ANAMBRA STATE GOVERNMENT & ANOR. V. NZE EDWARD MADUKWE & ORS.
(2011)LCN/4650(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of June, 2011
CA/E/305B/2007
RATIO
APPELLANT: DEFINITION OF THE WORD “APPELLANT” ACCORDING TO SECTION 30 OF THE COURT OF APPEAL ACT, CAP. C 36 (I.E. THE INTERPRETATION SECTION) AND ORDER 1 OF THE 2007 RULES OF THE COURT OF APPEAL
… “appellant” means any person who desires to appeal or appeals from a decision of the court below or who applies for leave to so appeal and includes a legal practitioner representing such a person in that behalf’; In Order 1 of the 2007 Rules of this Court, “appellant” means any person who appeals from a decision of the court below and includes a legal practitioner representing such a person in that behalf. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: DEFINITION OF THE WORD “APPEAL”
Appeal has been defined as an invitation to a higher court to review the decision of a lower court in order to find out whether on proper consideration of the facts placed before it and the applicable law, the lower court arrived at a correct decision. See OREDOYIN V. AROWOLO (1989) 4 NWLR (Pt. 114) 172. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
RIGHT OF APPEAL: WHETHER RIGHT OF APPEAL ARE CONFERRED ON PARTIES BY THE CONSTITUTION AND/OR APPLICABLE STATUTES
Rights of appeal (interlocutory or final) in this country; are basically statutory, in that they are conferred on parties by the Constitution and/or some other applicable statutes. There is nothing like inherent right of appeal in this country. See EKULO FARMS LTD V. UNION BANK OF NIGERIA PLC [2006] All FWLR (Pt. 319) 895 at 914 – 915 (SG): UKO V. EKPENYONG [2006] All FWLR (Pt. 324) 1927 at 1943 (CA); and SOGBESAN V. OGUNBIYI [2005] All FWLR (Pt. 284) 337 at 348 (CA). Right of appeal being statutory, the statute that creates the right of appeal therefore invariably sets out the situations when the right of appeal so created becomes exercisable. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
RIGHT OF APPEAL: MEANS OR METHODS FOR EXERCISING RIGHT OF APPEAL AGAINST THE DECISION OF THE LOWER COURT
The Constitution has glaringly created only two means or methods for the exercise of right of appeal against the decision of a court such as the lower court in a civil case. The first is the exercise of the right of appeal by parties to the action; and the second is the exercise of the right of appeal with the leave of court. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
PARTY: WHETHER IT IS ONLY THE PERSONS THAT ARE AGGRIEVED WITH THE DECISION OF A COURT CAN LODGE AN APPEAL AGAINST THE SAME
The Constitution itself makes it clear that only persons aggrieved with the decision of a court can lodge an appeal against the same. A respondent traditionally cannot but support the judgment of a court. When a respondent does not do this, he is invariably a cross-appellant. The Constitution does not make provisions relating to who can be a respondent in an appeal, unlike in the case of persons who can appeal and the manner in which they are to exercise the right of appeal is equally specifically stipulated. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. ANAMBRA STATE GOVERNMENT
2. ATTORNEY-GENERAL OF ANAMBRA STATE Appellant(s)
AND
1. NZE EDWARD MADUKWE
2. CHARLES IKE
3. PAULINUS OKAFOR
4. CHIEF MARCEL ANOSIKE
5. ABUCHI OKOLI
6. MIKE OKAFOR
7. CHIEF J. C. EZEOKONKWO
8. ENGENE UCHENWA
9. PETER AGHANDIUNO
10. CHIEF NWANKPUDOLU
11. JOHN NKWELLE
12. LIVINUS EZECHUKWU
13. PIUS ANEOBI
14. MIKE ORAMULU
15. AMSELEM UZOEZIE
16. C. OBI
(For themselves and representatives Isioba, Uruaga, Nnewi, Isuamaoma, Ifite Aguleri, Umuachina, Ugwuawgbu, Enuguadazi, Ifite Amaunke, Igboelu Aguleri, Isiachina, Ikenga Nri, Osete, Ibughubu, Awuda, Nnobi, Achala Ugwu and Akwaezekaenyi respectively all being Autonomous Communities created by Autonomous Communities (Recognition) Law, 2002
17. ANAMBRA STATE HOUSE OF ASSEMBLY
18. HON. MIKE BALONWU, SPEAKER ANAMBRA STATE HOUSE OF ASSEMBLY
19. THE CLERK ANAMBRA STATE HOUSE OF ASSEMBLY
IN THE MATTER OF AN APPLICATION BY THE APPLICANTS TO BE JOINED AS CO-APPELLANTS IN THIS APPEAL
1. CHIEF W. E. OBIEZU
(Ichie Araba)
2. NZE GODFREY N. ANAJEMBA
3. CHIEF E. N. MADUEKWE
(Odu 1 of Oba)
4. CHIEF WILLIE IBE
(Nwakibeya)
5. MR. VINCENT ONWUGBOLU
6. ANENE EJIKE
7. LALEE MENKITI
(For themselves and as representing the other Members/Indigenes of Urueze, Isu and Okuzu Villages of Oba, excepting CHIEF H. N. UGWUZE, HONOURABLE JUSTICE M. C. EJIOFOR (RTD) ENGINEER VICTOR CHIWUZIE, CHIEF GUY IKOKWU AND NZE EDWARD MADUEKWE) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Lead Ruling): The application before the Court dated 15/11/2007 and filed on 22/11/2007 has been brought by the Applicants/interveners (hereafter simply referred to as “the Applicants” under Sections 6(6)(a) and 222(a) of the 1999 Constitution praying for the following: –
“(a) An Order granting the applicants leave to be joined in this appeal as co-appellants.
(b) An Order joining the appellants in the appeal as co-appellants.”
The Applicants filed an affidavit in support of the application. It was deposed to by the 2nd Applicant on 22/11/2007 and filed on the same date. The 2nd Applicant deposed to the said affidavit for himself and on behalf of the other Applicants who gave him authority in that regard.
The 1st – 16th Respondents (hereafter simply referred to as “the 1st Set of Respondents) filed a counter-affidavit to the application. It was deposed to by the 1st Respondent for himself and on behalf of the other 15 Respondents.
The process was filed on the same date.
The Applicants responded to the counter-affidavit, by filing a Further Affidavit on 6/6/2008. The Further Affidavit was sworn to by the 2nd Applicant on the same 6/6/2008. The Further Affidavit provoked the filing of a 2nd counter-affidavit by the 1st Set of Respondents on 9/7/2008. The process was deposed to on 9/7/2008 by Samuel Nwanegbo with the consent and mandate of the 1st Set of Respondents. As a result of the 2nd counter-affidavit of the 1st Set of Respondents, the Applicants filed on 19/3/2009 a Further, Further Affidavit deposed to by the 2nd Applicant on the same date for himself and on behalf of the other Applicants. The Applicants filed yet a 3rd Further Affidavit on 5/4/2011. The process is basically to remedy the lapse in the supporting affidavit of the instant application as it relates to the document marked Exhibit “A”.
Given the contentious nature of the application as evinced by the various affidavits and counter-affidavits filed therein, the Court ordered parties to file written addresses in respect of the application. The Applicants in compliance with the order of Court filed their written address dated 8/11/2010 on 10/11/2010. They also filed a Reply on point of law dated 31/3/2011 on 5/4/2011. Both written addresses were settled by H.N.C. Moghalu Esq. The written address of the 1st Set of Respondents dated 2/21/2010 and filed on 3/12/2010 was settled by Dr. Onyechi Ikpeazu SAN, OON. The Appellants/Respondents and the 2nd Set of Respondents respectively, did not file any affidavit in the application and also did not file written addresses. The application was entertained on 5/4/2011 and learned lead counsel for the Applicants, H.N.C. Moghalu Esq and Nri-Ezedi of counsel, for the 1st Set of Respondents respectively, adopted and relied on the written addresses of their clients as hereinbefore identified, in moving the application. B.A. Obiora Esq. and P.I.B. Agbata Esq. for the Appellants/Respondents and 2nd Set of Respondents respectively, did not oppose the application.
In their written address, the Applicants relied upon the affidavits they filed in respect of the instant application as hereinbefore identified. The Applicants submitted to the effect that this Court is empowered and indeed has inherent jurisdiction pursuant to Section 6(6)(a) of the 1999 Constitution to entertain the instant application and grant same. That even though they (i.e. Applicants) did not take part in the proceeding at the lower court, this Court can properly grant the order sought in the application. In this regard the Applicants relied on the case of In Re: Yinka Folawiyo & Sons Ltd (1991) 7 NWLR (Pt. 202) 237 at 244. It is the submission of the Applicants that the proposition of law enunciated in the Folawiyo case (supra), is reinforced by Section 243 of the 1999 Constitution. It is the stance of the Applicants that even though they were not parties in the case on appeal at the lower court, they qualify to be joined as parties to the instant appeal by operation of Section 6(6)(6) (supra) and on the authority of the Folawiyo case (supra).
That the only condition which they are required to satisfy as provided in Section 243(a) (supra) is to show that they are persons interested or persons having interest in the matter on appeal.
It is the submission of the Applicants that they have shown that they have interest in the subject matter of the instant appeal in the supporting affidavit and further affidavit filed in the application. The Applicants further submitted that they have shown that they will be affected directly by any order which this Court might make or likely to be made in this appeal, if they are not joined as co-appellants. The interest of the Applicants which will be affected, as set out in their affidavit are: –
“a) By the judgment now appealed against which nullified the Autonomous Communities (Recognition) Repeal law 2004, their case exhibit “A”, which was struck out based on the repeal law, was affected.
b) By the said judgment which was based on the fact that people who wanted to associate should be allowed to associate, an impression was created that the applicants who are from the community that was purportedly constituted Isi-Oba Autonomous Community, one of the purported Autonomous Communities that took out this action now on appeal, are in agreement and supported the purported creation of the Isi-Oba community,”
It is the submission of the Applicants that they will be adversely affected by the outcome of the appeal if they are not joined and they will be taken to have acquiesced in the claim that Isi-Oba Autonomous Community was lawfully and legitimately created. It is also the submission of the Applicants that their presence before this Court is necessary to enable the Court decide whether actually the people purportedly comprised as Isi-Oba Autonomous Community, that is to say, the people of Urueze, Isu and Okuzu villages of Oba, really wanted to associate as an autonomous community. The case of In Re: Ojukwu (1998) 5 NWLR (Pt. 551) 673 at 683-684 was cited in aid.
The Applicants said to the effect that the 1st Set of Respondents in their counter-affidavit did not in any way say they (Applicants) have no interest in the subject matter of this appeal. That neither did these Respondents say that they (i.e. Applicants) will not be directly and legally affected by the judgment of this Court. That the only issue which these Respondents raised in paragraph 10 of their counter-affidavit is that, they (Applicants), if joined will import extraneous localized issues not canvassed in the court below. The Applicants submitted that these Respondents by the deposition in question were not only prejudicing their case, but have jumped the gun. This is because what the Court is expected to decide at this stage, is simply whether they (Applicants) have any genuine right to warrant their being joined as co-appellants in this appeal. That it is very premature for anybody at this stage, to conjecture what they (Applicants) will say in the appeal and that the 1st Set of Respondents were only pre-empting them. The Court was urged to grant the application before it.
The 1st Set of Respondents in their written address disclosed that they were relying on the counter-affidavits they filed, in opposing the application.
They stated the relevant facts of the matter to be, that the appeal in which the Applicants are seeking to be joined as co-appellants was lodged by the Appellants/Respondents against the judgment of the lower court delivered on 11/12/2006. The orders made in the judgment were reproduced. That the Appellants/Respondents being dissatisfied with the said decision had initiated an appeal against the same by virtue of a Notice and Grounds of Appeal dated 28/12/2006 and filed on the same date. They further said that they (1st Set of Respondents) and the Appellants/Respondents have filed their respective briefs of argument and that the appeal would have proceeded to hearing but for the instant application by the Applicants; as well as another application by some persons seeking for leave to appeal as interested parties.
The 1st Set of Respondents gave a summary of what the case they instituted at the lower court is all about, and said that it was on based on the issues joined by parties in the case, that the case proceeded to trial before the lower court which ultimately gave judgment in their favour by making the declaratory orders and injunction sought by them. These Respondents set out the paragraphs of their two counter-affidavits in which they deposed to facts germane for the determination of the instant application. Against the backdrop of the facts of the matter as narrated by these Respondents, they formulated two issues as calling for determination in the application. The two issues are: –
“(1) Whether the Applicants/interveners’ application for leave to join as co-appellants is competent.
(2) Whether the Applicants/interveners have made out any case to warrant joining them as co-appellants in this appeal.”
However before proffering arguments on the issues, the 1st Set of Respondents dwelled on the certified copy of the claim in Suit No.HID/176/2003 – Chief G. Akonani & Ors. v. The Governor of Anambra State & Ors. filed by the Applicants in the instant application. It is the submission of these Respondents in the main that the document is not properly before this Court inasmuch as it was not distinctly identified as an exhibit in the body of the supporting affidavit, and as such, the Court is not competent to look at it, talk less of relying on its content. The case of Osho v. A-G, Ekiti State (2002) 2 NWLR (Pt.752) 628 at 652 was cited in support.
Dwelling on the first of the two issues formulated by them, the 1st Set of Respondents submitted that the instant application is incompetent and ought to be stuck out. These Respondents said that as Plaintiffs before the lower court they did not sue the Applicants but rather sued the Anambra State House of Assembly; Anambra State Government; Attorney-General of Anambra State; Speaker and Clerk of Anambra State House of Assembly.
They further said that the suit they instituted before the lower court was so publicized and was a news item that was a point of interest all over Anambra State. Reference was made to paragraph B of their counter-affidavit in this regard. These Respondents submitted that the Applicants who claimed to have interest in the matter and being aware of the case before the lower court ought to have applied to that court to be joined in the suit and to have led evidence before the lower court. These Respondents said that other persons who were aware of the pendency of this suit and who felt they had interest in the suit brought applications for joinder as co-defendants before the lower court and such applications were determined by the learned trial Judge.
Reference was made to pages 49-68 of the records.
The 1st Set of Respondents posed the pertinent question arising in the instant application to be whether a party can be joined in an appeal as co-appellant if the interest disclosed by him is simply that he is interested in the appeal. The question was answered in the negative. These Respondents submitted to the effect that if the Applicants are parties interested as they claim, they ought to apply for leave to join the instant appeal as interested parties, and that as they are now out of time to do this; they have to apply for extension of time.
These Respondents further submitted that to allow the joinder sought in the instant application will be bringing into the instant appeal interested parties who have neither sought leave to appeal; nor extension of time to seek for such leave. That the Applicants having not prayed for such an order, this Court cannot make any order which will tantamount to extending time for them (i.e. Applicants) to appeal. The cases of Owena Bank (Nig) Plc v. NSE Ltd (1997) 8 NWLR (Pt. 515) 1 at 14; and Nigerian Bottling Co. Plc v. Osofisan (2000) 10 NWLR (Pt. 675) 370 were cited in aid.
The 1st Set of Respondents said that the import of the Applicants’ seeking to be joined as co-appellants (not co-respondents) is that they are purporting to be aggrieved with the judgment delivered by the lower court. These Respondents submitted to the effect that the Applicants who were never sued by them, and never applied to be joined as defendants before the lower court have only one means of ventilating their grievance with the judgment in question, and that this is, by seeking for leave to appeal as interested parties and that application for this purpose, ought to be made to the lower court, in the first instance. Reference was made to Order 7 Rule 4 of the 2007 Rules of this Court and Section 243(a) of the 1999 Constitution. These Respondents submitted that the case of in Re: Ojukwu (supra) cited by the Applicants did not assist or support their position and stated their reasons in this respect. These Respondents submitted to the effect that the Applicants who are bound by the prayers in the instant application have not made the right application. These Respondents further submitted that the instant application is incompetent and granting the same will amount to bringing the Applicants into the appeal as interested persons when they had neither sought leave to appeal nor extension of time to seek leave.
Again the 1st Set of Respondents dwelled on the expression “any other person having an interest in the matter” and submitted that the expression does not cover the Applicants. The cases of In Re: Ojukwu (supra); and In Re: Ugadu (1988) 5 NWLR (Pt. 93) 189 at 199; amongst other were cited in respect of the expression. Again these Respondents submitted that the case of In Re: Yinka Folawiyo & Sons Ltd (supra) relied upon by the Applicants equally does not assist them, it is quite distinguishable having regard to the facts and circumstances of the instant application.
The 1st Set of Respondents argued the second of the two issues they formulated for the determination of the instant application in the event the Court holds that the Applicants are entitled to the Orders they seek. The arguments proffered in respect of the issue are substantially a rehash of the arguments proffered in respect of the first of their two issues and which have been extensively highlighted above. Where necessary, I will however refer to them.
As earlier stated, the Applicants filed a Reply on points of law to the written address of the 1st Set of Respondents. Therein and with specific reference to challenge to the competence of the instant application, the Applicants submitted to the effect that there is no provision in the Rules of this Court that requires them to apply for leave or extension of time to apply to be joined as co-appellants. The Applicants further submitted that there is a difference between a party seeking for leave to appeal as an interested party and one seeking to be joined as a co-appellant.
I intend to resolve the first of the two issues formulated by the 1st Set of Respondents, first. This is because, the issue being a challenge to the competence of the instant application, is clearly jurisdictional in nature, for it is only in respect of competent process or processes that a court can make pronouncement on the merit. In other words, if the application is found not to be competent, no useful purpose would be served in considering it on the merit.
The Applicants have applied to be joined in the instant appeal as co-appellants.
Indeed in their Reply on point of law to the written address of the 1st Set of Respondents, the Applicants made it clear that they are aware of the difference between an application to join the appeal as co-appellants and one seeking for leave to appeal as interested parties. The instant appeal was brought by the Appellants/Respondents on record. In Section 30 of the Court of Appeal Act, Cap. C 36 (i.e. the interpretation section):
“appeal” includes an application for leave to appeal;
“appellant” means any person who desires to appeal or appeals from a decision of the court below or who applies for leave to so appeal and includes a legal practitioner representing such a person in that behalf’;
In Order 1 of the 2007 Rules of this Court,
“appellant” means any person who appeals from a decision of the court below and includes a legal practitioner representing such a person in that behalf”.
Appeal has been defined as an invitation to a higher court to review the decision of a lower court in order to find out whether on proper consideration of the facts placed before it and the applicable law, the lower court arrived at a correct decision. See OREDOYIN V. AROWOLO (1989) 4 NWLR (Pt. 114) 172.
Rights of appeal (interlocutory or final) in this country; are basically statutory, in that they are conferred on parties by the Constitution and/or some other applicable statutes. There is nothing like inherent right of appeal in this country. See EKULO FARMS LTD V. UNION BANK OF NIGERIA PLC [2006] All FWLR (Pt. 319) 895 at 914 – 915 (SG): UKO V. EKPENYONG [2006] All FWLR (Pt. 324) 1927 at 1943 (CA); and SOGBESAN V. OGUNBIYI [2005] All FWLR (Pt. 284) 337 at 348 (CA).
Right of appeal being statutory, the statute that creates the right of appeal therefore invariably sets out the situations when the right of appeal so created becomes exercisable. The 1999 Constitution in Section 241 provides for the situations in which parties can appeal as of right to the Court of Appeal against the decisions of the Federal High Court or a High Court. Section 242 of the same Constitution also makes it clear that any right of appeal against the decision of the Federal High Court or High Court, that is not exercisable under any of the situations provided for in Section 241, can only be exercised with the leave of the Federal High Court or High Court or Court of Appeal.
Section 243 of the 1999 Constitution specifically provides for the exercise of the rights of appeal donated by the said Constitution. The provisions of the Section read: –
“Section 243 – Any right of appeal to the Court of Appeal from the decisions 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 interest in the matter, and in the case of criminal proceedings at the instance of the accused person, or subject…..”
It would appear to be clear as crystal from the provisions of the Constitution referred to above that the Constitution is basically the creator of right of appeal to this Court in respect of civil proceedings and that the Constitution has also specified the manner in which the right of appeal it has created is to be exercised.
The Applicants seek to join the instant appeal as co-appellants. The desire of the Applicants in this regard definitely connotes that they conceive that they have a right of appeal in respect of the subject matter of the instant appeal. This is because if they do not have a right of appeal, in respect of the subject matter of the instant appeal, then it is simply incongruous for them to seek to join the Appellants/Respondents (who were parties before the lower court and who brought the instant as of right as such parties), as co-appellants.
The Constitution has glaringly created only two means or methods for the exercise of right of appeal against the decision of a court such as the lower court in a civil case. The first is the exercise of the right of appeal by parties to the action; and the second is the exercise of the right of appeal with the leave of court. The Applicants do not dispute the fact that they were not parties in the case on appeal at the lower court. In the circumstance and pursuant to the constitutional provisions hereinbefore quoted, it is my considered view that they can only exercise whatever right of appeal they conceive to have in respect of the case now on appeal, with the leave of court upon establishing that they have interest in the matter on appeal.
I have read the case of In Re: Yinka Folawiyo (supra) a judgment of this Court relied upon by the Applicants in bringing the instant application. In the said case, it was stated that –
“This application brings into focus a rather interesting question of joinder of a person interested in a matter as a respondent in an appeal in which the applicant did not participate in the proceedings at the lower court where it appears that it has sufficient interest in the matter (land) in respect of which an order of injunction is sought and the grant of which may cause the applicant untold hardship or financial detriment.”
Surely and as rightly submitted by the 1st Set of Respondents, the issue in that case is completely different from the situation in the instant application and appeal. Though a respondent clearly participates in an appeal, he definitely does not initiate an appeal, unless the respondent files a cross appeal and in which situation he becomes an appellant in the cross-appeal. The Constitution itself makes it clear that only persons aggrieved with the decision of a court can lodge an appeal against the same. A respondent traditionally cannot but support the judgment of a court. When a respondent does not do this, he is invariably a cross-appellant. The Constitution does not make provisions relating to who can be a respondent in an appeal, unlike in the case of persons who can appeal and the manner in which they are to exercise the right of appeal is equally specifically stipulated. It is trite law that inherent jurisdiction vested in a court by the Constitution cannot be relied on to do the contrary of what a statute makes provision for or what the rules of court in clear terms provide for. See TONWUREN V. MODERN SIGNS (NIGERIA) LTD [1985] 1 NSCC 243; and OBIOHA V. IBERO [1994] 1 NWLR (Pt. 322) 503. Indeed in the case of NNAMA V. NWANEBE [1991] 2 NWLR (Pt. 172) 181, this Court dwelling on “inherent jurisdiction” said thus: –
“A court can make an order considered necessary for doing justice only in respect of matters before it or over which it is seised of jurisdiction either in its original or appellate jurisdiction or in its capacity as a reviewing tribunal. It cannot otherwise make any such order no matter how salutary it may be or imagined to be in respect of a matter pending in another court. The High Court in the present case could not act under the rule above to interfere with a case in a Magistrate’s Court.
In like view, it could not act under its inherent jurisdiction. Inherent jurisdiction of a court does not connote extraordinary power that can be made to operate outside the frontiers of its given jurisdiction. Inherent jurisdiction is meant to be in harmony with and to supplement the statutory jurisdiction of a court. As Karibi-Whyte, J.S.C. said in Adigun v. Attorney-General of Oyo State (N0.2) (1987) 2 NWLR (Pt.56) 197 at 229 inter alia:
….the inherent powers of the Court can be invoked in the interest of justice to supplement the statutory jurisdiction where the exercise of such jurisdiction was likely to result in injustice. The inherent powers which a court is entitled to exercise merely because it is a court seems to me to be the exercise of an equitable jurisdiction which enables the court to fulfill itself as a court and to do substantial justice where necessary in the particular case… The court has inherent power in respect of matters within its jurisdiction. It has no inherent power to assume jurisdiction in respect of a matter not within its jurisdiction.. ……”
To the extent that there is no provision governing who can be a respondent in an appeal in the Constitution, I am in no doubt that the Court relying on its inherent jurisdiction can join the Applicants as co-respondents to defend the judgment of the lower court with the other Respondents in the instant appeal if they had sought for such an order. But they do not want this; they want to attack the judgment of the lower court. To achieve this they must be vested with a right of appeal and that right must be exercised in the manner provided for by the Constitution. After all, it is also trite law that where a law or legislation has laid down a procedure for doing a thing, there should be no other method of doing it. See NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD V. KLIFCO NIGERIA LTD [2010] ALL FWLR (pt. 534) 73; OKEREKE V. YAR’ADUA (2008) All FWLR (Pt. 430) 626; and ADESOLA V. AYEOBA [2009] AII FWLR (pt. 458) 355.
It is my considered view that the Applicants by the procedure they have adopted in seeking to come into this appeal are out to supplant the position of the Constitution concerning the exercise of right of appeal as it relates to persons who were not parties in the case. No court of law and justice will allow for the infraction of constitutional provision under any guise and especially by an appeal to its inherent jurisdiction.
In the final analysis, I hold that the Applicants not being parties at the lower court can only appeal against the judgment of the lower court whether alone or as co-appellants upon their strict adherence to the manner the Constitution has provided for the exercise of right of appeal for persons in their category as contained in section 243(a). Consequently, as the Applicants by the instant application have glaringly not sought to activate whatever right of appeal they have against the judgment delivered by the lower court on 11/12/2006 in accordance with the constitutional provisions provided therefore, I cannot but hold that this application is incompetent as argued by the 1st Set of Respondents. Therefore there is no basis for the consideration of the application on the merit.
The application dated 15/11/2007 and filed on 22/11/2007 being incompetent is hereby struck out.
I make no order as to costs.
AMINA A. AUGIE, J.C.A.: I have before now the lead Ruling just delivered by my learned brother, Lokulo-Sodipe, JCA and I agree with his reasoning and conclusion.
It is well settled that a party to the proceedings means a person aggrieved, that is a person against whom a decision has been pronounced which deprived him of some right see Akinbiyi v. Adelabu(1956) SCNLR 109 & Mobil Producing Nigeria Unlimited v. Chief Simeon Monokpo (2003) 18 NWLR (pt. 552) 346. Any other person having interest in the matter can appeal, but the interest must be a genuine and legally recognizable interest in respect of a decision, which prejudicially affects such interest; that is those directly affected by the adverse decision, it cannot be a general interest which every person has in seeing that justice is done – see Akande v. General Electric Co. (1979) NSCC (vol. 12) 51 where Aniagolu, JSC observed as follows –
“…The person therein stated exercising the right of appeal to the Court of Appeal, must be named in the record, or with leave, having an “interest in the proceedings – which term would include a person affected or likely to be affected, or aggrieved or likely to be aggrieved by the proceedings”.
In this case, the Applicants want to be joined as Co-Appellants to the appeal filed by the 1st set of Respondents. In effect, they do not want to come in as Respondents, who are, more or less, to defend the Judgment being challenged on appeal. They want to attack the Judgment instead.
But they have not come properly, and their Application will be dismissed, and it is hereby dismissed by me. I also make no order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read in draft the lead judgment of my brother, LOKULO-SODIPE JCA. I subscribe to the reasoning and conclusions reached thereat and adopt same as mine. I also abide by the orders made therein.
Appearances
H. N. C. Moghalu with Rev. O. I. C. Akabogu for the Applicants
B. A. Obiora for the Appellants/RespondentsFor Appellant
AND
Nri-Ezedi for the 1st-16th Respondents (i.e 1st Set of Respondents)
P. I. B. Agbata for the 17th – 19th Respondents (i.e 2nd Set of Respondents)For Respondent
