BEREAU OF PUBLIC ENTERPRISES v. INTERSTELLA COMMUNICATIONS LIMITED & ANOR
(2013)LCN/6207(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of May, 2013
CA/OW/92/2009
JUSTICES
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
JOHN I. OKORO Justice of The Court of Appeal of Nigeria
PHILOMENA M. EKPE Justice of The Court of Appeal of Nigeria
Between
BEREAU OF PUBLIC ENTERPRISES Appellant(s)
AND
1. INTERSTELLA COMMUNICATIONS LTD
2. OBI THOMPSON Respondent(s)
RATIO
WHETHER OR NOT THE ISSUE OF COMPETENCE AND LOCUS STANDI TOUCHES ON JURISDICTION
It is hereby noted that both the issue of competence and locus standi in this application touch on jurisdiction and it is trite that this issue must be taken first before any other issues would be considered. See ALHAJI ATANDA ADEYEMI V. OLAKUNRI (1999) 12 SC. pt. ii) 92. This court however has to assume jurisdiction in order to determine
whether or not it has jurisdiction to entertain this application. PER EKPE, J.C.A.
THE DEFINITION OF THE TERM “LOCUS STANDI”
I still reiterate the fact that the term locus standi is the right to bring an action or the right to be heard in any given forum particularly in a court of law. To invoke same, a litigant must show sufficient interest in a matter or a threat of the injury he would suffer. See, OWODUMNI VS. REG. TRUSTEES OF CCC (2000) 6 SC (Pt. iii) 60 at 73.
A court faced with the issue of locus standi such as in this case, has to consider the affidavit and other documents before it. See, ADESOKUN V. ADEGORULU (1997) 3 NWLR Pt.493 261. PER EKPE, J.C.A.
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Ruling): By the application filed in the Registry of this court on the 27/8/09 and dated the 11/7/09, the applicant, Bureau of Public Enterprise, applied for the leave of this court as an interested party for the following:
“1. Extension of time within which to seek leave to appeal as a person interested, against the judgment of the Federal High Court Umuahia (Abia State) delivered in Suit No. FHC/UM/CS/95/2004 Interstellar Communications Ltd and another v. Nigerian Telecommunications Ltd. dated 6th November 2007.
2. Extension of time within which to seek leave to appeal against the Consent Ruling/judgment of the court dated the 17th June 2009 in the same suit.
3. Leave to appeal against the said judgment and the Consent Ruling.
4. Extension of time within which to file notice and grounds of appeal against the said judgment and the Consent Ruling.
5. Deeming the Notice and Grounds of Appeal herein annexed as exhibit C as having been properly filed/served, appropriate filing fees having paid.”
In support of the application is an affidavit of 38 paragraphs deposed to by the N.I. Odinukaeze, a legal practitioner of No. 14 Mbaise Road, Owerri. The affidavit has Exhibits B and C. Upon the service of the motion on the respondents they filed a joint counter affidavit of 26 paragraphs with Exhibits A, B, C1, C2, D1, D2, E1, Exhibits 2, F, G, H, and J. The applicant in reaction filed a 51 paragraph further affidavit.
This application has raised a number of issues for determination and I wish to adopt the issues framed by the Respondent in this application viz:
“1. Whether the applicant has the locus standi to bring this application
2. Whether the application is competent.
3. Whether the application is not an abuse of court process.
4. Whether the application has any merit to Warrant its being granted.”
On the issue of locus standi learned counsel for the applicant argued that where there is a manifestation of the applicants interest in the judgment sought to be appealed against or where there is a link between the applicant and the subject matter of the judgment sought to be appealed against, the applicant is a person interested and has locus standi. The signifies of that interest is a matter to be determined in the substantive appeal and not at this interlocutory stage. See, OMATHA INVESTMENT AND PROPERTIES LTD. VS. ALHAJI SALAWU AWOSANYA & ORS. (2005) ALL FWLR Pt. 259 2071 at 2074 Raion 4. Learned counsel further cited the case of ENYIBROS FOOD PROCESSING CO. LTD vs. NDIC (2007) ALL FWLR Pt. 367, 793 & 798 where the Supreme Court held thus:
“The test of interest to determine a person interested is whether the person could have been joined as a party to the suit. A person interested includes a person affected or likely to be affected or aggrieved by the proceedings.”
See also OJUKWU VS. MILITARY GOV. OF LAGOS STATE (1988) 2 NWLR (Pt. 10) 806.
Learned counsel further argued in his supporting affidavit that the applicant has deep rooted interest in NITEL – the judgment debtor and had at all material times been in charge of the management and control of NITEL. He further reiterated the fact that the applicant has locus standi as the burden of paying the judgment debt rests on them.
The Respondent on the other submits through his counsel that the onus is on the applicant to disclose his locus standi ex facie and that failure to do so is fatal to his case. He cited the case of GOMBE V. P.W. NIG. LTD. (1995) SCNJ 19 at 39.
Learned counsel for the Respondent further argued that a statutory body must in the performance of its functions act only within the purview of its enabling statute. That the applicant has no life or power of its own to commence this action as its functions are limited to carrying out policies and making recommendations to that parent body which is the National Council on Privatization. That the applicant is at best a sub-agency of the Federal Government. He concluded that the Applicant is without competence to appeal against a consent judgment given in favour of the Federal Government of Nigeria. That it has absolutely no interest to protect by so doing and thus lacks the locus standi to apply for leave to appeal as a person interested.
On issue two – whether the application is competent, learned counsel for the Applicant urged this court to construe or interpret S.241 (2)(c), S. 242(1), and (2) and S. 243(a) of the 1999 Constitution liberally. He further submitted that Order 7 Rule 4 of the Court of Appeal rules 2007 which stipulates that “Leave shall not be made to this court in the 1st instance except where there are special circumstances…..” is inconsistent with the express and unambiguous provisions of Sections 241, 242 and 243 of the Constitution which do not place any limitations on the right to appeal with leave. Counsel then urged this court to hold that this application is proper before this court and therefore it is maintainable. See the case of ENYIBROS FOODS PROCESSING CO. LTD VS. NDIC (2007) ALL FWLR Pt. 367, 793 at 798. Where the Supreme Court held thus:
“The right of appeal is constitutional as it is provided in the Constitution. It stands on the very height of the appeal decision by virtue of the fact that the Constitution provides for it. As a constitutional right it over rides most other negative principles aimed at foreclosing the right. While the constitutional right cannot be granted if the applicant fails to adduce good and substantial reasons for the application, the court will not hesitate to grant an application where there are sufficient materials and reason in the affidavit justifying the grant of the application.”
In his reply, learned counsel for the Respondent submitted that the Applicant has not complied with the statutory provisions and the court can come to the conclusion that failure to comply with the said statutory provision weighs against the party in default. See, ADESONOYE VS. ADEWOLE (2006) 7 SCNJ 501 at 516.
Counsel further stated that the 1999 Constitution which created the right of appeal for the applicant also has prescribed the method of exercising that right. See, S. 343(b) of the 1999 Constitution. That Order 7 Rule 4 of the Court of Appeal Rules 2007 clearly prohibits the bringing of an application of this nature to this court at 1st instance except of course under special circumstances. That no special circumstance has been shown to exist in this application. Counsel concluded that if a law provides that a certain proceeding in respect of a particular cause of action shall be commenced by one method, it would be wrong for a litigant to commence such proceeding by another method. That the court will lack the jurisdiction to entertain it as it is not properly before the court. See, NEMI VS. STATE 1994 10 S.C.N.J. 1. At 45, OSEYOMON VS. OJO 1997 7 SCNJ 365 at 377.
On the issue of abuse of court process, learned counsel for the Respondents stated that the facts of this case as shown in their counter affidavits reveal that not only did the Applicant know about the pending of the suit brought by the Respondents against the defendants at the lower court, but also that the Applicant fully participated in the negotiation that culminated in the consent judgment which they now are seeking to appeal against. That Exhibit M to the Respondents’ further Counter Affidavit, is a letter to the Applicant dated 5th September 2005 fully appraising the applicant of the pendency of the suit in the lower court. He then cited the case of ADEMOLA VS. SODIPO (1992) 7 S.C.N.J. Pt. 2 417 at 429, and urged the court to dismiss the application.
In the applicant’s rejoinder on points of law, counsel submitted that the Applicant qualifies as “any other person having an interest in the matter” and is also fully covered by S. 243 of the 1999 Constitution of the Federal Republic of Nigeria. He then cited the case of NIGERIAN BOTTLING CO. PLC. VS. TAIWO OSOFISAN (2000) FWLR pt.7 1181 at 1183 where this court interpreted Section 222(a) of the 1979 Constitution which is on all fours with S. 243(a) of the 1999 Constitution and held as follows:
“In considering whether or not an applicant comes within the expression” “any other person having an interest in the matter”, the acid test which is usually applied is whether such person could have been joined as a party to the suit.
Such person includes a person affected or likely to be affected or aggrieved or likely to be aggrieved. It is synonymous with a person aggrieved meaning a person who has suffered a legal grievance, a man whom a decision has been pronounced which has wrongfully deprived him something or affected his title to something. The interest must be genuine and legally recognizable right or interest.”
Applicant reiterated the fact that the defendant (NITEL) was at all times under the control and management of the Applicant. Counsel also submitted that the Applicant is a juristic person, a corporate body established by S. 12 of the Public Enterprises (Privatization and Commercialization) Act 1999 with statutory Powers to institute, prosecute and defend legal proceedings. See, S. 23 of the Act. That the applicant, though an agency of the Federal Govt. does not require any formal approval or consent of the Federal Govt. to bring this application or appeal against the judgment. Also that the right of the Applicant to institute legal proceedings is inherent in the law establishing it and is not dependent on any formal consent or approval of the Federal Govt. See, S. 13 (e) of the Public Enterprises Act Cap. 38.
Learned applicant’s counsel further stated that his application for leave to appeal against the consent judgment was filed timeously. That even if the Applicant had knowledge of the pendency of the suit of the trial court, and also participated in the meetings and negotiations that led to the consent judgment, it does not erode the fundamental issues of jurisdiction raised by the Applicant in his proposed grounds of appeal. See, OLADITI ADESOLA V. ALHAJI BAIMI ABIDOYE (1999) 73 CRCN 3256 at 3259 – 3260. Such issue of jurisdiction is however to be decided not at this interlocutory stage but in the substantive appeal. He then urged the court to allow the appeal.
The first issue raised by the Respondent which I have adopted in this Ruling is whether the Applicant has the competence or locus standi to bring this application. It is hereby noted that both the issue of competence and locus standi in this application touch on jurisdiction and it is trite that this issue must be taken first before any other issues would be considered. See ALHAJI ATANDA ADEYEMI V. OLAKUNRI (1999) 12 SC. pt. ii) 92. This court however has to assume jurisdiction in order to determine
whether or not it has jurisdiction to entertain this application. I have perused the affidavit evidence before this court particularly para. 5, of the applicant’s affidavit in support of the application which reads thus:
“The applicant later took over the management of NITEL following Federal Govt’s. Privatization exercise in 2006.”
Subsequent paragraphs of the said affidavit state that the action was filed in 2004 and that NITEL did not inform the Applicant of the existence of the suit. Surprisingly, the Respondents did not deny the facts as contained in the said paragraphs of the affidavit but rather dwelt on the activities of the defendants during and after the trial which gave rise to the judgment. Locus standi denotes a legal capacity to institute proceedings in a court of law whereby in the absence of any inhibitions, the plaintiff can be heard on the questions that affect his right. It is therefore the duty of the court to decide on the civil rights and obligations of the parties in consonance with the judicial powers conferred on them by the court. At the risk of self repetition, I still reiterate the fact that the term locus standi is the right to bring an action or the right to be heard in any given forum particularly in a court of law. To invoke same, a litigant must show sufficient interest in a matter or a threat of the injury he would suffer. See, OWODUMNI VS. REG. TRUSTEES OF CCC (2000) 6 SC (Pt. iii) 60 at 73.
A court faced with the issue of locus standi such as in this case, has to consider the affidavit and other documents before it. See, ADESOKUN V. ADEGORULU (1997) 3 NWLR Pt.493 261. Having considered all the issues raised herein by both learned counsel, it is my considered view that the applicant has the locus standi to bring this application considering the fact that they took over the management of the defendant during the pendency of the suit until judgment.
On the issue of competence of the application, the contention of the Respondent is that the application ought to have been made in the court of 1st instance before making same at the Court of Appeal. I refer to S. 242(1) of the 1999 Constitution (as amended) which states as follows:
“Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court in respect to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
From the above section of the Constitution, it is my candid view that both the High Court or the Court of Appeal have concurrent jurisdiction in the application for leave to appeal. See the cases of:
1. T.S.A. INDUSTRIES LTD. V. KEMA INVESTMENT LTD. (2006) 2 NWLR Pt. 964 300 at 313.
2. KALU vs. ODILI (1992) 2 NWLR Pt. 240 150.
I have also considered the notice and grounds of appeal and I am convinced that they are substantial and arguable. I therefore hold that this application is competent. On the issue of abuse of court process, the summary of the Respondent’s counsel’s submissions is that the application herein is unnecessary considering the settlement of part of the judgment debt and the Order arising from the terms of settlement by the parties. It has already been earlier decided that the applicant has the locus standi to bring this application. Having thus held that the applicant has the locus, can any other transaction curtail her right of appeal? The answer must be in the negative as an appeal is a constitutional right. See NWLR NIG. LTD. V. SPJC LTD (2004) NWLR Pt. 869 at 290.
An appeal is not an alternative remedy to any proceeding. It is a constitutional right and therefore the fact that the parties have agreed to a consent judgment does not preclude an aggrieved party from appealing against that judgment as an interested party particularly in the present case where there is an alleged collusion between the Respondents and the defendants in the lower court. The said application therefore cannot be an abuse of court process. Before I proceed further in this decision, there will be need to take a little time to comment on the prayers of the Applicant on the motion.
Prayer: Prayer one reads thus:
“Extension of time within which to seek leave to appeal as a person interested against the judgment of the Federal High Court Umuahia, delivered in Suit No. FHC/UM/CS/95/2004 dated 6th November, 2007.
The same also goes for relief No. 2 on the motion paper. In my view I do not think it necessary for an interested party to ask for extension of time to ask for leave to appeal since there is no time limit for an interested party to ask for leave to appeal against a judgment. There is no provision either in the Constitution or in the Court of Appeal Rules that marks out a time frame to ask for leave. In my view I think prayers 1 & 2 are unnecessary.
See OJORA VS. AGIP (NIG.) PLC 2005 4 NWLR Pt 916 516 at 547. Again, another point to be considered is whether the preliminary objection raised by the Respondent’s is indeed necessary. The said objection to my mind is unnecessary considering the fact that an appeal is a constitutional right. See MANGRAUT VS. ODUBA (2004) 4 NWLR Pt. 863 at 287 where this court held thus:
“It is improper and indeed premature to file a notice of preliminary objection to an application seeking leave to appeal. This is because if a party who is aggrieved by the decision of a court decides to appeal, he is doing more than exercising his constitutional right. Nothing must be done or left undone that is capable of thwarting the exercise of that right.”
On the whole, the said application is proper before this court. The next issue is whether the applicant has made out any special circumstance to warrant this court to grant the prayers. Learned counsel for the Applicant submitted that the Applicant has sufficient interest in the subject matter, in the judgment and order of court arising from the proceeding at the Federal High Court, Umuahia in Suit No. FHC/UM/CS/95/2004. The respondent however is of a different view. He has submitted through his counsel, that the Applicant does not have sufficient interest in the matter to warrant the application. That a person having an interest is synonymous with a person aggrieved, or a person against whom a decision has been given which has wrongly deprived him of something or wrongly affected his title to something etc. He cited the case of L.S.D.P.C. VS. DAKOUR (1992) 11-12 SCNJ Pt. 217 at 224. That the Applicant has not shown in this application what interest has been adversely affected by the judgments it is seeking the leave of this court to appeal against. Also that the applicant has not shown by what instrument they had taken over the affairs of NITEL and under whose authority. From the aforementioned assertion, it can be said that the applicant is an interested party likely to be affected by the judgment of the lower court. Also, going by the unchallenged averment in paragraphs 5 and 6 of the Applicant’s affidavit, it is obvious that the applicant is an interested party, and having taken over the management of the defendant, the burden is on the applicant to settle the judgment debt. See IN RE: NDAYAKO (2003) 4 NWLR Pt. 809 42 at 46 – 48.
This court cannot in this application go into the merit of the main appeal but will only consider whether the appeal has substance and is arguable because from all indications it is the intention of the Respondents’ based on the contents of the counter affidavit that is left for the argument of the main appeal.
I have also observed that the notice and grounds of appeal was merely paid for as an exhibit and not a separate process. This prayer is therefore sought but the court has ordered that the Notice and Grounds of Appeal be filed within 14 days from today. From the totality of all of the above submissions and conclusions, it is my firm view that this application has merit and I do hereby grant it accordingly.
I make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A. (PRESIDEING): I have read before now the Ruling of my learned brother P. M. Ekpe, JCA just delivered.
I agree that the application has merit and ought to be granted. The application is also granted by me. I abide by the consequential order as to costs.
JOHN INYANG OKORO, J.C.A.: I read in advance the Ruling of my learned brother, PHILOMENA MBUA EKPE, JCA, just delivered and I agree that this application is meritorious and ought to be granted. From the affidavit in support of this application, the applicant has shown sufficient interest in the subject matter of the judgment sought to be appealed against. I am of the view that where there is a link between the applicant and the subject matter of the judgment sought to be appealed against, the applicant is a person interested and should not be denied the locus standi to sue. At this stage, an applicant only needs to show his relationship with the subject matter of the judgment and how he would be affected by the judgment. He need not say more in order not to prejudice the issues to be ventilated in the substantive appeal. See OMATHA INVESTMENT & PROPERTIES LTD vs. ALHAJI SALAWU AWOSANYA & ORS. (2005) ALL FWLR (Pt.259) 2071.
As was held in ENYIBROS FOODS PROCESSING CO. LTD vs. NDIC (2007) ALL FWLR (Pt.367) 793 at 798 by the Supreme Court, the test of interest to determine a person interested is whether the person could have been joined as a party to the suit. A person interested includes a person affected or likely to be affected or aggrieved by the proceedings.
On the whole, I agree with my learned brother, EKPE, JCA that this application is meritorious and I hereby grant same in terms as in the lead Ruling of my learned brother aforementioned. I also make no order as to costs.
Appearances
N.I. Odinukaeze, Esq.For Appellant
AND
Chidi B. Nworka, Esq., with S.C. Chukwu, Esq.For Respondent
