GARY ENWO-IGARIWEY & ANOR v. DR. ALEX ANOZIE & ORS
(2018)LCN/12077(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of October, 2018
CA/IB/M.545/2014(R)
RATIO
APPEAL: WHETHER APPEAL IS PREDICATED ON RATIO DECIDENDI
“It is trite law that Appeals are predicated on the reasons for the decision (ratio decidendi) and not mere statements made by the trial Judge in the course of his judgment (obiter dictum). See Achiakpa & Anor v. Nduka & Ors (2001) 14 NWLR (pt. 734) 623; Omisore & Anor v. Aregbesola & Ors (2015) LPELR 24803 (SC) and Onyia v State (2008) 18 NWLR (pt. 1118) 142. The ratio decidendi of a case is the principle of law upon which the case was decided, and it is that principle that is binding on the parties and therefore capable of being appealed against. It should be noted that the ratio decidendi or reasons for the decision cannot stand on its own outside the facts of the case. Accordingly, to determine the reason(s) for a decision, it is necessary to relate the facts of the case as presented by the parties. See Abacha v. Fawehinmi (2000) 6 NWLR (pt. 660) 228; Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (pt. 805) 589 at 645; Ikuepenikan v. State (2015) LPELR-24611 (SC) and Dairo v. U.B.N. Plc (2007) 16 NWLR (pt. 1059) 99.” HARUNA SIMON TSAMMANI, J.C.A.
COURT AND PROCEDURE: THE EXERCISE OF THE DISCRETION OF THE COURT
“A person will thus be entitled to the exercise of the discretion of this Court granting him leave, that is permission to appeal as a person having interest in a pending appeal if he or she places sufficient materials before the Court demonstrating that:
(i) An order has been made which prejudicially affects his or her interests;
(ii) He or she has suffered a legal grievance;
(iii) He or she is a person against whom a decision has been pronounced;
a) Which has wrongfully deprived him or her of something.
b) Wrongfully affected his or her title to something.” PER FOLASHADE OJO J.C.A
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
FOLASHADE OJO Justice of The Court of Appeal of Nigeria
Between
1. GARY ENWO-IGARIWEY
(President General, Ohaneze Ndigbo)
(For himself and on behalf of OHANEZE NDIGBO)
2. H.R.M; EZE (DR.) C. I. ILOMUANYA, CON.
(Chairman, Council of Traditional Rulers, South East) (For himself and on behalf of South East Council of Traditional Rulers). Appellant(s)
AND
1. DR. ALEX ANOZIE
2. CHIEF NDIDI E. NZEAKO
3. CHIEF ALLOY OKWUDILI CHUKWU OBI
4. MR. ADOLF OKOLI
5. CHIEF GABRIEL IHESULO
6. MR. ANDREW DURU
7. MR. JOHN IDOKO
8. MR. FELIX IGBOANUGO Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Lead Ruling):
By a Motion on Notice dated the 25th day of November, 2014 and filed on the 26th day of November, 2014, the Applicant asked this Court to grant the orders:
1. Extending the time within which Applicants may seek leave of this Honourable Court to appeal as interested parties against the judgment of Honourable Justice M.A.A. Abass of the Oyo State High Court, Ibadan delivered on 18th day of February, 2014 in Suit No: I/167/2011.
2. Granting leave to Applicants to appeal as interested parties against the Judgment of Honourable Justice M.A.A. Abass of Oyo State High Court, Ibadan delivered on 18th day of February, 2014 in Suit No: I/167/2011.
3. Extending the time within which the Applicants may file Notice of Appeal as interested parties against the Judgment of Honourable Justice M.A.A. Abass of the Oyo State High Court, Ibadan delivered on 18th day of February, 2014 in Suit No: I/167/2011.
4. Granting leave to the parties interested/Applicants to file the Notice of Appeal in the Registry of this Honourable Court since the Record of Appeal had been transmitted to this Honourable Court by the Registry of the Lower Court. Such order or further orders as this Honourable Court may deem fit to make in the circumstances.
The Application is predicated on the following Grounds:
(i) The Learned Trial Judge at the Lower Court made findings and pronouncements against the Applicants who were not parties to the case before him in respect of which the Applicants were dissatisfied.
(ii) The Applicants could not apply to the Court below for leave to appeal as interested parties as the Appeal had been entered in this Honourable Court before Applicants instructed counsel following compilation and transmission of Record of Appeal shortly after filing Notice of Appeal which was filed less than a week after delivery of the judgment.
(iii) The Applicants in filing leave to Appeal before this Honourable Court also filed Notice of Appeal which was exhibited and sought to be deemed in reliance on the decision of the Supreme Court in Suit SC: 32/2005 ? Alhaji Mohammed Maina Waziri v. Ibrahim Tahir Gumel and Anor reported in (2012) All FWLR (pt. 632) 1660 at 1670 EH with expectation that the Application before this Court could be taken before the time limited for filing Appeal expired but the vacation set in before the matter could be listed.
(iv) This fresh Application is necessary in view of the fact that the time within which the Notice of Appeal could be filed had expired, making it imperative to seek extension of time to seek leave to appeal and extension of time to appeal as interested parties.
The Motion is supported by an Affidavit of 23 paragraphs to which were annexed 6 exhibits marked as Exhibits A, B, C, D, E and F respectively. Upon receipt of the 1st and 2nd Respondents? Counter-Affidavit, the Applicants filed a Further-Affidavit of 12 paragraphs. Attached to the Further-Affidavit are 5 exhibits marked as Exhibits SPN, SPN1, SPN2, JDGT and LTT respectively. In opposition to the Application, the 1st & 2nd Respondents filed a Counter-Affidavit 19 paragraphs. Considering the contentious nature of the Application, this Court ordered the parties to file Written Addresses. The Applicants’ Written Address dated the 29/1/2018 was filed on the 13/2/2018. The Applicants filed a Written Reply on points of law.
It was dated and filed on the 27/2/2018. It should be noted that the 3rd – 8th Respondents did not oppose the Application and so did not file any Written Address.
Now, at page 2 of their Written Address filed on the 30/1/2018, the Applicants formulated one issue for the determination of this Court as follows:
1. Whether it will not be in the interest of justice for this Honourable Court to exercise her discretion in granting the application to enable the Applicants exercise their right donated by Section 243(1)(4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to appeal as interested parties.
The 1st & 2nd Respondents, at pages 2 – 3 of their Written Address filed on the 13/2/2018, formulated two (2) issues for determination as follows:
1. Whether the Applicants, having regard to the facts of this case are persons having an interest within the meaning and intendment of Section 243(A) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and entitled to be granted leave to appeal.
2. Whether the comment of learned trial Judge constituted a ‘decision’ within the meaning of Section 318 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) so as to ground an appeal therefrom.
After a careful consideration, I am of the view that the two issues formulated by the Respondents can be properly subsumed into the one issue formulated by the Applicants. Accordingly, this Application shall be determined on the sole issue raised by the Applicants. However, after reading the Addresses of the parties, I found that there are some preliminary issues which have been raised therein. I intend to resolve those preliminary issues before proceeding to determine the substantive Application.
Now, at pages 13 – 14 (paragraph 3.11) of Applicants Written Address, the Applicants contended that, the Counter-Affidavit of the 1st & 2nd Respondents are mainly arguments which have no place in an Affidavit. Referring to paragraphs 7, 8, 17, 17(iii), 17(v), 17(vii) and 17(viii) of the 1st and 2nd applicants’ Counter-Affidavit, learned counsel contended that they are legal arguments or conclusions and therefore offend Section 115(1) and (2) of the Evidence Act, 2011. Learned Senior Counsel (silk) for Applicants then cited the cases of A.G; Adamawa v. A.G; Federation (2005) 18 NWLR (pt. 958) 581 at 676; N.N.L. v. A.D.I.C. Ltd (1995) 8 NWLR (pt. 416) 477 at 701 – 702 paragraphs H – A and FINunion v. M.V. Briz. (1997) 10 NWLR (pt. 523) 95 at 103 – 104 paragraphs H – A to urge us to strike out those offending paragraphs of the Counter-Affidavit.
Learned Counsel for the 1st and 2nd Respondents did not respond to this objection of the Applicants in respect to those paragraphs of the Counter-Affidavit. Now, Section 115 of the Evidence Act, 2011 stipulates that:
115(1). Every Affidavit used in the Court shall contain only a Statement of Facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2). An Affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
It should be noted that, an Affidavit is in the nature of facts within the personal knowledge of the deponent in documentary form. Affidavit evidence consists of facts which can be given by a witness in oral testimony in Court.
See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 688 at 715 paragraph B and 718 paragraphs C – D. That being so, an Affidavit shall contain only Statements of Facts and circumstances derived from the personal knowledge of the deponent or from information which he (deponent) believes to be true. Such deposition shall therefore not contain extraneous matters such as objections, prayers, or legal arguments or conclusions. The complaint of the Applicants here is that those paragraphs of the Counter-Affidavit are full of legal arguments and/or conclusions.
In Law, legal arguments and conclusions are not issues which are capable of being led in oral evidence and therefore incapable of being deposed to in an Affidavit. Legal arguments are issues for counsel to urge on the Court while a conclusion is based on facts or law which is the result of a process of reasoning in order to reach an opinion, draw inferences or make deductions from those facts. Thus, in Bamaiyi v. State (2001) 8 NWLR (pt. 715) 270, the Supreme Court, per Uwaifo, JSC said:
”The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the Affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument which pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a Statement of Facts and circumstances which may be deposed to in an Affidavit. It therefore means that prayers, objections and legal arguments are matters that may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in Affidavit evidence; while conclusions should not be drawn by witnesses but left for the Court to reach.”
I have been able to peruse the contents of paragraphs 7, 8, 17(iii) 17(iv), 17(vii) and 17(viii) of the Counter-Affidavit in the light of the above stated principles of the law. Having thus considered, I am of the view that paragraphs 7 and 8 are fit only for legal arguments and therefore offend Section 115(2) of the Evidence Act, 2011. In the same vein, paragraphs 17(iii), 17(iv) are objections while paragraphs 17(vii) and 17(viii) are only fit as legal arguments. Consequently, I order that paragraphs 7, 8, 17(iii), 17(iv), 17(vii) and 17(viii) be struck out for offending Section 115(2) of the Evidence Act, 2011.
Similarly, learned counsel for the 1st and 2nd Respondents contended that paragraphs 6(v), 7(xiv), 7(xv), 7(xvi), 7(xvii) and 8 of the Applicants’ Affidavit in Support of the Motion filed on the 26/11/2014 offend Section 115(2) of the Evidence Act, 2011. That those prayers of the Affidavit are speculative and argumentative. In other words, that they contain legal arguments and conclusions, which have no place in an Affidavit. The cases of Military Governor, Lagos State v. Ojukwu (2001) FWLR (pt. 50) 1779 at 1805 paragraphs E – G and A.G; Adamawa v. A.G; Federation (2005) 18 NWLR (pt. 958) 581 at 676 paragraphs D – E were cited in support. We were accordingly urged to strike out those offending paragraphs of the Applicants’ Affidavit.
Responding in page 2 of the Applicants’ Reply Address to the 1st & 2nd Respondents’ Written Address, Alhaji Lasun Sanusi, SAN argued that the depositions of the Applicants in the supporting Affidavit contain Statements of facts only. It was then submitted that the authorities cited by learned counsel for the Respondents are not applicable to the circumstances of this case.
I had in the course of deciding on the objection of Learned Senior Counsel for the Applicant, stated the law applicable here. The depositions in paragraphs 6(v), 7(xiv), 7(xv), 7(xvi), 7(xvii) and 8 of the Applicants’ Affidavit in Support of the Motion have been carefully considered in the light of the law stated above. It is clear to me that paragraph 6(v) is a legal conclusion. Paragraph 7(xiv), 7(xv), 7(xvi) and 7(xvii) are competent. Paragraphs 8(ii), (iii) and (iv) are legal arguments and/or conclusions and therefore offend Section 115(2) of the Evidence Act, 2011. I therefore order that paragraphs 6(v), 8(ii), 8(iii) and 8(iv) of the Applicants’ Affidavit in Support of the Motion filed on the 26/11/14 be struck out for offending Section 115(2) of the Evidence Act, 2011.
Now, on the substantive Motion, Learned Senior Advocate for the Applicants sought leave of this Court to withdraw an earlier application filed on the 15/5/2014. There being no objection, the said Motion filed on the 15/5/2014 with Appeal No: CA/I/248M/14 is hereby struck out. The Miscellaneous Appeal No: CA/I/248M/2014 is accordingly deleted.
Arguing the Motion therefore, Learned Senior Advocate for the Applicants relied on Section 243(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Order 6 Rule (4) of the Court of Appeal Rules, 2016 to contend that, the Applicants had the choice of filing this Application either at the Lower Court first or at the Court of Appeal. Learned Senior Counsel then went on to argue that, an interested person is a person who is aggrieved, or who has suffered a legal grievance. Learned Senior Counsel also defined an interested party as a person against whom a decision has been pronounced and which pronouncement has deprived him of something or wrongfully refused him something or wrongly affected his title to something. The cases of Ikonne v. C.O.P. & Anor (1989) 4 NWLR (pt. 36) 473 at 503 paragraphs E – F and In Re: Ijelu (1992) 9 NWLR (pt. 266) 414 at 421 were cited in support.
It was further contended by learned counsel for the Applicants that, the Applicants were not parties to the Suit No: I/167/2011 but that upon the delivery of judgment they became interested persons. That it is so because the Lower Court made damaging findings and pronouncements against the Applicants in their capacities as Igbo leaders which if not corrected by way of Appeal, will definitely affect their subsequent roles as Igbo leaders and their integrity as men of peace. Furthermore, and as deposed in paragraphs 6 and 7 of the Affidavit in Support, that some of the findings and pronouncements of the Lower Court touch on the Applicants’ powers, duties and integrity to control the Igbo Associations; and that the only way such findings can be contested or challenged is by way of Appeal as interested parties; they not being parties to the suit in the trial Court. The cases of Re: Eke (1993) 4 NWLR (pt. 286) 176 at 186 and Z. P. & G Ltd v. M.V. Delmar (2016) All FWLR (pt. 853) 1766 at 1783 – 1784 were cited in support. Learned Counsel (silk) relied particularly on paragraphs 4, 6(iv), 6(vi), 6(vii), 7(iv), 7(v), 7(vii), 7(viii), 7(ix), 7(xv), 7(xvi), 7(xvii), 8 and 13 of the Affidavit in support.
Learned Senior Counsel for the Applicants then drew our attention to the findings of the trial Court at pages 23, 24 and 26 of the judgment thereof wherein the learned trial Judge made findings of oppression and forceful removal of the 1st Respondent against the 2nd Applicant. That, those findings constitute good grounds for an Appeal by the Applicants who were not parties at the trial Court. Furthermore, that the trial Court made those finding of want of locus standi against the Applicants at pages 17 – 18 of the Judgment and resolved same against the Applicants who were not parties to the dispute before it. That the trial Court made findings suo motu and held that the 2nd Applicant lacks locus standi when he dissolved and acted in a regimental commando manner to remove the 1st Respondent from office as Onyendu. The cases of Ibuluyo v. Tomoniari (2017) 6 NWLR (pt. 1652) 426 at 434 and Contract Resource Nigeria Ltd & Anor v. U.B.A. Plc (2011) All FWLR (pt. 596) 438 were then cited to submit that the Applicants are therefore entitled to ventilate their dissatisfaction against those findings of the trial Court by appealing with the leave of this Court in line with the provisions of Section 243(1)(a) of the Constitution.
Learned Counsel for the Applicants also contended that, the 1st and 2nd Respondents did not deny the fact that the Lower Court made those findings against the Applicants who were not parties in the suit before it nor any claim or relief sought against them. That the 1st and 2nd Respondents only contend that those findings were mere Statements made in passing by the learned trial Judge. The cases of Anyanwoko v. Okoye (2010) 5 NWLR (pt. 1188) 497 and Commissioner for Works, Benue State v. Devcon Development Consultants Ltd & Anor (1988) 3 NWLR (pt. 83) 407 at 420 were cited in support and to further submit that a Court has no jurisdiction to make pronouncements against none parties to a suit.
On the 1st and 2nd Respondents’ Complaint that Dr. Ilomuanya and Dr. Igariwey (2nd & 1st Respondent) are no longer holding offices, Learned Senior Counsel for the Applicant submitted that, as shown by Exhibit JDGT annexed to the Further-affidavit, the removal of the 2nd Respondent has been set aside by this Court in Appeal No: CA/OW/128/2012. That in any case the two Applicants are making the Application for themselves and on behalf of the respective bodies they represent, i.e. the Ohaneze Ndigbo and South-East Council of Traditional Rulers respectively.
On the 1st and 2nd Respondents’ contention that the Applicants were aware of the action at the Lower Court but did not take steps to join, Learned Senior Counsel submitted that, the Applicants were not expected to join the action at the Lower Court because no Claim was made against them nor did they anticipate that the trial could make disparaging pronouncements against them. Furthermore, that the witnesses that testified as the representatives of the respective bodies did so on subpoena as evidenced by Exhibits SPN – SPN1 and SPN2. We were accordingly urged to grant the application by granting leave to the Applicants to appeal by virtue of Section 243 (1) (A) of the 1999 Constitution (as amended).
In response, Learned Counsel for the 1st and 2nd Respondents referred to Section 243(1) (a) of the 1999 Constitution (supra) to contend that the issue to be resolved here, is to understand the meaning of ?Person having interest in the matter?. He then referred to the cases of In Re Ugadu (1988) 5 NWLR (pt. 93) 189 at 199; Kalu v. Odili (1992) 5 NWLR (pt. 240) 130 at 194 and S.G.B. Bank (Nig.) Ltd v. Afekoro (1999) 11 NWLR (pt. 628) 521 at 537 to submit that, from the authorities, the Applicants have not suffered any tangible legal grievance to warrant their being granted leave to appeal. That the Applicants’ application can only be granted if they have been able to satisfy the Court that they genuinely have an interest in the matter.
That from the Affidavit evidence and the proposed Notice of Appeal, the Applicants have not shown any interest which they have in the judgment which they seek to appeal against. The case of In Re Ogbuzuru Ugada & Anor (1988) 5 NWLR (pt. 93) 189 at 202 was then cited to further submit that, an applicant seeking leave to appeal as an interested party, has a duty to show, not only that he is a person interested, but also that the order made by the trial Court prejudicially affected his interest.
It was then argued by Learned Counsel for the 1st and 2nd Respondents that, the Applicants were not parties to Suit No: I/167/2011 nor was any relief claimed against them. That the Applicants seek leave to appeal for the reasons deposed to in paragraphs 6, 7 and 8 of the Affidavit in Support, which did not disclose that the decisions in Suit No: I/167/2011 prejudicially affected their interest. Furthermore, that the Applicants cannot claim not to have been aware of the pendency of Suit No: I/167/2011 since the Secretary of the 1st Applicant and the National Vice President testified in that suit on the instruction of the 1st Applicant. That the 2nd Applicant is no longer an Eze. It was then submitted that, the Applicants were therefore aware of nature of the suit and the reliefs claimed in the Court below but did not apply to join as parties to the suit. That, by the principle stated in A.G; Rivers State v. A.G; Akwa Ibom State (2011) 8 NWLR (pt. 1248) 31 at 82-83, the Applicants are estopped from challenging the decision of the trial Court.
The case of Owena Bank (Nig.) Plc v. N.S.E. Ltd (1997) 8 NWLR (pt. 515) 1 at 18 was also cited in support.
Learned Counsel for the 1st and 2nd Respondents went on to submit by reference to Section 243 (1) (a) of the 1999 Constitution (supra) that, it is the law that, a person cannot appeal against an obiter of Court, as it does not form the ratio decidendi of the judgment. The cases of Dalhatu v. Turaki (2003) 15 NWLR (pt. 843) 310 at 350 and Wilson v. Oshin (1988) 4 NWLR (pt. 88) 324 at 333 were cited in support and to also submit that, the comments of the Learned trial Judge which formed the basis of Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal are mere obiter dicta and therefore did not embody the rationes decidendi or the reasons for the resolution of the trial Court. That in any case, the resolutions of the issues which refer to the South-East Council of Traditional Rulers did not touch on the personal interest of the Applicants nor did the reliefs granted in the judgment affect the Applicants in any way. It was thus submitted that such comments cannot be a decision within the meaning of Section 318 of the 1999 Constitution as to be subject to appeal. We were accordingly urged to dismiss the application.
Replying on points of law, Learned Counsel (silk) for the Applicants cited the case of Osadima v. Taiwo (2010) 6 NWLR (pt. 1189) 155 at 178 to contend that the Respondents did not deny the fact that damaging pronouncements were made against the Applicants but only argue that such pronouncements were merely made in passing. That the pronouncements complained against did not affect the cognizable interests of the Applicants. That those pronouncements are not only closely related but indeed influenced the ratio (reasons) for the decision and thus the basis of the findings of the Lower Court. The cases of Ogba v. Asade (2009) 18 NWLR (pt. 1172) 106 at 126; In Re Shyllon (1994) NWLR (pt. 353) 735 and X. S. Nig. Ltd v. Taisei (W.A) Ltd (2006) 15 NWLR (pt. 1003) 533 at 547 paragraphs F – G were cited in support.
Now, this Application has been instituted pursuant to Section 243(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which stipulate that:
243(1). 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 ?
It is apparent therefore, that any person who can disclose that he has an interest in a matter, has the locus to seek the leave of the Court below or of this Court, to appeal against such decision. The question that always agitates the Courts in an application such as this, is the determination of the ‘person having an interest’ in the matter. Our Courts, particularly the Supreme Court, has endeavoured to lay down a template for determining the question in several decisions of that Court. It would appear to me, that ‘a person having an interest’ in the matter is one 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. It may also include a person who has a genuine grievance against the decision because an order has been made which prejudicially affects his interest.
For this, see Ikonne v. C. O. P. & Anor (1986) 4 NWLR (pt. 36) 473; Societe Generale Bank (Nig.) Ltd v. Afekoro & Ors (1999) 11 NWLR (pt. 628) 521; C.P.C. & Anor v. Nyako & Ors (2011) LPELR 23009 (SC); Bakare & Ors v. Ajose Adeogun & Ors (2014) LPELR 25024 (SC). Thus in U. T.C. (Nig.) Plc v. Lawal (2014) 5 NWLR (pt. 1400) 221, Ariwoola, JSC held that:
”A person interested? is said to mean one who has pecuniary or other material interest in the result of the proceeding. A person whose interest is affected by the result of the proceedings, and therefore would have a temptation to pervert the truth to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means ?an interest in the legal sense, which imports something to be gained or lost. From the foregoing therefore, where a person who was not a party in the trial Court seeks leave to appeal to this Court as a person having an interest, he has to satisfy the Court that he is genuinely such a person having an interest in the matter. To satisfy the Court, he must depose to facts in an Affidavit the nature of his interest in the matter and how the order or pronouncement of the trial Court has prejudiced him. See C.P.C. & Anor v. Nyako & Ors (supra); Okonkwo & Anor v. U.B.A. Plc (2011) 16 NWLR (pt.1274) 614 and Waziri v. Gumel & Anor (2012) 9 NWLR (pt. 1304) 185. In Waziri v. Gumel (supra), the Supreme Court, per Rhodes Vivour, JSC held that, an Applicant seeking leave of Court to Appeal as an interested party or party having an interest must depose in detail in an Affidavit in Support of the application:
(a) His interest in the matter;
(b) Why he was not a party in the trial Court; and
(c) Good reasons for the delay in filing the Application (if extension of time is sought to seek leave)
It is also required in such an Application that, the Applicant must attach to the Affidavit, a Proposed Notice of Appeal which must disclose reasonable Grounds of Appeal which will elicit the discretion of the Court to grant the Application. In other words, there must be exhibited, Grounds of Appeal which are reasonable, substantial and arguable. See Ogembe v. Usman & Ors (2011) 17 NWLR (pt. 1277) 638; Chukwu & Anor v. INEC & Ors (2014) LPELR 2501 (SC) and Chime & Anor v. Onwuegbu & Ors (2013) LPELR 20972 (SC).
I have carefully studied the Affidavit and Further-Affidavit filed by the Applicants in support of the Application. I have also studied the annextures thereto. I must however consider the depositions in the Affidavits and the Exhibits with caution so as not to prejudice the Appeal itself. It is not in dispute that the Applicants have filed the instant Application in a representative capacity, for themselves and on behalf of their respective Socio-Cultural Organizations. The 1st Applicant, at the time the Motion was filed was the President General of Ohaneze Ndigbo while the 2nd Applicant was the chairman of South-East Council of Traditional Rulers. Though the 1st and 2nd Respondents sought to challenge the locus of the 2nd Applicant but same was countered by the judgment of this Court annexed to the Further Affidavit as Exhibit JDGT. In any case, there is no objection from any member of the Ohaneze Ndigbo or the South-East Council of Traditional Rulers against the capacity of the Applicants to have filed this Application.
Having perused the Affidavit in Support of the Motion, I find the depositions in paragraphs 4, 5, 6(i), 6(ii), 6(iii), 6(iv), 6(vi), 6(vii), 7(i), 7(ii), 7(iii), 7(iv), 7(v), 7(vi), 7(vii), 7(viii), 7(ix), 7(xii), 7(xiii), 7(xv), 7(xvi) and 7(xvii) as relevant to the determination of this Application. It is my view that by the depositions referred to above, the Applicants have sufficiently disclosed their interest in the Suit subject of the decision of the trial Court. By paragraph 10 of the Affidavit in Support, the Applicants have sufficiently deposed to the reason for the delay in filing the Motion under consideration. The Applicants have deposed in the said paragraph 10 that:
”The Applicants had earlier filed an Application on 16th May, 2014 at the Registry of the Honourable Court for leave to Appeal as interested parties against the judgment of the Lower Court but the Application could not be heard before the expiration of three months statutory period for filing Appeal against the final judgment hence the need for extension of time to seek leave to Appeal and to Appeal out of time.”
The Applicants have also deposed in paragraph 13 of the Affidavit in Support.
13. That the 2nd Applicant further informed me at the above place, date and time and I verily believe him that the Applicants did not join the action at the Lower Court as they did not expect that any pronouncement would be made against them as leaders of either Ohaneze Ndigbo or South-East Council of Traditional Rulers.
The Applicants are therefore not denying knowledge of the pendency of the Suit at the trial, but are contending that they did not anticipate any pronouncement against them by the trial Court. It is also not in doubt that the Ohaneze Ndigbo and the South-East Council of Traditional Rulers were aware of the pendency of the suit and two of their members even testified before the trial Court in respect of the matter. However, as shown by Exhibits SPN and SPN1, the representatives of the Applicants who testified in the matter did so under subpoena at the instance of the 1st and 6th Defendants in that suit.
The Applicants have attached to the Affidavit in Support the Proposed Notice of Appeal consisting of five 5 Grounds of Appeal; and the judgment sought to be Appealed against. I have carefully perused the five (5) Grounds of Appeal and the particulars thereto. I am satisfied that the Grounds are substantial and arguable. The 1st and 2nd Respondents have however argued that the pronouncements of the Court complained against are mere statements made in passing by the learned trial Judge; i.e that they do not constitute the reasons for the decision of the trial Court. It is trite law that Appeals are predicated on the reasons for the decision (ratio decidendi) and not mere statements made by the trial Judge in the course of his judgment (obiter dictum). See Achiakpa & Anor v. Nduka & Ors (2001) 14 NWLR (pt. 734) 623; Omisore & Anor v. Aregbesola & Ors (2015) LPELR 24803 (SC) and Onyia v State (2008) 18 NWLR (pt. 1118) 142.
The ratio decidendi of a case is the principle of law upon which the case was decided, and it is that principle that is binding on the parties and therefore capable of being appealed against. It should be noted that the ratio decidendi or reasons for the decision cannot stand on its own outside the facts of the case. Accordingly, to determine the reason(s) for a decision, it is necessary to relate the facts of the case as presented by the parties. See Abacha v. Fawehinmi (2000) 6 NWLR (pt. 660) 228; Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (pt. 805) 589 at 645; Ikuepenikan v. State (2015) LPELR-24611 (SC) and Dairo v. U.B.N. Plc (2007) 16 NWLR (pt. 1059) 99.
I have carefully read the judgment of the Court below, delivered on the 18th day of February, 2014. Relating the Grounds of Appeal to the findings of the learned trial Judge in the said judgment, I am of the view that, the Notice of Appeal has disclosed substantial and arguable Grounds of Appeal. Those findings and pronouncements of the trial Court which affect the Applicants’ interests, considering the facts of the case at the trial Court are not merely made obiter but go to the substance of the findings and conclusions of the trial Court. It is therefore my view that, it will be in the interest of justice to grant leave to the Applicants to appeal those findings and conclusions as affect them.
On the whole, it would be seen that the Application has merit and is hereby granted.
Consequently, I hereby order as follows:
1. That the Applicants are granted extension of time within which to seek leave of this Court to appeal as persons having interest against the judgment of the Oyo State High Court delivered on the 18th day of February, 2014 in Suit No: I/167/2011, between Dr. Alex Anozie & Anor v. Chief Alloy Okwudilichukwu Obi & 5 Ors.
2. That leave is granted the Applicants to appeal as persons having interest, against the judgment of the Oyo State High Court, delivered on the 18th day of February, 2014 in Suit No: I/167/2011, between Dr. Alex Anozie & Anor v. Chief Alloy Okwudilichukwu Obi & 5 Ors.
3. The Notice of Appeal is to be filed within fourteen (14) days from today, in the Registry of this Court.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother Haruna Simon Tsammani, JCA just delivered.
My Lord has dealt with the preliminary issues and the main issue in this appeal in a very lucid form and I agree with the reasons contained in the Judgment as well as the conclusion reached.
It is also my view that the appeal is meritorious and the appeal is allowed by me.
I abide by the consequential orders made in the said lead Judgment.
FOLASHADE AYODEJI OJO, J.C.A.: I have had the opportunity to read in advance the lead judgment just delivered by my learned brother Haruna Simon Tsammani JCA. His Lordship has painstakingly considered the facts in support of this application as well as the applicable laws. I am in total agreement with the unassailable conclusion reached by him that the application is meritorious and should be granted.
The applicants in the affidavit in support of their application deposed to on their behalf by one Yusuf Ololade Anikulapo are concerned about some findings and pronouncements of the trial Judge in his judgment which according to them, affects them. The instant application is based on those findings and pronouncements. The 1st and 2nd Respondents argued that the pronouncements of the lower Court complained about are mere statements made in passing by the trial Judge.
The law is that statements made in passing by a Judge in his Judgment which are not relevant to the decision reached is mere obiter dictum and not a fit subject of appeal. Where such is raised as a ground of appeal, that ground is incompetent. See University Press Ltd vs. I. K. Martins (Nig.) Ltd. (2000) LPELR – 3421 at 22, para F; Onafowokan & Ors. v. Wema Bank (2011) LPELR – 2665 at 46 paras B – F.
Furthermore, it is the law that the ratio decidendi in a judgment is the legal principle formulated by the Court which constitutes a binding part of the decision. See Afro Continental (Nig.) Ltd vs. Ayantuyi & Ors.(1995) LPELR 218 at 37 paras B – D. The Supreme Court in the case of Ogbolosingha & Anor. Vs. Bayelsa State INEC & Ors. (2015) LPELR 24353 at 44, paras B – D, Per Ogunbiyi JSC held as follows:
”In the case of United Bank for Africa Limited vs. Stahlbau GMBH & Co. KG. (1989) 3 NWLR (Pt. 110) rage 374 at 402 for instance, this Court held and said; The ratio decidendi of a case is not determined from isolated dictum in the judgment. It is determined on considerations of the issues in the dispute between the parties and the facts pleaded and found in support of the contention of the issues. Hence, every judgment ought to be read as applicable to the particular facts proved.”
The findings reached by a Court on issues joined by parties on the face of the pleadings constitute the ratio decidendi in a judgment. The ratio decidendi in a judgment is the fulcrum upon which grounds of appeal are raised. See Adesokan & Ors vs. Adetunji & Ors 1994 LPELR 152 at 55 – 56 Paras E – A and Oleksandr & Ors. vs. Lonestar Drilling Co. Ltd & Anor. (2015) LPELR 24614, p. 22.
I have gone through the pleadings of the parties and the evidence adduced in support at the lower Court. I am satisfied that the findings and pronouncements of the trial Judge arise from the issues joined by the parties and the evidence led by them.
The proposed grounds of appeal are based on the findings and conclusion reached by the trial judge which is the ratio decidendi of the judgment.
Upon a careful perusal of the judgment, I am clear in my mind that the findings and pronouncements of the trial judge which are based on the facts led before him, dominate the particulars of each of the proposed five grounds of appeal and they affect the interest of the applicants. This brings me to the well settled principle of law that a person will be deemed to be an interested party if he discloses sufficient interest in a pending appeal. See Bala vs. Dikko & Ors. (2012) LPELR 19655 at 10 Paras E – F.
On how to determine whether a person has disclosed sufficient interest in a pending appeal, the Supreme Court in the case of Assams & Ors vs. Ararume & Ors. (2015) LPELR – 40828 at 27 – 28 Paras E – F per Nweze JSC held as follows:-
”As I held in Charles Odedo vs. PDP and Ors. (SC 29/2015 delivered on June 5, 2015, when the Drafts – Person of the 1999 Constitution (as amended) speaks of persons having interest, in the second clause of Section 243(1)(a) (supra) he used the phrase synonymously with the phrase a person aggrieved; that is a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him or her of something or wrongfully refused him or her of something or wrongfully affected his or her title to something. Such an aggrieved person includes a person who has a genuine grievance because an order has been made which prejudicially affects his interests. L.S.D.P.C. vs. Dakur (1992) 11 SCMJ 217, 224, Ojukwu vs. Government of Lagos State (1985) 2 NWLR (Pt. 10) 806; ?K? LINE INC. vs. K. R. INTL (1993) 3 NWLR (Pt. 292) 159; Funduk Eng. Vs. Afekoro (1999) 7 SCNJ 171, 187; Ezeagu vs. Ufuanya (1996) 7 NWLR (Pt. 456) 226, 231; Funduk vs. Madaki (1976) KLR (Pt. 43) 1319 Yusuf vs. Adeyemi (2009) 15 NWLR (Pt. 1165) 515; Opekun vs. Sadiq (2003) 5 NWLR (Pt. 814) 475.”
A person will thus be entitled to the exercise of the discretion of this Court granting him leave, that is permission to appeal as a person having interest in a pending appeal if he or she places sufficient materials before the Court demonstrating that:
(i) An order has been made which prejudicially affects his or her interests;
(ii) He or she has suffered a legal grievance;
(iii) He or she is a person against whom a decision has been pronounced;
a) Which has wrongfully deprived him or her of something.
b) Wrongfully affected his or her title to something.
The materials placed before us for consideration in this application are: the supporting affidavit, the further affidavit and the annexures thereto which include the judgment of the lower Court as well as the proposed notice of appeal. Upon a careful look at the said documents, I am satisfied that the applicants have shown how they are affected by the decision of the lower Court. They have disclosed sufficient interest to justify the grant of the leave sought in the instant application.
It is for the above reasons and the more comprehensive reasons given by my learned brother, Haruna Simon Tsammani, JCA that I also find merit in this application and grant same.
Appearances:
Alhaji Lasun Sanusi, SAN with Chinedu Ugwu, Esq and Vanessa N. AhileFor Appellant(s)
Kazeem A. Gbadamosi, Esq with Akinsumbo S. Akande, Esq for the 1st & 2nd Respondents.
Uche Amajo, Esq for the 3rd, 4th & 5th Respondents.
O.S. Adigo, Esq for the 6th, 7th and 8th Respondents.
For Respondent(s)
