hearing.
(x) The lower Court did not fix the Motion for until 16th March, 2011.
(xi) On the said 16th March, 2011, the lower Court did not sit and the Motion was again adjourned to 21st March, 2011.
(xii) As at 21st March, 2011, the Record of Appeal had already been transmitted to this court.
(xiii) Pursuant to (xii) supra, Applicants had to withdrew their application before the lower Court on the said 21st March, 2011, to enable them file this present application before this Honourable Court.
In support of the application is a 20 paragraph affidavit deposed to by Gbenga Adeyemi, a legal practitioner of Wole Olanipekun & Co with exhibits 1 – 9.
The 1st respondent filed a counter affidavit of 35 paragraphs deposed to by John Ochogwu with exhibits KGA1-KGA2 in opposition to the motion for leave to appeal as persons interested in the appeal.

The learned senior counsel Mr. Adedipe arguing the application relied on S6 (6)(a) and (b), 36(1)and S243(a) of the 1999 constitution.
The Learned senior counsel contended that the main question for determination is whether from the facts in the affidavit in support of the application the applicants have demonstrated sufficient interest to warrant their being allowed to be joined as interested parties in this appeal. On who has an interest on the matter learned senior counsel referred to the decision of the Supreme Court in Eyesan v. Sanusi (1984) 4 SC Pg 115 at 136. Learned counsel relied in particular on paragraphs 6 – 8 and 10 of the affidavit in support and submitted that the affidavit evidence before the court shows that the office of the governor of Adamawa State has been put on hold at the detriment of the applicant. He contended that the counter affidavit does not contain any reason why the application should not be granted. It is his further submission that the proposed grounds of appeal show arguable issues of law capable of affecting the judgment of the court below, he urged the court to consider S243 of the 1999 constitution and grant the application.
Learned counsel for the 1st respondent, Mr. Efut in opposing the application relied on his counter affidavit. It is his submission that the applicant does not have interest in the appeal. It is his contention that the issue is one that concerns the tenure of the 1st respondent and not an election matter nor pre-election. Learned counsel further submitted that the materials to consider on issue of interest are the record of appeal, and the proposed notice of appeal not the affidavit. He urged the court to refuse the application as the applicants have no interest since the occupy no seat and the time to contest the election is not ripe.

Learned counsel for the 2nd respondent, the Peoples Democratic Party Chief Olusola Oke opposed the application on points of law, it is his submission that under S243(a) of the 1999 constitution the right of the interested party to appeal will enure where the party to the proceeding has appealed as there is no right of appeal for the party interested because of the use of “Or” in S243(a). it is his contention that where parties have appealed he cannot ask for leave to appeal. Learned counsel argued that the applicants have not shown any pronouncement in the judgment that affected him and that the question of interpretation raised can be determined without the applicant. He urged the court to refuse the application as the applicant will not suffer any injustice.

The learned senior counsel for the appellant, the Independent National Electoral Commission (INEC) Mr. A.S Awomolo did not oppose the application. The learned senior counsel Mr. Adedipe in reply contended that the office of the governor is for people of Adamawa State and the office is of common interest.
I have carefully considered the averments in the affidavit in support of the application with the exhibits, the counter affidavit and the submissions of the respective counsels. The applicants from the reliefs sought on the motion paper are seeking two main reliefs. First, is an order granting leave to appeal as an interested party and second, an order for leave to be joined as interested parties. Therefore, the applicants are required to satisfy two sets of conditions. One is for leave to appeal as interested persons and the other for leave to be joined as co-appellant.
The nature of the relief sought raises the question of whether a party who did not participate in an action in the lower court and his name is not on record in the suit can be permitted to appeal against the decision.
The right of a person to appeal against a decision given by a court in which he was not a party at the hearing and of which he did not participate is derived from the provision under S243(a) of the 1999 constitution of the Federal Republic of Nigeria. This S243(a) provides thus:
“Any right of appeal to the Court of Appeal from the decision 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, an in the case of criminal proceedings at the instance of an accused person or, subject to powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.”
This S243(a) provides for two situations requiring the exercise of the right of appeal in civil proceedings. They are:
(i) At the instance of a party to the proceedings and
(ii) At the instance of a person having interest in the matter, but not being a party thereto.
The key phrase in construction of the provisions of S243(a) is “person having interest in the matter”
This expression has been construed by the appellate courts in several cases.
In the case of Oloja -Oriri v. Itshekiri 1 Communal land trustees and Ors (1973) 1 All NLR (Pt 2) 272 at 281 the appellate court on construction of who is not a “person interested” held that the phrase” a person interested does not apply to a person who stands by and allows his battle to be fought to his knowledge and on his behalf in a representative capacity and because he does not like the judgment applies for leave to appeal against it.
In Re – Ogbuzuru Ugadu & Anor. (1988) 9 NWLR (Pt.93) 189.
The Supreme Court per Karibi-Whyte JSC held:
“Concisely stated the interest which will support an application under the provision must be a genuine and legally recognizable interest, in respect of a decision which prejudicially affects such interest”
Therefore S243(a) of the constitution gives to a person who was not a party to a decision in a Civil Proceedings before the High Court a right to appeal. However it is not an automatic right as it is dependent on fulfillment of certain conditions for the right to be exercised. The applicant who is not a party at the High Court must seek leave first and in doing so must show that he is a person “having an interest in the matter.” From the judicial decisions in a catalogue of cases the phrase has been defined as synonymous with the phrase “person aggrieved.” In other words a person against whom a decision has been wrongfully pronounced against which has deprived him of something or a person who such decision has affected his title to something is a person interested in a matter. His interest must be one that is legally recognizable. See Re: Makaki 1996 7 NWLR (Pt459) 153 Williams v Mokwe 2005 14 NWLR (Pt 945) 249. See Re: Williams (No1) (2001) 9 NWLR (Pt.718) C4329. It is trite law that the interest envisaged under S243 is that of a legally recognizable interest. The applicant must be a person who has a genuine grievance because an order has been made which prejudicially affects his interest. A decision must have been pronounced in a case in which he is not a party and that decision has wrongfully deprived him something or refused him wrongfully something he is entitled to or wrongfully affected his title to something. See Re: Afolabi (1987) 4 NWLR (Pt.63) 18 CA Re : Eke (1993) 4 NWLR (Pt.286) CA 176 Gwando v. Maidoya (1990) 4 NWLR (Pt. 147) 805.

I am also well guided in the description of the expression “person aggrieved” by the words of Oputa JSC in Fawehinmi v. NBA & others (No1) 1989 2 NWLR pt.105 494 at 551 where he said:
“There is also another expression which has to be properly understood and that is ‘Party aggrieved’ some statutes permit a person or a para aggrieved to appeal, any person having an interest recognized by law in the subject-matter of a judgment which interest is injuriously affected by the judgment can appeal if he is a party or apply for leave to be heard on appeal not as a party properly so called bat rather as a person interested: See Section 117(6)(a) of the 1963 Constitution and the case of Sun Insurance office Ltd. v. Victoria Olayibo Ojemuyiwa (1965) NMLR 452. This case highlighted the point that a party to the original suit either as plaintiff or defendant appeals against the ensuing judgment as of right while a person interested cannot launch an appeal in the name of the party but must obtain leave to appeal as a person interested:- see also Section 213(5) and 222(a) of the 1979 constitution and the case of Christopher Ede v. Ogenyi Nwidenyi & ors. In Re Ogbuzare Ugadu (1988) 5 NWLR (pt.93) 189 at p.203 at p. 270.”

The applicants from the description ascribed to a person aggrieved must establish to this court the existence of two main prerequisites, first that each of them have legally recognizable interest and secondly that the order made prejudicially affects that interest. In order to determine if the applicant has satisfied this condition the court is enjoined to look at the affidavit evidence in support of the application, the proposed notice of appeal and the record of appeal. I agree with the learned counsel Mr. Efut that the court should look at the record but I do disagree with his submission that it is only the record of appeal and proposed ground the court will consider. The record of appeal is a material that will assist the court in determining whether applicants have shown legal interest but not the only determinant factor. The question is whether from the deposed facts in the affidavit, the judgment of the court below contained in the record of appeal and the proposed grounds of appeal, the applicant’s have shown legally rccognizable interest and have shown that such interest have prejudicially affected them thus making them persons aggrieved by the decision of the court below to move the court to grant them leave to appeal.
The learned senior counsel Mr. Adedipe relied on paragraphs 6, 7, 8 and 10 as containing the facts reflecting interest of the applicants. It is imperative to reproduce paragraphs 6(i-vi), 7(i-iv) and 8(iv) and (v) as it encapsulates the nature of the applicant’s interest as averred:
6(i.) The Applicant is a registered political party in Nigeria.
ii. He is a member of the 1st Applicant.
iii. He is also the candidate of the 1st Applicant for Governorship election being organized by INEC for Adamawa State against April 16, 2011.
iv. 1st Applicant has forwarded his name to the INEC, as well as his nomination papers. Now shown to me, attached hereto and marked as Exhibits 1 and 2 respectively are the Forms for his nomination and the Affidavit in Support of his personal particulars.
v. INEC has also published the list of candidates contesting the said election in Adamawa State, with Applicant flying the flag of the 1st Applicant and the Plaintiff/Respondent flying the flag of the PDP.
vi. He contested the primary of the 1st Applicant at Adamawa State and won. Now shown to me, attached hereto and marked as Exhibit 3 is the copy of the Declaration of the 2nd Applicant as the winner of the said primary election.
7. The 2nd Applicant further informed Counsel-in-Chambers at the same time, place and date and in my presence and I verily believe that:-
i. He has started his campaign for the said election.
ii. He has expended a lot of money and materials in furtherance of the said campaigns.
iii. Plaintiff/Respondent is also the candidate of the 2nd Defendant/Respondent for the said election and that the 2nd Defendant/Respondent has also forwarded the name of the Plaintiff/Respondent as its candidate for the said election.
iv. All the facts deposed to in respect of the said forthcoming election and submission of names of candidates to INEC were not brought to the attention of the lower Court before judgment was delivered.
8. The 2nd Applicant further informed Counsel-in-Chambers at the same date, place and time and in my presence and I verily believe that:
iv. The said judgment negatively affects the interest of the Applicants in the Adamawa State Governorship election slated to April 16, 2011.
v. Applicants have decided to appeal against same and have instructed their Counsel to file the necessary processes initiating the said appeal.

The aforesaid facts have not been substantially contradicted. The fact that the applicants were not parties to the decision which they seek leave to appeal against is not in dispute. It is necessary to look at the nature of the relief sought at the court below and the decision of the trial court which applicants averred have affected their interest that necessitated the present application. The record of appeal at pages 97 to 106 contains the amended originating summons. The summons contain 7 issues raised for determination and five (5) reliefs sought from the court.
A perusal of this reliefs shown that the main relief sought therein is on the tenure of the 1st respondent as Governor of Adamawa State whilst the ancillary reliefs 4 and 5 sought are for restraining order against the Independent National Electoral Commission (INEC) and the Peoples Democratic Party now 2nd respondent. The learned trial judge in his judgment on page 225 of the record said thus:
“The gravamen of the plaintiffs actions put in a nutshell is that the tenures of 4 years as stipulated under S180(2) of 1999 constitution of the Federal Republic of Nigeria must be calculated with reference to the Oath of Allegiance and Oath of Office which they took after the fresh election conducted by INEC pursuant to the nullification of the previous elections conducted in May, 2007”

Clearly from the above finding, the learned trial judge crystallized the main reliefs sought by the 1st respondent into one main issue which is on construction of S. 180(2) of the 1999 constitution in relation to tenure of the 1st respondent. The trial judge then proceeded to pronounce at page 244 of the record of appeal as follows:
“For the plaintiff in suit No 650/2010 his tenure commence on 3rd of April, 2008 when he took his Oath of Allegiance and Oath of Office and will terminate on the 30th of April, 2012”
The Court thereafter granted reliefs 1- 4
The decision of the learned trial judge was declaratory in nature and was on tenure of the governor of Adamawa State who had filed the suit as the plaintiff. The present applicants were not parties and the reliefs sought were not against them.

The phrase “interest in the matter” stipulated under S.243 of the 1999 constitution refers to a person who is not a party named on record in the proceedings at the trial court but contends he has interest. The applicants to benefit from that constitutional provision. Like I earlier stated must show that each of them suffered a legal grievance. Legal grievance means a person against whom a decision is pronounced and that decision has deprived him of something or has wrongfully refused him something which he had a right to demand. See Re: Madaki (1990) 4 NWLR (Pt.144) 266, SGBN v. Afekoro (1999) 7 SC (pt.111) Pg 95. Owena Bank Nigeria Plc. v. Nigeria Stock Exchange Ltd. (1997) 7 SCNJ 160.

I pose the question has the applicant in this application shown such interest in the matter. The answer in my view is in the negative.
The applicants have not shown in their affidavit evidence how the pronouncement by the trial court on tenure has deprived each of them wrongfully of something due to each or that they have been wrongfully refused of something due to them or that the decision has affected his or their title to something. The applicants must show they are aggrieved in the sense that they suffered legal grievance.

The 1st applicant introduced himself as a political party in Nigeria and the second applicant’s described as the candidate for the governorship election organized by INEC. These facts the applicants have presented as supporting their contention that they have interest.
I am not in doubt from the resume of the 2nd applicant as captioned in paragraph 6 and 7 of the affidavit in support earlier reproduced that the 2nd applicant has interest in contesting the Governorship election of Adamawa State. However, that interest must be a legal interest. The applicants must show that their interest have been directly and not obliquely affected by the decision of the trial court for which they seek leave to appeal.
The legal interest excludes general interest. See Re: Ojukwu (1998) 5 NWLR (Pt.551) 673. Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130. It does not include a person who has a general interest. The interest must be peculiar to each of the applicant as it relates to the pronouncement of the court. The trial court’s decision was on the tenure of the 1st respondent. The court made no order that the elections should not be conducted. What the trial court said is explicit and clear, therefore if the tenure of the 1st respondent is the main decision of the trial court I do not see how the applicant has suffered legal grievance from that decision to grant him leave to appeal. The applicants have not shown that by the decision on tenure their right to present a candidate or contest the governorship election has been affected. Equally the restraining order was not against them. The right in issue must be a legal right. The trial court pronounced on tenure of Adamawa governor, there is no legal grievance that has been shown to have arisen in the circumstance. The legal interest in the circumstance is tied to the availability of the seat for contest. The applicant must also satisfy the second condition by showing that the decision is prejudicial to their interest. I must re-emphasis that the interest envisaged under S.243(a) of the 1999 constitution is a legally recognizable interest, such that any general interest will not suffice, mere interest in a position becomes legal when the position is vacant.

The applicants unfortunately have not from the facts before the court shown legal grievance because an order on tenure has been made and that same order prejudicially affects that interest. The applicants must show not only that they are persons interested but also that the decision of the trial judge prejudicially affected their interest. This prerequisites they have not established. See Societe Generale Bank (Nig) Ltd v. Afekoro (1999) 11 NWLR (Pt.628) SC 521.
Ede v. Nwidenyi In Re: Ugadu (1988) 5 NWLR (pt.93) 189.
I have equally looked at the grounds of appeal in the proposed notice of appeal exhibited to the application as exhibit 9. The proposed ground of appeal for emphasis I will reproduce hereunder. The grounds without the particulars read thus:
PROPOSED GROUND
GROUND 1
The learned trial Judge erred in law in holding that upon the nullification of the result of the Gubernatiorial election of 2007 by which the 1st Plaintiff was declared the elected governor of Bayelsa State, the oath of office which he subscribed to, and by which he began to exercise the powers of an elected Governor becomes invalid and cannot be the basis for computation of his tenure as governor, as envisaged under section 180(2) of the 1999 Constitution of the Federal Republic of Nigeria.
GROUND 2
The learned trial Judge erred in law and came to a perverse decision when he granted the declaratory reliefs sought by the Plaintiff, as well as consequential order of injunction.
GROUND 3
The learned trial Judge erred in law and also came to perverse decision in his interpretation of the provisions of the Constitution of Federal Republic of Nigeria, 1999 which led to his granting of all the reliefs claimed by the Plaintiffs.
GROUND 4
The learned trial Judge misdirected himself in law in his failure to apply the known principles and canons of interpretation of Constitution/statute to the case before him and thus came to a perverse decision.
GROUND 5
The learned trial Judge misdirected himself in law and came to a perverse decision in his failure to take judicial notice of the extant position of the Constitution regarding the issue in controversy before him.
GROUND 6
The learned trial Judge erred in law and also came to perverse decision in his failure to apply, be guided and bound by the Supreme Court decisions in Ladoja vs INEC (2007) 12 NWLR (Pt.1047) 119 and Balonwu Vs. Governor of Anambra State (2009) 18 NWLR (Pt.1172) 13, both of which dealt with and resolved similar issues relating to the tenure of elected Governors in similar circumstances.
GROUND 7
The lower Court misdirected itself in law and also came to a perverse decision when it held as follows:
“…..The base line for calculating the four year term is beginning from the time the Governor took his Oath of allegiance and Oath of office and in my view it makes no difference whether the Governor was first elected as in paragraphs (a) or last elected in paragraph (b) of the subsection. And since the taking of the Oath of allegiance and the Oath of office is made the base line of calculating the four year tenure, it becomes very relevant in these suits to determine whether or not the nullification of their election of the Plaintiffs has nullified the Oaths of office which they took before the nullification of those elections.”
GROUND 8
The lower Court erred in law in holding that since the amended Section 180(2(b) of the 1999 Constitution is not retroactive and since the amendment came into effect on 16th Plaintiff/Respondent.
GROUND 9
The lower Court misdirected itself and again came to a perverse decision when it held thus:
“On a final note, I am aware that many interest groups and commentators have expressed their views in the public domain tending to show that the Plaintiffs’ suits are for tenure completion in accordance with the Constitution of the Federal Republic of Nigeria.”
GROUND 10
The judgment of the lower Court is against the weight of evidence.

It is indisputable that by mere glossary look at the proposed grounds of appeal it is obvious that the applicants are complaining about the interpretation of the provisions of the constitution and the observance of the principle of stare decisis. Ground 2 is founded on the order of injunction which order is not against them. The nature of the main complaints in the proposed grounds of appeal, I hold does not disclose any legal grievance peculiar to the applicants the interest must be direct and not consequential. The grounds do not reflect error raised therein to show that the applicants interest have been prejudicially affected by the judgment of the trial court.
In the final analysis I hold that the two applicants have not shown legally recognizable interest in the decision of the trial court and cannot rightly be granted leave to appeal in the matter pursuant to S243(a) of the 1999 constitution.
Consequently, Prayer one is refused.

Under prayer two, the applicants pray for an order to grant them leave to be joined as co- appellants. The general rule is that a person will be joined as a party to an action if his presence before the court is necessary for the effectual determination of the matter or if he will be affected directly, legally or financially by any order made in the proceedings or when the person is a desirable party and ought to be given opportunity to be heard. See Green v. Green (1987) 3 NWLR (Pt.61) 480 at 493.

In the instant application the applicants are seeking leave as interested parties to be joined. When a person qualifies to appeal as an interested person he may be joined as a co-appellant in the appeal but where there is no issue in the appeal affecting the interest of the applicant he cannot be joined in the appeal as an interested party.
Having held the applicants have not established legal grievance nor how the decision is prejudicial to them for which leave is refused they cannot be joined to appeal as interested parties. Therefore prayer 2 fails.
From the totality of the forgoing, I hold that the application is devoid of merit and is hereby dismissed. I make no order as to cost.

MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead ruling delivered by my learned brother NWODO, JCA in respect of the application filed by the Applicants/Interested Parties on the 22/3/11. The views expressed and conclusions reached therein are the same with mine and agree with them.
By way of support, I want to emphasise that the law requires a party seeking leave to appeal against the decision of a High Court as “any other person having an interest in the matter pursuant to the provisions of Section 243(a) of the Constitution of the Federal Republic of Nigeria as amended in 2011 should show and demonstrate the nature of his interest from the record of the appeal and not by depositions in an affidavit in support of the application for leave to appeal. See OMOTOSHO v. ABDULLAHI (2008) 2 NWLR (1072) 526 at 543 where this Court had held that –
“A person who was not a party in civil proceedings at the Federal High court or High court can be permitted to appeal under section 243(a) of the 1999 constitution only if he shows that he is interested or aggrieved by the decision sought to be appealed against his interest must be shown from the record before the court and not from the material garnered from the affidavit in support of the application for leave to appeal as an interested party. This is because the appeal would not be heard and determined on extraneous matters but on the record of appeal. Thus, the applicant or appellant must demonstrate his interest from the record of appeal.”

As has been ably demonstrated in the lead ruling, the words “person having interest” or “person interested” have received judicial definitions in several cases such that their meaning are now beyond arguments.
For instance in the case of L.S.P.D.C. v. DAKOUR (1992) 11-12 SCNJ, 217 at 224 the Supreme Court had defined the words as follows:-
“The expression ‘person having interest’ is synonymous with “person aggrieved”. A person aggrieved must be a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. A person aggrieved includes a person who has a genuine grievance because an order has been made which prejudicially affects his interest.”
See also: OWENA BANK PLC. v. N.S.E. (1997) 8 NWLR (575) 1 at 19, FUNDUK ENGINEERING v. MAC-AUTHER (1990) 4 NWLR (143) 266, AKANDE v. GENERAL ELECTRIC (1979) 3-4 SC, 115.

The interest such a person is to demonstrate to the satisfaction of the court is an interest that is real not vague, intangible, supposed or speculative or even any interest which he shares with other members of the society. The Applicant has the duty to also show that the interest has been adversely affected by the order or decision of the court against which he seeks the leave of the court to appeal. See: EZEAGWU LOCAL GOVERNMENT v. UFUANYA (1996) 7 NWLR (459), SOCIETY GENERAL BANK v. AFEKORE (1999) 7 SCNJ, 171.
The pith of the decision by the Federal High Court in the Suit No. FHC/ABJ/CS/650/2010 against which the Applicants seek leave by the present application to appeal was that the term of office of the Applicant therein as the Governor of Adamawa State would expire or terminate on the 30th of April, 2012.
Consequently, the Federal High Court granted all the reliefs sought by the Applicant except relief 5 which was said to have been overtaken by events. The reliefs granted are as follows:-
“1. A declaration that upon nullification by the Court of Appeal of the Governorship election held in Adamawa state on the 14th day of April, 2007, the oath of allegiance and Oath of Office taken by the plaintiff as Governor of Adamawa state based on the nullified election was thereby rendered null and void and of no legal effect whatsoever.
2. A declaration that the four-year term of office of the Plaintiff as Governor of Adamawa state started to run from the 30th day of April, 2008 when he took the oath of allegiance and oath of office after he was returned as the candidate elected at the re-run election of 26th day of April, 2008 in Adamawa state and it terminates on the 30th day of April, 2012.
3. A declaration that no vacancy exists in the Governorship seat of Adamawa state for the period up to 30th day of April, 2012 and the Defendants cannot validly conduct any primary or general governorship election in Adamawa State on a date earlier than the 28th day of February, 2012.
4. An order of injunction restraining the Defendants from conducting any Governorship election in Adamawa State on a date earlier than the 28th day of February, 2012.

What can clearly be observed is that none of the above reliefs was directed at the Applicants and none can seriously be said to have directly adversely affected any interest of the Applicants as far as elections into the office of the Governor of Adamawa State is concerned. The real and genuine interests of the Applicants can only arise when the election into the office of the Governor of Adamawa State becomes due; that is when the term of office of the present occupant expires, terminates or ends in April, 2012 by the decision of the Federal High Court. Before then, there is no interest which can be said to arise in respect of the election into that office and which can be claimed by a candidate that intends to participate or contest in the said election. I should point out that in law, the mere consequence of a decision by a court does not vest a person with the status of an aggrieved party.
Thus where a party is not clearly aggrieved by the order of a trial court itself but by the consequence which arises from it, such a party is not entitled to appeal having not shown a legal grievance. The interest must be genuine and legally recognizable interest in respect of a decision which it prejudicially affected.
OMOTOSHO v. ABDULLAHI (supra). EDE v. NWIDENYI, IN RE: UGADU (1988) 1 NWLR (93) 189.

It is very clear to me that the reliefs granted by the Federal High Court in the decision which the Applicants seek leave of this Court to appeal against were not granted against or directed at them and none of the reliefs directly affect them. From the averments contained in their affidavit, the Applicants case is that they are affected by the consequence of the order of injunction made and directed at the 3rd Respondent; INEC not to conduct election into the office of the Governor of Adamawa State in April, 2011 since the term of office of the present occupant has not and would not end or expire until April, 2012.
The consequence of the said injunction does not vest in the Applicants any legally cognizable interest capable of being enforced by way of an appeal against the decision of the Federal High Court that election into the office of the Governor of Adamawa State would be due in April, 2012.
In addition, even if any interest arises from the consequential order of injunction against INEC, it is an interest which the Applicants share with all other registered political parties and members thereof who intend or intended to contest for the office of the Governor of Adamawa State. In other words, such an interest would be one that is communal and not peculiar or exclusive to the Applicants, but shared.
For the above and the fuller reasons set out in the lead ruling which I adopt, the application fails for lacking in merit and I join in dismissing it. I abide by the order on cost made in the lead ruling.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Ruling of my Lord, REGINA OBIAGELI NWODO, JCA, just delivered and I agree with my Lord’s reasoning and conclusion.
I will only add for emphasis sake that when the Interested Parties/Applicants asked for leave to appeal and be joined as Co-Appellants they were asking for the exercise of Judicial discretion of this Court.
Judicial discretion has been defined in the case of:- Olumegbon vs. Kareem (2002) 5 SCJN page 94 to mean that the Court is to act according to the rules of reason and Justice, not according to private opinion and according to law and not humour. A party applying to the Court to exercise its discretionary power in his favour must put up a convincing argument showing that in fact and in law he is entitled to a decision which he has applied for.

In this application, the Applicants stated that they have interest in the subject matter of this case now on appeal before this Court, hence they applied for leave to appeal and to join as Co-Appellants.
The test to determine whether a party is a person having an interest in a matter is whether the person could have joined as a party to the suit at the lower Court. An interested party includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings.
See the following cases:-
– Ojukwu v. Governor, Lagos State No.1 (1985) 2 NWLR Part 10 Page 806.
– Gbadamosi vs. Kabo Travels Ltd (2000) 8 NWLR Part 668 Page 243.
According to the record of appeal which contained the proceedings at the lower Court, one of the reliefs being prayed for by the 1st Respondent who was the Plaintiff at the lower Court was for:-
“A declaration that the four year term of the office of the Plaintiff as Governor of Adamawa State commenced on the 30th day of April 2009 when he took oath of allegiance and oath of office after he was returned as a candidate elected at the re-run election held on the 26th day of April 2008 in Adamawa State and, terminates on the 30th day of April 2012.”

At the conclusion of the trial the lower Court held that the Plaintiffs tenure commenced on 30th day of April 2008 when he took his oath of allegiance and oath of office and terminates on 30th of April 2012.
A careful examination of the grounds upon which this application is premised and the affidavit in support of it, together with the relief claimed at the lower Court by the 1st Respondent would reveal that the Interested Parties/Applicants did not demonstrate their legal interest in the subject matter of the appeal to which they sought to be joined as Interested Parties and Co- Appellants.

In view of the foregoing, I find no difficulty in coming to the conclusion that the Interested Parties/Applicants have failed to establish their legal Interest in this Appeal.
It is for the above reasons and fuller reasons in the lead Ruling that I also find that this application lacks merit and it is accordingly dismissed.
There shall be no order as to costs.

Appearances

I. A. Adedipe SAN with Gbenga Adeyemi, S. Ogile Kenechukwu Azie and Miss Aisha Ali for the Applicants

A. S Awomolo SAN with H. M Liman, T. D Dangana, T. N Akoso, Miss I. Shuaibu, D. E Daniel, A. O Aiyemowa, Aminu Sadauki and Anulike OsuigweFor Appellant

AND

Mr. Okon Efut with Ikani Agabi and peter Erivwode for the 1st Respondent

Chief Olusola Oke with Jennifer Nwosu and B Abulazeez for the 2nd RespondentFor Respondent