ALL PROGRESSIVE CONGRESS & ANOR v. PREYE BRODRICK & ORS (2019)

ALL PROGRESSIVE CONGRESS & ANOR v. PREYE BRODRICK & ORS

(2019)LCN/13691(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of July, 2019

CA/PH/283/2019

RATIO

PARTY: WHO ARE PARTIES IN A CIVIL PROCEEDING
A party to civil proceeding has been defined by the Supreme Court per Karibi ? Whyte, JSC in FAWEHINMI V. NBA (1989) LPELR 1260 @ 79-80 in following way: –
Party is a technical word having a precise meaning in legal parlance; it refers to those by or against whom a legal suit is brought, whether in law or in equity. Black then draws a necessary distinction between a party and a person interested thus: – Party is either a plaintiff or a defendant whether composed of one or more individual and whether natural or legal persons ? all others who may be affected by the suit indirectly or consequently are persons interested but not parties.? See BELLO V. INEC (2010) ALL FWLR (PT 523) 397; OKEKE & ANOR V. UZOCHUKWU MOTORS (NIG) LTD (2001) 3 NWLR (PT 700) 338 and GREEN V. GREEN (1987) NSCC 115. Now, from the records of appeal transmitted to this Court by the appellants, it seems the Appellants were neither plaintiffs nor Defendants at the trial Court. The Appellants cannot therefore be properly called parties to the suit at the lower Court which they seek to question on appeal. PER ABUBAKAR MUAZU LAMIDO, J.C.A.

PARTIES: WHO ARE INTERESTED PARTIES IN A SUIT
But are the Appellants interested parties? The Supreme Court has defined the phrase ‘person having interest in the matter’ in SOCIETE GENERAL BANK V. AFEKORO (1999) 11 NWLR (PT 628) 521 @ 537 as:-
The expression person having an interest for the purpose of an appeal by an interested party is synonymous with person aggrieved. It does not really mean a man who is disappointed of a benefit which he might have received if some order had been made. A person aggrieved is a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly refused him something or wrongfully affected his title to something. PER ABUBAKAR MUAZU LAMIDO, J.C.A.

APPEAL: ALL RIGHTS OF APPEAL ARE STATUTORY IN NATURE

Also in GUREJE V. ADEDEJI & ORS (2018) LPELR 45220 @ 15; this Court per Danjuma, JCA held that: –
There was no leave of Court applied for and obtained to appeal a ruling of the lower Court. That he had unsuccessfully applied to be joined and was refused the relief or benefit of Joinder did not make him a competent party in that case or subject ruling between that original or real parties. He could only appeal against the refusal of the leave to join, but even at that on application as an interested party. In the absence of leave granted to appeal on any issue or act relating to the main claim, the Appellant had not acquired any locus standi by dint of Section 243(1) (a) of the 1999 Constitution of the Federal Republic of Nigeria and the Court of Appeal to this Court. PER ABUBAKAR MUAZU LAMIDO, J.C.A.

THE RIGHT TO APPEAL: NATURE

This is so because it is an elementary principle of law that the right to appeal is constitutional and it is within the province of the law also that the exercise of such right must be within bound and not at large. All right are subject to limitation and a constitutional right is not an exception but is circumscribed also within that principle. See PDP V. OKOROCHA & ORS (2012) LPELR 7832 and WEMA BANK PLC V. AKS STEEL LTD (2018) LPELR 44549. Now, learned counsel for the Appellants cited in aid a recent unreported Supreme Court?s decision in APC & ANOR V. MARAFA & ORS and argued that leave to appeal on grounds of facts, or mixed law and facts is not necessary in pre-election matters. PER ABUBAKAR MUAZU LAMIDO, J.C.A.

STARE DECISEIS: THE IMPORTANCE OF THE DECISION OF THE SUPREME COURT

It is to be remembered that in the hierarchical order of Courts in this country, the Supreme Court as the apex Court stands tall over and above all Courts in Nigeria followed by this Court. In the application of the doctrine or principles of Judicial precedent or stare decisis, decisions of the Supreme Court take precedent over and above those of the Court of Appeal and have a more binding force over similar issues. This Court and indeed all Courts below the Court of Appeal are bound by the ratio decidendi of the Superior Court. See BUHARI V. OBASANJO (2005)2 NWLR (PT 910) 241; OJUKWU V. OBASANJO (2004) 12 NWLR (PT 886) 169 and CARDOSO V. DANIEL (1986) 2 NWLR (PT 20)1. PER ABUBAKAR MUAZU LAMIDO, J.C.A.

STARE DECISIS: DEFINITION
In UGO-NGADI V. FRN (2018) LPELR 43903 @ 24, Galinje, JSC held that:
The doctrine of stare decisis comes to play when the facts of the previous case and the current one are the same. A Court is not bound to follow the decision of the higher Court when the facts are distinguishable?.
See AKEREDOLU V. ABRAHAMS & ORS (2018) LPELR 44067; EMEKA V. OKADIGBO (2012) 18 NWLR (PT 1331) 55 and OKAFOR V. NNAIFE (1987) 4 NWLR (PT 64) 129. PER ABUBAKAR MUAZU LAMIDO, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria

ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria

Between

1. ALL PROGRESSIVE CONGRESS (APC)
2. HON. DANIEL CHARLES Appellant(s)

AND

1. PREYE BRODRICK
2. PEOPLE DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Yenagoa Judicial Division delivered on the 21st May 2019 by Inyang, J.

?The 1st Plaintiff/Respondent is a candidate of the 2nd Plaintiff/Respondent for the Brass 1 state constituency in the Bayelsa State House of Assembly elections that took place on 9th March 2019. The said state constituency is made up of Wards 1, 2, and 6. Elections could not hold in some of the Polling units as a result of hijacking of election materials in some polling unit and in some Polling units as a result of defective smart card reader. The Defendant/3rd Respondents imputed zero votes for units 1-10 and 17-21 of Ward 6 and schedule a supplementary election for units 11-16 to hold on 23/03/2019. The 1st and 2nd Plaintiffs/Respondents felt aggrieved by the decision of the Defendant/3rd Respondent to conduct supplementary elections in some selected Polling unit instead of all the affected Polling units and hence took out, an originating process against the Defendant/3rd Respondents seeking for the determination of a sole

question, which is
Whether within the meaning and provisions of Paragraphs 26 and 33 of the INEC guidelines for 2019 elections, the decision of the defendant to schedule supplementary elections in polling unit 11-16 to the exclusion of polling units 1-10 and 17-21 of ward 6 in Brass Constituency 1 in Brass Local Government Area of Bayelsa State on 23/03/2019 or any other date is not illegal.
The plaintiffs further claim the following reliefs: –
(1) A declaration that within the meaning and provisions of Paragraphs 26 and 33 of the INEC Regulations and Guidelines for 2019 General Election, the defendant is not empowered to pick and choose amongst which cancelled and/or postponed elections for the purpose of conducting a supplementary election.
(2) A declaration that the supplementary election to the Bayelsa State House of Assembly scheduled by the Defendants for 23/03/2019 in Brass Constituency 1 in polling units 17-21 in isolation of Polling units 1-10 and polling units 17?21of ward 6 in Brass Local Government Area of Bayelsa State is unlawful.
(3) An order of Court compelling the defendant to conduct supplementary election

for polling units 11-16 together with Polling units 1-10 and Polling unit 17-21 of Ward 6 in Brass Constituency 1 of Bayelsa State on 23/03/2019 or any other day to be determined by the Defendant.

The originating summons was supported by a 17 paragraph affidavit in support, some annexures and a written address.

Upon being served with the originating process, the defendant filed two notices of preliminary objection one of which was withdrawn and struck out. The Defendant/3rd Respondent thereafter filed a counter affidavit in opposition to the origination summons. The appellants as persons sought to be joined in the suit as a defendants filed an application to that effect and also filed a proposed counter affidavit, and a written address and a reply on point of law to the Counter Affidavit and written address of the Plaintiffs/1st and 2nd Respondents.

In its Judgment, the trial Courts dismissed the preliminary objection of the Defendant/3rd Respondent, dismissed also the Motion for Joinder of the appellant in the suit and entered Judgment for the Plaintiffs/1st and 2nd Respondents as per the reliefs in their originating

summons.

Dissatisfied with the decision of the trial Court, the Appellants filed two notices of appeal on 27th May 2019 and 28th May 2019. The appellant however withdrew the notice of appeal filed on 27/05/2019 at the hearing. The grounds of appeal as can be gleaned from the notice of appeal without their particulars are thus:
(1) The learned trial judge erred in law when he denied the Appellants right to fair hearing by refusing to join the Appellants when he held that: –
?The parties seeking to be joined have already been given a vantage position by the defendant when they already enjoy as they have been included in the supplementary elections. The Plaintiffs seek to be given a level playing field by the Defendant. The parties seeking to be joined have not shown vide their affidavit evidence that they all have interest in the subject matter in the suit. It is evident that they have absolutely nothing to lose in the conduct of the supplementary election as they are already participants in the supplementary elections that are yet to be conducted by the Defendant. I therefore arrive at the conclusion that the parties seeking to be

joined are not necessary parties to the suit and I so hold. The issues are resolved against them.
(2) The learned trial Judge erred in law when he refused to join the Appellants and further erred in law by ruling on the issue of Jurisdiction before considering Appellants application for joinder to the suit.
(3) The learned trial Judge erred in law when he proceeded to determine both the preliminary objection as well as the originating summons without joining Appellants as necessary/proper parties in the proceedings.
(4) The learned trial Judge erred in law when he assumed jurisdiction contrary to the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the provision of Electoral Act, 2010 (as amended) when he held that:
?This suit is not a post-election mater and the arguments canvassed and authorities cited by learned counsel for the Defendant have no bearing to the suit before this Court and I so hold. This Honourable Court has the substantive Jurisdiction to determine this suit. The issue is resolved against the Defendant. Accordingly, the Preliminary Objection is hereby

dismissed?.
(5) The learned trial Judge erred in law when he held that:
?However, it is my considered view that upon a community reading of Sections 285 (1) & (2) and (5) of the 1999 Constitution (as amended) and Section 133(1) and 138 (1) (a) & (c) of the Electoral Act, 2010 (as amended) is that conclusion of elections connotes the end of the election exercise and the declaration of a winner?. ?A calm consideration of the Originating Summons and Affidavit Evidence in support thereto reveal that the subject matter before this Court is a pre-election matter within the purview of Sections 285(14) (b) and (c) of the Fourth Alteration to the 1999 Constitution (as amended) and not a post election matter. The suit was filed on the 20th March, 2019 before the supplementary election scheduled to hold on 23rd March 2019. See KUBOR V. DICKSON (2013) 4 NWLR (PT 1345)534. The cause of action arose on 14th March. 2019 when the press release of the Defendant was published which excluded Polling Units 1-10, 17-21 of the Brass 1 Constituency?.
(6) The learned trial Judge erred in law when he held that:

?I am of the view that elections are yet to be conducted in Polling Units 1-10 and 17-21 in Ward 6, Brass 1 Constituency. This suit is therefore pre-election matter with the purview of Section 285(14) (b) and (c) of the Fourth Alteration to the 1999 Constitution of the Federal Republic of the Nigeria (as amended) which has donated further powers to this Court and has in effect expanded the limited jurisdiction of this Honourable Court in Section 87 (a) and 31 (5) of the Electoral Act (as amended) in pre-election matters. See also Section 25(1) (s) of the 1999 Constitution (as amended)?.
(7) The learned trial Judge erred in law in assuming Jurisdiction and when he held that:
?The question is determined in the affirmative and the issues resolved in favour of the plaintiffs.
Accordingly, it is hereby ordered that the defendant includes polling units 1-10, 17-21 in ward 6, Brass 1 Constituency in Brass Local Government Area of Bayelsa State in the Supplementary Elections to the Bayelsa State House of Assembly.”

In compliance with the rules of this Court and having abridged time for filing briefs of argument, the Appellants filed their brief of argument on

03/06/2019; the 1st and 2nd Respondents filed a notice of Preliminary Objection and incorporated arguments on same in their brief of argument filed on 15/07/2019 while the 3rd Respondent did not file any brief of argument. The appellant thereafter filed a reply brief on 17/07/2019.

In the Appellant?s brief of argument, two issues for determination were formulated. The issues are: –
(1) Whether the learned trial judge did not deny the appellant?s right to fair hearing when he refused to join them to the suit as necessary and proper parties (Distilled from Grounds 1, 2, and 3).
(2) Whether the trial Court had the Jurisdiction to have entertained and determined the suit (Distilled from Grounds 4, 5, 6 and 7).

The 1st and 2nd Respondents also formulated two issues for determination. These issues are:-
(1) Whether the appellants are necessary and proper parties to be joined in this case (Grounds 1, 2, and 3).
(2) Whether the lower Court had the Jurisdiction to hear and determine the 1st and 2nd Respondents claim in Court.

Now, before a resolution of the issues for determination as formulated by parties, it is

pertinent to determine the preliminary objection of the 1st and 2nd Respondents. A resolution of the preliminary points raised in the objection when resolved may open the doors to the hearing and determination of the appeal, but where the objection are meritorious, the appeal will terminate in limine. The 1st and 2nd Respondents seek the striking out of this appeal or striking out grounds 4, 5, 6 and 7 of the grounds of appeal. The grounds upon which the objections are premised are: –
(i) The grounds of appeal was filed without the requisite leave to file same as provided by Sections 241(1) (a) and 243(a) of the Constitution.
(ii) The appeal is incompetent and this Court lacks the Jurisdiction to hear and determine same.
(iii) Grounds 4, 5, 6 and 7 of the notice and grounds of appeal are against the jurisdiction of the lower Court in hearing and determining the 1st and 2nd Respondents case as filed.
(iv) Objections as to the Jurisdiction of the Lower Court to hear and determine the 1st and 2nd Respondents case was raised by the 3rd Respondents as the only defendant and opposing party before the lower Court.

(v) The appellants were/are not parties to the substantive suit where the issue of Jurisdiction was raised.
(vi) It is only a party to the substantive suit in a case that can appeal against a Judgment there from.

Arguing the preliminary objection, learned counsel for the 1st and 2nd Respondents O. A. Okpakpor, Esq. submitted that the parties to the suit as per the originating summons are the 1st and 2nd Respondents as the plaintiffs and the 3rd Respondents as the defendant, the Appellants herein sought to be joined as a Defendant but the application was refused and having their application for Joinder dismissed mean that appeal is incompetent as the appellant has no right of appeal against the ruling of the trial Court save with the leave of Court first had and obtained. He referred to Sections 241(1) and 243(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and OMOTOSHO V. ABDULLAHI (2002) 6 WRN 124. He also stated that the Appellants as interested parties ought to have obtained leave of the Court below or this Court before filing their notice of appeal; and the law is trite that only a valid notice of appeal can sustain an appeal. He

referred to PETGAS RESOURCES LTD V. MBANEFO (2018) ALL FWLR (PT 926) 123. Finally, he stated that this appeal is incompetent for failure of the Appellants to seek for leave to appeal.

Alternatively, learned counsel for the 1st and 2nd Respondents argued that even where the Court hold that the appeal is valid, the Appellants cannot question the decision of the trial Court dismissing the preliminary objection of the 3rd Respondents in that they were not parties to the decision. He referred to TARZOOR V. IORAER (2016) ALL FWLR (PT 865) 1. On this, learned counsel urged the Court to strike out grounds 4, 5, 6, and 7 in the notice of appeal. Finally, counsel urged the Court to uphold the preliminary objection and strike out the appeal for incompetent.

In response to the argument on the preliminary objection, learned counsel for the Appellant, Tuduru E. Ede, Esq. submitted that this is a pre-election Matter and like an election Petition, it is sui generis and as such Sections 241 and 243 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) are inapplicable, leave to appeal is not required in these types of cases. He also stated

that the section relied upon by the 1st and the 2nd Respondents are similar in wordings with Section 233(3) of the Constitution and have been interpreted by the Supreme Court in APC & ANOR V. MARAFA & ORS (UNREPORTED) APPEAL NO. SC 337/2019 DELIVERED ON 24/05/2019.

Learned counsel further argued that even if Sections 241(1) and 243(a) are applicable, the appellants have a right of appeal against the ruling and Judgment refusing it Joinder as such a ruling is a decision within the meaning of Section 241(1) of the Constitution. He referred to DIKE & ORS V. ADUBA (2000) 3 NWLR (PT 647) 1. He argued that Grounds 4, 5, 6, and 7 are all grounds of law and leave of Court is not required to argue the said grounds. The appellant?s right of appeal against the trial Court?s decision is not curtailed as same was filed within 14 days as provided for under the constitution.

He also argued that the 1st and 2nd Respondents? argument that the appellant cannot appeal against the decision of the trial Court of which he was not a party and the 3rd Respondent has not appealed against the decision is untenable in law; this is because

the Appellants are seeking for Joinder to the suit as necessary and interested parties, invoking of Section 15 of the Court of Appeal Act and an order striking out the suit of the 1st and 2nd respondents for want of Jurisdiction and if the Court finds merit in the application for Joinder then it is urged to invoke the provision of Section 15 of the Court of Appeal Act. He referred to BALOGUN V. YUSUFF (2010) 9 NWLR (PT 1200) 515.

Learned counsel further submitted that the issues raised by the Appellants in this appeal which the 3rd Respondents failed to appeal against are issues on Jurisdiction that can be raised at any time, by any party, at any stage. He referred to LABOUR PARTY V. INEC (2009) 6 NWLR (PT 1137) 315. Counsel urged the Court to dismiss the preliminary objection.

It can be seen that the nature of the objections as raised by the 1st and 2nd Respondents centred around non compliance with the provisions of Section 241(1) and 243(a) of the 1999 Constitution requiring an interested party to seek for leave of the Court below or this Court in order to appeal against the decision of the trial Court. The Appellants argued that the

constitution vide the sections relied upon by the 1st and 2nd Respondents did not make seeking for leave to appeal against the decision of the trial Court a condition and as such the appeal filed without seeking for leave of either the Court below or this Court is competent.
I have earlier on briefly stated the facts leading to this appeal and it can be seen that the Appellants were not originally parties before the trial Court and their attempt to be joined in the suit as a Defendants was denied by the trial Court in its ruling. A party to civil proceeding has been defined by the Supreme Court per Karibi ? Whyte, JSC in FAWEHINMI V. NBA (1989) LPELR 1260 @ 79-80 in following way: –
?Party is a technical word having a precise meaning in legal parlance; it refers to those by or against whom a legal suit is brought, whether in law or in equity. Black then draws a necessary distinction between a party and a person interested thus: – Party is either a plaintiff or a defendant whether composed of one or more individual and whether natural or legal persons ? all others who may be affected by the suit indirectly or consequently are

persons interested but not parties.? See BELLO V. INEC (2010) ALL FWLR (PT 523) 397; OKEKE & ANOR V. UZOCHUKWU MOTORS (NIG) LTD (2001) 3 NWLR (PT 700) 338 and GREEN V. GREEN (1987) NSCC 115. Now, from the records of appeal transmitted to this Court by the appellants, it seems the Appellants were neither plaintiffs nor Defendants at the trial Court. The Appellants cannot therefore be properly called parties to the suit at the lower Court which they seek to question on appeal.
Learned counsel for the 1st and 2nd Respondents argued that the Appellants are merely interested parties. But are the Appellants interested parties? The Supreme Court has defined the phrase ‘person having interest in the matter’ in SOCIETE GENERAL BANK V. AFEKORO (1999) 11 NWLR (PT 628) 521 @ 537 as:-
?The expression person having an interest for the purpose of an appeal by an interested party is synonymous with person aggrieved. It does not really mean a man who is disappointed of a benefit which he might have received if some order had been made. A person aggrieved is a person who has suffered a legal grievance, a man against whom a decision has been

pronounced which has wrongly refused him something or wrongfully affected his title to something.?
See ACN & ORS V. LABOUR PARTY & ANOR (2012) LPELR 8003; NGIGE V. OBI (2006) 14 NWLR (PT 999) 1 and OJORA V. AGIP (NIG) PLC (2005) 4 NWLR (PT 916) 515. The position of the Appellants being not original parties at the lower Court can best be described as interested parties. This is so because having perceived that they may suffer some legal grievance at the suit of the 1st and 2nd Respondents at the trial Court, they timeously applied to be joined as defendants.
Now, Sections 241(1) and 243(a) are heavily relied upon by the 1st and 2nd Respondents in grounding their Objection. Section 241 of Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that: –
241(1) An appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases: –
(a) Final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance,
Whereas Section 243(a) provides that: –
243- 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 a High Court or the Court of Appeal at the instance of any other person having an interest in the matter?
Sections 241 and 243 of the 1999 Constitution have conferred two rights of appeal. While Section 241 deals with appeals as of right, Section 243 specifies who can exercise the said right of appeal. Where an interested party wishes to appeal against the decision of the Federal High Court or a High Court, that party is obliged to obtain the leave of the Federal High Court, the High Court as the case may be or the Court of Appeal. Thus, the right of appeal conferred on an interested party is not automatic; he must obtain the leave of the Court below or the Court of Appeal before he can have a valid appeal. In ASSAMS & ORS V. ARARUME & ORS (2015) LPELR 40828 @ 11-12, Bode ? Rhodes, JSC held that:
?The simple interpretation of Section 243(1) (a) of the Constitution is

that the section makes a distinction between ?a party? and ?any person having an interest in the matter?. A party can exercise right of appeal while any person having an interest in the matter can only exercise his right of appeal with the leave of the Federal High Court or the High Court or the Court of Appeal?.
Also in GUREJE V. ADEDEJI & ORS (2018) LPELR 45220 @ 15; this Court per Danjuma, JCA held that: –
?There was no leave of Court applied for and obtained to appeal a ruling of the lower Court. That he had unsuccessfully applied to be joined and was refused the relief or benefit of Joinder did not make him a competent party in that case or subject ruling between that original or real parties. He could only appeal against the refusal of the leave to join, but even at that on application as an interested party. In the absence of leave granted to appeal on any issue or act relating to the main claim, the Appellant had not acquired any locus standi by dint of Section 243(1) (a) of the 1999 Constitution of the Federal Republic of Nigeria and the Court of Appeal to this Court?.

The above decisions signify that all rights of appeal are statutory and in the case of the Superior Courts in Nigeria, the right of Appeal is constitutional and in order to enjoy and exercise such a right, the statutory and Constitutional Provisions on which the right is founded must be complied with. This is so because it is an elementary principle of law that the right to appeal is constitutional and it is within the province of the law also that the exercise of such right must be within bound and not at large. All right are subject to limitation and a constitutional right is not an exception but is circumscribed also within that principle. See PDP V. OKOROCHA & ORS (2012) LPELR 7832 and WEMA BANK PLC V. AKS STEEL LTD (2018) LPELR 44549. Now, learned counsel for the Appellants cited in aid a recent unreported Supreme Court?s decision in APC & ANOR V. MARAFA & ORS and argued that leave to appeal on grounds of facts, or mixed law and facts is not necessary in pre-election matters. It is to be remembered that in the hierarchical order of Courts in this country, the Supreme Court as the apex Court stands tall over and above all Courts in Nigeria

followed by this Court. In the application of the doctrine or principles of Judicial precedent or stare decisis, decisions of the Supreme Court take precedent over and above those of the Court of Appeal and have a more binding force over similar issues. This Court and indeed all Courts below the Court of Appeal are bound by the ratio decidendi of the Superior Court. See BUHARI V. OBASANJO (2005)2 NWLR (PT 910) 241; OJUKWU V. OBASANJO (2004) 12 NWLR (PT 886) 169 and CARDOSO V. DANIEL (1986) 2 NWLR (PT 20)1.
Now, I have gone through the decision of the Supreme Court in APC?S case and one of the issues for determination is whether the Appellants require leave to appeal in pre-election matters. The Supreme Court held inter-alia that the provisions of Section 233(3) of the 1999 Constitution does not apply to elections and elections related matters. The ground of the said objection centred on the contention that the grounds of appeal are of mixed law and facts and as such leave of the Court below or the Supreme Court is required before a competent appeal can be filed. First, it is to be noted the Appellants in APC?s case were parties right from

the trial Court to the Supreme Court and as such have an automatic right of appeal or can appeal as of right from the decision of the Court of Appeal. In the present appeal, the case was fought between the 1st and 2nd Respondents and the 3rd Respondent as Plaintiffs and the Defendant respectively. The Appellants herein applied to be joined and the trial Court refused their application for joinder. The Appellants herein are therefore not parties to the proceedings of the trial Court. They are at best parties interested in the matter and the right of appeal which enures to a party to a proceeding is different from the right of appeal of an interested party. In the same vein, the issue before the Supreme Court in APC?s case is failure to seek for leave to raise and argue grounds of mixed law and facts, whereas in this appeal the issue is failure to seek leave to appeal as an interested party. So the facts of the said matters are totally different from the position of the Appellants in this appeal. The decision of the Supreme Court is the current position of the law in respect of pre-election appeals by parties.
?The rules of stare decision do not

allow Courts to apply the ratio of a case across board with little regards to the facts of the case before them. This is so because a judgment of a Court should always be read in the light of the facts on which it was decided. In UGO-NGADI V. FRN (2018) LPELR 43903 @ 24, Galinje, JSC held that:
?The doctrine of stare decisis comes to play when the facts of the previous case and the current one are the same. A Court is not bound to follow the decision of the higher Court when the facts are distinguishable?.
See AKEREDOLU V. ABRAHAMS & ORS (2018) LPELR 44067; EMEKA V. OKADIGBO (2012) 18 NWLR (PT 1331) 55 and OKAFOR V. NNAIFE (1987) 4 NWLR (PT 64) 129.
Learned counsel for the Appellants further argued that Section 233 (3) of the 1999 Constitution which is the fulcrum of the decision of Supreme Court is in pari materia with Section 243(a) of the Constitution and as such the interpretation proffered by the apex Court applies to the provision of Section 243(a) of the Constitution. It is pertinent to reproduce the provision of 233 (3) of the Constitution so as to determine the validity or otherwise of the Appellant?s

Counsel?s argument. It provides that:
233(3) Subject to the provisions of Subsection (2) of this section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.
Section 243(1) (a) has been reproduced elsewhere in the Judgment, but at the expense of prolix, it is hereunder reproduced:-
243-(1) Any right of appeal to the Court of Appeal from the decision of 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?
Now, a careful perusal of the two provisions above will leave no one in doubt that they are dissimilar both in wordings and effects. The provision of Section 233(3) of the 1999 Constitution has nothing to do with appeals from persons interested in the matter. That is one of the differences in the two provisions. The provision that is in pari materia in respect to appeals

at the Supreme Court with Section 243(1) (a) of the Constitution is Section 233(5) of the Constitution. It provides that: –
233(5) – Any right of appeal of the Supreme Court from the decisions of the Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Court of Appeal or the Supreme Court at the instance of any other person having an interest in the matter?.
Therefore there is no validity in the claim of the learned Counsel for the Appellants that Section 233(3) of the 1999 Constitution considered by the Supreme Court is similar to the provision of Section 243(1) (a) of the Constitution. It is the provision of Section 233(5) that is in pari materia with Section 243(1) (a) of the 1999 Constitution and the Supreme Court did not interprete the said provision in APC?s case. In view of these glaring differences, the case of APC & ANOR V. MARAFA & ORS (UNREPORTED) is distinguishable to the facts relating to this appeal and as such is inapplicable.
?In the final analysis, there is merit in the first leg of the objection of the

1st and 2nd Respondents? Counsel that the Appellants need leave of the Court below or this Court to appeal against the decision of the Federal High Court as interested parties and having failed to seek for leave to appeal, the appeal becomes incompetent and liable to be struck out for incompetence.

On the second limb of the preliminary objection that the Appellants cannot appeal against the decision of the trial Court being not parties to the case at the lower Court, it cannot represent the correct position of the law. This is so because where the Appellants can show that they are affected by the decision sought to be challenged on appeal, and they were parties earlier on then they can exercise the right of appeal. See IGP & ORS V. MOBIL PRODUCING (NIG) UNLTD (2018) 14 NWLR (PT 1639) 329 and WAZIRI V. GUMEL & ANOR (2012) 3 SC (PT 111) 1. The focal point here is whether the Appellants were parties before the trial Court and clearly they were not. Thus, they require leave of the Court below or this Court to appeal against the decision of the trial Court pursuant to Section 243(1) (a) of the 1999 Constitution.

Now, it seems this two legged preliminary objection is meritorious. The Appellants did not properly exercise their right of appeal as conferred by Section 243(1) (a) of the 1999 Constitution and as such the appeal before us is incompetence and liable to be and is accordingly struck out for incompetence.
I make no order as to costs

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Lamido, JCA. I agree with his reasonings and conclusion that the preliminary objection of the 1st and 2nd Respondents challenging the competence of this appeal and the jurisdiction of this Court to entertain it is meritorious and ought to be upheld. I wish to add a few more words of my own.

?The 1st and 2nd Respondents herein, as the Plaintiffs before the Federal High Court, Yenagoa Division (lower Court) took out an originating summons against the 3rd Respondent herein, as the only Defendant, seeking for the determination of a single question on the meaning and effect of Paragraphs 26 and 33 of the INEC (Independent National Electoral Commission) Guidelines for the 2019 Elections. The 1st and

2nd Respondents, as the Plaintiffs proceeded to seek for 2 declaratory and one mandatory reliefs, sequel to a favourable determination of the above single issue. The then sole Defendant (INEC) and the 3rd Respondent, by way of a preliminary objection challenged the competence of the suit in the originating summons. It principally maintained that the action was not a pre-election matter, but more in the nature of a post election matter.

According to INEC, being in the nature of an election matter, the action was outside the jurisdictional competence of the lower Court, but only within the jurisdiction of the appropriate National/State Assembly Elections Tribunal. The 1st Appellant herein applied to be joined to the suit in an application filed on 27th March, 2019 and contained at pages 53 to 70 of the record of appeal. So too, the 2nd Appellant applied for joinder in similar terms in an application filed on 29th March, 2019. That application was copied at pages 116 to 128 of the record of appeal. All the processes of the Defendant/3rd Respondent and the Interested Parties/Applicants were accompanied by written addresses. The lower Court decided to

consolidate all the matters and determine them in a composite ruling.

In its ruling, the lower Court decided against the 3rd Respondent and dismissed its preliminary objection, and also refused to grant the two applications for joinder. The Defendant/3rd Respondent appears to have been satisfied with the ruling of the lower Court. It did not appeal against it. It also chose not to file any processes or to partake in the hearing of this appeal in any significant manner howsoever. The parties seeking to be joined appealed to this Court against the refusal of the lower Court to join them as parties to the originating summons of the 1st and 2nd Respondents

In its paragraph 14 of the affidavit in support of the motion for joinder, now at page 58 of the record of appeal, the 1st Appellant averred thus:
?That it will be in the interest of justice if this Court allows the party seeking to be joined to be so joined in this suit because it is an interested party and the issue of whether election had been concluded in ward 6 cannot be resolved without it.”

So also the 2nd Appellant in his paragraphs 12 and 13 of the affidavit in support

averred thus:
“12. The applicant seeking to be joined/added is interested in the outcome of this suit being a candidate, who contested the election and scored majority of votes cast in the election.
13. I am seeking to join or be added as 2nd Defendant in this suit in order to protect my rights and interest in the conduct of the supplementary election of Brass Ward 6 that will determine the winner of the Brass Constituency 1 State House of Assembly election.”

From the above averments, it is my humble view that the status of the Appellants remained as interested parties only. A cursory look at the Appellants’ brief of argument in this appeal filed on 03/06/19 vindates this position. They described themselves as ? APPLICANTS/PARTIES SEEKING TO BE JOINED/APPELLANTS. This is a bit unusual.

?It is certainly the general rule that an appeal must be brought by the party who has endeavoured to maintain the contrary of that which has taken place. Thus any party to an action is a ripe person who may appeal. This category is of persons who are not strangers to the proceedings but persons named in the record of the case in the lower Court.

See AMEOKOJA V. EYIOWUAWI (1961) All NLR 805. A party to the matter does not by that fact need leave to appeal, except of course where by the nature of his appeal, leave is required. The Court of Appeal Rules, 2016, or any of the previous ones, does not make a clear or emphatic statement on who may appeal. This is understandable since a right of appeal can only be conferred by express words of the Constitution or Legislation. See ADEYEMI V. ATT. GEN. OF OYO STATE (1984) 6SC 135.
My learned brother, in the lead judgment had made an admirable explanation on the various circumstances when a party who was not originally sued in a matter may find itself to have been interested in the outcome. Such a party could have been joined suo motu by the trial Court or upon its application. Where it was not so joined, it may still apply for leave to appeal the judgment under S. 243 of the 1999 Constitution, as amended. The expression; “…at the instance of any other person having an interest in the matter”. In S.243, in my view, may include a person who was not a party in the proceedings but who contends that he has an interest in the matter.

This category of persons, in order to appeal, require leave of the lower Court which decided the case, or in appropriate cases, leave of the Court of Appeal. An aggrieved person in that circumstance must follow this procedure. See the decisions in OWENA BANK NIG. Plc. V. NIG. STOCK EXCHANGE LTD. (1992) 4 NWLR (Pt. 237) 557. With respect to the instant appeal, there is no doubt that the only aggrieved party that can appeal as of right under S. 241 of the 1999 Constitution, as amended is the 3rd Respondent (INEC). The APC and its candidate, Mr. Daniel Charles for the Brass State Constituency 2019 election are not parties to the suit of the 1st and 2nd Respondents against the 3rd Respondent. The purported Appellants herein are interested parties, a position that has remained well established and settled beyond any speculation or conjecture. They need the leave of the Federal High Court or this Court to be able to appeal the judgment or ruling of the lower Court which refused them to be joined to the action of the 1st and 2nd Respondents against the 3rd Respondent herein. That leave was not sought and obtained.
Their purported appeal to this Court must be without

foundation thereby being incompetent and this Court lacks jurisdiction to accordingly entertain it.

The preliminary objection of the 1st and 2nd Respondents is upheld and this appeal is struck out. I will also not make any order for costs.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment delivered by my learned brother A. M. LAMIDO JCA. I agree with and adopt the finding and conclusion by my learned brother in the leading judgment that this appeal lacks merit basically because the Appellants were not parties before the trial Court and no leave was granted to them by the said lower Court this Court or to be joined as parties. That is why the preliminary objection by the learned counsel to the 1st and 2nd Respondents is meritorious. That being the case this appeal becomes inherently incompetent so it ought to be and it is hereby struck out.
I abide by the order as to cost.

Appearances:

Tuduru Ede, Esq. with him, I. Ibanichuka, Esq. and K.U. Igbaki, Esq.For Appellant(s)

O.A. Okpakpor, Esq. for the 1st & 2nd RespondentFor Respondent(s)

Appearances

Tuduru Ede, Esq. with him, I. Ibanichuka, Esq. and K.U. Igbaki, Esq.For Appellant

AND

O.A. Okpakpor, Esq. for the 1st & 2nd RespondentFor Respondent