CHIKAODILI & ORS v. IFEANYI & ORS
(2022)LCN/16268(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, July 15, 2022
CA/E/158M/2022(R)
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Between
1. BARR. NOMEH INNOCENT CHIKAODILI 2. HON. MAKWE LIVINUS MAKWE 3. HON. LINUS ABAA OKORIE IN THE MATTER OF AN APPLICATION BY BARR. MOMEH INNOCENT CHIKAODILI, HON, MAKWE LIVINUS MAKWE AND HON. LINUS ABAA OKORIE FOR LEAVE TO APPEAL AGAINST THE JUDGMENT DELIVERED ON 07/06/2022 IN PRE-ELECTION MATTER, SUIT NO: FHC/AI/CS/88/2022 (CHIEF CHUKWUMA ODII VS. PEOPLES DEMOCRATIC PARTY & ANOTHER) AS PARTIES INTERESTED. APPELANT(S)
And
1. CHIEF CHUKWUMA ODII IFEANYI 2. PEOPLES DEMOCRATIC PARTY 3. INDEPENDENT NATIONAL ELECTORAL COMMISION RESPONDENT(S)
RATIO:
COURT HAS UNIMPENDED DISCRETION TO GRANT AN APPLICATION IF THE GROUNDS ARE SUBSTANTIAL
The Applicant asserted that the Court below did not sit since the delivery of the judgment up unto the filing of this application before this Court, as this matter is elections related which are sui generis and time is of the essence. It was urged that this Court has unimpeded discretion to grant this application especially as the proposed grounds are substantial and arguable and Applicant has satisfied the essential requirements by the Court. In support, the cases of GREEN V. GREEN 1987 3 NWLR PT. 61 480, HOLMAN BROTHERS LTD. V. KIGO 1980 8-11 SC 43, N.U.R.T.W. V. R.T.E.A.N. 2012 LPE-R-7840 SC PG. 34 and CITY EXPRESS BANK LTD V. LAGOS STATE GOVT. 2003 43 WRN 96 CA. ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
THE LAW ON LIMITATION OF ACTION IS SIMPLY A RULE OF LAW
The law on limitation of action is simply a rule of law, codified in most jurisdictions into statutes of limitation, which prohibits the commencement of stale claims. In its operation, it extinguishes the right to action but not the cause of action itself, which is rendered bare and unenforceable in a Court of law. The rationale for limitation of time for the commencement of action would seem to be that due to the length of time that must have elapsed, a Defendant, on being confronted with a stale claim, may have lost or due to unavailability of materials evidence or death or unavailability of vital key witnesses, due to no fault of his, necessary for his defense which would have otherwise been available if the claims were commenced timely within the period as allowed under the relevant applicable limitation law. See Ikosi Industries Ltd V. Lagos State Govt. & Ors (2017) LPELR-41867 (CA) per Sir Biobele Abraham Georgewill JCA. BIOBELE ABRAHAM GEORGEWILL, J.C.A.
IMCOMPETENCY OF THE COURT TO EXERCISE ITS ADJUDICATORY POWER WITHOUT JURISDICTION
My lords, the issue of jurisdiction and of competence is very fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it, there can be no validity in any proceedings or resultant judgment or ruling of the Court. It is thus, the law that once an issue of jurisdiction is raised it must be determined first one way or the other by the Court before proceeding, if need be, to determine the substantive claim or appeal. This is so because jurisdiction is radical and sine quo non to adjudication of any matter or action or cause in a Court of law and thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. In such situation, it has been said, and quite admirably too in my view, that the laborers, that is the Litigants and their counsel on the one side and the Court on the other side would have labored in vain. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also; Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284. BIOBELE ABRAHAM GEORGEWILL, J.C.A.
RECOURSE TO THE ENDORSEMENT ON THE WRIT OF SUMMONS
Thus, in determining whether a suit is statute-barred or not, the law is well settled that the Court will have recourse to the endorsement on the writ of summons, where the statement of claim has not been filed, or the statement of claim of the Claimant, where it has been filed, to examine to ascertain when the cause of action arose and compare same with the date the writ was filed to see if it was filed within time or not. Thus, it is only when the date of the accrual of the cause of action is not easily ascertainable from the pleadings of the Claimant that the Court would resort, as a last resort, to the evidence led before it. In other words, the issue whether a claim is statute-barred or not can be determined on the pleadings of the Claimant even without taking evidence of the parties. See Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1. See also Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 at p. 416; Ikosi Industries Ltd V. Lagos State Govt. & Ors (2017) LPELR-41867 (CA); P.N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900;) 649; Akilu V. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122.
JURISDICTION CAN BE RAISED AT ANY STAGE OF THE PROCEEDINGS
I had earlier alluded to the position of the law that the issue of limitation of action has become a jurisdictional issue. It has long been settled in our law that jurisdiction is a fundamental one and thus can be raised at any stage of the proceedings, even on appeal for the first time as in the instant appeal by either of the parties or even by the Court suo motu and once raised it must first be determined one way or the other by the Court before any other issue touching on the merit or otherwise of the respective cases of the parties can be enquired and be determined on the merit by the Court. This is so because in the absence of jurisdiction there can be no competence in the Appellants’ claim to be heard and determined on the merit, since jurisdiction is the life blood of every cause or action and thus where the requisite jurisdiction is found to be lacking, that is indeed the end of the matter. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court per Kayode Eso JSC (God bless his soul) had put it so poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain” BIOBELE ABRAHAM GEORGEWILL, J.C.A.
COMPETENCY IS THE SOUL OF ADJUDICATION
In African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 AT p. 365-366, I had cause to consider deeply the place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had opined inter alia thus:
“My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled.”
I do not think I can improve on the statement of law I made above and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with this Application for leave to appeal as interested parties filed out of the time as prescribed by law is grossly incompetent in law and is thus, liable to be struck out. ” BIOBELE ABRAHAM GEORGEWILL, J.C.A.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgement): By Motion on Notice dated and filed June 21st 2022, brought pursuant to Section 6 (6) (A) and (B), Section 242 (1) and (2) and Section 243(1) (A) and (B) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, Sections 15 and 24 of the Court of Appeal Act, LFN 2004 and Orders 6 Rule 2 and 7 (A), (B) and (C) of the Court of Appeal Rules, 2021, the 1st Applicant herein seeks in the main the following reliefs:
“1. An Order Granting leave to the Applicants/Parties Interested, to appeal against the judgment of the Federal High Court in Suit No. FHC/AI/CS/88/2022 – Chief Chukwuma Odii Ifeanyi Vs. Peoples Democratic Party & Another, delivered on the 7th Day of June, 2022.
2. An Order Granting Leave to the Applicants/Parties Interested, raise and argue a new point of law and to appeal against the judgment of the Federal High Court in Suit No. FHC/AI/CS/88/2022 – Chief Chukwuma Odii Ifeanyi Vs. Peoples Democratic Party & Another, delivered on the 7th Day of June, 2022 on grounds of mixed law and facts.
3. An Order for a stay of Execution of the Judgment of the Federal High Court, Abakaliki Division delivered by Hon. Justice Fatun O. Riman on the 07/06/2022 in suit No. FHC/Al/CS/88/2022 – (Chief Chukwuma Odii Ifeanyi Vs. Peoples Democratic Party & Another), pending the hearing and determination of the Appeal lodged by the Applicants.”
IN THE ALTERNATIVE TO RELIEF 2 ABOVE ONLY
1. “An Order of this Honourable Court that the Leave of this Court when granted in this application shall operate as a stay of execution of the aforesaid judgment of the Court below pending the hearing and determination of the appeal.
2. An Order deeming the Applicant’s Notice of Appeal already filed and served in the time-bound pre-election matter, as duly and properly filed and served, appropriate Court fees having been paid.
IN THE ALTERNATIVE TO RELIEF 5 ABOVE ONLY
3. An ORDER GRANTING LEAVE TO THE APPLICANTS to file and serve the Notice of Appeal against the judgment delivered by Hon. Justice FATUN O. RIMAN on the 07/06/2022 in suit No. FHC/AI/CS/88/2022 (Chief Chukwuma Odii Ifeanyi Vs. Peoples Democratic Party & Another) after obtaining leave to appeal.”
There are Nineteen (19) grounds in support, an affidavit of Forty-four (44) paragraphs together with attached are Exhibits PDP 1a, PDP Membership Card of the 1st Applicant, Exhibit PDP 1, covers Receipts on the Interest Form, Administrative Charges and Nomination Form, Exhibit PDP 1c, Provisional Clearance of the Applicant, Exhibit PDP 2, Provisional Clearance of Hon. Okorie Linus Abaa, Exhibit PDP 3, Newspaper cutting, Exhibit PDP 4, copy of the Originating Summons, Exhibit PDP 5, copy of the said judgment of June 7th 2022, Exhibit PDP 6, copy of the results of State House of Assembly and House of Representatives Primary Election, Exhibit PDP 7, Proposed Notice of Appeal and Exhibit PDP 8, Notice of Appeal.
In compliance with the Rules of this Court, five (5) page written address is attached. There is a Further Affidavit of Twenty (20) paragraphs dated and filed July 6th 2022 and deemed July 7th 2022 in support of the Applicant’s Motion on Notice. Attached together therewith are Exhibit PDP 9, letter in respect of the Ebonyi State Gubernatorial Primary Appeal Panel by the 1st Respondent and the Applicant’s Reply on Points of law to the 1st Respondent’s written address.
In response, the 1st Respondent in opposition filed on June 30th Counter-affidavit of Twenty-four (24) paragraphs of same date and equally in compliance with the Rules of this Court, a written address of five (5) pages dated June 27th 2022 and filed June 30th 2022. It is necessary to mention that the 2nd and 3rd Respondents did not file any process in respect of the instant application. Whilst the 2nd Respondent was represented at the hearing of this application, the 3rd Respondent was not represented even though it was duly put on notice.
RESOLUTION
I have very carefully and calmly read all the processes filed by the 1st Applicant and the 1st Respondent, for and against the application. Having so carefully done, I shall proceed thus in its determination.
This application is as a result of the judgment of the Federal High Court, Abakaliki, in Suit FHC/AI/CS/88/2022 delivered on June 7th 2022 by Hon. Justice F. O. Riman wherein as aforesaid judgment was entered in favour of the 1st Respondent (the Plaintiff at the Court below) as per his Originating Summons. In particular, the Court ordered as follows:
“Accordingly, any purported conduct of primaries when this suit was pending whether on 5/6/2022 or any other keys (sic) when the suit was pending is of no consequence, null and void and is cancelled.”
Consequent upon the foregoing quoted portion of the judgment of the Court below, the 1st Applicant herein claimed that his right, having emerged victorious as the 2nd Respondent’s Candidate for the House of Assembly, Ezza North/West State Constituency, was jeopardized upon the news that by the said judgment of the Federal High Court Abakaliki, the primary election was nullified and his certificate of return was withheld. Further that, the case of the 1st Respondent actually had nothing to do with him or the other successful Candidates in the 2nd Respondent’s primary elections of 04/06/2022. That, they were not joined as parties to the suit, therefore the instant application as Parties Interested with the resolve to appeal the judgment being adversely affected. The Applicant asserted that the Court below did not sit since the delivery of the judgment up unto the filing of this application before this Court, as this matter is elections related which are sui generis and time is of the essence. It was urged that this Court has unimpeded discretion to grant this application especially as the proposed grounds are substantial and arguable and Applicant has satisfied the essential requirements by the Court. In support, the cases of GREEN V. GREEN 1987 3 NWLR PT. 61 480, HOLMAN BROTHERS LTD. V. KIGO 1980 8-11 SC 43, N.U.R.T.W. V. R.T.E.A.N. 2012 LPE-R-7840 SC PG. 34 and CITY EXPRESS BANK LTD V. LAGOS STATE GOVT. 2003 43 WRN 96 CA.
In opposition, the response of the 1st Respondent is that the matter at the Court below pursuant to which the instant application is brought is pre-election. Therefore, it was necessary that the Applicant filed his application fourteen (14) days of the delivery of the said judgment of 7/6/2022. The learned Silk, Kehinde Ogunwunmiju, submitted that the cause of action in the 1st Respondent’s suit had nothing to do with the 1st Applicant and the reliefs sought were in respect of the gubernatorial primaries of the 2nd Respondent of May 29th 2022. That he lacked the locus standi to bring the application and referred to Section 84 (14) of the 2022 Electoral Act. Further that the Notice of Appeal filed prior to obtaining leave was incompetent and in support cited the case of MOHAMMED V. OLAWUNMI 1990 2 NWLR PT. 133 458.
The appeal as argued is statute-barred by virtue of Section 285 (11) of the 1999 Constitution as the stipulated time fourteen (14) days from June 7th 2022, the day of delivery of the judgment was June 20th 2022. Section 285 (11) of the 1999 Constitution as amended states thus:
“An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.”
It was also contended on behalf of the 1st Respondent that, the Applicant was indolent as he failed to file within time. Further that it was as well an abuse of the process of the Court as the cause of action in the judgment had nothing to do with the Applicant.
From the foregoing, the fact is that the matter involved herein is one of pre-election and by that nature is sui generis, has timelines within which steps in its prosecution are to be taken and there can be no luxury to enlarge time particularly to appeal as the case herein. There is no confusion as to the date the judgment at the Court below was delivered, June 7th 2022, equally, the date of filing the Applicant’s Notice of Appeal is quite clear, June 20th 2022. Computing the number of days between June 7th and 21st 2022, the date the judgment was delivered and the date of filing the Notice by the Applicant, one sees clearly fifteen (15) days, which is one day in excess of the fourteen (14) days prescribed in the unambiguous provision of the applicable law, Section 285 (11) of the Constitution. That being the situation here, the application is statute-barred, not competent and in my view and humbly, eminently qualifies to be struck out. Having found that the application is incompetent, on the whole, it is further my humble view that it is of no consequence and amounts to a futile exercise to consider prayers 2 and 3 of the application having found that the application is coming late, outside the statutory prescribed timeline.
In the result, it is hereby, without much ado, struck out as unmeritorious.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance, the draft of the ruling delivered by my learned brother E. O. Williams-Dawodu JCA just delivered.
A careful perusal of the record of appeal reveals to me that, the judgment sought to be appealed against, pertains to the conduct of the Governorship Primary Election of the Peoples Democratic Party (PDP) for Ebonyi State. The said primary election qualifies as a pre-election matter by virtue of Section 285 (14) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The judgment thereon was delivered on the 7th day of June, 2022 while the Applicant’s motion seeking leave to appeal as interested persons was filed on 21/6/2022 outside the 14 days prescribed by Section 285(11) of the 1999 Constitution. It is therefore incompetent, being statute barred.
I wish to note also that the dispute leading to the decision sought to be appealed against was on the Governorship Primary Election for Ebonyi State conducted on 29/5/2022. However, the Applicants did not depose that they participated or were aspirant in the Governorship Primary Election. Their rights were therefore, in no way affected by the judgment they seek to appeal against.
On that note, I agree with my learned brother that this Application is statute-barred. Therefore, this Court has been deprived of the jurisdiction to hear and determine same. It is incompetent and accordingly struck out.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My lord, Elfrieda Oluwayemisi Williams-Dawodu JCA, had availed me a copy of a draft of the lead ruling just delivered and I agree with the reasoning and conclusion reached therein to the effect that the Application for leave to appeal as an interested party was grossly incompetent and therefore, liable to be struck out.
My lords, one of the crucial issue raised against the competence of the Application for leave to appeal as an interested party was that it was filed outside the 14 days period as prescribed by law for the commencement of an appeal by way of Notice of Appeal against a decision of the lower Court in a Pre-Election matter. On 7/6/2022, the lower Court had delivered its judgment in Suit No. FHC/AI/CS/88/2022, in which the Applicants were not parties. However, on 21/6/2022, the Applicants filed a Motion on Notice seeking amongst other reliefs leave of this Court to appeal against the said judgment of the lower Court as interested parties.
In the lead ruling, my lord had set out in great details, the facts and circumstances leading to the commencement of this application for leave to appeal as an interested party and upon thorough consideration of the legal issues arising therefrom, had resolved the crucial issue of competence against the Applicant to the effect that the application filed on 21/6/2022 seeking leave of this Court to appeal against the judgment of the lower Court delivered on 7/6/2022 in a Pre-Election matter was filed one day outside of the prescribed 14 days period as allowed by law and therefore, statute barred and thus, incompetent and liable to be struck out. I agree. See Section 285(11) of the Constitution of Nigeria 1999 (as amended)
My lords, the issue of jurisdiction and of competence is very fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it, there can be no validity in any proceedings or resultant judgment or ruling of the Court. It is thus, the law that once an issue of jurisdiction is raised it must be determined first one way or the other by the Court before proceeding, if need be, to determine the substantive claim or appeal. This is so because jurisdiction is radical and sine quo non to adjudication of any matter or action or cause in a Court of law and thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. In such situation, it has been said, and quite admirably too in my view, that the laborers, that is the Litigants and their counsel on the one side and the Court on the other side would have labored in vain. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also; Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284.
The law on limitation of action is simply a rule of law, codified in most jurisdictions into statutes of limitation, which prohibits the commencement of stale claims. In its operation, it extinguishes the right to action but not the cause of action itself, which is rendered bare and unenforceable in a Court of law. The rationale for limitation of time for the commencement of action would seem to be that due to the length of time that must have elapsed, a Defendant, on being confronted with a stale claim, may have lost or due to unavailability of materials evidence or death or unavailability of vital key witnesses, due to no fault of his, necessary for his defense which would have otherwise been available if the claims were commenced timely within the period as allowed under the relevant applicable limitation law. See Ikosi Industries Ltd V. Lagos State Govt. & Ors (2017) LPELR-41867 (CA) per Sir Biobele Abraham Georgewill JCA.
The issue of limitation of action has evolved over the years into a jurisdictional issue and thus even where it was not duly pleaded by a party, it can be raised by the party so contending or even suo motu by the Court and interestingly it can be determined even on the face of only the writ of summons or counter-claim, as the case may be, before the other party delivers his defense or pleadings.
Thus, in determining whether a suit is statute-barred or not, the law is well settled that the Court will have recourse to the endorsement on the writ of summons, where the statement of claim has not been filed, or the statement of claim of the Claimant, where it has been filed, to examine to ascertain when the cause of action arose and compare same with the date the writ was filed to see if it was filed within time or not. Thus, it is only when the date of the accrual of the cause of action is not easily ascertainable from the pleadings of the Claimant that the Court would resort, as a last resort, to the evidence led before it. In other words, the issue whether a claim is statute-barred or not can be determined on the pleadings of the Claimant even without taking evidence of the parties. See Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1. See also Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 AT p. 416; Ikosi Industries Ltd V. Lagos State Govt. & Ors (2017) LPELR-41867 (CA); P.N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900;) 649; Akilu V. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122.
Now, by Section 285(11) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
“An appeal from a decision in a Pre-Election Matter shall be filed within 14 days from the date of delivery of the judgment appealed against”
By the above provision, it goes with saying that there has been introduced constitutionally the conception and prescription of time limitation, 14 days, in appeals in Pre-Election disputes in Nigeria. In considering and determining whether or not the appeal of an Appellant or Applicant seeking leave to appeal in Pre-Election Matter is statute-barred, the principal document or process to be scrutinized by the Court is the Application and the proposed Notice of Appeal showing the date the judgment appealed against or sought to be appealed against was delivered to see if the time the Notice of Appeal or Application for leave to appeal was filed from the date of the judgment is within or outside the 14 days period as prescribed by law. Thus, if the period is more than 14 days then the appeal or application for leave to appeal is statute-barred and would therefore, be dead on arrival and must perforce be brought to an end.
In the light of all the undisputed facts in this Application for leave to appeal as interested parties, that the judgment sought to be appealed against was delivered on 7/6/2022 but the Application for leave to appeal as interested parties was filed only on 21/6/2022, it is clear, and it has been so stated categorically in the lead ruling, that the Motion of Notice filed by the Applicants seeking the leave of this Court to appeal against the judgment of the lower Court as interested parties was clearly statute barred. It is thus, a closed chapter and that is indeed the end of the matter, notwithstanding the merit or otherwise of the grounds of appeal sought to be raised against the judgment of the lower Court had the appeal been competent. I find that the Application for leave to appeal as interested parties by the Applicants at the time it was filed had suffered a ‘still birth’ and had thus become stale and therefore, in law incapable of any enforcement by an action in a Court of law. See Hon Bamgbose Hontonyon Joseph V. Mr. Babatunde Hunpe & Ors (2019) LPELR-47525 (CA) per Sir Biobele Abraham JCA. see also Ike & Anor V. INEC & Ors (2019) LPELR-48801(CA) per Sir Biobele Georgewill JCA.
I had earlier alluded to the position of the law that the issue of limitation of action has become a jurisdictional issue. It has long been settled in our law that jurisdiction is a fundamental one and thus can be raised at any stage of the proceedings, even on appeal for the first time as in the instant appeal by either of the parties or even by the Court suo motu and once raised it must first be determined one way or the other by the Court before any other issue touching on the merit or otherwise of the respective cases of the parties can be enquired and be determined on the merit by the Court. This is so because in the absence of jurisdiction there can be no competence in the Appellants’ claim to be heard and determined on the merit, since jurisdiction is the life blood of every cause or action and thus where the requisite jurisdiction is found to be lacking, that is indeed the end of the matter. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court per Kayode Eso JSC (God bless his soul) had put it so poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain”
My lords, with the devastating effect of the limitation of action on the application of the Applicant, the issue of the perennial battle for supremacy between ‘substantial justice’ and ‘technical justice’ reared up its head at once to play on the conscience of the Court; should we jettison and discountenance technicality bordering on incompetence of the Appellant’s Application for leave to appeal or should we give effect to the settled principle of law that nothing worth anything can ever come out from an incompetent Application for leave to appeal? In African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 AT p. 365-366, I had cause to consider deeply the place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had opined inter alia thus:
“My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled.”
I do not think I can improve on the statement of law I made above and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with this Application for leave to appeal as interested parties filed out of the time as prescribed by law is grossly incompetent in law and is thus, liable to be struck out.
However, even in the most unlikely event, and assuming but not so deciding, that the Application is competent, the question readily arising for answer is this: Has the Applicant made out any case to warrant the granting of this Application for leave to appeal against the judgment of the lower Court as an interested party as required by law?
Now, by Section 243(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the right of appeal to this Court from decisions of the Court below shall be exercisable in the case of Civil proceedings at the instance of a party thereto, or with the leave of the Court below or this Court at the instance of any other person having an interest in the matter. In law, leave to appeal by an interested party under Section 243 (a) of the Constitution of Nigeria 1999 (as amended) can only be granted at the instance of only a person whose interest had been directly affected and not obliquely affected by a decision can validly seek leave to appeal as an interested party. This would cover a person who has a general interest in the decision to appeal against same. See Bi-Courtney Ltd V A.G. Federation (2019) 4 MJSC (Pt. 1) 118 AT p. 142. See also Council for the Regulation of Engineering in Nigeria V. Registered Trustees of Licensed Electrical Contractors’ Association & Ors (2022) LPELR-56795 (CA) per Sir Biobele Abraham Georgewill JCA; Owena Bank (Nig) Plc V NSE Ltd (1997) 8 NWLR (Pt. 515) I AT p. 19; Chukwu V. INEC (2014) 10 NWLR (Pt. 1415) 385 AT pp. 414-415. See also Bala V. Dikko (2013) NWLR (Pt. 1343) 52.
My lords, the Court recognized that a person entitled to appeal is a person aggrieved by a decision, that is a person against whom a decision has been pronounced which deprived him of some right. However, any other person, not necessarily a party to proceedings, having an interest in the matter of the proceedings may appeal with the leave of Court against the decision but he must disclose in his application for leave that he has a genuine and legally recognizable interest in respect of such a decision. See also Ademola V. Sodipo (1992) 7 NWLR (Pt. 253) 251; Omotesho V. Abdulahi (2008) 2 NWLR (PT 1072) 526 AT 545.
Thus, an Applicant seeking leave to appeal against a judgment as an interested party must deposed to facts showing the existing of the following conditions, which must also be shown co-exits, namely: (i) Good and substantial reasons for the failure to appeal within the period prescribed by law, and (ii) Good and substantial ground(s) of appeal which prima facie show good cause why the appeal should be heard. See Ukwu V. Bunge (1997) 1 NWLR (Pt. 518) 527; Ibodo V. Enarofia & Ors (1980) 5-7 SC 42; Ogembe V. Usman & Ors. (2011) LPELR-8155 (SC).
Now, in application of this nature it is not for the Court to consider and determine issues that would come up if leave is granted to the Applicant and an appeal is subsequently filed against the judgment of the Court below. Thus, the Court is to confine itself only to issues which are relevant in an application of this nature to determine whether or not to grant leave to the Applicant to appeal against the judgment of the Court below as an interested party. It is true that the law gives to a person interested in a judgment- even if he was not a party to the proceedings leading to the judgment, the right to seek leave of the Court to appeal against a judgment that affects but if and only if he can show by sufficient materials placed before him before the Court his interest adversely affected by the judgment and thereby making him an interested party, and further that he has by his proposed ground(s) of appeal disclosed substantial issues why the appeal should be heard. See Section 243 (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also ACN & Ors V. Labour Party & Ors (2012) LPELR-8003 (CA); Council for the Regulation of Engineering in Nigeria V. Registered Trustees of Licensed Electrical Contractors’ Association & Ors (2022) LPELR-56795 (CA) per Sir Biobele Abraham Georgewill JCA; Rex V. Ogbuzuru Ugadu &. Anor (1988) 5 NWLR (Pt. 93) 189.
My lords, on the Affidavit and Counter-Affidavit evidence of the parties, and considering the part of the judgment of the lower Court complained, and considering the fact that the part judgment of the lower Court sought to be appealed cannot be taken out of its context but must be considered holistically with reference to the subject matter of the claims before the lower Court, which relates specifically to the Governorship Primaries of the 2nd Respondent, PDP. Upon the above fact, it is so clear to me, and I so firmly hold, that the Applicants, being neither candidates to the Governorship Ticket nor even aspirants to the office of Governor under the platform of the PDP for whom the Governorship primaries, the subject matter of the claim before the lower Court was conducted, they are not interested parties within the provision of Section 243 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to be clothed with the right to maintain this application for leave to appeal against the said judgment of the lower Court as interested parties, of which they are not! See Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR-45528 (CA) per Sir Biobele Abraham Georgewill JCA. See also Akinbiyi V. Adelabu (1956) SCNLR 109:
It is for the above comments of mine but for the fuller reasons set out in the lead ruling that I too hold that the Application for leave to appeal against the judgment of the lower Court as an interested party lacks competence and is therefore, liable to be struck out. I too hereby strike out the Application and shall abide by the consequential orders made in the lead ruling.
Appearances:
Mr. Nnaemeka Victor Nwonu, For Appellant(s)
Chief Gordy Uche, SAN, with him, Mr. Kehinde Ogunwunmiju, SAN, Mr. O. M. Atoyebi, SAN, with, Ademola Abimbola, Affis Matannu, and Francis Nsiegbunam, – for 1st Respondent
Mr. B. F. Folorunsho, – for 2nd Respondent For Respondent(s)