BABAYEMI v. ADELEKE & ORS
(2022)LCN/16334(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, June 08, 2022
CA/ABJ/ROA/CV/474M/2022(R)
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
PRINCE OYEDOTUN BABAYEMI APPELANT(S)
And
1. SENATOR ADEMOLA JACKSON NURUDEEN ADELEKE 2. DR. IYORCHIA AYU (For Himself As The National Chairman Of PDP Nigeria And On Behalf Of The National Working Committee Of The People Democratic Party, Nigeria) 3. PEOPLE DEMOCRATIC PARTY (P.D.P) 4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO
WHETHER OR NOT A CONSIDERATION OF AN APPLICATION FOR LEAVE TO APPEAL IS GRANTED WITH THE EXERCISE OF DISCRETION
It is trite that the consideration of the application for leave to appeal calls for the exercise of discretion. See Lumegbon vs. Kareem (2002) FWLR (pt. 107) 1145 at 1151. It was the holding of the case just cited that:
“Whenever leave of the Court is a condition precedent for a right, the discretion of the Court is implied. Hence in an application for leave to appeal, the appellate Court is duty bound to look at the application of the person having interest in the matter in order to confirm whether the appeal sought to be filed is frivolous or vexatious. It is now trite law that the discretion of the Court must be exercised judiciously and judicially and a Court called to exercise its discretion cannot be fettered by extraneous facts or issues. The Court is to place reliance on the facts presented by the parties and to do justice thereon. See Bello vs. Yakubu (2008) ALL FWLR (pt. 429) 4 at 75.
The Apex Court in United Bank for Africa vs. GMBH & Co (1989) 3 NWLR (pt. 110) 374, through the mouth of Oputa, JSC, held that:
“Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by the law or the equitable decision”. PER BARKA, J.C.A.
THE PRINCIPLES GOVERNING THE GRANT OF LEAVE TO AN APPLICANT TO APPEAL AS AN INTERESTED PARTY
The principles governing the grant of leave to an applicant to appeal as an interested party is provided for under Section 243 (1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). An interested party is one whose presence in a suit is needed before the real controversy between the contending parties is settled. See the cases of Nigeria Customs Service Board & Anor. v. Innoson Nigeria Ltd & Ors. (2022) LPELR-56659 (SC) and CPC v. Nyako (2011) LPELR-23009. An applicant needs to show that he is a person having interest in the matter and that the order or the judgment of the Court he is seeking leave to appeal against affects his interest adversely. When a Court is confronted with an application of this nature, it must exercise its discretion based on the facts placed before it by the applicant. There are no justifying facts in the instant case to warrant the grant of the application. It is for this and the fuller reasons adduced by my brother in the lead ruling that I hold the application as lacking in merit. PER ADAH, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgement): The instant application filed on the 6th of May, 2022, and brought by way of motion on notice, pursuant to Section 6 (6) (a) & (b) of the CFRN 1999 as amended, Section 24 of the Court of Appeal Act Cap. C36, LFN and Order 4 Rule 1 and Order 6 of the Court of Appeal Rules 2021, and under the inherent jurisdiction of the Court, prayed for leave to appeal the judgment of the Federal High Court Abuja in suit with No. FHC/ABJ/CS/322/2022 delivered on the 28th day of April, 2022; and glaringly evident from the face of the motion papers, applicant seeks for the following orders:
i. AN ORDER granting leave to the Applicant to appeal against the judgment delivered by Honourable Justice Emeka Nwite of the Federal High Court, Abuja on the 28th day of April, 2022 as party interested.
ii. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances of this case.
In support of the application is six paragraph affidavit deposed to by one Nuhu Sabdat, a litigation Secretary in the law firm of Edmund Z. Biriomani & Co, the legal firm representing the applicants. Applicants also filed a written address on the same 6th of May, 2022. Upon receipt of the counter affidavit by the 1st respondent, applicant filed a further affidavit on the 26th day of May, 2022, also borne on six paragraphs deposed to by the same Nuhu Sabdat, and a written address, and when the applicant was further served with the counter affidavit of the 2nd and 3rd respondents, learned counsel still placed reliance on the further affidavit and written address filed in response to the 1st respondents counter-affidavit, and on the 26th of May, 2022, being the scheduled hearing date, learned counsel identified the various processes filed, adopted the same as their submissions and urged the Court to grant their respective prayers. Whereas the learned counsel for the applicant prayed for the grant of the application, the learned counsel appearing for the 1st and the 2nd and 3rd respondents urged the Court to dismiss the same. Let me place it on record that even though the 4th respondent was served this application and a hearing notice, failed to and/or refused to file any process.
My lords, permit me to look at the grounds upon which the application is predicated upon, and which I now reproduce as follows:
i. That sometime in July, 2021 the National Working Committee released a timetable and schedule of activities for the year 2021 party congress to elect Ward Executive Officers and 3 AD-HOC Delegates in 215 Wards in the 30 Local Government Areas of Osun State.
ii. That consequent upon that Nomination forms were sold to the two factions headed by Hon. Olasoji Adagunodo and Mr. Sunday Bisi respectively.
iii. That on the 24th of August, 2021 Hon. Olasoji Adagunodo the erstwhile immediate State Chairman of the People Democratic Party, Osun State paid the sum of twenty-one Million Naira (N21,000,000,00K) for the nomination forms for ward Executives and 3 Ad-hoc delegates.
iv. That two parallel Ward Congress were conducted by the two factions on the 25th of September, 2021.
v. That the 1st Defendant set up an Electoral Appeal Panel issued a report at the end of their exercise.
vi. That Hon. Olasoji Adagunodo instituted an action by an Originating Summons filed on the 7th day of October, 2021 and a motion on Notice and an Affidavit of urgency on the 7th day of October, 2021 in other for the Court to make a definite pronouncement on the said Preservative Order of Mandatory Injunction granted by Hon. Justice S.O Falola sitting at Osun State High Court of Justice, Ikirun Judicial Division on the 9th of November, 2020 in SUIT NO: HIK/25/2020.
vii. That Judgment in Suit No: HIF/36/2021 was delivered by Hon. Justice Dr. A.A Aderibigbe of the High Court of Justice, Osun State sitting at High Court 2, Ile-ife on the 22nd of November, 2021 granting the following reliefs:
1. A DECLARATION that an Order of a competent Court of jurisdiction is valid, subsisting and binding on parties until it is appealed against and/ or set-aside by an appellate Court.
2. A DECLARATION that the Preservative Order of Mandatory Injunction granted by Hon. Justice S. O. Falola sitting at Osun State High Court of Justice, ikirun Judicail Division on the 9th of November, 2020 SUIT NO. HIK/25/2020 is still valid, subsisting and binding on the 1st Defendant until it is appealed against and/ or set-aside by an appellate Court.
3. A DECLARATION that the claimant, Hon Olasoji Adagunodo by the Preservative Order of mandatory injunction granted by Hon. Justice S.O Falola sitting at Osun State High Court of Justice, Ikirun Judicial Division remain as the Chairman of the People Democratic Party (PDP), Osun State pending the determination of Notice of Preliminary Objection dated 13th November, 2020, Motion on Notice dated 6th of July, 2021 and Originating Summons respectively in SUIT NO: HIK/25/2020.
4. A DECLARATION that by virtue of the subsisting and valid Preservative Order of Mandatory Injunction granted by Hon. Justice, Ikirun Judicial Division, the Plaintiff Hon. Olasoji Adagunodo is the only recognized Chairman of the People Democratic Party (PDP), Osun State Chapter pending the determination of Notice of Preliminary Objection dated 13th November, 2020, Motion on Notice dated 6th of July, 2021 and Originating Summons respectively in SUIT NO. HIK/25/2020.
5. AN ORDER of this Honourable Court recognizing and affirming all actions taken by the Plaintiff Hon. Olasoji Adagunodo as the only valid and lawful actions as Chairman of the People Democratic Party, Osun State Chapter pending the determination of the Notice of Preliminary Objective, Motion of Notice dated 6th of July, 2021 and the Originating Summons respectively in SUIT NO: HIK/25/2020.
viii. That consequent upon the appointment of Hon. Olasoji Adagunodo as the National Vice Chairman of the People Democratic Party, South-West Zonal headquarters and the judgment delivered on the 22nd of November, 2021 he resigned his appointment as the Chairman of the People Democratic Party, Osun State Chapter on the 24th of November, 2021.
ix. That other Ward Executive Officers instituted an action in Court in Suit No: HIJ/6/2022 on the 3rd of March, 2022 consequent upon the refusal of the People Democratic Party to recognize them as the Ward Executive Officers elected on the 25th of September, 2021 at the Ward Congress.
x. That the actions of the Peoples Democratic Party was an affront and flagrant disobedience of the judgment of this Honourable Court delivered on the 22nd of November, 2021 which affirms all actions taken by Hon. Olasoji Adagunodo as valid and lawful which includes the supervision of the Ward Congress in 215 were our clients were elected on the 25th of September, 2021.
xi. That the Ward Executive Officers elected on the 25th of September, 2021 in 215 Wards at the Ward Congress are the statutory Ward Executive recognize to vote as statutory delegates as the scheduled Governorship primaries on the 8th March, 2022.
xii. That on the 3rd of March, 2022 Honourable Justice Dr. A.A Aderibigbe sitting at the Osun State High Court of Justice, Ijebu-Jesa Judicial Division granted AN ORDER of Mandatory Interim Injunction of this Honourable Court recognizing the Ward Executive Officers elected on the 25th of September, 2021 in the following Wards:
a. ATAKUMOSA EAST WARD 1, 2 3 6 7 8 9
b. ATAKUMOSA WEST WARD 1, 2, 3, 4, 5, 6, 7, 8, 9
c. AYEDAADE WARD 1, 2, 3, 4, 5, 6, 7, 7, 8, 9 & 10
d. AYEDIRE WARD 3, 4, 6, 8, 9 & 10
e. BORIPE WARD 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 & 11
f. EGBEDORE WARD 1, 2, 3, 4, 5, 6, 7, 8, 9 & 10
g. IFE CENTRAL WARD 1&6
h. IFE EAST WARD 1, 2, 3, 4, 5, 7, 8, 9&10
i. IFELODUN WARD 1, 2, 3, 4, 5, 6, 7, 8, 9&10
j. ILA WARD 1, 2, 3, 4, 5, 6, 7, 8 9&10
k. ILESA EAST 1, 2, 3, 4, 5, 6, 7, 8, 9, 10&11
l. ILESA WEST WARD 1, 2, 3, 4, 5, 6, 7, 8, 9, 10&11
m. IFE SOUTH WARD 1, 2, 3, 4, 5, 6, 7, 8, 9&11
n. EJIGBO WARD 2, 3, 6, 7, 8&11
o. IREPODUN WARD 2, 6, 7&8
p. IREWOLE WARD 1, 2, 3, 4, 5, 6, 7, 8, 9&10
q. ISOKAN WARD 1, 2, 4 & 8
r. IWO WARD 1, 2, 3, 4, 5, 6, 7, 8, 9&10
s. OBOKUN WARD 2, 3, 4, 5, 6, 7, 8, 9&10
t. ODO OTIN WARD 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 & 15
u. OLAOLUWA WARD 2, 3, 4, 5, 7, 8 & 9
v. OLORUNDA WARD 2, 3, 5, 6, 7, 8, 9, 10&11
w. ORIADE WARD 1, 2, 3, 4, 5, 6, 7, 8, 9, 10&11
x. OROLU WARD 1, 2, 3, 5, 6, 8, 9, 10&11
y. OSOGBO WARD 7&13 of the Peoples Democratic Party Osun State in 215 Wards as the only authentic and/or authorized elected ward Executive Officers permitted to vote as delegates at the party’s Governorship primaries scheduled to take place on the 8th of March, 2022, the State Congress, State Assembly Primary, National Assembly Primary and Presidential Primary respectively in full compliance with the judgment of the Court delivered on the 22nd of November, 2021 affirming all actions taken by Hon. Olasoji Adagunodo as the only valid and lawful actions while he was the Chairman of the Peoples Democratic Executive Congress on the 25th of September, 2021 pending the determination of the Motion on Notice.
xiii. That the Enrolment Order was duly served on the People Democratic Party through substituted means, while the independent National Electoral Commission by the bailiff of Court on the 4th of March, 2022 respectively.
xiv. That the Peoples Democratic Party in flagrant disobedience to the judgment of this Honourable Court delivered on the 22nd of November, 2021 and the Order of Interim Mandatory Injunction published in the Tribune Newspaper dated 8th of March, 2022 list of delegates authorized to vote at the Governorship primary on the 8th of March, 2022 refusing to recognize and allow the 215 Ward Executive Officers supervised by Hon. Oiasoji Adagunodo as the authentic delegates to vote as ordered by this Honourable Court.
xv. That the flagrant disobedience to the judgment of this honourable Court delivered on the 22nd of November, 2021 and the Order of Interim Mandatory Injunction by the Peoples Democratic Party resulted the conduct of two(2) parallel Special Congresses (Gubernatorial Primary candidate nomination)
xvi. That the 215 Ward Executives Officers in full compliance with the judgment and Order of Mandatory Interim Injunction voted as delegates at Special Congresses (Gubernatorial Primary Candidate nomination) on the 8th of March,2022 at the WODIF Centre, Osogbo.
xvii. That the Peoples Democratic Party in flagrant disobedience to the judgment and Order of Mandatory Interim Injunction conducted a parallel special Congresses (Gubernatorial Primary candidate nomination) on the 8th March, 2022 at the Osogbo Stadium.
xviii. That on the 10th of March, 2022 Honourable justice Dr. A.A Aderibigbe sitting at the Osun State High Court of Justice, Ijebu-Jesa Judicial Division granted an Order of Mandatory Interim Injunction of this Honourable Court recognizing the Special Congresses (Gubernatorial Primary candidate nomination) on the 8th of March, 2022 at WODIF Centre, Osogbo wherein the 215 Ward Executive Officers voted as delegates and elected the Applicant as its Gubernatorial candidate for the Governorship Election scheduled to hold on the 16th of July, 2022.
xix. That the said enrolment Order dated 10th of March, 2022 was served on the Peoples Democratic Party through its Principal Officer WhatsApp numbers and same was equally published in the National Newspapers and the Independent National Electoral Commission on the 11th of March, 2022.
xx. That Hon. Justice Emeka Nwite sitting at the Federal High Court Abuja judicial Division gave judgment in favour of the 1st Respondent against the 2nd & 3rd Respondents respectively.
xxi. The Applicant was not made a party to the proceedings leading to the judgment and was not aware of the suit.
xxii. The Applicant was never served with the judgment and only become aware of judgment during invasions of the property after statutorily time allowed to appeal had lapsed.
xxiii. The Applicants have a constitutional right of appeal as given by Section 243 of the Constitution of the Federal Republic of Nigeria.
xxiv. The judgment was obtained by fraud as the 1st Respondent withhold and failed to disclose material fact.
xxv. That the suit was an abuse of Court process.
Mr. Edmund Biriomoni, the learned counsel for the applicant identified a sole issue for determination to wit; whether or not this Honourable Court has the requisite jurisdiction to grant the prayers of the Applicant.
Moving the application, the learned counsel for the applicant drew the Court’s attention to the legal proposition that leave to appeal as an interested party does not have a time limit, and once granted, the applicant can proceed formally to file the process. He also posited relying on Poroye vs. Makarfi (2018) 1 NWLR (pt. 1599) 91 at 145 that a party interested who had obtained leave to appeal must do so within the time allowed by law. Further positing that the right of appeal may survive a deceased party to a cause of action, submits that such right can only be exercised by a living person. He submits that the grant or refusal of an application for joinder is entirely at the discretion person whose presence is desirable or proper for an effective and effectual determination of a case is the determinant for the grant of a joinder, and the cases of Green vs. Green (1987) 3 NWLR (pt. 61) 480 at 493-494, Edoho vs. AG Akwa Ibom State (1996) 1 NWLR (pt. 425) 488 at 503 and Yakubu vs. Governor of Kogi State (1995) 9SCNJ 122 at 140 were cited and relied upon on the legal principle. Learned counsel thereby prayed this Court to exercise its discretion in favor of granting the applicant leave to appeal as an interested party.
On whether a party interested in an appeal, who was not originally a party to the decision complained of, must first seek leave as an interested party, learned counsel leaned heavily on the decision of this Court in the case of Gureje vs. Adedeji & Ors (2018) LPELR-45220 (CA) per Ndukwe – Anyanwu, JCA, to the effect that the applicant in the circumstance needed the leave of the Court to appeal the ruling of which he was not a party to the original suit.
Still on whether a party interested in an appeal, who was not originally a party to the decision complained of, must first seek leave as an interested party, it is the contention of the learned counsel that one who applies for leave as an interested party, does not need any extension of time to seek leave, as time does not run out against such a party, and cannot be questioned on why he failed for not appealing within time, and cited for support the case of Re vs. Madaki (1996) 7 NWLR (pt. 459) 153 per Uwais CJN. Submits that all he needs to do is to convince the Court of his interest in the judgment which he seeks to appeal against: Christian Iwuagwu vs. Emezie Okoroafor & Ors (2012) LPELR-20829 CA, Funduk Engineering Ltd vs. McArthur & Ors (1996) LPELR-1291 (SC), and FAAN vs. Bi-Courtney Ltd & Ors (2011) LPELR-1942 CA.
Learned counsel referred to the decisions of ACN & Ors vs. Labour Party & Anor (2012) LPELR-8003 per Akeju JCA, and Abdulraheem & Ors vs. Oduleye & Ors (2019) LPELR-48892 (SC) per Augie JSC, the latter case having held that “The joinder of plaintiffs as well as joinder of causes of action are clearly permissible under the said Order 12 Rule 1 of the Federal High Court Rules therefore, the Court of Appeal was right to affirm the decision of the trial Court”.
In conclusion, it was prayed that this application be granted.
The 1st respondent through his counsel Wole Jimi Bada, in opposition to the application urged the Court to dismiss the application for lacking in merit and also for constituting an abuse of the process of Court.
Learned counsel submitted that by the mandatory rules of this Court under Order 6 Rule 4, applicant ought to have made the application before the lower Court before approaching this Court. He submits also that the only condition where the applicant can be allowed to bring the application without first doing so before the lower Court is where special circumstance circumstances made it impossible to approach the lower Court. He states that rules of Court are made to be obeyed, and the contravention of Order 6 Rule 4 by the applicant in the instant case is fatal. Further submitting, learned counsel alluded to Order 6 Rule 7 of the rules governing this Court, submitting that an application of this nature must contain, the notice of motion for leave to appeal as in form 4, a certified true copy of the decision of the Court below sought to be appealed against, a copy of the proposed grounds of appeal and where leave has been refused by the lower Court, a copy of the order refusing leave. Learned counsel argued that the use of the word shall in the order denotes mandatory illness and referred to the cases of Ugwu vs. Ararume (2007) 12 NWLR (pt. 1048) 367 at 510 and Ogidi vs. The State (2005) 5NWLR (pt. 918) 286 at 327. He then contended that the failure by the applicant to exhibit the proposed grounds of appeal and the order of the lower Court refusing the application is also fatal to the application.
Further stretching his argument, learned counsel states that applicant failed to show his grievance against the judgment of the lower Court as demanded in the case of Registered Trustees of the Church of God Mission Intl Inc. vs. Pedro Elema & Anor (2018) LPELR-46133 (CA) per Ogunwumiju, JCA as he then was. He argued that the applicant who failed to participate in the primaries of the 3rd defendant before the lower Court is not affected by the judgment of the lower Court and the benefit of appealing the case cannot extend to him, and on this score urged the Court to dismiss the application.
In further argument, the learned counsel urged the Court to take judicial notice of Court proceedings by virtue of Section 122(m) of the Evidence Act 2011, and to note that the FHC sitting in Oshogbo in suit No. FHC/OS/CS/26/2022, which was brought by the appellant, wherein it was held that the applicant was not an aspirant, and therefore lacks the locus standing to bring the action against any of the respondents, there is no basis for the present application. Based on that fact, this Court was urged to decline jurisdiction.
On the abusive nature of the application, learned counsel contended that the judgment of the Osun State High Court sitting in Ile Ife which the applicant relies upon to found the instant application is an abuse of suit with No. CV/2257/2021 brought before the FCT High Court on the 9th day of September, 2021, as the reliefs thereat are identical. Submitting that an abuse of Court process can only arise when a judicial process has been used to irritate, annoy and harass the opponent, where the Court so finds, the application should be dismissed and cited Arubo vs. Aiyeleru (1993) 3 NWLR (pt. 280) 126, Onyeabuchi vs. INEC (2002) 8 NWLR (pt 769) 417 amongst many other cases. He maintained that it is a travesty of justice for a Court to continue with the hearing of a case where the Court is clearly aware of the pendency of the case before a Court with coordinate jurisdiction, positing that the Court will not lend a helping hand to illegality and cited the case of CCB Nigeria Ltd vs. Onwuchekwa (1998) 8 NWLR (pt. 562) 375 at 395 in that regard.
Further still, it was submitted for the 1st respondent that the effect of bringing the present application which is a pre-election appeal outside the mandatory period of 14 days ousted the jurisdiction of this Court and relied on Akeredolu vs. Abraham & Ors (2019) LPELR-46670 (CA) and ANPP vs. Goni (2012) 7 NWLR (pt. 1298) 147 maintaining that Section 285 (11) of the Constitution is like a limitation law, and the appeal not having been brought within the 14 days period allowed is statute barred.
In finality, learned counsel urged the Court to dismiss the application.
Mr. Sule Asemokhai Esq. the learned counsel for the 2nd and 3rd respondents in opposing the application proposed two issues that needs looking into by the Court:
i. Whether the appellant has locus to bring this application seeking the leave of this Court to appeal as an interested party against the judgment of the Federal High Court, Abuja Division in suit No FHC/CS/OS/322/2022 delivered on the 28th of April, 2022.
ii. Whether in view of the judgment of the Federal High Court in suit No. FHC/CS/OS/26/2022 delivered on the 18th May, 2022 this application is not an abuse of Court process.
With respect to the 1st issue, learned counsel argued that applicant herein was not an aspirant who participated in the Governorship primary of the 3rd respondent conducted on the 8th of May, 2022 at Oshogbo Township Stadium, wherein the 1st respondent emerged as Governorship candidate of the 3rd defendant for the Osun Governorship election scheduled to be conducted by the 4th respondent on the 16th of July, 2022. Learned counsel alluded to paragraphs in the applicant’s affidavit in support, as well as the decision of the Superior Courts, most particularly Shuaibu vs. Ladan (2021) ALL FWLR (pt. 1104) 477 at 512, and APC & Anor vs. Hon. Danladi Idris Karfi & 2 Ors (2018) ALL FWLR (pt. 942) 328 at 369 on the interpretation of Section 87 (9) of the Electoral Act 2010 as amended, to submit that applicant having not participated in the said election lacks the locus to bring the application seeking leave to appeal the judgment as an interested party.
On the 2nd issue, it was submitted that the application seeking leave to appeal as an interested party against the judgment of the Federal High Court, Abuja in suit No.FHC/CS/AB/322/2022 amount to an abuse of the Court process of suit No.FHC/CS/OS/26/2021. He urged the examination of exhibits PDP 1, PDP 2, and PDP 4, which will all reveal that the subject matter of this application have been judicially determined by the Federal High Court in suit with No. FHC/CS/OS/26/2022. Relying on the case of Saraki vs. Kotoye (1992) 9 NWLR (pt. 264) 156 at 188, where the Apex Court did hold that:
“Any bid by a party to litigate the same issue in more than a single forum between the same parties and for the same identical reliefs is an abuse of Court process”
Learned counsel now maintains that the application filed on the 6th of May, 2022 amounts to abuse of the process of suit No. FHC/CS/OS/26/2022 which was then pending before the FHC Oshogbo wherein the parties are the same.
In conclusion, learned counsel urged the Court to hold that the application is an abuse of Court process, and to also strike out the application for being statute barred and for want of jurisdiction.
On points of law, Mr. Biriomoni submitting on whether there is any time limit for the filing of an application for leave to appeal as an interested party, referred the Court to Section 243 (1) of the Constitution and the case of Funduk Engineering Ltd vs. McArthur (supra) which dwelt on the proper interpretation to be given to the constitutional provision, contending that there is no time limit for the applicant appealing as a party interested and cited the case of Chukwu & Ors vs. INEC & Ors (2014) LPELR-25015 (SC). as an interested party, learned counsel made reference to the decision of Aboki now JSC, and finally urged the Court to discountenance the counter-affidavits filed and to grant the application.
In the resolution of this application, I have studied the application, the affidavit for the grant and the counter affidavit filed as well as the addresses submitted. I have also studied the various exhibits and the case law cited. My understanding of the application borders on whether the applicant’s application can be granted in the circumstance. Indeed, that is the aggregate of all the issues fronted by the parties. This application will be considered along that simple question.
My lords before venturing into the consideration of the lone question, I wish to observe that applicant seems to be confused as to what he really desires from the Court. Learned counsel, while leaning on the case of Green vs. Green (supra) and other cases seems to have deviated and thereby started to canvas the issue of joinder of parties. In the recent case of Jegede vs. INEC (2021) LPELR-55481 (SC) per Saulawa, JSC, the Apex Court held that the term joinder denotes the uniting of parties or claims in a single action or lawsuit. Thus the term joinder of parties jurisprudentially means the combination of two or more persons or entities as plaintiffs, claimants, petitioners or defendants or respondents in a lawsuit. It does not envisage a situation where a suit has been concluded and all the party seeks for is to appeal the decision. Having so observed, I am of the humble view that that arm of his submission is unhelpful to his case and I so hold.
The substance of the applicant’s application to my understanding appears to be that he be granted leave to appeal the decision of Federal High Court Abuja, in suit with No. FHC/ABJ/CS/322/2022 delivered on the 28th day of April, 2022, as party interested in the case.
Paragraphs 20 — 25 of the grounds of appeal as well as paragraphs 5 W — Z all bear out the reason for the application. For ease of reference, paragraph 5W — 5Z is reproduced thus:
5 (w). the Hon. Justice Emeka Nwite sitting at the FHC Abuja Judicial Division gave judgment in favor of the 1st respondent against the 2nd and 3rd respondents respectively on the 28th of April, 2022. The said judgment delivered by the Hon Emeka Nwite sitting at the Federal High Court Abuja Judicial Division on the 28th of April 2022 is hereby attached as exhibit EB4.
5 (X) the applicant was not made a party to the proceedings leading to the judgment and was not aware of the suit.
5 (Y) the applicant has a constitutional right of appeal as given by Section 243 (a) and (b) of the 1999 Constitution as amended of the Federal Republic of Nigeria.
5 (Z) that the grounds of appeal as contained in the applicant’s proposed notice of appeal are substantial and arguable.
Now Section 243 (1) (a) of the CFRN 1999 as amended stipulates 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 the party thereto, or with the leave of the Federal High Court or the Court of Appeal at the instance of any other person having an interest in the matter.
From the above provision of the law, the Constitution has created two classes of persons who can exercise the right of appeal against the decision of the Federal High Court or a High Court as follows:-
i. A party to the action; and
ii. Any other person having an interest in the matter.
It is vivid therefore, that the present applicant, not being a party to the hearing before the lower Court, necessitated the instant applicant seeking for leave to appeal as an interested party. It is a condition precedent. The term leave denotes permission.
It is trite that the consideration of the application for leave to appeal calls for the exercise of discretion. See Lumegbon vs. Kareem (2002) FWLR (pt. 107) 1145 at 1151. It was the holding of the case just cited that:
“Whenever leave of the Court is a condition precedent for a right, the discretion of the Court is implied. Hence in an application for leave to appeal, the appellate Court is duty bound to look at the application of the person having interest in the matter in order to confirm whether the appeal sought to be filed is frivolous or vexatious. It is now trite law that the discretion of the Court must be exercised judiciously and judicially and a Court called to exercise its discretion cannot be fettered by extraneous facts or issues. The Court is to place reliance on the facts presented by the parties and to do justice thereon. See Bello vs. Yakubu (2008) ALL FWLR (pt. 429) 4 at 75.
The Apex Court in United Bank for Africa vs. GMBH & Co (1989) 3 NWLR (pt. 110) 374, through the mouth of Oputa, JSC, held that:
“Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by the law or the equitable decision”.
The learned counsel for the appellant cannot be faulted therefore having submitted that anyone whose presence is crucial and fundamental to the resolution of a matter before the Court, must be made a party to the proceedings, the reason being that he could be bound by the result of the action which cannot be effectively and completely settled unless he is made a party, and the cases of Okelue vs. Medukam (2011) 2 NWLR (pt. 1230) 176, Rinco Construction Co. Ltd vs. Veepee Industries Ltd (2005) 9NWLR (pt. 929) 85, supports such a preposition. The case of Gureje vs. Adedeji & Ors (2018) LPELR-45220 (CA) cited by the applicant is also apt on the point. See also ACN vs. Labour Party (2012) LPELR-8003 (CA) per Akeju, JCA. The applicant by his affidavit filed in support of the application tried to convince the Court that he has that legal interest in the case, which he now seeks for leave to appeal. In particular, the appellant argued that he is seeking leave to appeal the decision because the decision it seeks to appeal was made in its absence.
The 1st, 2nd and 3rd respondents in opposing the application maintains that the applicant has no cognizable legal interest enabling him to seek the leave to appeal as a party interested against the judgment in suit No. FHC/OS/CS/26/2022, between Prince Oyedotun Babafemi and the Peoples Democratic Party and 2 Ors, which judgment was delivered on the 18th of May, 2022? It is trite law that a party seeking to appeal to the Court of appeal from the judgment of the High Court must seek and obtain the leave of this Court. In so doing, he must satisfy the Court that he has an interest in the matter in which he now seeks leave to appeal. This is a precondition, failing which the party is said to labor in vain. See Okonkwo & Anor vs. UBA Plc (2011) LPELR-23010 (SC) per Rhodes-Vivour, JSC. this Court in the case of the Registered Trustees of Acts of Apostolic Church vs. Fatunde & Ors (2015) LPELR-24727 (CA) relying on the expression of Karibi-Whyte JSC in Ikonne vs. COP (1986) 4 NWLR (pt. 36) 473 @ 503, observed that the expression “person having interest” has been defined as being synonymous with the “person aggrieved”. That person must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced and which wrongly deprived him of something or which refused him something or which affected his title to something. It follows therefore as rightly stated in The Registered Trustees of the Church of God Mission Intl. Inc. vs. Pedro Elema & Anor (2018) LPELR-46133 (CA) per Ogunwumiju, JCA as he then was, held that:
“The right can only be exercised by a person who is aggrieved by the judgment and desires to appeal against it”.
The question to be resolved is whether the applicant has shown that he is legally aggrieved by the decision of the lower Court and therefore entitled to the application and prayer sought? In the consideration of the issue posed, it behooves on this Court to in the circumstance fully consider the facts which led to the present application, and in doing so, I find paragraph 5 of the applicant, where strictly examined and in line with the findings of the lower Court as that which agitated the applicant. Thus the Federal High Court sitting in Oshogbo the Osun State capital in suit No FHC/OS/CS/26/2022 brought by the applicant herein against the 1st, 3rd and 4th respondents, had this to say:
“Going by the nature of the claims of the plaintiff and in view of the appellate Courts in the aforementioned cases, there is no gainsaying the fact that the plaintiff is not an aspirant who participated in the primary election conducted by the 1st defendant at the Oshogbo stadium in Osun State on the 8/3/2022 and as such has no locus to lodge complaint against the said primary election… The only complaint contemplated under the section has to do with complaint by an aspirant who contested or took part on the primary election and who is complaining that the provisions of the Electoral Act and guidelines of his political party has not been complied with in the selection or nomination of a candidate of a political party for the election. That is not the case of the Plaintiff in the instant case. He has not mentioned or referred the Court to a single Section of the Electoral Act of the guidelines of the 1st Defendant that have been breached or which was not complied with by the Defendants.
The claims reliefs of the Plaintiff are clearly outside and not within the purview of Section 84 (14) of the Electoral Act, 2022. The Plaintiff admitted in paragraphs 21 and 22 of his affidavit in support of the originating summons that he did not take part or participated in the election held by the 1st Defendant. Instead of taking part in the primary election conducted by his political party and monitored by INEC, (the statutory body empowered to monitor such primary elections), the Plaintiff elected to abandon the primary election conducted by the 1st Defendant and decided to participate in the primary election conducted by group of persons headed by the state acting chairman of the party where delegates allegedly backed by orders and judgment of the State High Court cast their votes.
While relying on the orders and judgment of the Osun State High Court, the Plaintiff abandoned the primary election conducted by the National Executive Committee of the 1st Defendant held at the Osogbo township stadium and opted to take part in the parallel primary election held at WOCDIF Osogbo Centre organized and superintended by state acting chairman of the party and the delegates elected under the former state Executives led by Hon. Adagunodo. Refer to paragraphs 21 and 22 of the affidavit in support of the originating summons.
The Plaintiff is relying on the primary election conducted by the group led by the state acting chairman of the party supported by the delegates elected under the leadership of the former state executives of the party to found reliefs 2, 5 and 9 in the originating summons.
I am of the view that primary election conducted by the state acting chairman of the party and delegates elected under the state executives of the party under the leadership of the former state chairman at WOCDIF Centre, Osogbo is not recognized under the Electoral Act.
The said primary election which form the basis upon which the Plaintiff wants the Court to declare him as the duly elected governorship candidate of the 1st Defendant for the governorship election slated for July, 2022 was held in violation of the provisions of Section 82 (1) and (5) and 84 (1) of the Electoral Act 2022.
The primary election held at WOCDIF Centre, Osogbo fail to meet the mandatory provisions or stipulations in Section 82 (1) & (5) and 84 (1) of the Act which make it mandatory that statutory notice shall be given to the election for the purpose of nomination of candidates for any elective offices specified under the Act.
Section 82 (5) of the Act makes it mandatory and failure to notify the commission as stipulated under Section 82 (1) of the Act renders such congress or primary election invalid. Section 84(10) of the Act makes it mandatory requirement that such primary election shall be monitored by the commission…
As a corollary to the above, holding or conducting primary election by the state executive committee of a political party has been held to be illegal as Section 84 (5) of the Electoral Act, 2022 which is impari materia with Section 87 (4) of the Electoral Act, 2010 has been construed to donate such powers to the National working Committee/National Executive Committee of a political party as the only body that can conduct such elections.”
The plaintiff confirmed and attested to this in his letter/petition of 10/3/2022 (exhibit POBIO) written to the National Chairman of the 1st Defendant, that the primary election held at WOCDIF Centre which produced him as candidate on 8/3/2022 was conducted by a team or group of persons led by the state acting chairman of the PDP in Osun State, who chaired the Congress, and that being the case, the facts distilled by the lower Court which I reproduced extensively remain indisputable, and the finding that applicant herein was indeed not an aspirant in the election in question unassailable. This alone knocks down the foundation of the applicant’s application since it cannot be said to possess any legal interest upon which this Court could exercise its discretion in granting the application sought. It is common ground as set out in the cases of Ibulubo vs. Tomoniaro (2017) 6 NWLR (pt. 1562) 426 at 438, and Ogembe vs. Usman & Ors (2011) LPELR-8855 (SC), the principles which an applicant seeking leave to appeal as an interested person must establish, principally he must establish that he is a person interested and the contention therefore that applicant is seeking the leave to appeal because the decision it seeks to appeal against was made in his absence, has no support from the records since it is evident from the record that he was in that suit before the Federal High Court Oshogbo, the plaintiff. Further on that it is apparent from the processes filed by the applicant that he was not and did not participate in the Governorship election held on the 8th of March, 2022 at the Osogbo Township Stadium duly monitored by the 4th respondent, and by that singular act, not a participant in the election and by the clear wordings of apt. Section 84 (14), which is similar to Section 87 (9) of the Electoral Act 2010, interpreted in the cases of Shuaibu vs. Ladan (2021) ALL FWLR (pt. 1104) 477 at 512, APC vs. HON. Danladi Karfi & 2 Ors (2018) ALL FWLR (pt. 942) 328 at 369, supportive of the argument by the respondents that applicant cannot be accommodated being that he lacks the locus to complain. That too was the rightful conclusion by the lower Court having asserted that:
“In the instant case, the plaintiff himself admitted that he did not participate or take part in the primary election conducted by the National Executive Committee of the 1st defendant monitored by the 2nd defendant at the Oshogbo Township stadium, Osun State on the 8th of March, 2022. The plaintiff did not allege that any provisions of the Electoral Act and the Constitution or guidelines of the 1st defendant was breached or not complied with. It is therefore established beyond doubt that the plaintiff’s originating summons do not disclose any reasonable cause of action and the plaintiff lacks the requisite locus standi to institute and maintain this suit”.
I agree with the lower Court absolutely.
Now for the purpose of argument, supposing applicant were to be granted leave to appeal as an interested party, the cause of action having been anchored on the conduct of primary elections for the selection of the governorship candidate of the 3rd respondent which event took place on the 8th day of March, 2022; and juxtaposing that position with the constitutional provision of Section 285 (14) of the Constitution of the Federal Republic of Nigeria 1999, qualifying the suit as a pre election matter not be defeated by Section 285 (9) of the same Constitution, the exercise having been undertaken on the 8th of March 2022?. That being the case, the resolution of the present application would where granted amount to a phyric victory without any utilitarian value. This Court, and all other Courts are enjoined not to undertake.
The 2nd respondent urged the Court to hold that this application is an abuse of the Court process, in that while the case in suit No. FHC/CS/OS/26/2022, before the Federal High Court Oshogbo, which decision was rendered on the 18th of May, 2022, applicant lodged the present application before this Court on the 6th of May, 2022. What this means is that as at the time the application was lodged before this Court seeking to appeal the decision of Hon. Justice Nwite delivered on the 28th of April 2022, seeking for reliefs enumerated in paragraph 7 of the grounds upon which the application is founded, also enumerated at paragraph J of the affidavit in support, the decision of the FHC Oshogbo in suit with No. FHC/CS/OS/26/2022 delivered on the 18th day of May, 2022 was still pending on the same issues and by the same parties. In other words, the suit before the FHC Osogbo as aforementioned, and that filed before the Federal High Court Abuja in suit with No. FHC/ABJ/CS/322/2022 which judgment was delivered on the 28th of April, 2022 were all contending on the same issues and by the same parties in two different Courts of coordinate jurisdiction. In such a circumstance, the case of Allanah & Ors vs. Kpolokwu & Ors (2016) 6 NWLR (pt. 1507) 1, where Sanusi JSC, expressing the view of the Apex Court, held that:
“The common feature of abuse of process of Court centers on improper use of judicial process by a party in litigation aimed or targeted on interference with due administration of justice. To my mind, some of the features of abuse of Court process include the under mentioned features, even though they are in no means exhaustive.
These features are:
i. Filing of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous actions on the same matter between the same parties even where there is in existence a right to commence the action.
ii. Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
iii. Where two or more similar processes are used in respect of the exercise of the same right, for instance across appeal and a respondent’s notice
iv. Where two actions are instituted in Court the second one asking for relief which may however be obtained in the first, the second action is prima facie vexatious and an abuse of the Court process. See Okorocha vs. PDP (2014) 7 NWLR (pt. 4406) 213, Saraki vs. Kotoye (1992) 9 NWLR (pt. 204) 156, Ogoejeofo vs. Ogoejeofo (2006) 3 NWLR (pt. 996) 206″.
A solemn appraisal of the totality of the cases cited as having been filed no doubt has all the characteristics identified in the case cited, as constituting an abuse of the process of Court. I agree with the learned counsel for the 2nd respondent that applicant’s action in instituting multiple actions with the same coloration between the same parties all aimed at the same result is an abuse of the process of Court for which no Court should condone. This too is fatal to the applicant’s application.
Lastly is the 1st respondent’s contention that applicants by their application failed to comply with the stipulations of Order 6 Rule 2 and 7 of the rules governing this Court, and thereby incompetent sustainable.
For emphasis, Section 243 (1) of the Constitution of the Federal Republic of Nigeria 1999, is to the effect that:
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, National Industrial Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
b. Exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
Order 6 Rule 4 of the Court of Appeal Rules 2021 on the other hand, provides that:
Wherever under this rule, an application may be made either to the lower Court or to the Court, it shall not be made in the 1st instance to the Court, except where there are special circumstances which make it impossible or impracticable to apply to the lower Court.
Where the constitutional provision taken along with the provision of Order 6 Rule 4 and 7 of the Court of Appeal Rules 2021 are given their plain and natural interpretation, it would seem clear to me that the word used in the constitutional section gives an applicant the leeway in approaching either the High Court concerned or even this Court, but that choice of Court, by the use of the phrase “Exercised in accordance with any Act of the National Assembly and rules of Court” is subjected to any act of the National Assembly and the rules of Court, and in our peculiar situation Order 6 Rules 4 and 7 thereof. It is clear from the record that applicant did not file the instant application before the lower Court as envisaged by the rules of the Court, and that obviously makes the present application incompetent. I might have said that rules of Court though designed to be obeyed, but should not gag the Court in the pursuit of justice, however the aggregate of having found that the application is an abuse, and more so that applicant not being a party interested in the matter lacks the requisite locus of instituting the application and I so hold.
Undoubtedly, the action before the lower Court pertains to an inter party dispute. It seeks to question whether the applicant’s faction is the rightful faction of the 3rd respondent, and that having been determined that applicant’s faction is indeed not the rightful faction, applicant cannot be said to be a party interested in the election or nomination which he seeks to question.
The net result is that from all the deductions which I have made, to the effect that applicant is not an interested party within the legal meaning of the word, the application cannot be granted, being that the application is devoid of merit and it is hereby dismissed. I make no order as to costs.
STEPHEN JONAH ADAH, J.C.A.: I had the benefit of reading in draft, the ruling just delivered by my learned brother, Hamma Akawu Barka, JCA.
I agree fully with the reasoning and the conclusion of my learned brother. There is truly no merit in this application. I also do dismiss the application.
The principles governing the grant of leave to an applicant to appeal as an interested party is provided for under Section 243 (1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). An interested party is one whose presence in a suit is needed before the real controversy between the contending parties is settled. See the cases of Nigeria Customs Service Board & Anor. v. Innoson Nigeria Ltd & Ors. (2022) LPELR-56659 (SC) and CPC v. Nyako (2011) LPELR-23009. An applicant needs to show that he is a person having interest in the matter and that the order or the judgment of the Court he is seeking leave to appeal against affects his interest adversely. When a Court is confronted with an application of this nature, it must exercise its discretion based on the facts placed before it by the applicant. There are no justifying facts in the instant case to warrant the grant of the application. It is for this and the fuller reasons adduced by my brother in the lead ruling that I hold the application as lacking in merit.
I therefore, dismiss the application and I abide by all the consequential orders made in the lead ruling.
DANLAMI ZAMA SENCHI, J.C.A. : I have had the privilege of reading in draft, the lead judgment of my learned brother, HAMMA AKAWU BARKA (JCA) just delivered, and it substantially captured all the issues I raised during the conference of Justices that heard this application for an Order granting leave to the applicant to appeal against the judgment delivered in suit No. FHC/ABJ/CS/322/2022 by Honourable Justice Emeka Nwite of the Federal High Court, Abuja on the 28th day of April, 2022 as party interested.
I therefore agree with the findings and conclusions reached in the lead judgment that the applicant is not an interested party in Suit No. FHC/ABJ/CS/322/2022 and cannot validly appeal against the decision therein; thus, this application lacks merit and it is accordingly dismissed.
Appearances:
Edmund Z. Biriomani For Appellant(s)
Ola Kunle Lawal with him John E. Opaluwa for the 1st Respondent.
Priscilla Ejeh with him Frances Akoji for the 2nd and 3rd Respondents. For Respondent(s)
