COREN v. REGD TRUSTEES OF LECAN & ORS
(2022)LCN/16302(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Wednesday, January 26, 2022
CA/B/325M/2016(R)
Before Our Lordships:
OyebisiFolayemiOmoleyeJustice of the Court of Appeal
Biobele Abraham GeorgewillJustice of the Court of Appeal
Frederick Oziakpono OhoJustice of the Court of Appeal
Between
COUNCIL FOR THE REGULATION OF ENGINEERING IN NIGERIA (COREN)APPELANT(S)
And
1. REGISTERED TRUSTEES OF LICENSED ELECTRICAL CONTRACTORS’ ASSOCIATION OF NIGERIA 2. MR. P.I. ASOATA 3. MR. ARUNA SHAKA 4. MR. CHRISTOPHER U. OKODEDE 5. MR. GODWIN ORIABURE – 1ST SET OF RESPONDENTS AND 1. ESAN NORTH EAST LOCAL GOVERNMENT COUNCIL UROMI 2. HARRY GUOBADIA 3. ALBERTO AYEWOH – 2ND SET OF RESPONDENTSRESPONDENT(S)
RATIO:
THE CONSIDERATION OF THE PRELIMINARY OBJECTION TOUCHING ON THE COMPETENCE OF AN APPLICANT
In law, the preliminary objection touching on the competence or otherwise of the Applicant’s application must first be considered and resolved one way or the other before, and if need be, the substantive application for leave to appeal as an interested party would be considered and resolved according to law. I shall therefore proceed anon to a consideration of the preliminary objection. BIOBELE ABRAHAM GEORGEWILL, J.C.A.
AN APPLICANT SEEKING APPEAL AGAINST THE JUDGMENT OF THE COURT HAS NO RIGHT OF ELECTION TO CHOOSE BETWEEN COURTS
Thus, it would appear settled in law that an Applicant seeking leave to appeal against the judgment of the Court below as an interested party has no right of election as to which of the two Courts, the Court below or this Court he could first file his application for leave to appeal asan interested party. However, it is also true that an application for leave to appeal against the judgment of the Court below as an interested party can be made directly to this Court if special circumstances are shown to exist making it impossible or impracticable to have made the application first to the Court below. Such circumstances are not limited to but include where the time to appeal as allowed by law has lapsed and the Court below no longer has the requisite jurisdiction to grant such leave. See Order 6 Rule 4 of the Court of Appeal Rules 2016. See also Bi – Courtney Ltd V A.G. Federation (2019) 4 MJSC (Pt. 1) 118 at p. 142. See also Owena Bank (Nig) Plc V NSE Ltd (1997) 8 NWLR (Pt. 515) 1 at p. 19. BIOBELE ABRAHAM GEORGEWILL, J.C.A.
THE REQUISITE JURISDICTION TO GRANT A LEAVE SOUGHT BY AN APPLICANT
It is the law once the three months period prescribed by law for the filing of an appeal had lapsed, the Court below would no longer have the requisite jurisdiction to grant any such leave as being sought by the Applicant to appeal against its judgment as an interested party. In other words, even though there is no time/period prescribed within which a person can apply for leave to appeal against thejudgment of the Court below as an interested party, yet such a party is obliged to do so if he intends to seek the leave of the Court below within the three months period prescribed for the filing of an appeal. Thus, once the three months period had lapsed, an Applicant can no longer make such an application for leave to appeal as an interested party to the Court below, but can only do so to this Court. See Order 6 Rule 4 of the Court of Appeal Rules 2016. See also Bi – Courtney Ltd V A.G. Federation (2019) 4 MJSC (Pt. 1) 118 at p. 142. See also Owena Bank (Nig)Plc V NSE Ltd (1997) 8 NWLR (Pt. 515) 1 at p. 19. BIOBELE ABRAHAM GEORGEWILL, J.C.A.
SEEKING LEAVE TO APPEAL AS AN INTERESTED PARTY AND TRINITY PRAYERS SEEKING AN EXTENSION OF TIME TO APPEAL
In law, an Applicant seeking leave to appeal as an interested party must first seek leave to appeal as an interested party and though there is no time limit within which such an application may be brought Applicant but where the time to appeal against the judgment had lapsed then in addition to the leave to appeal as an interested party, he mustalso by way of the trinity prayers seek an extension of time to appeal since the application to seek leave to appeal as an interested party cannot be subsumed in the trinity prayers as would a party to the proceeding seeking leave to appeal against the judgment. It must be a separate relief. See Chukwu V. INEC (2014) 10 NWLR (Pt. 1415) 385 at pp. 414 – 415. See also In Re Madaki (1996) 7 NWLR (Pt. 459) 153; Owena Bank Nig Plc. V. NSE Ltd (1997) 8 NWLR (Pt. 515) 1; Poroye V. Makarfi (2018) 1 NWLR (Pt. 1599) 91; Williams V. Mokwe (2005) 14 NWLR (Pt. 945) 249. BIOBELE ABRAHAM GEORGEWILL, J.C.A.
RAISING ISSUES SUO MOTO AND THE MISCARRIAGE OF JUSTICE
My Lords, it is true that in law, a Court of law, though having the plenitude of powers to raise issues suo – motu, must call on the parties to address it on any issue raised suo – motu by it before reaching any decision on such an issue raised suo – motu. Thus, failure by a Court to do so would result in not only a miscarriage of justice but also a breach of the right of the parties to fair hearing, with the devastating consequences of rendering any such decision a nullity, liable to be set aside if appealed against by the aggrieved party and decided authorities on this principle of law is legion! See Adebayo Segun Oni V. John Kayode Fayemi &Ors (2019) LPELR – 49299 (SC). See also Araka V. Ejeagwu (2000) 15 NWLR (Pt.692) 684;Olatunji V. Adisa (1995) 2 NWLR (Pt.376)167; Maiyaki V. Mandoya (1988) 3 NWLR (Pt. 81) 226,Leaders of Company Ltd & Anor Vs Maj. Gen Bamaiyi (2010) LPELR – 1771(SC); Sunday Oberumor Adeda V. Madam Idonor (2013) LPELR – 21987 (CA) at pp. 27 – 30 per Saulawa JCA, (as he then was but now JSC);Cole V. Mattins (1968) 1 NLR 100 at pp. 162 – 163. BIOBELE ABRAHAM GEORGEWILL, J.C.A.
IN LAW IT IS NOT IN ALL AND EVERY CIRUMSTANCE THAT A COURT OF LAW CANNOT RAISE AND DETERMINE AN ISSUE SUO MOTO
However, it is pertinent to state it here and now that in law it is not in all and every circumstance that a Court of law cannot raise and determine an issue suo – motu without calling on the parties to address it on such an issue raised suo – motu. Thus, instances abound where issues touching on or strictly relating to issues of jurisdiction can be raised issue suo – motu and be determined by the Court without necessarily calling on the parties to address it upon such an issue of jurisdiction raised suo – motu. See Adebayo Segun Oni V. John Kayode Fayemi & Ors (2019) LPELR – 49299 (SC), per Amiru Sanusi JSC. See also Effiom V. Cross River State Independent Electoral Commission (2010) LPELR – 1072 (SC) per Tabai JSC; Tukur V. Government of Gongola State (1989) 4 NWLR (Pt.117) 517. BIOBELE ABRAHAM GEORGEWILL, J.C.A.
A COURT SHOULD NOT MAKE UNSOLICITED ORDERS NOT SOUGHT BY THE PARTIES
Thus, in the absence of any extant prayer for extension of time this Court would lack the power to suomotu extend time within which the Applicant can appeal against the judgment of the Court below delivered as far back as 18/3/2014. I think not! In Nwaogu V. Atuma & Ors (2013) LPELR – 20667 at pp. 22 – 23, the Supreme Court had per Fabiyi JSC, stated inter alia thus:
“A Court should not make unsolicited orders or grant prayers not sought by theparties. This is because the Court is not a charitable organization.”
See also Ekpeyong V. Nyong (1975) 2 SC 65 at Pp. 73 – 74; Egonu V. Egonu (1978) 11-12 SC 133; Edebiri V. Edebiri (1997) 4 NWLR (Pt. 498) 165; Eagle Super Pack (Nigeria) Ltd V. ACB Plc (2006) 19 NWLR (Pt. 1013) 20.
Indeed, a Court of law being not a Santa Claus or a Charitable Institution cannot and in law lacks the jurisdiction to grant or award a party what he had not claimed, and any such unsolicited grant or award would be incompetent. See also Ekpeyong V. Nyong (1975) 2 SC 65 at pp. 73 – 74; Adikawo V. Ansaido Nig Ltd (1991) 2 NWLR (Pt. 173) 359 at p. 372. BIOBELE ABRAHAM GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgement): By an application filed on 8/8/2016 and brought pursuant to Section 243(1)(a) of the Constitution of Nigeria 1999 (as amended), and Order 7 Rule 2 and Order 10(1) of the Court of Appeal Rules 2011, the Applicant is praying for the following reliefs, namely:
1. Leave of this Court to appeal against the judgment of the High Court of Edo State, Uromi Judicial Division, Coram; M. O. Ighodalo J., in Suit No. HCU/1/2012: Registered Trustees of Licensed Electrical Contractors Association of Nigeria & 4 Ors V. Esan North East Local Government Council Uromi& 2 Ors, delivered on 18/3/2014 as an interested party.
2. An order of extension of time within which to seek leave to appeal against the judgment of the M. O. Ighodalo J., of Uromi High Court delivered on the 18/3/2014 in Suit No. HCU/1/2012: Registered Trustees of Licensed Electrical Contractors Association of Nigeria & 4 Ors V. Esan North East Local Government Council Uromi& 2 Ors
3. An order for leave to appeal as an interested party against the judgment of M. O. Ighodalo J., of Uromi High Court delivered on18/3/2014 in Suit No. HCU/1/2012: Registered Trustees of Licensed Electrical Contractors Association of Nigeria & 4 Ors V. Esan North East Local Government Council Uromi& 2 Ors
4. An order for extension of time to file Notice of Appeal against the judgment of M. O. Ighodalo J., of Uromi High Court Delivered on 18/3/2014 in Suit No. HCU/1/2012: Registered Trustees of Licensed Electrical Contractors Association of Nigeria & 4 Ors V. Esan North East Local Government Council Uromi& 2 Ors.
5. An order for leave to call further documentary evidence
6. And for such other orders as this Court may deem fit to make in the circumstance of this case.
The Applicant is relying on the following grounds for the application, namely:
1. That the Applicant was not made a party to this action and was not aware of the existence of this matter until after the judgment at the lower Court.
2. That the judgment of the Court below delivered on 18/3/2014 affected the interest of the Applicant in that it has weakened and/or eroded the power of the Applicant to regulate and control the practice of Engineering in all ramifications inNigeria as enshrined in COREN ACT E11 2004 Law of the Federation of Nigeria.
3. That the applicant has a legal grievance in that the 1st set of Respondents and their members nationwide had been harassing registered members of the applicant in course of carrying out their professional works in pretext of enforcing the said judgment.
4. That the applicant only became aware of the judgment of the lower Court after the time allowed by the Court rules to file an appeal has elapsed.
5. That the leave of this Court is therefore required before the applicant can appeal against the judgment as an interested party.
The parties filed and exchanged their affidavit, counter-affidavit and further affidavit and on the directive of this Court filed and exchanged their written addresses. The 1st set of Respondents’ counter-affidavit filed on 31/10/2016. The Applicant’s Further Affidavit in support of the Motion was filed on 21/10/2021. The Applicant’s written address was filed on 21/10/2021. The 1st set of Respondents’ written address was filed on 11/11/2021. The 1st set of Respondents filed a preliminary objection on11/11/2021. The Applicant’s counter-affidavit to the 1st set of Respondents’ Preliminary objection was filed on 26/11/2021. However, on 29/11/2021, learned counsel for the Applicant withdrew prayers 2, 3 and 4 and in the absence of any objection from the learned counsel for the 1st set of Respondents, they were accordingly struck out. Thus, leaving effectively in substance only prayers 1 and 5 for determinationin this ruling.
At the hearing of the application on 29/11/2021, Michael Okogbue Esq., learned counsel for the 1st set of Respondents adopted the Respondents’ written address as their argument in support of their preliminary objection and urged the Court to uphold the preliminary objection and strike out the Applicants’ application for leave to appeal as interested parties. On his part, I. Idahosa Esq., holding the brief of Joseph Oche Esq., learned counsel for the Applicant adopted the Applicant’s written address as his arguments in support of the opposition to the 1st set of Respondents’ Notice of Preliminary Objection and urged the Court to overrule and dismiss the preliminary objection. Learned counsel forthe Applicant then adopted the written address in support of the application for leave to appeal as interested party and urged the Court to grant the application to enable the Applicant appeal against the judgment of the Court below in Suit No. HCU/1/2012: Registered Trustees of Licensed Electrical Contractors Association of Nigeria & 4 Ors V. Esan North East Local Government Council Uromi& 2 Ors., as an interested party. In response, learned counsel for the 1st set of Respondents adopted their written address in support of their counter-affidavit as their arguments in opposition to the Applicants’ application for leave to appeal as interested parties and urged the Court to dismiss the application. On his part, M. Ailokpede Esq., learned counsel for the 2nd Set of Respondents did not file any written and address and informed the Court that they have no objection to the application being granted.
BRIEF STATEMENT OF FACTS
The case of the Applicant as can be gleaned from the depositions in the Affidavit in support and further affidavit is that the 2nd of the 2nd set of Respondents informed the Applicant on 10/1/2015 that there was ajudgment in Suit No. HCU/1/2012 between the 1st set of Respondents as Claimants and the 2nd set of Respondents as Defendants delivered on 18/3/2014 by the Court below vide Exhibit A. Upon going through Exhibit A the said judgment of the Court below it was discovered that there were decisions reached therein infringing on the power of the Applicant to regulate and control the practice of Engineering in Nigeria as enshrined in COREN Act 2004, in that the Court below had given powers to the 1st set of Respondents to the detriment of the powers of the Applicant to ensure that only persons, whether member of COREN or not, who obtained license from PHCN and is also a member of the 1st set of Respondents that can carry out electrical engineering works in Nigeria, contrary to the provisions and tenor of the COREN Act 2004.
However, one Engr. Ignatius Odion, a member of the Applicant with COREN Reg. No. R.26061, the Managing Director of Odion& Sons Enterprise based in Asaba, Delta State, who carries on his business activities primarily within Edo Delta and Anambra States and across Nigeria generally without molestation or harassment, but in 2014,the 1st set of Respondents upon the delivery of the said judgment started harassing and intimidating him and other members of Applicant, who are registered electrical engineers under the guise of enforcing the said judgment. As a result of the said judgment and its enforcement by the 1st set of Respondents, many registered members of the Applicant are on a daily basis harassed and embarrassed by members of the 1st set of Respondents across Nigeria and consequently, many members of the Applicants are no longer willing to pay their practicing fees to the Applicant on the ground that the judgment had taken away their means of practice.
It was also the case of the Applicant that by virtue of the COREN Act CAP Ell 2014, it is the Applicant that is charged with the responsibility for the control and regulation of Engineering practice in its entire ramification in Nigeria but by the said judgment, members of the 1st set of Respondents, who are not registered members of the Applicant and also not registered to practice engineering in Nigeria are now cloaked with disguised legitimacy to usurp the power of control of electrical engineering from theApplicant. Sadly, the Applicant was not aware of the existence of the suit and was also not aware when the said judgment was delivered. Regrettably, it was also not informed on time about the delivery of the said judgment until the time to apply for leave to appeal against it had elapsed, and that proposed grounds of appeal as in Exhibit B disclose arguable and recondite issues of law as would warrant a favorable consideration of the application for leave to appeal against the said judgment as an interested party. See paragraphs 1 – 19 of the Affidavit in support and paragraphs 1 – 4 of the Further Affidavit of the Applicant deposed to by its Deputy Director, one Ify Eke.
The case of the 1st set of Respondents as can be gleaned from the depositions in their counter-affidavit is that looking at the claims in the originating Summons and Affidavit evidence before the Court below leading to the delivery of the said judgment, there is neither any complaint nor grievance made against the interest of the Applicant, which is not an interested party who ought to have been joined to the suit before the Court below. That neither the Applicant nor any of itsregistered members are in any way affected by the judgment of the Court below as in Exhibit A and as a result, the judgment of the Court below does not in any way infringe on the statutory powers of the Applicant to carry out its functions as set out in COREN Act 2014, and more importantly, none of the Defendants in Suit No. HCU/1/2012 adduced evidence of being a registered member of the Applicant as can be seen in the counter-affidavit of the 2nd set of Respondents as in Exhibit M3.
It was also their case that the judgment of the Court below did not touch generally and or specifically on any of the provisions of COREN Act 2014 and no interest of the Applicant was neither in issue nor was determined in the said judgment, and more importantly, there is no provisions in the COREN Act empowering the Applicant to register electrical contractors or any contractors at all. They reiterated that all the parties fully participated and were duly represented by counsel of their own choice before the Court below and it was the fault of the 2nd set of Respondents not to timeously inform the Applicant of the pendency of the proceedings in the Court below. See paragraphs 1 – 11 of the counter-affidavit of BariketuSeghosime Esq., Legal Practitioner in the Chambers of the 1st set of Respondents’ Solicitors, A. A. Imuzai& Co.
ISSUES FOR DETERMINATION IN THE MAIN APPLICATION
In the Applicant’s written address, three issues were formulated as arising for determination in this application, namely:
1. Whether the Applicant can validly bring this Application?
2. Whether the judgment of the lower Court infringed on the statutory powers of the Applicant as contained in its extant law?
3. Whether the 1st set of Respondents has Locus Standi to institute and maintain the action at the lower Court?
In the 1st set of Respondents’ written address, a sole issue was formulated as arising for determination in this application, namely:
Whether the Applicant has satisfied the conditions precedent to an application for leave to appeal as an interested party?
I have taken time to consider the depositions in the affidavit, further affidavit and counter-affidavit of the parties in this application. I have also considered the submissions of learned counsel to the parties in thelight of the findings of facts and decisions reached in the judgment sought to be appealed against by the Applicant as an interested party. Upon an anxious consideration of all the above, I am of the view that the proper issue arising for determination in this application is the sole issue as formulated by the 1st set of Respondents in their written address, a consideration of which, in my view, would invariably involve a consideration of the three issues as formulated by the Applicant in its written address.
But, first there is a preliminary objection raised by the Respondents challenging the competence of the Applicant’s application for leave to appeal against the judgment of the Court below as an interested party. In law, the preliminary objection touching on the competence or otherwise of the Applicant’s application must first be considered and resolved one way or the other before, and if need be, the substantive application for leave to appeal as an interested party would be considered and resolved according to law. I shall therefore proceed anon to a consideration of the preliminary objection.
RULING ON 1ST SET OF RESPONDENTS’ PRELIMINARY OBJECTION
By a Notice of Preliminary Objection brought pursuant to Section 243(1)(a) of the Constitution of Nigeria 1999 (as amended) and Order 7 Rule 4 of the Rules of this Court 2011 and filed on 8/11/2016, the 1st set of Respondents are challenging the competence of the Applicant’s Application for leave to appeal against the judgment of the Court below as interested parties and praying that the Application should be struck out with cost of N500,000.00 against the Applicant in favor of the 1st set of Respondents on the following grounds, namely:
1. By Section 243 (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)application for leave to appeal by a person having an interest in a matter could be made either at the Court below or this Court
2. The Applicant cannot choose or elect whether to make the application first in the Court below or this Court
3. By Order 7 Rule 4 of the Court of Appeal Rules 2011 (now Order 6 Rule 4 of the Court of Appeal Rules 2016) the application for leave to appeal by the Applicant as a person having an interest in the matter ought to have been made in theCourt below, unless there are special circumstances which make it impracticable or impossible to have filed the application in the Court below
4. The Applicant has neither shown nor alluded to any special circumstance which makes it impracticable or impossible to have filed the application in the Court below
5. The Applicant who seeks the discretion of the Court has the duty to place sufficient materials at the disposal of the Court to enable the Court exercise its discretion in its favor
6. There is no record of appeal or Record of Proceedings before the Court
7. The motion is incompetent
8. This Court lacks jurisdiction to hear and determine the instant appeal
9…..
My Lords, the parties filed and exchanged both affidavit and counter affidavit as well as written addresses in the preliminary objection, of which I have taken time to scrutinize and review the depositions of the parties in their affidavit and counter affidavit in the preliminary objection.
ISSUES FOR DETERMINATION IN THE PRELIMINARY OBJECTION
In the 1st set of Respondents’ written address, two issues were formulated as arising fordetermination in the preliminary objection, namely:
1. Whether the application by the party seeking to be let in as a party interested is competent having not been filed in compliance with Order 7 Rule 4 Court of Appeal Rules 2011?
2. Whether this Court can competently discern the interest of the Applicant from the affidavit evidence in the absence of Record of Appeal or Record of Proceedings?
In the Applicant’s written address, a sole issue was formulated as arising for determination in the preliminary objection, namely:
Whether the Applicant can apply to this Court to appeal as an interested party?
1ST SET OF RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 1st set of Respondents had submitted that in law both the Court below and this Court have concurrent jurisdiction to hear and determine applications by a party interested to apply and be granted leave to appeal but contended that such an application must first be made to the Court below and it is not granted as matter of course but granted only on sufficient relevant materials and urged the Court to hold that where an application for leave is made directly to this Court, the Applicant must place before this Court material facts which make it impossible or impracticable to apply first to the Court below would warrant the exercise of the Court’s discretion in his favor and to strike out the application made directly to this Court without any compelling or special circumstances disclosed for being incompetent. Counsel referred to Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Order 6 Rule 4 of the Court of Appeal Rules 2016and relied on See Bi – Courtney Ltd V A.G. Federation (2019) 4 MJSC (Pt. 1) 118 at p. 142. See also Owena Bank (Nig) Plc V NSE Ltd (1997) 8 NWLR (Pt. 515) 1 at p. 19.
On his issue two, learned counsel for the 1st set of Respondents had submitted that the interest sought to be protected by an interested party who desires to appeal with leave of Court must be shown from the printed Record and not merely from the affidavit in support of the application for leave in that in law an appeal is determined from the Record of Appeal and contended that in the instant application there is no record of proceedings of the Court below as required by law and urged the Court to hold that the absence of the Record of Appeal rendered the instant application for leave to appeal as an interested party incompetent and to strike out the application for being incompetent. Counsel relied on Chukwu V. INEC (2014) 10 NWLR (Pt. 1415) 385 at p. 415; Omotosho V Abdullahi (2008) 2 NWLR (PT 1072) 526 at p. 543.
APPLICANT’S COUNSEL SUBMISSIONS
On his sole issue, learned counsel for the Applicant had submitted that the Applicant has effectively complied with the requirements of the provision of the rules of this Court by showing facts constituting special circumstances for making this application directly to this Court and contended that the fact that the judgment sought to be appealed against touches on the statutory powers of the Application and came to the knowledge of the Applicant when the time allowed by law to appeal against the said judgment had lapsed and thereby making it practically impossible for the Applicant to apply firstly, to the Court below constitutes special circumstances and urged the Court hold that these facts constituted special circumstances for the Applicant making this application for leave directly to this Court and to dismiss the preliminary objection for lacking in merit. Counsel referred to paragraph 14 and 15 of the Affidavit in support of the Motion on Notice filed on 8/8/2016, Order 6 Rules 2 and 4 of the Court of Appeal Rules 2016 and relied on 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); Onukagha & Anor V. Okoroafor & Ors (Supra) at pp. 12 – 14.
It was also submitted that the Applicant has by Exhibit B, the proposed Notice of Appeal disclosed a good and substantial ground of appeal showing why the appeal should be heard and contended that it is not the law that an applicant who was not a party but seeking leave to appeal as an interested party should furnish the Court with the record of proceedings in which it was not a party and urged the Court to hold that by Exhibits A and B, the Applicants has furnished all the sufficient materials required and showing sufficient interest in the judgment sought to be appealed against and special circumstances why the application should be granted and to dismiss the preliminary objection for lacking in merit and to proceed to determine the application on the merit. Counsel referred to Section 243(1)(a) of the Constitution of Nigeria 1999 (as amended) and relied on ACN & Ors V. Labour Party &Ors (2012) LPELR – 8003 (CA); Rex V. Ogbuzuru Ugadu &. Anor (1988) 5 NWLR (Pt. 93) 189.AGF V. MAN & Ors (2007) LPELR-3820 (CA).
RESOLUTION OF THE PRELIMINARY OBJECTION
My Lords, by Section 243(1)(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. However, by Order 6 Rule 4 of the Court of Appeal Rules 2016, whenever under these Rules an application may be made either to the Court below or to this Court it shall not be made in the first instance to the Court except where there are special circumstances, which make it impossible or impracticable to apply to the Court below. In Bi – Courtney Ltd V A.G. Federation(2019) 4 MJSC (Pt. 1) 118 at p. 142, the Supreme Court had per Peter Odili JSC, stated inter alia thus:
“The implication of Order 7 Rule 4 of the Court of Appeal Rules 2011 is that an application for leave to appeal as an interested person being an application which may be made either to the trial Court or the Court of Appeal, such an application cannot be validly made in the first instance to the lower Court… So, even though the Courts, the High Court and the Court of Appeal have concurrent jurisdiction in the matter in the sense that both have the jurisdiction to grant leave, the rules made under the authority of the Constitution itself directs that the application shall first be made in the High Court. The provisions are clear. So, any application filed in the Court of Appeal in the first instance is one filed by non – compliance with the Rules.”
Thus, it would appear settled in law that an Applicant seeking leave to appeal against the judgment of the Court below as an interested party has no right of election as to which of the two Courts, the Court below or this Court he could first file his application for leave to appeal asan interested party. However, it is also true that an application for leave to appeal against the judgment of the Court below as an interested party can be made directly to this Court if special circumstances are shown to exist making it impossible or impracticable to have made the application first to the Court below. Such circumstances are not limited to but include where the time to appeal as allowed by law has lapsed and the Court below no longer has the requisite jurisdiction to grant such leave. See Order 6 Rule 4 of the Court of Appeal Rules 2016. See also Bi – Courtney Ltd V A.G. Federation (2019) 4 MJSC (Pt. 1) 118 at p. 142. See also Owena Bank (Nig) Plc V NSE Ltd (1997) 8 NWLR (Pt. 515) 1 at p. 19.
Now, by paragraphs 14 and 15 of the Affidavit of the Applicant and the annexed Exhibit A, the judgment of the Court below, it is clear that as at 8/8/2016 when this application for leave to appeal as an interested party was filed three months period prescribed by law to file appeal against the judgment of the Court below delivered on 18/3/2014 had long lapsed. The parties are ad idem on this crucial point of fact. The only question therefore, in my view, is whether this established fact constitutes special circumstances to warrant the filing of this application for leave to appeal as an interested party directly to this Court? The learned counsel for the 1st set of Respondents had by his preliminary objection answered this question in the negative, whilst the learned counsel for the Applicant has by his reply answered this question in the positive. So, which of these two diametrically opposing and divergent contentions is correct in law?
My Lords, on the established circumstances as above, and on which there is no denial by the 1st set of Respondents that the three months period as prescribed by law for an appeal to be filed against the judgment of the Court below, the law seems fairly settled. It is the law once the three months period prescribed by law for the filing of an appeal had lapsed, the Court below would no longer have the requisite jurisdiction to grant any such leave as being sought by the Applicant to appeal against its judgment as an interested party. In other words, even though there is no time/period prescribed within which a person can apply for leave to appeal against thejudgment of the Court below as an interested party, yet such a party is obliged to do so if he intends to seek the leave of the Court below within the three months period prescribed for the filing of an appeal. Thus, once the three months period had lapsed, an Applicant can no longer make such an application for leave to appeal as an interested party to the Court below, but can only do so to this Court. See Order 6 Rule 4 of the Court of Appeal Rules 2016. See also Bi – Courtney Ltd V A.G. Federation (2019) 4 MJSC (Pt. 1) 118 at p. 142. See also Owena Bank (Nig)Plc V NSE Ltd (1997) 8 NWLR (Pt. 515) 1 at p. 19.
It was also vehemently contended by learned counsel for the 1st set of Respondents that in an application for leave to appeal as an interested party an Applicant must place before the Court the record of proceedings of the Court below from which the interest he seeks to protect can be determined since appeal are heard on the Record of Appeal. It is my view, and I so hold, since an Applicant seeking leave to appeal as an interested party was not a party to the proceedings before the Court, all that the law requires of him is to furnish the Court with sufficient materials by way of the judgment the leave is being sought to appeal against as well as the proposed ground(s) of appeal disclosing substantial issues of law why the appeal should be heard and by his affidavit evidence show how the judgment sought to be appealed against had affected his interest or right or obligation and for which he should be granted leave to appeal as an interested party.
On the above point, I cannot but agree with the apt and unassailable submission of learned counsel for the Applicant that it would be cumbersome and against the grains of the applicable principles of law to require an Applicant who was not a party to the proceedings to place before the Court the record of proceedings before his application for leave to appeal as an interested party can be said to be competent to be heard on the merit. I hold therefore, there is no such obligation on the Applicant to furnish the record of proceedings before his application can be competent to be heard since the issue of whether it is meritorious or not is quite an entirely different thing from its being competent. In the circumstances, I hold that the Applicant’s application filed on 8/8/2016 is competent to be determined on the merit. See Section 243(1)(a) of the Constitution of Nigeria 1999 (as amended). See also ACN & Ors V. Labour Party & Ors (2012) LPELR – 8003 (CA); Rex V. Ogbuzuru Ugadu & Anor (1988) 5 NWLR (Pt. 93) 189.AGF V. MAN &Ors (2007) LPELR – 3820 (CA).
Having held as above therefore, I consider all the submissions made by learned counsel for the parties on the Applicant being required to show ground(s) of appeal disclosing substantial issue of law and showing why the appeal should be heard as all premature and going to no issue in the just determination of the preliminary objection challenging the competence of the application for leave. These are issue to be considered in the main application should it turn out that it is competent to be heard and determined on the merit. Consequently, all such arguments canvassed by the parties within this preliminary objection are hereby discountenanced. In the circumstances therefore, the sole issue for determination in the preliminary objection is hereby resolved against the 1st set of Respondents in favor of the Applicants.
Consequently, the preliminary objection is hereby dismissed for lacking in merit.
SOLE ISSUE
Whether the Applicant has satisfied the conditions precedent to an application for leave to appeal as an interested party?
APPLICANT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Applicant had submitted that the judgment of the Court below sought to be appealed against with leave by the Applicant as an interested party is one which completely oust the statutory power of the Applicant to regulate and control the practice of Engineering in all its aspects and ramifications and granted such powers to the 1st set of Respondents which best can be described as a private entity registered under part C of the Companies and Allied Matters Act and contended that the law gives a party interested in a judgment even if not a party in the proceedings leading to the judgment the inalienable right to seek leave of the Court to appeal against a judgment that affects him and urged the Court to hold that by the depositions in the Affidavit and further affidavit, the Applicant has sufficiently established that aside being an interested party, the judgment of the Court below sought to be appealed against with leave directly affected its statutory powers to regulate the Engineering profession in Nigeria and to grant the application in the interest of justice. Counsel referred to Order 6 Rules 2 of the Court of Appeal Rules 2016 and Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 and relied on ACN & Ors V. Labour Party & Ors (2012) LPELR – 8003 (CA); Rex V. Ogbuzuru Ugadu &. Anor (1988) 5 NWLR (Pt. 93) 189 and AGF V. MAN &Ors (2007) LPELR-3820 (CA).
On his issue two, learned counsel for the Applicants had submitted that by the provisions of the COREN Act, membership of the Applicant includes ‘Engineering Technicians’ deemed as an aspect of engineering practice in Nigeria inclusive of the 1st set of Respondents and contended that the definition of Engineering Practice under the enabling Act does not in any way limit the scope of practice of a fully registered engineer of the Applicant as erroneously held by the Court below that registration with the 1st set of Respondents is sine qua non for the carrying out of electrical works in Nigeria and thereby restricting and interfering with the statutory powers of the Applicant and duties of the members of the Applicant in the judgment sought to be appealed against with leave by the Applicant and urged the Court to hold this decision by the Court below is clearly against the spirit and letters of the provisions of the enabling Act setting up the Applicant in a critical area such as engineering monitoring and regulation, which cannot be left in the hands of private organizations such as the 1st set of Respondents and to grant the application in the interest of justice to enable the Applicant appeal against the judgment of the Court below as an interested party. Counsel referred to Sections 1 and 2(h) of the Engineer (Registration ECT) Amendment Act 2018.
It was also submitted that there are no provisions in the law dealing with issuance and general administration of license regime which confer authority on the 1st set of Respondents to administer or enforce the provisions of the Act which makes reference only to Power Generation, Distribution and Transmission Companies and not the 1st set of Respondents at all as was erroneously held by the Court below in thejudgment now sought to be appealed against by the Applicant as an interested party and contended that the 2nd – 5th of the 1st set of Respondents being members of the 1st Respondent are mere registered contractors with the former NEPA and not licensees as envisaged by the provisions of the EPSR Act 2005 or NESIS Regulation as erroneously held by the Court below in the judgment sought to be appealed against by the Applicant as interested party and urged the Court to hold that the Court below failed to or ignored to consider the powers of the Nigerian Electricity Regulatory Commission which has the statutory power to develop Standards and make Regulations for the Regulations for engineering designs, installations, commissioning and maintenance of electric power systems in Nigerian electricity supply industry and arrived at the erroneous conclusion as to who is a licensee under the Act and to grant the application to enable the Applicant canvass these germane issues in the appeal against the said perverse judgment of the Court below. Counsel referred to Sections 65 – 75 of the Electricity Power Sector Reform Act 2005, Sections 81 and 96 (1) of the Electric Power Sector Reform Act 2005and the Nigerian Electricity Supply and Installation Standard (NESIS) Regulations.
It was further submitted that Registered Engineers with the Applicant under the relevant category are not impeded and/or restrained from carrying out their work by the EPSR Act 2005 and contended that there is no provision in the COREN Act or the EPSR Act that makes membership of the 1st Respondents a sine qua non for carrying out electrical installation in Nigeria as was erroneously held by the Court below in the judgment now sought to be appealed against with leave as an interested party by the Applicant and urged the Court to hold that Registered Engineers of the Applicant are not subject to the control of the 1st set of Respondents, who are not imbued with the power by either the EPSR Act 2005, NESIS and any other regulation or at all to determine what a Registered Engineer is to embark upon in the course of carrying out the practice of engineering in Nigeria as defined by the COREN ACT and to grant the application in the interest of justice.
On his issue three, learned counsel for the Applicants had submitted that locus standi or standing is the legal right of a party to an action to be heard in litigation before a Court of law or Tribunal and contended that in law in an action commenced by Originating Summons, it is the Affidavit in support that the Court would scrutinize to see whether or not the 1st set of Respondents as Claimants had the locus standi to have commenced the action against the 2nd set of Respondents as Defendants before the Court below and urged the Court to hold that from the entire averments of the 1st set of Respondents and by the provisions of all the relevant and enabling laws, the 1st set of Respondents lacked the locus standi to institute and maintain the action against the 2nd set of Respondents and thereby rendered their claims before the Court below incompetent and liable to have been stuck out by the Court below. Counsel relied on Hon. Muyiwa Inakoju & Ors V. Hon. Abraham Adeolu Adeleke & Ors (2007) All FWLR (Pt. 353)1; Global Transport Oceanico SA & Anor V. Free Enterprises Nigerian Ltd (2001) 4 NWLR (Pt. 706) 426 at p. 443; Elendu V. Ekwoaba (1995) 3 NWLR (Pt. 306) 704, Prof. T. M. Yusuf V. Government of Edo State Visitor Edo State University & Ors (2001) NWLR (Pt. 731) 517 at p. 533,Adesanya V. The President (1981) 2 NCLR 358, Adefulu V. Oyesile (1989) NWLR (Pt (122) 377, Bewaji v Obasanjo (2008) 9 NWLR (PT. 1093) 540 Page 596, Amah v Nwankwo (2007) 12 NWLR (Pt. 11049) 522 and UBA Plc V. BTL Ind. Ltd. (2006) 19 NWLR (Pt. 1013) 61.
1ST SET OF RESPONDENTS’ COUNSEL SUBMISSIONS
On his sole issue, learned counsel for the 1st – 5th Respondents had submitted that from the orders made by the Court below in the judgment in Suit No. HCU/l1/2012 at pages 26 – 28 of Exhibit A, reveals that no order was made against the Applicant and that the judgment did not in any way deprived the Applicant of any benefit it was entitled to as to vest the Applicant with the status of an aggrieved person to entitle it to apply for leave to appeal against the said judgment as an interested party and contended that by paragraphs 9 and 10 of the Affidavit in support the grouse of the Applicant is merely that it is losing revenue and its members are being harassed owing to the said judgment and urged the Court to hold that in law a person merely affected by the consequence of a decision does not vest such a person with thestatus of an aggrieved party and to dismiss the application. Counsel referred to Section 233(5) of the Constitution of Nigeria 1999 (as amended) and relied on Mobil Producing (Nig) Unltd. V Monokpo(2003) 18 NWLR (PT 862) 346; Akinbiyi V. Adelabu (1956) SCNLR 109; Omotesho V. Abdullai (2008) 2 NWLR (PT 1072) 526 at 545.
It was also submitted that in law even if any of the functions of the Applicant have been prejudiced, it is one that it shares with other bodies and contended that the powers of the Applicant as contained in the COREN Act were not in any way taken away by the judgment of the Court below and urged the Court to hold that the Applicant failed to show more facts which makes it more affected by the outcome of the judgment, it is seeking to appeal against as an interested party and to dismiss the application for lacking in merit. Counsel relied on Alhaja Afusat Ijelu & Ors V. Lagos State Development and Property Corporation & Ors (1992) 2 NWLR (Pt. 10) 414 at P. 436; Albion Construction Co. Ltd. V. Rao Investment & Property Ltd & Anor. (1992) 1 NWLR (Pt. 219) 582 at P. 593; Mohammed V. Attorney – General Kaduna State and Anor(1981) 1 NLR 117; Akure V. NPN Benue State (1984) 5 NLR 449; Chukwu V. INEC(2014) 10 NWLR (Pt. 1415) 385 at pp. 414 – 415; Bi-Courtney Ltd V. AGF & Anor (2019) 4 MJSC (Pt. 1 )118 at p. 134.
It was further submitted that in law an Applicant seeking leave to appeal as an interested party must show his interest from the record of proceedings before the Court below and not merely in the Affidavit in support since an appeal would be determined from the record and urged the Court to hold that the Applicant having failed to place before this Court the record of proceedings from which its interest can be deciphered has not made out any case why the application should be granted and to dismiss the application for lacking in merit. Counsel relied on Chukwu V INEC (2014) 10 NWLR (Pt. 1415) 385 at P. 415; Omotesho V. Abdullahi (2008) 2 NWLR (PT 1072) 526 at p. 543; ICAN V. Unegbu (2012) 2 NWLR (PT 1284) 216.
It was also submitted that what was involved in the suit before the Court below was the interpretation of Sections 62 (1) a – e, (5), 63, 67 (1), (a), (b), (c), (2), (3), 94 (1) (a), (b), 98(1), (2), and 100 of the Electric Power Sector Reform Act 2005as shown in Exhibit M1 attached to counter-affidavit of the 1st set of Respondents and contended that all the other statutes relied upon by the Applicant deal with unrelated mattes and urged the Court to hold that the Applicant is not a person who ought to or could have been joined to the claims of the 1st set of Respondents before the Court below and therefore, is not a person affected in any way by the judgment of the Court below since the Applicant cannot claim to be aggrieved where the exercise of any of its statutory powers, duties or functions within the parameters of the COREN Act have not been prejudiced to entitle it to a grant of leave to appeal against the said judgment as an interested party and to dismiss the application for lacking in merit. Counsel referred to paragraph 8 (c) of counter-affidavit of the 1st set of Respondents and relied on Bello V A.G. Oyo State(1986) 5 NWLR (Pt. 45) 828; Alhaja Afusat Ijelu & Ors V. Lagos State Development and Property Corporation & Ors (1992) 9 NWLR (Pt. 266) 414 at p. 436; Owena Bank (Nig) Plc. V NSE Ltd (1997) 8 NWLR (Pt. 515) 1 at p. 11.
On the submissions by the learned counsel for the Applicant under his issue three dealing with the alleged lack of locus standi in the 1st set of Respondents to have instituted and maintained the action before the Court below against the 2nd set of Respondents, learned counsel for the 1st set of Respondents had submitted that it was premature for the Applicant which is not a party yet to raise issues of the locus standi of the 1st set of Respondents and urged the Court to discountenance the said premature submissions and focus on the real issue for determination in this application which is whether or not the Applicant has placed sufficient material, which it has failed to do, to enable this Court grant the leave sought and to dismiss the application for lacking in merit. Counsel relied on Chukwu V. INEC (2014) 10 NWLR (Pt. 1415) 385 at P. 438.
RESOLUTION
My Lords, at the Court below, the 1st set of Respondents as the 1st – 5th Claimants had commenced an action by means of an Originating Summons dated 19/1/2011 but filed on 21/1/2011 and supported by a 31 paragraphs affidavit and a 5 paragraph further affidavit deposed to by the 4th Claimant and annexed to which were ExhibitsAA1 – AA9. In response, the 2nd set of Respondents as the 1st – 3rd Defendants filed a 16 paragraphs counter-affidavit deposed by the 2nd Defendant in opposition to the claims of the 1st set of Respondents and annexed to which were Exhibits A1 – AS.
The 1st set of Respondents as Claimants sought the determination of the following questions, namely:
1. Whether by the provisions of the Electric Power Sector Reform Act 2005 particularly Sections 62(1), (a) – (e), (5), 63,67 (1) (a), (b), (c). (2), (3), 94(1) (a), (b), 98 (1), (2) and 100 thereof, the provisions of the Electricity Supply Regulation 1994 particularly Regulations 2, 164 thereof and the provisions of the Guidelines for the Issuance of Wiring Licenses to Electrical Contractors under Section 4 (P) of the Electricity Ordinance Cap 106 particularly paragraphs 2J – 2.9 thereof only a licensee as defined by Act, Regulation and Guidelines aforesaid, can lawfully perform, undertake, do any of the acts reserved for licensees under the Act and Regulations?
2. Whether the Defendants not being licensees under the Act, Regulation and Guidelines aforesaid can undertake electrical installation work and or undertake the wiring and connection of premises whether public or private to Power Holden Company of Nigeria (PHCN) electricity supply lines either by themselves, their employees or contractors who are not themselves licensees under the Act and without the supervision of a person duly licensed for that purpose?
3. Whether the 1st Claimant and its members as licensees under the Act, Regulation and Guidelines aforesaid for the purpose of electrical installation work and the wiring and connection of premises whether public or private to Power Holden Company of Nigeria (PHCN) electricity supply lines have a right to ensure that non-licensees and non-licensees not under the supervision of a licensee do not perform or engage in providing the services reserved for licensees under the Act?
The 1st set of Respondents as Claimants then claimed the following reliefs against the 2nd set of Respondents as Defendants, namely:
1. A declaration that by the provisions of the Electric Power Sector Reform Act 2005 and the Regulations made or deemed to be made pursuant thereto only licensees as defined by Act and Regulations aforesaid can lawfully perform and do any of the acts reserved for licensees under the Act and Regulations.
2. A declaration that the defendants not being licensees under the Act and Regulations aforesaid cannot undertake electrical installation work and or undertake the wiring and connection of premises whether public or private to Power Holden Company of Nigeria (PHCN) electricity supply lines either by themselves, their employees or contractors who are not themselves licensees under the Act and who as non-licensees are not under the supervision of a licensee.
3. A declaration that the plaintiffs and its members as licensees under the Act and Regulations have a right to ensure that non-licensees do not perform or engage in the provision of the services reserved for licensees under the Act
4. An order of perpetual injunction retraining the defendants from carrying out electrical installation work and or the wiring and connection of premises whether public or private to Power Holden Company of Nigeria (PHCN) electricity supply lines either by themselves, their employees or contractors who are not themselves licensees under the Act or without the supervision of a person duly licensed.
The matter between the 1st set of Respondents as Claimants and the 2nd set of Respondents as Defendants proceeded to hearing before the Court below on the issues as joined by them in their affidavit and counter-affidavit and further affidavit evidence. At the conclusion of hearing, the Court below delivered its judgment on 18/3/2014, in which it granted the claims of the 1st set of Respondents against the 2nd Set of Respondents, finding and holding inter alia thus:
“The stand or the argument of the Defendants as to the reason why they need not obtained any other license to be able to undertake the Electrical installation as provided under Section 62(1) of Electric Power Sector Reform Act is that they are qualified and registered members of Council for the regulation of Engineering in Nigeria (COREN) and therefore they can carry on or undertake any electrical installation work as specified under Section 62(1) of the Act… To further demolish the argument of the defendants that being registered COREN members they are exempted from the provision of Section 62(1) of the Electric Power Sector Reform Act… Following this interpretation to conclusion, it therefore follows that it is correct to say that whether a registered member of COREN or not, any person desiring to undertake the installation of electricity whether to public or private premises must endeavor to first obtain the relevant license issued under Exhibit AA10… The plaintiff’s case is also further strengthened to show that any person whether COREN member or not must have to obtain a license and also be a member of the 1st Plaintiff…” See Exhibit A annexed to the Applicant’s Affidavit in support.
However, the 2nd set of Respondents did not appeal against the said judgment but the Applicant, which is the corporate body duly incorporated under the laws of the Federal Republic of Nigeria, to which the 2nd and 3rd of the 2nd set of Respondents belong, is by this application seeking the leave of this Court to appeal against the said judgment of the Court below delivered on 18/3/2014 as an interested party, being not a party on the record before the Court below. I had earlier in this ruling set out in great details the case of the respective parties as revealed in their affidavit, counter-affidavit and further affidavit, and which I have taken time to duly scrutinize and review. In the proposed of Notice of Appeal showing the proposed grounds of appeal, the Applicant seeks leave to appeal against the entire judgment of the Court below on the following grounds, without their particulars, namely:
1. The learned trial judge erred in law when His Lordship held that the plaintiffs and its members as licensees have a right to ensure that non-licensees do not perform or engage in the provision of the services reserved for licensees under the Act.
2. The learned trial Judge erred in law when His Lordship held that any person carrying on electrical installation or any of the acts reserved only for licensee under the Act and Regulations violate the provisions of Section 94 (I) of the Electric Power Sector Reform Act.
3. The learned trial Judge erred in law when His Lordship wrongly assumed jurisdiction and heard the matter when the matter is labor related.
4. The learned trial Judge error in law when His Lordship held that the Plaintiffs’ case is also strengthened to show that any person whether COREN member or not must obtain a license and also be a member of the 1st Plaintiff before carrying out any installation and wiring of a public or private building.
My Lords, from the entire affidavit, counter-affidavit, further affidavit both in the case before the Court below and in this present application as well as the excerpts from the judgment of the Court below as earlier set out, it clearly shows that not only the Applicant ought to have been joined as a party by the 1st set of Respondents as Defendant in the suit before the Court below, but the entire rationale for the judgment of the Court below hinged upon the interest and powers, whether the presence or lack of it, of the Applicants. The 2nd set of Respondents were and ought to have been made mere nominal parties with the Applicant as the main Defendant going by the issues as joined in the suit before the Court below and the evidence led thereon and more importantly the crucial findings touching on the interest and determining the scope and extent of the powers and statutory roles of the Applicant in the said judgment without joining it as a party. Indeed, this is one perfect scenario for the Court below to have suomotu, inthe overriding interest of justice, joined the Applicant, which name and enabling law were all over the case as joined by the parties.
In law, leave to appeal by an interested party under Section 243(1)(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 Chukwu V. INEC (2014) 10 NWLR (Pt. 1415) 385 at pp. 414 – 415. See also Bala V. Dikko (2013) NWLR (Pt. 1343) 52. 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 Order 6 Rules 2 of the Court of Appeal Rules 2016. See also Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
See further ACN & Ors V. Labour Party & Ors (2012) LPELR – 8003 (CA); Rex V. Ogbuzuru Ugadu &. Anor(1988) 5 NWLR (Pt. 93) 189. AGF V. MAN & Ors (2007) LPELR-3820 (CA).
Now, by Section 1 of the Engineer (Registration ECT) Amendment Act 2018, it is provided inter alia thus:
“There shall be establishment on the coming into force of this Act, a body to be known as the Council for the Regulations of Engineering in Nigeria which shall be a body corporate by the name aforesaid and be charged with the general duty of; a…, b…, c…, (d) regulating and controlling the practice of engineering profession in all its aspects and ramifications.”
What then amounts to Engineering Practice under the Act? Under the Section of the COREN Act 2014 dealing with interpretations, ‘Engineering Practice’ is described to include inter alia the following:
“any professional service or creative work requiring the application of special knowledge of mathematics, physics and engineering in form of, consultation, invention, discovery, valuation, research and supervision of construction and installation involving investigating, advising, operating, evaluating, measuring, planning, designing, specifying, laying and directing, constructing, commissioning, inspecting or testing in connection with a public or private utility, structure, building machine, equipment, processes, works or projects…”
The Court had held inter alia that without registering and becoming a member of the 1st set of Respondents a person, such as the 2nd and 3rd of the 2nd Set of Respondents, who are registered members of the Applicant are not entitled to carry out electrical works and or contracts of electrical installation in Nigeria even as members of the Applicant under the EPSR Act 2005 and COREN Act 2014. The Applicant had vehemently contended that these decisions were contrary to the provisions of the enabling laws. The Applicant has also maintained that its members duly registered with it under the COREN Act 2014 as Registered Engineers are not subject to the control of the 1st set of Respondents, who it asserted are not imbued with the power under the EPSR Act 2005, NESIS and or any other regulations to determine the scope of work of an Engineer registered with the Applicant in the course of carrying out the practice of engineering in Nigeria as defined by the COREN Act 2014. In my view, these are very weighty matters of facts and law touching directly on interest, functions and powers of the Applicant as to the scope of practice of Engineering in Nigeria. See Sections 65 – 75 of the Electricity Power Sector Reform Act 2005. See also Sections 81 and 96 (1) of the Electric Power Sector Reform Act 2005. See further the Nigerian Electricity Supply and Installation Standard (NESIS) Regulations.
My Lords, on the Affidavit evidence of the parties, and considering the contents of Exhibits A and B, I hold that the Applicant has sufficiently made out that it is an interested party whose interest have been crucially adversely affected by the judgment sought to be appealed against with leave as an interested party. The Applicant has also disclosed from the proposed four grounds of appeal as in Exhibit B that there are substantial issues as to why the appeal should be heard. In Akinbiyi V. Adelabu (1956) SCNLR 109, the Court recognized that a person entitled to appeal is a person aggrieved by adecision, that is a person against whom a decision has been pronounced which deprived him of some right. However, in law, 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 Demola V. Sodipo (1992)7 NWLR (Pt. 253) 251; Omotesho V. Abdullai (2008) 2 NWLR (PT 1072) 526 at 545.
On the submissions by the learned counsel for the Applicant under his issue three that the 1st set of Respondents lacked the locus standi to have instituted and maintained the action before the Court below against the 2nd set of Respondents, learned counsel for the 1st set of Respondents had submitted that it was premature for the Applicant which is not a party yet to raise issues of the locus standi of the 1st set of Respondents. I cannot but agree with the apt and unassailable submission of learned counsel for the 1st set of Respondents that such a submission, at the stage of this application merely seeking leave to appeal as an interested party, is premature and ought to be discountenanced. I hereby hold that the issue of the locus standi of the 1st set of Respondents is premature and therefore, goes to no issue and is hereby discountenanced in its entirety.
Now, having held as above that the application has merit and ought to be granted, and bearing in mind the state of the law in relation to the period of time within which an appeal can be competently filed against the judgment of the Court below, which period has long lapsed before this application was filed on 8/8/2016, can this Court proceed to grant the Applicants’ application in the absence of the trinity prayers for the relief of leave to appeal out of time and for an extension of time within which to appeal against the judgment of the Court below delivered on 18/3/2014?
In law, an Applicant seeking leave to appeal as an interested party must first seek leave to appeal as an interested party and though there is no time limit within which such an application may be brought Applicant but where the time to appeal against the judgment had lapsed then in addition to the leave to appeal as an interested party, he mustalso by way of the trinity prayers seek an extension of time to appeal since the application to seek leave to appeal as an interested party cannot be subsumed in the trinity prayers as would a party to the proceeding seeking leave to appeal against the judgment. It must be a separate relief. See Chukwu V. INEC (2014) 10 NWLR (Pt. 1415) 385 at pp. 414 – 415. See also In Re Madaki (1996) 7 NWLR (Pt. 459) 153; Owena Bank Nig Plc. V. NSE Ltd (1997) 8 NWLR (Pt. 515) 1; Poroye V. Makarfi (2018) 1 NWLR (Pt. 1599) 91; Williams V. Mokwe (2005) 14 NWLR (Pt. 945) 249.
Thus, ordinarily, I think without the trinity prayers, which incidentally were part of the reliefs on the motion filed on 8/8/2016 but were withdrawn at the hearing by the learned counsel for the Applicant and were thereby struck out, this application is incompetent. However, notwithstanding my thinking as above that the Applicants’ application is not competent, which is an issue not canvassed by the parties and also having not been raised by this Court suomotu for the parties to address us thereon, can this Court strike out or grant the Applicants’ application? I think not!
My Lords, it is true that in law, a Court of law, though having the plenitude of powers to raise issues suo – motu, must call on the parties to address it on any issue raised suo – motu by it before reaching any decision on such an issue raised suo – motu. Thus, failure by a Court to do so would result in not only a miscarriage of justice but also a breach of the right of the parties to fair hearing, with the devastating consequences of rendering any such decision a nullity, liable to be set aside if appealed against by the aggrieved party and decided authorities on this principle of law is legion! See Adebayo Segun Oni V. John Kayode Fayemi & Ors (2019) LPELR – 49299 (SC). See also Araka V. Ejeagwu (2000) 15 NWLR (Pt.692) 684;Olatunji V. Adisa (1995) 2 NWLR (Pt.376)167; Maiyaki V. Mandoya (1988) 3 NWLR (Pt. 81) 226,Leaders of Company Ltd & Anor Vs Maj. Gen Bamaiyi (2010) LPELR – 1771(SC); Sunday Oberumor Adeda V. Madam Idonor (2013) LPELR – 21987 (CA) at pp. 27 – 30 per Saulawa JCA, (as he then was but now JSC);Cole V. Mattins (1968) 1 NLR 100 at pp. 162 – 163.
However, it is pertinent to state it here and now that in law it is not in all and every circumstance that a Court of law cannot raise and determine an issue suo – motu without calling on the parties to address it on such an issue raised suo – motu. Thus, instances abound where issues touching on or strictly relating to issues of jurisdiction can be raised issue suo – motu and be determined by the Court without necessarily calling on the parties to address it upon such an issue of jurisdiction raised suo – motu. See Adebayo Segun Oni V. John Kayode Fayemi & Ors (2019) LPELR – 49299 (SC), per Amiru Sanusi JSC. See also Effiom V. Cross River State Independent Electoral Commission (2010) LPELR – 1072 (SC) per Tabai JSC; Tukur V. Government of Gongola State (1989) 4 NWLR (Pt.117) 517.
Thus, in the absence of any extant prayer for extension of time this Court would lack the power to suomotu extend time within which the Applicant can appeal against the judgment of the Court below delivered as far back as 18/3/2014. I think not! In Nwaogu V. Atuma & Ors (2013) LPELR – 20667 at pp. 22 – 23, the Supreme Court had per Fabiyi JSC, stated inter alia thus:
“A Court should not make unsolicited orders or grant prayers not sought by the parties. This is because the Court is not a charitable organization.”
See also Ekpeyong V. Nyong (1975) 2 SC 65 at Pp. 73 – 74; Egonu V. Egonu (1978) 11-12 SC 133; Edebiri V. Edebiri (1997) 4 NWLR (Pt. 498) 165; Eagle Super Pack (Nigeria) Ltd V. ACB Plc (2006) 19 NWLR (Pt. 1013) 20.
Indeed, a Court of law being not a Santa Claus or a Charitable Institution cannot and in law lacks the jurisdiction to grant or award a party what he had not claimed, and any such unsolicited grant or award would be incompetent. See also Ekpeyong V. Nyong (1975) 2 SC 65 at pp. 73 – 74; Adikawo V. Ansaido Nig Ltd (1991) 2 NWLR (Pt. 173) 359 at p. 372.
In the circumstances therefore, I shall confine myself in this ruling and proceed to grant only the prayer for leave to appeal as claimed against the judgment of the Court below as an interested party, same having in my finding been made out by the Applicant. Consequently, the Application is granted. In the result, it is hereby ordered as follows:
1. Leave be and is hereby granted to the Applicant to appeal against the judgment of the High Court of Edo State, Uromi Judicial Division, Coram M. O. Ighodalo J.,in Suit No. HCU/1/2012: Registered Trustees of Licensed Electrical Contractors Association of Nigeria & 4 Ors V. Esan North East Local Government Council Uromi & 2 Ors, delivered on 18/3/2014 as an interested party.
2. Prayer 5 seeking an order for leave to call further documentary evidence is refused for being premature.
3. There shall be no order as to cost.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading the draft of the leading ruling in this application just delivered by my learned brother, Sir B. A. Georgewill, JCA. I agree with the said leading ruling and abide by all the orders made in it, including that as to no costs.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the ruling just delivered by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA and I am in agreement with the reasoning and conclusions in granting the application as meritorious. I subscribe to the consequential orders made thereto and have nothing else to add to a well written ruling of my learned brother.
Appearances:
I. Idahosa, Esq., holding the brief of Joseph Oche, Esq. For Appellant(s)
Michael Okogbue, Esq. – for 1st set of Respondents
M. Ailokpede, Esq. – for 2nd set of Respondents. For Respondent(s)
