ACIDA v. ABUBAKAR & ORS
(2022)LCN/15984(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, March 21, 2022
CA/ABJ/PRE/ROA/CV/260M1/2022(R)
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
HON. ISA SADIQ ACIDA (ON BEHALF OF HIMSELF, OTHER ELECTED OFFICIALS AND DELEGATES THAT EMERGED FROM THE WARDS, LOCAL GOVERNMENTS AND STATE CONGRESSES SOKOTO STATE CHAPTER OF THE 2ND RESPONDENT CONDUCTED ON THE ON (SIC) 31ST JULY, 2021; 4TH SEPTEMBER, 2021 AND 16TH OCTOBER, 2021 RESPECTIVELY) APPELANT(S)
And
1. SIRAJO ABUBAKAR 2. USMAN ABDULLAHI AHMED 3. ZAYYANU SHEHU 4. AUWAL ABUBAKAR 5. ABDULLAHI MUHAMMAD 6. ABDULKADIR MUHAMMAD 7. HON. MAINASARA ABUBAKAR SANI (On Behalf Of Himself & Members Of The State, Local Government & Ward Executive APC Sokoto State Chapter) 8. ALL PROGRESSIVES CONGRESS RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE CATEGORIES OF PEOPLE WHO CAN EXERCISE RIGHT OF APPEAL TO THE COURT OF APPEAL FROM THE DECISION OF THE HIGH COUURT OR FEDERAL HIGH COURT
The 1999 Constitution of the Federal Republic of Nigeria in Section 243 (1) (a) provides thus:
“243(1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or 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 High Court or the Court of Appeal at the instance of any person having an interest in the matter…”
There are consequently from the foregoing two categories of persons who can exercise right of appeal. They are:
(i) the parties to the proceedings and
(ii) those who are not parties but have vested interest in the matter and are referred to by law as “Persons Interested.”
In other words, while parties can appeal as of right, persons interested can do so only with the leave of the relevant Court. See the cases of ASSAMS & ORS V. ARARUME & ORS 2015 LPELR-40828 SC, FUNDUK ENGINEERING LTD. V. MCARTHUR & ORS 1996 LPELR-1291SC and ALIOKE v. OYE & ORS 2018 LPELR-45153 SC. The apex Court in the case of ASSAMS & ORS V. ARARUME & ORS supra described an interested party thus:
“An interested party is a person who is not a party in a suit or to the decision on appeal. Any person who has interest in a case but is not a party is an interested party.”
See also the cases of GREEN V. GREEN 1987 2 NSCC P.1115, RE: MADAKI 1996 7 NWLR PT.459 P.153 and CHUKWU V. INEC 2014 10 NWLR PT.1415 P.385. The apex Court has also described what constitutes “interest” in the context of Section 243 (1) (a) as follows in the case of ENYIBROS FOODS PROCESSING CO LTD & ANOR v. NDIC & ANOR (2007) LPELR-1149(SC):
“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 person affected or likely to be affected or aggrieved or likely to be aggrieved by proceedings”. PER WILLIAMS-DAWODU, J.C.A.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgement): By Motion on Notice brought pursuant to Section 243 (1) (A); Section 6 (6) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, Order 6 Rules 1 and 2 of the 2021 Rules and the inherent powers of this Court, the Applicant, in a representative capacity, on behalf of himself and other elected officials and delegates that emerged from the Wards, Local Governments and State Congresses, Sokoto State Chapter of the 8th Respondent, seeks the following orders of this Court:
1. “AN ORDER seeking leave of this Honourable Court by the Applicants to appeal as Interested Parties against the Judgment of the High Court of the Federal Capital Territory, Abuja delivered on 16th December, 2021 by Justice O. A. Musa in suit number FCT/HC/CV/3265/2021 between “Sirajo Abubakar & 5 Ors. v. Hon. Mainasara Abubakar Sani & Anor”
2. An Order of this Honourable Court granting LEAVE to the Applicants to appeal as Interested Parties to the Court of Appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja delivered on 16th December, 2021 by Justice O. A. Musa in suit Number FCT/HC/CV/3265/2021 Between “Sirajo Abubakar & 5 Ors. v. Hon. Mainasara Abubakar Sani & Anor” as per the proposed Notice of Appeal attached hereto.
3. AN ORDER granting LEAVE to the Applicants to appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja delivered on 16th December, 2021 by Justice O. A. Musa in suit number FCT/HC/CV/3265/2021 between “Sirajo Abubakar & 5 Ors. v. Hon. Mainasara Abubakar Sani & Anor” on grounds of mixed law and facts.
4. AN ORDER granting LEAVE to the Applicants to raise and argue fresh issue of jurisdiction which was not raised at the Court of first instance against the judgment of the High Court of the Federal Capital Territory, Abuja delivered on 16th December, 2021 by Justice O. A. Musa in suit number FCT/HC/CV/3265/2021 between “Sirajo Abubakar & 5 Ors. v. Hon. Mainasara Abubakar Sani & Anor”
5. AN ORDER granting leave to the Applicants to raise for the first time in this appeal in their Notice of Appeal a fresh issue of law and seek the setting aside of the Judgment of the High Court of the Federal Capital Territory, Abuja delivered on 16th December, 2021 by Justice O. A. Musa in suit number FCT/HC/CV/3265/2021 between “Sirajo Abubakar & 5 Ors. v. Hon. Mainasara Abubakar Sani & Anor” on accounts of fraud, collusion, misrepresentation and or suppression of facts.
6. AN ORDER relying on the Record of Appeal already transmitted in appeal No. CA/ABJ/CV/147/2022 between Sirajo Abubakar & 5 Ors. v. Hon. Mainasara Abubakar Sani & Anor which arose out of the same Judgment delivered on 16/12/2021 by Hon. Justice O. A. Musa in suit number FCT/HC/CV/3265/2021 between “Sirajo Abubakar & 5 Ors. v. Hon. Mainasara Abubakar Sani & Anor”
7. AN ORDER Consolidating the appeal of the Applicants with appeal No. CA/ABJ/CV/147/2022 Between Sirajo Abubakar & 5 Ors Vs. Hon. Mainasara Abubakar Sani & Anor.
8. AN ORDER STAYING EXECUTION of the Judgment of the High Court of Federal Capital Territory, Abuja delivered on 16th December, 2021 by Justice O. A. Musa in suit number FCT/HC/CV/3265/2021 between “Sirajo Abubakar & 5 Ors. v. Hon. Mainasara Abubakar Sani & Anor” pending the hearing and determination of the appeal.
9. AN ORDER OF INJUNCTION restraining the 8th Respondent (APC) by itself, agents, servants or privies from recognizing or swearing in the 7th Respondent and all other person(s) on whose behalf, the 7th Respondent purportedly obtained the Judgment delivered on 16/12/2021 by Hon. Justice O. A. Musa & 5 Ors. v. Hon. Mainasara Abubakar Sani & Anor” as winners of the various Wards, Local Government and State Congresses of the 8th Respondent Sokoto State chapter held on 31st July, 2021; 4th September, 2021 and 16th October, 2021 respectively pending the hearing and determination of the appeal.
10. AN ORDER OF INJUNCTION restraining the 7th Respondent and all other Person(s) on whose behalf the Judgment delivered on 16/12/2021 by Hon. Justice O.A. Musa in suit number FCT/HC/CV/3265/2021 between “Sirajo Abubakar & 5 Ors. v. Hon. Mainasara Abubakar Sani & Anor” was obtained from parading and or presenting themselves for the purpose of swearing them in as officers who purportedly emerged from the Wards, Local Governments and State congresses of the 8th Respondent Sokoto State held on 31st July, 2021; 4th September, 2021 and 16th October, 2021 respectively pending the hearing and determination of the appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja delivered on 16th December, 2021 by Justice O. A. Musa in suit number FCT/HC/CV/3265/2021 between “Sirajo Abubakar & 5 Ors. v. Hon. Mainasara Abubakar Sani & Anor”
11. AND Such further Order (s) as the Honourable Court may deem fit to make in the circumstances.”
There are Thirteen (13) grounds upon which this application was brought as stated therein. In support is an affidavit of Thirty-six (36) paragraphs of even date, together with copies of the following documents; Exhibits ISAH 1, the APC Summary Result Sheet for Ward Congress, Exhibit ISAH 2, the Report of the Appeal Committee on Sokoto State APC Ward Congress of 31st July 2021, Exhibit ISAH 3, APC Summary Result Sheet for L.G.A. Congress, Exhibit ISAH 4, Report of the Appeal Committee on Sokoto State APC Local Government Congress held on 4th September 2021, Exhibit ISAH 5, the APC Summary Result Sheet for State Congress, Exhibit ISAH 6, Report of the Appeal Committee on Sokoto State APC State Congress held on 16th October 2021, Exhibit ISAH 7, the Independent National Electoral Commission (INEC) outcome of Political Party Elections, Exhibit ISAH 8, said Judgment of the High Court of the FCT in Suit No. FCT/HC/CV/3265/2021 delivered by Hon. Justice O. A. Musa, Exhibit ISAH 9, Counter-Affidavit of February 7th 2022, Exhibit ISAH 10, Motion on Notice dated February 8th 2022, Exhibit ISAH 11, Ruling of February 17th 2022, Exhibit ISAH 12, proposed Notice of Appeal dated March 14th 2022 and the written address in compliance with the Rules of this Court. The Applicant filed on March 16th 2022, Further Affidavit in response to the 7th Respondent’s Counter-Affidavit, eleven (11) paragraphs of even date together with attached copies of the following documents; Exhibit A, Notice of Appeal by the 8th Respondent filed February 17th 2022, Exhibit B, Appellants’ Proposed Brief of Argument and a written address in reply.
At the hearing of this Motion, the 1st to 6th and 8th Respondents were not in opposition and therefore did not file any processes in respect of the Applicant’s application. On the other hand, the 7th Respondent filed Counter- affidavit of twelve (12) paragraphs on March 15th 2022, a written address and copies of the following documents in support; the Report of the Local Government Congress of the APC held in Sokoto State, on September 4th 2021, the Report of the Sokoto State Appeal Committee of November 1st 2021, the Originating Summons in Suit FCT/HC/CV/3265/2021, the Motion on Notice for leave to appeal as interested parties at the Court below and the Ruling in respect thereof.
PARTIES’ SUBMISSION IN RESPECT OF THE MOTION ON NOTICE
The learned Silk for the Applicant submitted upon the singular issue formulated for the Applicant, whether or not the Applicant can be said to have made out a case for the grant of this application that; As the Applicants are affected by the outcome of the said Judgment of the Court below and having not been made parties due to no fault of theirs, upon application such as the instant, they can be granted leave to appeal as interested parties provided they are able to show that they are affected thereby and in support cited the case of RE: MADUKE 2019 7 NWLR PT. 1671 P. 255. Further submitted that, by the contents of the paragraphs in support of the application, the Applicants show that they are greatly affected by the said Judgment delivered on December 16th 2021. And argued that the Applicants would have been joined for the extent of their interest in the matter if the same application were made during the pendency of the Suit at the Court below. In conclusion, he urged that the application be favourably considered and cited in support the case of S.W.V. NIG. LTD. V. AMCON 2020 3 NWLR PT. 1710 P. 179.
In opposition, the learned Silk for the 7th Respondent objected to the grant of the instant application and cited 16 grounds in support thereof. He submitted upon the singular issue formulated by the 7th Respondent, whether the Applicants are entitled to the reliefs being sought. That the Applicants should have been referred to as in the Motion as “Interested Parties” and that they lack locus standi to make this application as they were not parties at the Court below. He submitted further that, the matter involved herein has been adjudged to be in respect of the internal affairs of the party in which the Court would not interfere and that the mandatory and statutory fourteen (14) days for matters such as this have expired. He argued further that the reliefs have been wrongly couched, incompetent and it is wrong for the Applicant to seek to rely on the Record of Appeal already transmitted to this Court having not filed one. Further argued that, there can be no consolidation as there is only one valid appeal before the Court and that the Electoral Act prohibits grant of injunction in election matters. In conclusion, he urged that the application be refused as it is gross abuse of the process of the Court and consequently incompetent and cited in support the case of DANA AIRLINES LTD. V. BAMAIYI & ANOR 2017 LPELR-43054 CA P. 28-29.
THE POSITION OF THE COURT
I have very carefully and calmly read through all the processes filed by the parties for and against the instant application and having so done I proceed as follows:
This is an application for the exercise of the discretionary power of this Court, which must be applied judicially and judiciously.
The 1999 Constitution of the Federal Republic of Nigeria in Section 243 (1) (a) provides thus:
“243(1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or 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 High Court or the Court of Appeal at the instance of any person having an interest in the matter…”
There are consequently from the foregoing two categories of persons who can exercise right of appeal. They are:
(i) the parties to the proceedings and
(ii) those who are not parties but have vested interest in the matter and are referred to by law as “Persons Interested.”
In other words, while parties can appeal as of right, persons interested can do so only with the leave of the relevant Court. See the cases of ASSAMS & ORS V. ARARUME & ORS 2015 LPELR-40828 SC, FUNDUK ENGINEERING LTD. V. MCARTHUR & ORS 1996 LPELR-1291SC and ALIOKE v. OYE & ORS 2018 LPELR-45153 SC. The apex Court in the case of ASSAMS & ORS V. ARARUME & ORS supra described an interested party thus:
“An interested party is a person who is not a party in a suit or to the decision on appeal. Any person who has interest in a case but is not a party is an interested party.”
See also the cases of GREEN V. GREEN 1987 2 NSCC P.1115, RE: MADAKI 1996 7 NWLR PT.459 P.153 and CHUKWU V. INEC 2014 10 NWLR PT.1415 P.385. The apex Court has also described what constitutes “interest” in the context of Section 243 (1) (a) as follows in the case of ENYIBROS FOODS PROCESSING CO LTD & ANOR v. NDIC & ANOR (2007) LPELR-1149(SC):
“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 person affected or likely to be affected or aggrieved or likely to be aggrieved by proceedings”.
The rationale for the Constitutional provision that leave must be first sought and obtained as stated by the apex Court in the case of ALIOKE V. OYE & ORS supra is to enable the Court determine whether it is proper in law to grant the party permission to appeal in the circumstances of the case. See the cases of OTU VS A.C.B. 2008 VOL. 3 M.J.S.C 191, THE REGISTERED TRUSTEES CHRIST APOSTOLIC CHURCH NIGERIA V. UFFIEM 1998 10 NWLR PT.569 312, IN RE WILLIAMS No.1 2001 9 NWLR PT.718 329.
The apex Court further in the case of ODEDO V. PDP & ORS (2015) LPELR-24738 (SC) gave an instructive position on who can benefit from Section 243 (1) (a) of the Constitution thus:
“Pursuant to Section 243(1) (a) of the Constitution, a party interested in an appeal who was not originally a party to the decision complained of, must first seek leave to appeal as an interested party … Since he is not in the category of person who require no leave ab initio in order to participate in the proceedings. The provision of Section 243 creates a right which it vests in an intending appellant and not in an intending Respondent. The right is to be exercised by a person who is aggrieved by the judgment and desires to appeal against it. The same benefit or right is not shown to extend also to any other person who was not affected by the judgment being appealed against to be joined for the purpose of defending the said Judgment”.
A pertinent question therefore arises as to whether or not the Applicant(s) herein can be considered to be entitled to come under the stated Constitutional provision.
In my considered view and humbly, having thoroughly gone through all the processes of both sides before this Court, the Constitutional provision and the relevant provision of the Rules of this Court, the question is answered in the affirmative. One has no reason to deprive the Applicant(s) the opportunity of appealing created in circumstances such as the Applicant(s) finds himself. One needs to quickly add that at this stage, whether or not the appeal will succeed is not part of the equation and is a different matter entirely.
It is important to state that the submission by the 7th Respondent to the effect that the instant application is gross abuse of the process of the Court does not hold and not according to law given the provisions of the Rules of this Court in an application of this nature. The law does not forbid a prior application before the Court. Further, and respectfully, it also does not accord with the law that the Applicant should have first been joined as a party as was argued on behalf of the 7th Respondent in order to have locus standi before bringing an application such as the instant. The provision and language of Section 243 (1) (a) of the 1999 Constitution is very clear and simple. In my respectful view and humbly, for the most part, the objection of the 7th Respondent would appear technical and the firm position of the Courts is to do substantial justice between parties.
In the result, this Court is able to exercise its discretion in favour of the Applicant’s application, satisfied that it is judicial and judicious in the circumstance with respect to reliefs 1, 2, 3, 4, 5 and 6 only.
Accelerated hearing shall be given herein. The Applicant(s) is hereby ordered to file Notice of Appeal and brief within 24 hours from today being March 21st 2022 and the Respondents shall have 48 hours, also from today, upon receipt of the Appellant(s)’ brief to file their briefs.
HARUNA SIMON TSAMMANI, J.C.A.: I read the draft of the Ruling delivered by my learned brother E. O. Williams-Dawodu, JCA.
I have carefully studied the affidavits in support of and against the motion seeking leave to appeal as interested parties. I have also carefully read the Ruling prepared by my learned brother; and I am in agreement that the motion be granted in parts. On that note, I also, grant the Application in terms of prayers 1, 2, 3, 4, 5 and 6 only. I abide by the consequential order(s) made by my learned brother.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
DANLAMI ZAMA SENCHI, J.C.A.: I am privileged to have read in draft the lead Ruling of my learned brother E. O. WILLIAMS-DAWODU, JCA just delivered.
The findings and conclusion in the lead Ruling substantially reflect the issues I raised during the conference of Justices that heard this Motion on Notice.
I therefore agree with the lead Ruling and I adopt all the consequential orders made in the lead Ruling as mine.
Appearances:
Dr. Hassan Liman, SAN, Mr. Ishaka M. Dikko, SAN, Mr. Mathew G. Burkaa, SAN with them, Mr. Muhammed Bello and Mr. Y. D. Dangana For Appellant(s)
Mr. A. C. Orji – for 1st to 6th Respondents
Mr. Nureni Jimoh, SAN, with him, Mr. Oluwole Olukunle and Mr. Oluwole Adaja – for 7th Respondents
Mr. A. I. Idris – for 8th Respondent For Respondent(s)