ECONOMIC & FINANCIAL CRIMES COMMISSION (EFCC) v. THE ATTORNEY-GENERAL FOR RIVERS STATE & ORS.
(2011)LCN/4814(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of January, 2011
CA/PH/622/2008
RATIO
UNCONTROVERTED OR CHALLENGED FACTS: EFFECT OF UNCONTROVERTED OR CHALLENGED FACTS
It is to be noted that the appellant/respondent has not denied or controverted or challenged the applicant’s grounds or reasons listed above. These facts are therefore admitted. PER ISTIFANUS THOMAS, J.C.A.
JOINDER OF PARTIES: CONDITION UNDER WHICH AN APPLICATION FOR JOINDER BROUGHT BY A PERSON CLAIMING TO BE AFFECTED WILL BE GRANTED
All that the Applicant, the proposing intervener, needs to show in this application is that he is a person claiming to be affected. See YAKUBU V. GOVERNOR OF KOGI STATE (1995) B NWLR [Pt.44] 386. That is all that order 6 Rule 8 of the Court of Appeal Rules, 2007 requires him to show to succeed. The Rule is herein below reproduced – 6.8: The Registry of the court below shall after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal but it shall not be necessary to serve any party not directly: Provided that the court may, of its own motion, or on the application of any party claiming to be affected, direct notice to be served on all or any parties to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just and make such orders as might have been made if the persons served with such notice had been originally parties to the appeal. The facts Of YAKUBU V. GOVERNOR OF KOGI STATE (supra) and this case are almost identical. The Appellant, as the Eje of Ankpa, had been deposed and was pursuing the appeal to upset the judgment of the High Court that affirmed his deposition. His reliefs included a declaration that his purported deposition was unlawful, unconstitutional, illegal and void, and an injunctive order for his reinstatement as the Eje of Ankpa. In the meantime, and before the appeal was lodged, the 5th Respondent had been appointed and installed as the Eje of Ankpa. If the appeal succeeded and the reliefs sought were granted the 5th Respondent’s legal interest would be directly affected. It was on that basis his application for joinder, as a person claiming to be affected, was granted, and he joined the appeal as the 5th Respondent. In the instant application the success of the appeal against the judgment in suit no FHC/PH/CS/78/2007, Exhibit ‘A’, will no doubt affect the legal interest of the Applicant, Dr. Peter Odili, in whom judgment in Exhibit ‘B’ founded on the judgment in suit no FHC/PH/CS/78/2007 beneficially enured. The application for joinder as a person claiming to be affected by the outcome of the proceedings was refused in LT. GENERAL ISHAYA R. BAMAIYI v. A.G., FEDERATION & ORS (2000) 5 NWLR [pt.655] 50. The ground for refusal was that the Applicant, Mohammed Abacha, who sought to be joined merely speculated that he was a possible suspect in the matter Lt. Gen. Bamaiyi and others were being tried. He was being tried in another similar criminal proceeding. The legal interest which he speculated would likely be affected was his feeling that he was a “possible suspect” in the matter. That interest was too remote, and non existent. The case of OKOLI v. OJIAKOR (1997) 1 NWLR (pt.479) 48 does not avail the objection of the appellant in this application. It was held in that case that an applicant for joinder “must show that he has an interest in the result of the litigation.” I have shown that Dr. Peter Odili, the Applicant, has sufficiently shown that he has a legally cognisable interest in the result of the pending appeal, to warrant his joinder. Once the applicant for joinder shows sufficient legal interest to warrant his joinder, his joinder will serve the interest of fair hearing guaranteed by section 36 of the 1999 Constitution and natural justice rule of audi alteram partem: OKOLI v. OJIAKOR (supra) at page 57 B – E. Accordingly, in my judgment this Applicant will be denied fair hearing if he is denied hearing this appeal. In Re: YINKA FOLAWIYO & SONS LTD (1991) 7 NWLR [pt.202] 237 the application of a tenant seeking to be joined as respondent, together with its landlord, in the suit of the appellant seeking possession, damages for trespass and perpetual injunction in respect of a parcel of land was allowed. The tenant was in actual occupation of the disputed property. In the unanimous decision of this Court, it was held that the Court of Appeal has the inherent power under Section 6(6) (a) of the Constitution to entertain the application to join a person as a party to an appeal who had not even taken part in the proceedings at the lower court. It was held further that such a person may be granted leave to respond to the appeal if he shows that he is a “person having an interest in the matter” the subject of the appeal under Section 222(a) of 1979 Constitution (now 243(a) of the 1999 Constitution.) As this Court again held in RE: OJUKWU (1998) 5 NWLR [pt.551] 673 at 683 C – D (per Akpabio JCA) .Also in the case of CHRISTOPHER EDE v. OGENYI NWIDENYI IN RE-OGBUZURU UGADU (1988) 5 NWLR [pt.93] 189 cited by learned Senior counsel on both sides the Supreme Court in similar circumstances held as follows – The interest which will support an application under the provision of Section 213(5) and 222(a) of the 1979 Constitution must be a genuine and legally recognizable interest in respect of a decision which prejudicially affects such interest. (IN RE: AFOLABI (1987) 4 NWLR [pt.36] 473 referred to]. Sections 213(5) and 222 (a) of the 1979 Constitution are in pari materia, respectively, with Sections 233(5) and 243(a) of the 1999 Constitution. It is clear, from the authorities, that this Applicant is exercising a constitutional right. Finally, therefore, I hold that this Applicant has shown a genuine and legally recognizable interest in respect of the decision in suit no FHC/PH/CS/78/2007 which is the subject of the pending appeal, in view of the subsisting beneficial judgment in his favour in FHC/PH/CS/2007 which was founded in FHC/PH/CS/78/2007. His interest will be directly, and not obliquely, affected. PER EJEMBI EKO, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
ECONOMIC & FINANCIAL CRIMES COMMISSION (EFCC)
AND
DR. PETER ODILI Appellant(s)
AND
1. THE ATTORNEY-GENERAL FOR RIVERS STATE
2. THE SPEAKER RIVERS STATE HOUSE OF ASSEMBLY
3. THE HOUSE OF ASSEMBLY FOR RIVERS STATE
4. THE CLERK TO RIVERS STATE HOUSE OF ASSEMBLY Respondent(s)
ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Ruling): In suit No. FHC/PH/CS/78/2007 between the Attorney/General of Rivers State v. The EFCC and 3 others, sitting in Port Harcourt, was heard determined and delivered on 20th March, 2007 in favour of the plaintiff and made the 1st to 4th declaratory orders and also granted the 5th – 8th injunctive relief’s sought by the same plaintiff as contained at pages 108-111 of the trial court’s judgment on pages 135-246 of the record, which was transmitted to this court on 28th November 2008. Dissatisfied with the decision of the lower court, the appellant, simply to be referred to as EFCC, filed its notice of appeal on 20th October, 2008 containing six grounds of appeal. At this stage, it is pertinent to note that Dr. Peter Odili, was not a party to the civil matter appealed against, but he filed on 4th February,2009, a motion on notice pursuant to section 15 of the Court of Appeal Act, 2004 and Order 6 Rule 8; 7 rule 1 of the Court of Appeal Rules 2007 and also under the inherent jurisdiction of this court for an order joining the applicant (Peter Odili) as a party interested in the appeal. The second relief is for an order directing the EFCC being appellant, to serve on the party interested applicant, all court processes relating to this appeal, and for such further order (s) as the Honourable Court may deem fit to make in the circumstances of this matter. The grounds upon which the application is brought are that the applicant was the Governor of Rivers State between May 29th, 1999 and May 29th, 2007; that the appellant respondent (EFCC) invaded Rivers State in December, 2006 and February 2007 and arrested some key officials of the Government of the day including the Commissioner of Works, Transport and Local Government, the Auditor General and the Accountant General seeking information and documents relating to the public funds of Rivers State during the tenure of the interested applicant seeking to be joined as a party. The 3rd ground for the application to be joined is predicated on the facts that the then Attorney General of Rivers State instituted suit No.PHC/114/2007 between the Attorney General of Rivers State Vs. The Speaker, Rivers State House of Assembly and got judgment in his favour, and also instituted another suit No.FHC/PH/CS/78/2007 between the Attorney General vs. the EFCC and 3 Ors (the matter appealed against; and after full hearing, as earlier stated above, the learned trial judge granted all the relief’s declaratories and injunctions sought against the EFCC, hence the appeal. The further grounds for the applicant is that, after the end of his tenure as Governor of Rivers State, the (appellant) EFCC, invited him to come and defend an alleged findings against him, and based on the alleged findings, the interested party applicant but as plaintiff, filed suit NO. FHC/PH/CS/1291/2007, between Dr. Peter Odili Vs. EFCC and the Attorney General of the Federation. The suit was heard and determined on merit and was delivered on 6th March 2008 by the same trial judge who also delivered judgment in suit No. FHC/PH/CS/78/2007. Applicant’s application is supported by 11 paragraph affidavit deposed to by Babatunde Fasuyi a legal Practitioner. After being served with the interested party motion seeking leave to be joined, the EFCC appellant filed on 16th June, 2009, a counter-affidavit containing 11 paragraphs deposed to by Aminu Sadauki a legal practitioner with the law firm of Dikko & Mahmoud. Paragraphs 9 and 10 relied upon by the EFCC are reproduced thus: –
“9. I am informed by Mr. A.B. Mahmoud, SAN and I verily believe him that the issue at stake in suit No.FHC/PH/C8/78/2007 and the appeal to the court of Appeal arising there from are all legal or constitutional issues and do not affect the right of the applicant perse.
10. I am informed by Mr. A.B. Mahmoud, SAN and I verily believe him that joinder of the applicant is not necessary for the determination of any matter arising from this appeal”.
As usual in support of the application and the counter affidavit in opposition, which were dully filed and served, this court made an order directing parties to file and serve their respective written addresses which were complied with and were duly adopted and relied upon on 23rd November, 2010.
The applicant’s written address on his motion on notice for joinder is dated and filed on 27th September 2010, and learned Senior Counsel for the applicant is Chief Wole Olanipekun who argued and adopted the written address as well as the applicants reply on points of law to the appellant/respondents reply. The reply on points of law is dated and filed on 19th October, 2010. In his introductory remark on the written address, learned senior advocate relied on the affidavit of 11 paragraphs deposed to by Mr. Babatunde Fasuyi, of counsel, one of the counsel representing the applicant. Learned senior counsel also relied on the two exhibits, namely a certified true copy of the Enrolled Order of the Federal High Court sitting in port Harcourt in suit No. FHC/CS/78/2007 between the Attorney General For Rivers State Vs. The EFCC & 3 Ors and is marked as Exhibit “A”; which was annexed to the affidavit of Mr. Babatunde Fasuyi ESQ in support of the application to be joined as a party to the instant appeal. Senior Counsel is of the contention that, it is the judgment in the aforesaid Exhibit “A” that has led to the instant appeal now before this appellate court. Learned Senior Advocate also relied on the second Exhibit “B”, which is also the judgment of the same Federal High court presided and delivered by I. N. Buba, judge, in suit No.FHC/PH/CS/1291/2007, between the present applicants Dr. Peter Odili Vs. The Attorney General of the Federation and Another. The Learned senior advocate has submitted, that, the judgment in Exhibit “B”, was predicated on the judgment in Exhibit “A”, appealed by the appellant.
Learned Senior Counsel for the applicant raised a single issue for determination that reads as follows:-
“whether, having regard to the entire circumstances of the present appeal, and in particular to the fact that the applicant has obtained a judgment in his favour, on the basis of the subject matter of the appeal, the applicant qualifies as a person claiming to be affected by the appeal to justify joining him as a co-respondent to the appeal?”
To buttress his argument, Mr. Olanipekun, SAN, referred to and relied strongly on the statutory court of Appeal Act in section 15, as well as Order 6 rule 8 of the Court of Appeal Rules 2007 which according to learned silk, is the jurisdictional power of the Court of Appeal to make an order for joinder of an interested party. To support the position for joinder under section 15 of the Act, Senior Counsel for the applicant referred to and relied on the Supreme Court decision in the case of Jadesimi vs. Okotie-Eboh (1986) NWLR (pt 16) 264 at 274, which is to the effect that, one of the general powers of the court of Appeal under section 16 of the Act, now section 15 of the Act in 2004, is to exercise full jurisdiction over the whole proceedings as if the proceedings had been instituted in the court of Appeal as a court of first instance. Learned Senior counsel for the applicant has further submitted that, under Order 6 rule 8 of the rules of this court 2007, this court can, in appropriate case, make an order to add a person to an existing appeal as a co-respondent under the provision to that rule and that all the applicant needs to do as in the instant appeal, is to show that he may be affected by the outcome of the appeal. The applicant also referred to and relied on the Supreme Court decision in the case of Yakubu v. Governor of Kogi State (1995) 8 NWLR (Pt.414) 386, which has explained the principle of needs for all applicant to be joined as a co-respondent in an appeal matter.
In his conclusion, the learned Senior Counsel for the applicant contended that the present appeal was filed after the instant applicant had sought to take advantage of the decision of the Federal High Court in Exhibit “B”, which was annexed to the affidavit deposed to, by Mr. Babatunde Fasuyi of counsel in support of the application for leave to be joined as co-respondent in the appeal. The applicant has demonstrated that the out come of the present appeal will certainly affect him, because, having obtained a judgment in his favour on the basis of the case now on appeal, he is a beneficiary of the decision of the Federal High Court in Suit No.FHC/CS/78/2006, and that therefore, he is the appropriate person who qualifies as the person who will be definitely affected by the appeal, and then urged the court to grant the application for joinder as a co-respondent.
I have carefully considered the appellant/respondent’s counter affidavit and its written reply to the party interested in the motion for joinders which was filed on 4th October, 2010 by Mr. A. B. Mahmoud, SAN. Learned silk has raised a similar issue for determination. It reads:-
“Whether the Applicant’s interests in the out come of the Appeal qualifies him as a party interested to be joined in the appeal.”
In his argument in Paragraph 4.1 at page 6 of the written reply, learned senior advocate has unwittingly, concurred with the applicant’s position in Section 15 of the Court of Appeal Act, 2004 and Order 6 rule 8 of the rules of this court, 2007. This concession is stated in the case of where this court held that:-
“A party interested in the subject matter of a suit, could seek to be joined at either the trial court or in the Court of Appeal. In either case, he must show that he has an interest in the result of the Litigation…”
I am still puzzled, that, the appellant/respondent has also referred to the cases of Re: Yinka Folawiyo & Sons Ltd (1991) 7 NWLR (Pt 202) 237 and Re: Ojukwu (1995) 5 NWLR (Pt.551) 673, and the case of Yakubu vs. Gov. of Kogi (supra).
The crux of the appellant/respondent is that the relief sought by the appellant in the case in suit No.FHC/CS/78/2007 is to allow the appeal and set aside the judgment of the lower court, and that no relief or remedy is sought which will affect the applicant, and that the applicant has not specified in what capacity he seeks to join in this appeal.
In my considered finding, the appellant/respondent’s complaints have no foundation, because, in the fourth paragraph at page 13 of the written reply, learned senior advocate has concede that “even though as he alleges, the object of the appellant’s action was to instigate his impeachment”
A careful consideration of the applicant’s reliefs in the motion paper filed on 4/2/2010 are predicated on grounds (a), (b), (c), (d), & (e) and (f). They read as follows:-
AND TAKE FURTHER NOTICE that the grounds upon which the said application is brought are as follows:
(a.) The Applicant was the Governor of Rivers State between May 29th 1999 and May 29th 2007.
(b.) The Appellant/Respondent invaded Rivers State in December 2006 and February 2007 and arrested the key officials of the Government of the day including the commissioner of Works, Transport and Local Government. Also arrested were the Auditor-General and the Accountant-General seeking information and documents relating to public funds of Rivers State.
(c.) The then Attorney-General of the State instituted Suit No. PHC/114/2007; ATTORNEY-GENERAL OF RIVERS STATE V. THE SPEAKER, RIVERS STATE HOUSE OF ASSEMBLY and got Judgment, and FHC/PH/CS/78/07: ATTORNEY-GENERAL V. THE ECONOMIC & FINANCIAL CRIMES COMMISSION & 3 ORS. And in its Judgment in the suit, after full hearing the Learned Trial Judge, Hon. Justice I. N. Buba granted all the declaratory and injunctive reliefs sought against the Appellant.
(d.) After the completion of the tenure of the Applicant, he was nonetheless invited to come and defend the purported findings by the Applicant/Respondent against him, a move that led to the Applicant filing Suit No.FHC/PH/CS/1291/2007.
(e.) The Appellant filed the Notice of Appeal in order to defeat the suit of the Applicant.
(f.) The appeal is targeted at the present Applicant whose interest will be affected by the outcome of the appeal particularly in view of the Judgment of the Federal High court in Suit No. FHC/PH/CS/1291/2007.”
It is to be noted that the appellant/respondent has not denied or controverted or challenged the applicant’s grounds or reasons listed above. These facts are therefore admitted.
Having reached that far, the appellant/respondent’s objection is hereby refused. It is hereby ordered that the applicant is joined as a co-respondent in the appeal No.CA/PH/622/08. It is further ordered that the appellant/respondent is to serve on the applicant all court processes relating to this appeal. The orders are made in accordance with Section 15 of the Court of Appeal Act, 2004 and Order 6 Rule 8 of the Rules of this court, 2007.
Parties to bear their costs.
MUSA DATTIJO MUHAMMAD (OFR) J.C.A.: I had a preview of the lead ruling of my learned brother Thomas JCA in respect of the application of the person seeking to be joined as a party to Appeal No.CA/PH/622/2008. I agree with him that the application has merit. On the basis of the reasonings and conclusion contained in the lead ruling I grant the applicant leave to join the appeal as a Co-Respondent. I do so sequel to the finding that the Appellant’s objection is without basis in Law and so overruled. I abide by the order or cost made in the lead ruling.
EJEMBI EKO, J.C.A.: Against the judgment of the Federal High Court Port Harcourt in the suit no FHC/PH/CS/78/2007 of 20th March, 2007 the Economic and Financial Crimes Commission (EFCC) filed Notice of Appeal on 20th October, 2008. The EFCC sought, as a relief, an order inter alia “setting aside the entire judgment of “the Federal High Court. EFCC was the defendant at the suit at Federal High court in the suit filed by Attorney General Rivers State, the Speaker and Clerk of Rivers State House of Assembly and the House of Assembly of the State. The present applicant, Dr. Peter Odili, who was then Governor of Rivers State did not join in the suit.
The judgment in suit no FHC/PH/CS/78/2007 was subsisting when the Applicant brought another suit no FHC/PH/CS/1291/2007 seeking, among other reliefs –
a. A declaration that the 2nd Defendant [EFCC] can not arrest, detain, arraign and/or prosecute the plaintiff on the basis of its alleged investigations conducted into the affairs of Rivers State between 29th May, 1999 and 29th May, 2007, in the light of the final and subsisting judgment of the Federal High Court in the suit no FHC/PH/CS/78/2007.
b. A declaration that the purported findings of the investigation team of the 2nd Defendant (EFCC) into the activities of the Rivers State Government between the period of 29th May, 1999 and 29th May, 2007, the said investigation being the subject matter of a suit no FHC/PH/CS/78/2007, are invalid, unlawful, unconstitutional, null and void etc.
Judgment, in terms of the foregoing reliefs, was entered in favour of the Applicant in the suit no FHC/PH/CS/1291/2007 on 5th March, 2008.
The enrolled order in the suit no FHC/PH/CS/78/2007 is Exhibit ‘A’ in this application. The judgment the Applicant’s suit no FHC/PH/CS/1291/2007 is Exhibit ‘B’ in this application. The appeal, the Applicant seeks his joinder as respondent, is in respect of the judgment in Exhibit ‘A’. The purport of the appeal is an order setting aside the judgment in Exhibit ‘A’, which is the foundation of the suit and judgment in Exhibit ‘B’. The judgment in Exhibit ‘B’ beneficially favours the Applicant.
The questions begging for answer, whether positively or negatively, in this application are:-
i. Is the legal interest of the Applicant likely to be affected by the outcome of the appeal?;
ii. Is the legal interest of the Applicant not likely to be affected by the out come of the appeal?
Whichever way the questions are put the answer is the same. My affirmative answer to either question is that, the Applicant, in view of the factual situations on ground, is a person likely to be affected by the outcome of the appeal. If this Court nullifies, or sets aside, the judgment in suit no FHC/PH/CS/78/20078 – Exhibit ‘A’, which is the foundation for the judgment in suit no FHC/PH/CS/1291/2007, Exhibit ‘B’, the Applicant’s legal interest will be directly affected. Exhibit ‘B’ thereby would have been decided per incuriam.
All that the Applicant, the proposing intervener, needs to show in this application is that he is a person claiming to be affected. See YAKUBU V. GOVERNOR OF KOGI STATE (1995) B NWLR [Pt.44] 386. That is all that order 6 Rule 8 of the Court of Appeal Rules, 2007 requires him to show to succeed. The Rule is herein below reproduced –
6.8: The Registry of the court below shall after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal but it shall not be necessary to serve any party not directly:
Provided that the court may, of its own motion, or on the application of any party claiming to be affected, direct notice to be served on all or any parties to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just and make such orders as might have been made if the persons served with such notice had been originally parties to the appeal.
The facts Of YAKUBU V. GOVERNOR OF KOGI STATE (supra) and this case are almost identical. The Appellant, as the Eje of Ankpa, had been deposed and was pursuing the appeal to upset the judgment of the High Court that affirmed his deposition. His reliefs included a declaration that his purported deposition was unlawful, unconstitutional, illegal and void, and an injunctive order for his reinstatement as the Eje of Ankpa. In the meantime, and before the appeal was lodged, the 5th Respondent had been appointed and installed as the Eje of Ankpa. If the appeal succeeded and the reliefs sought were granted the 5th Respondent’s legal interest would be directly affected. It was on that basis his application for joinder, as a person claiming to be affected, was granted, and he joined the appeal as the 5th Respondent. In the instant application the success of the appeal against the judgment in suit no FHC/PH/CS/78/2007, Exhibit ‘A’, will no doubt affect the legal interest of the Applicant, Dr. Peter Odili, in whom judgment in Exhibit ‘B’ founded on the judgment in suit no FHC/PH/CS/78/2007 beneficially enured.
The application for joinder as a person claiming to be affected by the outcome of the proceedings was refused in LT. GENERAL ISHAYA R. BAMAIYI v. A.G., FEDERATION & ORS (2000) 5 NWLR [pt.655] 50. The ground for refusal was that the Applicant, Mohammed Abacha, who sought to be joined merely speculated that he was a possible suspect in the matter Lt. Gen. Bamaiyi and others were being tried. He was being tried in another similar criminal proceeding. The legal interest which he speculated would likely be affected was his feeling that he was a “possible suspect” in the matter. That interest was too remote, and non existent.
The case of OKOLI v. OJIAKOR (1997) 1 NWLR (pt.479) 48 does not avail the objection of the appellant in this application. It was held in that case that an applicant for joinder “must show that he has an interest in the result of the litigation.” I have shown that Dr. Peter Odili, the Applicant, has sufficiently shown that he has a legally cognisable interest in the result of the pending appeal, to warrant his joinder.
Once the applicant for joinder shows sufficient legal interest to warrant his joinder, his joinder will serve the interest of fair hearing guaranteed by section 36 of the 1999 Constitution and natural justice rule of audi alteram partem: OKOLI v. OJIAKOR (supra) at page 57 B – E. Accordingly, in my judgment this Applicant will be denied fair hearing if he is denied hearing this appeal.
In Re: YINKA FOLAWIYO & SONS LTD (1991) 7 NWLR [pt.202] 237 the application of a tenant seeking to be joined as respondent, together with its landlord, in the suit of the appellant seeking possession, damages for trespass and perpetual injunction in respect of a parcel of land was allowed. The tenant was in actual occupation of the disputed property. In the unanimous decision of this Court, it was held that the Court of Appeal has the inherent power under Section 6(6) (a) of the Constitution to entertain the application to join a person as a party to an appeal who had not even taken part in the proceedings at the lower court. It was held further that such a person may be granted leave to respond to the appeal if he shows that he is a “person having an interest in the matter” the subject of the appeal under Section 222(a) of 1979 Constitution (now 243(a) of the 1999 Constitution.)
As this Court again held in RE: OJUKWU (1998) 5 NWLR [pt.551] 673 at 683 C – D (per Akpabio JCA) .Also in the case of CHRISTOPHER EDE v. OGENYI NWIDENYI IN RE-OGBUZURU UGADU (1988) 5 NWLR [pt.93] 189 cited by learned Senior counsel on both sides the Supreme Court in similar circumstances held as follows –
The interest which will support an application under the provision of Section 213(5) and 222(a) of the 1979 Constitution must be a genuine and legally recognizable interest in respect of a decision which prejudicially affects such interest. (IN RE: AFOLABI (1987) 4 NWLR [pt.36] 473 referred to].
Sections 213(5) and 222 (a) of the 1979 Constitution are in pari materia, respectively, with Sections 233(5) and 243(a) of the 1999 Constitution. It is clear, from the authorities, that this Applicant is exercising a constitutional right.
Finally, therefore, I hold that this Applicant has shown a genuine and legally recognizable interest in respect of the decision in suit no FHC/PH/CS/78/2007 which is the subject of the pending appeal, in view of the subsisting beneficial judgment in his favour in FHC/PH/CS/2007 which was founded in FHC/PH/CS/78/2007. His interest will be directly, and not obliquely, affected.
My learned brother, ISTIFANUS THOMAS, JCA has dealt extensively with the application in the lead Ruling just delivered. I agree with him that this application deserves to be, and is hereby, granted. I abide by all consequential orders in the said lead Ruling.
Appearances
Chief Wole Olanipekun SAN, with I. A. Adedipe SAN.
Ayo Adetipe Esq. Ayo Adesanmi Esq. D. Atagbo Esq. and G. Chinda Esq.For Appellant
AND
A. B. Mahmoud SAN, with U. G. Daniel Esq.
Mr. H. O. Afolabi Esq with Mr. K. O. Fagbemi Esq.For Respondent
