HON. ABRAHAM ADEOLU ADELEKE (SPEAKER) & ANOR. V. OYO STATE HOUSE OF ASSEMBLY & ORS.
(2006)LCN/1919(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of March, 2006
CA/I/M21/2006
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 85 OF THE EVIDENCE ACT
Mr. Yusuf Ali (SAN), learned senior counsel for the applicant replied that section 85 of the Evidence Act is not applicable to the said affidavit as there is nowhere therein where it says that a person cannot swear to a further affidavit to correct a defect in an affidavit, and that section 84 thereof rectifies any error and still gives the court the authority to utilize it. I have to agree with the learned SAN. Yes, section 85 of the Evidence Act states that “a defective or erroneous affidavit may be amended and re-sworn by leave of the court” but the use of the word “may” therein implies or suggests the inference that amending and re-swearing an affidavit is not the only way to correct an erroneous affidavit. PER AUGIE, J.C.A.
COURT PRACTICE: SITUATIONS WHERE THE COURT WILL HAVE THE POWER TO CORRECT THE ERROR AND ADMIT THE SAID AFFIDAVITS
Again, where the defect is inconsequential such as a typographical error or other trivial matters and the counsel to the deponent has offered a reasonable explanation to the court, the court may correct the error and admit the said affidavit – see Adejumo v. Governor of Lagos State (1970) NSCC (Vol. 6) 134, where Ademola, C.J.N. observed as follows – “In regard to the ruling about Decree 1967, with the utmost respect, the learned Judge appears to us to have so much time at his disposal to deal with such inconsequential matters. Instead of inviting an argument after he had been told that it was a typographical error (since the mistake was not made in other paragraphs of the affidavit) his duty was to have the year 1967 corrected to read 1968 and get on with his business. The duty of counsel and the Judge is to put right non-consequential matters in order to bring a case up to the state of hearing and to proceed with the hearing of the case. PER AUGIE, J.C.A.
JUSTICES:
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
GERTRUDE IFUNANYA UDOM-AZOGU Justice of The Court of Appeal of Nigeria
Between
1. HON. ABRAHAM ADEOLU ADELEKE (Speaker)
2. HON. BARRISTER TITILAYO ADEMOLA DAUDA
(Deputy Speaker) – Appellant(s)
AND
OYO STATE HOUSE OF ASSEMBLY
V.
1. HON. MUYIWA INAKOJU, IBADAN SOUTH EAST
2. HON. FAJIMI SAKIRULAHI ADEKUNLE, IBADAN SOUTH EAST
3. HON. FASOLA EMMANUEL OLUBOWALE IBADAN NORTH EAST
4. HON. SALAWU KEHINDE, IBADAN NORTH EAST
5. HON. AYILARA KAZEEM, IBADAN SOUTH WEST
6. HON. ABIOLA AYORINDE, IBADAN SOUTH WEST
7. HON. AKINRINDE OYEWALE, AKINYELE II
8. HON. JELILI ADELEKE, AKINYELE I
9. HON. ISIAKA ADEOLA, IDO
10. HON. LEKAN GANIYU, OLUYOLE
11. HON. OGUNREMIE MUFUTAU, ONA ARA
12. HON. LAWAL DAUDA ADEMOLA, LAGELU
13. HON. TAIWO OLUYEMI, IBARAPA
14. HON. OLU OYELEYE, OGBOMOSO NORTH
15. HON. AJADI OLATEJU, OGBOMOSO SOUTH
16. HON ESUOLA HAMED BABATUNDE, ATIBA
17. HON. ATILOLA MORUFU OLAWALE, OYO EAST/WEST
18. HON. AKANBI IDOWU, ORIRE – Respondent(s)
AUGIE, J.C.A. (Delivering the Lead Ruling): The applicant Senator Rashidi Adewolu Ladoja has applied to this court for leave to appeal against the ruling of Hon. Justice J. O. ige of the High Court of Oyo State as “an interested party or party having interest in the matter”.
The grounds for the application are as follows –
i. The applicant was elected as the Governor of Oyo State in April, 2003 and he assumed office as such in May 2003 for a 4 year term.
ii. On 13th December, 2005 a faction of 18 members of the 32 member Oyo State House of Assembly advertised a notice of gross misconduct against the applicant.
iii. In furtherance of the above, the Ag. Chief Judge of Oyo State set up a seven man investigation panel which submitted its report on 12th January, 2006 to the 18 members and who in turn purported to impeach the applicant from office.
iv. Fourteen members of the Oyo State House of Assembly were not party to the alleged impeachment of the applicant.
v. The appellants herein as Speaker and Deputy Speaker of the Oyo State House of Assembly filed the action that culminated into this appeal to stop the 18 factional members of the House from carrying through any impeachment process against the applicant.
vi. The trial court struck out the case on 23rd December 2005 on the ground of lack of jurisdiction.
vii. The interest of the applicant is deeply involved in the case.
The application is supported by a 20-paragraph affidavit filed on the 8th of February, 2006, and a further affidavit of 5 paragraphs filed on the 15th of February, 2006. Attached to the main affidavit as exhibit LAD 1 is the applicant’s notice and grounds of appeal dated 7th February, 2006, which he wants this court to also deem as properly filed and served. The two sets of respondents are opposed to the application being granted and to that end filed a number of counter-affidavits. The Oyo State House of Assembly as plaintiff/respondent filed a 14-paragraph counter-affidavit on the 8th of March, 2006 and the 1st – 18th defendants/respondents filed the following.
i. A 7-paragraph counter-affidavit filed on the 10th of February, 2006;
ii. An 8-paragraph counter-affidavit filed on the 13th of February, 2006;
iii. A 5-paragraph counter-affidavit headed further affidavit filed on the 16th of February, 2006, which were all deposed to by one Isiaka Amodu; and
iv. A 19-paragraph “further counter-affidavit” filed on the 8th of March, 2006 and deposed to by one Lukman Akanbi, Esquire.
efore I delve into the merit or otherwise of the application, I will have to resolve some of the preliminary issues arising for determination. First of all, the applicant stated in prayer 1 of the motion paper and paragraph 12 of the supporting affidavit that the ruling in question in this application was delivered by the lower court on the 23rd of December, 2005. However, the plaintiff/respondent averred in paragraph 6(a) of its counter-affidavit that –
“Suit No. 1/1050/05 was not struck out on 23rd December, 2005 as the presiding trial Judge – J. O. Ige of the Oyo State High Court before whom the said suit was then pending did not sit on that date”.
To correct the error in dates, one Yakub Dauda, legal practitioner of Yusuf O. Ali & Co., deposed to the further affidavit wherein he averred as follows –
2. That I know as a fact that I was the deponent to the affidavit in support of motion dated 7th February, 2006.
3. That I know as a fact that it was after the motion had been filed before this court on 8th February, 2006 that a copy of the record was received and upon perusal of the record that I discovered that the ruling we sought to appeal against was delivered on the 28th December, 2005 and not 23rd December, 2005 as wrongly referred to in the motion, notice of appeal and the affidavit in support.
4. That the mistake in the motion and the accompanied documents was a mistake by me, the mistake which I regretted.
At the hearing of the application on the 9th of March, 2006, learned counsel, for the plaintiff/respondent, Aare Abdul-Salam, Esq., submitted that the application is incompetent because the exact date of the ruling is very germane to the application, citing Jang v. INEC (2004) 12 NWLR (Pt. 886) 46, (2004) All FWLR (Pt. 200) 1545 at 1576, and the error in dates cannot be cured by a further affidavit, rather the only way out is as provided by section 85 of the Evidence Act and leave must be obtained before the amendment not after.
Furthermore, that it is the affidavit that will be re-sworn and as leave has not been sought to amend the date that it cannot be done since it was filed in the lower court.
Mr. Yusuf Ali (SAN), learned senior counsel for the applicant replied that section 85 of the Evidence Act is not applicable to the said affidavit as there is nowhere therein where it says that a person cannot swear to a further affidavit to correct a defect in an affidavit, and that section 84 thereof rectifies any error and still gives the court the authority to utilize it.
I have to agree with the learned SAN. Yes, section 85 of the Evidence Act states that “a defective or erroneous affidavit may be amended and re-sworn by leave of the court” but the use of the word “may” therein implies or suggests the inference that amending and re-swearing an affidavit is not the only way to correct an erroneous affidavit. It is well settled that where there is any “deficiency, error, defect, omission or discrepancy in an affidavit”, it is the duty of the deponent to proffer any explanation for the error – see Asere v. Asere (1991) 6 NWLR (Pt. 197) 316. It is also well established that there are three ways in which the deponent can proffer the needed explanation –
i. The oral testimony of the deponent, particularly when an affidavit is in conflict with a counter-affidavit;
ii. The explanation can be offered through the counsel in the course of argument of the motion; and
iii. The third and most effective way is by deposing to and filing a better and further affidavit, which affords counsel the opportunity of bringing in his facts properly, and correcting any perceived error, defect, omission, etc.
Again, where the defect is inconsequential such as a typographical error or other trivial matters and the counsel to the deponent has offered a reasonable explanation to the court, the court may correct the error and admit the said affidavit – see Adejumo v. Governor of Lagos State (1970) NSCC (Vol. 6) 134,where Ademola, C.J.N. observed as follows –
“In regard to the ruling about Decree 1967, with the utmost respect, the learned Judge appears to us to have so much time at his disposal to deal with such inconsequential matters. Instead of inviting an argument after he had been told that it was a typographical error (since the mistake was not made in other paragraphs of the affidavit) his duty was to have the year 1967 corrected to read 1968 and get on with his business.
The duty of counsel and the Judge is to put right non-consequential matters in order to bring a case up to the state of hearing and to proceed with the hearing of the case” (Italics mine)
I speak for my brother Justices too when I say, we don’t want to be accused of wasting our time. It is enough to say that this objection is of no moment. The law allows the applicant to file a further affidavit to correct the error in question, which he did and the amendment is therefore in order and quite acceptable to this court. In any case, the error as to date of ruling is certainly inconsequential because this application was filed in reaction to a pending appeal against the same ruling, and the parties are all aware of it.
Be that as it may, the plaintiff/respondent also raised another storm in a teacup in paragraphs 7 & 8 of its counter-affidavit, wherein it was averred –
(7) I know as a fact that the applicant was in the know of the pendency of the said Suit No. 1/1050/05 but elect to stand by. (sic)
(8) That I also know as a fact that the applicant elected to seek political option and or solution rather than join issues with the parties in suit No. 1/1050/05.
On this issue Mr. Abdul-Salam argued that the applicant was aware of the looming case and did not take any action until it was over; that a party who stayed aloof during the pendency of a suit in the lower court and watched his briefs being fought for him by other parties, cannot because he is dissatisfied with the decision of that court apply to be joined in the appeal, citing Waziri v. A.-G., Fed. (2004) All FWLR CPt.205) 252 at 263. He ended by saying – “the sleeping dog should be allowed to lie; may we not wake him up since he has gone to slumber.” Mr. Yusuf Ali (SAN) replied that less than one week had elapsed from the 23rd of December, 2005 when the action was filed to the 28th of December, 2005 when it was struck out, and the week included the Christmas and Boxing Day Holidays, so the applicant cannot legitimately be accused of standing by. In his words – “Things were moving at such a dizzy speed that to even contemplate what to do was a problem”. My simple answer is that this issue has no bearing on the application, and is of no consequence because the Supreme Court clearly stated In Re: Madaki (1996) 7 NWLR (Pt. 459) 153 that an application for leave to appeal as an interested party has no time limit. Uwais, CJN observed as follows at 164 –
“Neither the Constitution nor the Court of Appeal Act or the Court of Appeal Rules prescribe any period within which an interested party may bring application for leave to appeal “as a person having an interest in the matter”. (Italics mine)
See also Ojora v. Agip (Nig.) Plc. (2005) 4 NWLR (Pt 916) 515 where this court relying on Re: Madaki (supra) held that a similar application filed on the 15th of July, 2003, which emanated from two decisions dated 22nd January & 7th April, 2003 was properly before it. In essence, whether the applicant was sleeping or whether he filed the application within 1 day, 10 days, or 100 days after the ruling of the lower court, is neither here nor there. This court will not be deterred thereby from considering the application on its merit.
The 18 defendants/respondents also argued through their counsel, Mr. O. Ayanlaja, (SAN) that the application should be struck out because the ruling of the lower court was not attached to it. He further submitted that the application is not constituted in the pending appeal as it has a separate number – M21/2006 and the directive of the Supreme Court that this court can look at its record will not apply; that the applicant is applying for leave to appeal and not joinder, which are two different things; and that he ought to have included all the processes filed in the court below for the consideration of this court in its discretion whether to grant him leave or not.
Mr. Yusuf Ali (SAN) for the applicant however submitted that an applicant seeking to take umbrage under section 243(a) of the 1999 Constitution has no obligation under the law or the rules of this court to attach the ruling or judgment, which he seeks to appeal against as a person interested. Furthermore, that this court is now seised of the record of the lower court, which contains the ruling at pages 48 – 57 and it would amount to a mere technicality to insist on attaching the ruling to the application, moreso as the respondents filed copious counter-affidavits which means they are not misled by the fact that the applicant did not attach the ruling, citing Shell Petroleum Dev. Ltd. v. Amaro (2000) 10 NWLR (Pt. 675) 248 at 277. As to the numbering of the application, he submitted that it is the administrative function of the registry of this court to issue appeal numbers, and in any case, that number 21 is common to all the applications. After the application was adjourned for ruling, the learned SAN forwarded an additional authority in a letter dated 10th March, 2006 and copied to the other counsel – Clement v. Iwuayanwu (1989) 3 NWLR (Pt. 107) 39 at 55 where Oputa, JSC said-
“This is an entirely different situation from what happened in this case where the appellants/applicants appealed within time, had a competent, pending as well as a subsisting appeal on a ground of law and only applied for leave under section 213(3) of the 1979 Constitution to appeal on questions of fact and mixed law and fact. The facts and circumstances of the case now on appeal can thus be easily distinguished from those in Ibodo v. Enarofia supra.
Again the rationale in Ibodo v. Enarofia supra is that the grant of leave to appeal being something discretionary, any application for such leave will contain all documents and facts upon which the discretion asked for, can judicially and judiciously be exercised. I will here refer to and adopt the dictum of Nnamani, J.S.C. in University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156 at p.166 that “Ibodo’s case has not laid down rigid rules … it is not in every case that all the materials mentioned therein – record of proceedings, judgments etc. – must be annexed to an application” In this case, the High Court over-ruled the defendants’ objection that the 3 years period of limitation of action had run out before the writ was filed. The defendants’ appeal against that ruling was allowed. Now the plaintiffs appealed against that judgment of the Court of Appeal. What further documents, what further judgment does the Court of Appeal that was seized of all the relevant documents when it was considering the defendants’ appeal need, to enable it decide on whether or not the plaintiffs who appealed within time on both law, mixed law and facts and facts simpliciter may be allowed leave to appeal on facts or mixed law and facts? The answer was given by the Court of Appeal per Akpata, J.C.A. thus:
‘It appears to me unnecessary for us to insist that the judgment of the lower court which this court has pronounced upon should be exhibited before this court’.
I fully agree. It would have been a waste of time, effort and money to annex and exhibit all the documents and judgments mentioned in Ibodo v. Enarofia supra in this case. That would amount to following that decision blindly, literally and foolishly” (emphasis by Ali (SAN) I must point out here that the case of Ibodo & Ors. v. Enarofia & Ors. (1980) NSCC 195, (1980) 5-7 SC 42, referred to above and distinguished by Oputa, JSC is also a decision of the Supreme Court, and Aniagolu, JSC held as follows therein –
“It cannot be over-emphasized that where an applicant required the court to exercise its discretion for a grant of extension of time within which to appeal or within which to apply for leave to appeal, all the documents which it will be necessary for the court to see in order to decide on the application must be exhibited. These normally should include, among others, the affidavits of the applicant -; the judgments of the courts below; the exhibits -; his proposed grounds of appeal; – the record of proceedings -; the brief of the applicant’s argument, and any other document or documents which in the special circumstances of a particular case the court will need to see to decide on the matters in contest in the application.” (Italics mine)
Once again, I have to agree with Mr. Yusuf Ali (SAN). This case is easily distinguishable from Ibodo’s case (supra), and is amply covered by the decision of the same Supreme Court in Clement v. Iwuayanwu (supra). The applications in Ibodo v. Enarofia (supra) were for extension of time within which to file appeal and for leave to appeal. The application in this case is based on section 243 of the 1999 Constitution, which provides that –
“Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –
a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter – (Italics mine)
The Supreme Court made it clear in Re: Madaki (supra) that it was wrong of an applicant to ask for extension of time to seek leave to appeal as an interested party, so their situations are not the same. As Mr. Ali (SAN) submitted, and I agree entirely, when a person brings an ordinary application for leave, there would have been no appeal pending, so it would be necessary to attach the ruling or judgment of the lower court. In this case, not only is the applicant applying for leave to appeal as an interested party, there is a pending appeal already and the record of the lower court has been transmitted to this court.
By a clear reading of section 243 of the 1999 Constitution, this court is empowered along with the Federal High Court or High Court to grant the application sought, since the word “or” is construed disjunctively – see Onakoya v. F.R.N. (2002) 11 NWLR (Pt. 779) 595. There is therefore no pressing need to have the ruling attached to this application, since the record is already before us. To uphold the objection, would in my view, be tantamount to lording technicality over substantiality. The path of technicalities has long been overgrown by weeds, since the courts now concentrate on another well trodden track – substantial justice. As to appeal numbers, the main appeal is CA/I/21/2006. The “M’ added to this application simply indicates that it is a “motion”. No more no less. There is nothing to it to warrant the hue and cry over the number CA/I/M21/2006 given to this application. This issue is resolved in favour of the applicant.
Another issue canvassed by the two sets of respondents is that the applicant has not shown special circumstances in his affidavit to justify seeking leave from this court directly. Mr. Abdul-Salam submitted that an interested party who did not take part in the proceedings of the lower court and wishes to appeal to this court must first seek the leave of the lower court, citing Ambassador A. Y. Eke & Anor. v. Nagro Rubber (1993) 4 NWLR (Pt. 286) 176 at 189 & Order 3 rule 3(4) of the Court of Appeal Rules, which reads”
Wherever under these Rules an application may be made either to the court below or to the 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’.
(Italics mine)
He further submitted that the applicant has not shown any special circumstances in the supporting affidavit; that he was aware of the looming case and did not take action until it was over and done with; and that the applicant was still within time to apply to the lower court to correct the error. Mr. Ayanlaja (SAN) adopted the above submissions and authorities cited by Mr. Abdul-Salam, and added that there is no scintilla of evidence of any special circumstances in the applicant’s supporting affidavit, and the application should be refused on that ground alone. Mr. Ali (SAN) replied that this court received the record of the lower court on the 6th of February, 2006, and this application was filed on the 8th of February, 2006, therefore as at 6th February, 2006 this court was seised of the matter, and the applicant cannot therefore go to the lower court for anything since the record is before us. This is a non issue, in my view. By section 243 of the 1999 Constitution this court can grant an applicant “having an interest in the matter”, leave to appeal, and there is no time limit prescribed in the said Constitution, nor the Court of Appeal Act or the Court of Appeal Rules within which to bring the application – see Re: Madaki (supra), where the Supreme Court held –
“Any other person who has interest in a case but is not a party to the case, cannot appeal in the proceedings, until he obtains the leave of either the High Court from which the case is being appealed or the Court of Appeal to which the appeal is to be brought …. The section, also provides that a party who desires to appeal as an interested party, has the option to obtain the necessary leave prescribed for doing so, on application to either the High Court which decided the case or the Court of Appeal. (Italics mine)
There it is in black and white, or should I say straight from the horse’s mouth. The Supreme Court per Uwais, C.J.N. was interpreting section 222 of the 1979 Constitution in that case – Re: Madaki (supra), which is an exact replica of section 243 of the 1999 Constitution, and he made it perfectly clear that an applicant in similar circumstances as in this case, must seek leave from either “the High Court from which the case is being appealed or the Court of Appeal to which the appeal is to be brought”, and that in doing so he has the option, which means choice, of applying “to either the High Court which decided the case or the Court of Appeal.” In other words, the applicant in this case had a choice, to either apply for leave in the lower court or come to this court, and what makes his case more interesting is that he had no other option than to apply to this court because at the time he filed the application, the record of the lower court had been transmitted to this court, and there was nothing for him at the lower court, as Mr. Ali (SAN) pointed out. The hullabaloo about special circumstances or no special circumstances thus goes to no issue.
We now come to the merit or otherwise of the application itself. Mr. Ali (SAN) submitted that the following facts are not in dispute –
1. That the applicant herein was elected Governor of Oyo State in April 2003;
2. That it was for a 4-year term;
3. That sometime in 2005 there was a “factionalization” in the Oyo State House of Assembly;
4. That sometime in December 2005 a faction of the Oyo State House of Assembly raised an misconduct against the applicant, which led the Oyo State Chief Judge to set up a 7-man panel to investigate the allegation;
5. That the panel submitted its report to 18 members of the House on the 12th of January, 2006;
6. That same day, the said faction removed the applicant as the Governor of Oyo State; and
7. That as a result of this, some other members who were not part of that faction filed the action that culminated in this appeal at the High Court on the 23rd of December, 2005, and the summary of that action was to challenge the notice of allegation of impeachment against the applicant by the 18 members of the House.
It is his contention also that from the notice and grounds of appeal filed by the appellants, the applicant has shown sufficient interest to entitle him to the benefit of the provisions of section 243 of the 1999 Constitution.
He further submitted that it is not in dispute that the action at the lower court was aimed at constitutionally protecting the office of Governor, which the applicant was holding; and that the parameter to be followed has been well settled by the Supreme Court and this court, citing Funduk Engineering Ltd. v. James MacArthur (1990) 4 NWLR (Pt. 143) 266 at 277. Furthermore, that the applicant is a person aggrieved, in that he is a person who has been wrongly denied of a title and office, and therefore qualifies as a “person having an interest in the matter within the meaning of section 243 of the 1999 Constitution, citing Re: Madaki (supra).
The appellants supported the application, and in his submissions on their behalf, Mr. Adeniyi Akintola (SAN) argued that the counter-affidavit of the 18 respondents did not deny the substantive facts averred in the applicant’s affidavit, particularly paragraphs 3 – 6, 8 -12, & 15 – 19; which the court was urged to hold as admitted by the respondents without more. In addition to adopting the arguments of Mr. Ali (SAN) and authorities cited, he further cited Nnonye v. Anyichie (1989) 2 NWLR (Pt. 101) 110 on the issue of joinder; and Green v. Green (1987) 3 NWLR (Pt. 61) 480 at 492-493; & Nabaruma v. Ofodile (2004) 13 NWLR (Pt. 891) 599 at 617 – 618, and submitted that whatever will be decided in this appeal will be binding on the applicant so he must be joined, citing Mobil Oil Plc. v. Drexel Energy & Natural Resources Ltd. & 40 Ors. (2004) 1 NWLR (Pt. 853) 142 at 158. Furthermore, that the respondents have not shown what they will lose if the applicant is joined, on the other hand that they have all to gain, since if they win the case, the applicant cannot say he was not a party to the action, which would necessitate their filing a new action against him.
Mr. Abdul-Salam for the plaintiff/respondent submitted that section 243 of the 1999 Constitution is not a matter of mere course, and the applicant must establish his locus without inhibition, citing Waziri v. A.-G., Fed. (supra); and argued that the applicant ceased to be a Governor before the filing of the application and a substantive Governor has since been sworn into office.
On the part of the 18 respondents, Mr. O. Ayanlaja (SAN) referred the court to the counter-affidavit wrongly headed “further affidavit”, wherein one Isiaka Amodu, a Clerk in the law firm of Michael F.Lana averred as follows –
4. Michael F. Lana, Esq., informed me and I verify believe:
(a) That the applicants/party (sic) that is seeking to sue as an interested party has already filed two actions at the High Court to hear his grievances in suits No. 1/2/06 and 1/10/06;
(b) That the processes filed in the High Court by the applicant/party seeking to sue as an interested party is herewith attached and marked exhibit A;
(c) That I know that the cases are still pending at the High Court.
He also referred the court to the applicant’s alternative prayer in exhibit A – the writ of summons filed in suit No. 1/10/06, which is as follows –
“A declaration that the meetings and the impeachment instituted or commenced by the 16th to 43rd defendants is in contravention of the plaintiff’s right to fair hearing as entrenched in section 36 of the Constitution of the Federal Republic of Nigeria, 1999”.
He further argued that in suit No. 1/10/06, which is still at the lower court the applicant is complaining about impeachment, and posed the questions – “what is his business then with the suit of the legislators? The lower court said it had no jurisdiction to entertain the matter involving legislators, how is he aggrieved?” He submitted that it is an abuse of court process to seek leave to appeal when there is a pending claim at the court below on the same issues, citing Lawani Adesokan v. Prince M. O. O. Adegorolu (1991) 3 NWLR (Pt. 179) 293; & Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188- 189. As to who may appeal, he referred to sections 241 & 243 of the 1999 Constitution, and further submitted that the English jurisdiction have developed monographs and cases that will assist the court, citing Halbury’s Law of England: 4th Ed. (Reissue) Vol. 37, paragraph 1542; The Mill Wall (1905) P. 155; In Re: Youngs Doggett v. Revett (1885) 30 Ch. D. 421; & Re B (An Infant) (1957) 3 All E.R. 193. He also cited the Nigerian cases of Re: Ugadu (1988) 5 NWLR (Pt. 93) 189; & Re: Madaki (supra), and submitted that where a constitutional provision has been pronounced upon in a judgment by a court below, leave will not be granted to a non-party to appeal against that decision, citing Waziri v. Att.- Gen. Fed. & Ors. (supra).
Mr. Yusuf Ali (SAN) however replied that the English authorities cited by Mr. Ayanlaja (SAN) were based on the rules of court not the constitutional provisions as in this case; that unlike section 243 of the 1999 Constitution, no one was given express provision to come to this court as of right, therefore to that extent, the English authorities are irrelevant. I agree entirely. I have read the English cases cited by the learned SAN, which were decided in 1905, 1885 & 1957, and apart from the fact that it is not binding on us, there is really nothing out of the ordinary decided in the said cases that can add or subtract from our Supreme Court decisions, which are binding on us. In any case, the right of appeal is a constitutional right, which cannot be restricted or expanded by any other law, and there is certainly no need for recourse to foreign authorities in the determination of the question – who may appeal? The 1999 Constitution answers that question in its section 243(a). Any right of appeal to this court can only be exercised by the following persons
(1) A party to the proceedings, or
(2) A person, who was not a party to the proceedings, but has an interest in the matter, with the leave of the court.
A party to the proceedings is not in doubt. It has been construed to mean a person aggrieved, that is a person against whom a decision has been pronounced which deprived him of some right – see Akinbiyi v. Adelabu (1956) SCNLR 109 & Mobil Producing Nigeria Unlimited v. Chief Simeon Monokpo (2003) 18 NWLR (Pt. 852) 346. Any other person having interest in the matter can appeal, but with the leave of the lower court or this court, and the interest must be a genuine and legally recognizable interest in respect of a decision, which prejudicially affects such interest; that is those directly affected by the adverse decision, it cannot be a general interest which every person has in seeing that justice is done to a party – see Re: Ugadu (supra). See also Akande v. General Electric Co. (1979) 3 – 4 SC 115, (1979) NSCC (Vol. 12) 51 at 56 where the Supreme Court per Aniagolu, JSC held –
” … The person therein stated exercising the right of appeal to the Court of Appeal, must be named in the record, or with leave, having an “interest” in the proceedings – which term would include a person affected or likely to be affected, or aggrieved or likely to be aggrieved by the proceedings” (Italics mine)
In other words, for a party interested to succeed in getting leave to appeal, he must show that he has an interest in the matter and that his grounds of appeal are substantial – see Ojukwu v. Gov., Lagos State (1985) 2 NWLR (Pt. 10) 806, where Nnaemeka-Agu, JCA (as he then was) also said –
“What then is the nature of the interest contemplated by the section? In my view it does appear that the acid test is whether the person could have been joined as a party to the suit”.
In this case, the action of the plaintiffs/appellants against the 18 respondents at the lower court centred on the notice of allegation of misconduct leveled against the applicant, and other related matters in the impeachment process.
They sought for 9 reliefs, but I will reproduce the first 2 as examples
1. A declaration that the purported notice of allegation of misconduct made against His Excellency, Senator Rasheed Adewolu Ladoja, the Governor of Oyo State as a preparatory step to his impeachment by the defendants is unconstitutional, null, and void, and of no effect whatsoever, having regard to the provision of S. 188(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria.
2. A declaration that the purported notice of allegation of misconduct made by the defendants against Senator Rasheed Adewolu Ladoja, the Governor of Oyo State not having been received and or served on each of the 32 (thirty two) members of the Oyo State House of Assembly as envisaged by of S. 188(2) of the 1999 Constitution of the Federal Republic of Nigeria is unconstitutional, null, and void, and of no effect whatsoever.
The 18 defendants/respondents however filed a notice of preliminary objection, wherein they contended as follows, that –
(i) This Honourable Court lacks jurisdiction to entertain the suit.
(ii) The plaintiffs herein lack the necessary locus standi to institute the suit.
(iii) The plaintiffs/respondents claims disclose no reasonable cause of action against the defendants/applicants.
(iv) The plaintiffs/respondents suit is liable to dismissal.
After hearing arguments of counsel, the learned trial Judge, Ige, J. delivered his ruling on the 28th of December, 2005, wherein he concluded as follows –
” … It is clear beyond argument that the jurisdiction of this court is clearly ousted. Impeachment and related proceedings are purely political matters over which this court cannot intervene. The action is not justiciable…
It is not part of the duty of the court to forage into areas that ought to vest either directly or impliedly in the legislature such as the issue of impeachment which is a matter that comes within the purely internal affairs of the House of Assembly”.
Applying the acid test enunciatiated by Nnaemeka-Agu, JCA (as he then was) in Ojukwu v. Governor of Lagos State (supra), the applicant definitely could have been joined as a party to the suit. Clearly, he is the central figure in the impeachment saga; he is the one who had a notice of allegation of misconduct leveled against him preparatory to his being removed from office as Governor of Oyo State. He is the pivot on which the action in the lower court revolved. Without him, there would not have been any action at the lower court. Without him, there would not have been the ruling delivered by Ige, J., that got the plaintiffs/appellants aggrieved enough to file an appeal in this court. The applicant is also aggrieved, and wishes to appeal against the same ruling, and I do not see why he should be shut out, the other cases he filed at the lower court notwithstanding. After all, they are still at infancy stage, and this one has reached this court, and may well resolve the others. But that is speculation and I am not allowed to speculate. What I can say is; I agree with Mr. Ali (SAN) and Mr. Akintola (SAN) that the respondents have not shown in what way they would be prejudiced or suffer any disadvantage if the application is granted. The applicant has however shown that he is a person having an interest in the matter, and will be granted leave to appeal. The applicant is hereby granted leave to appeal against the ruling of Hon. Justice J. O. Ige delivered on the 28th of December, 2005 as a party having an interest in the matter. The notice and grounds of appeal already filed is hereby deemed as properly filed and served. I make no order as to cost.
FABIYI, J.C.A.: I have had a preview of the ruling just handed out by my learned brother, Augie, JCA, I agree with the reasons therein contained, leading to the conclusion that the application should be granted.
I need to chip in a few words of my own in support. The applicant desires to appeal as a person having an interest in the matter.
Indeed, section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 provides as follows:
“243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –
(a) exercisable in the case of civil proceedings at he instance of a party thereto, or with the leave f the Federal High Court or the High Court or he Court of Appeal at the instance of any other person having an interest in the matter …”
The question at this point that is very crucial and pertinent may put as follows – Is the applicant a person having an interest in the matter. The facts have been carefully assembled in the lead ruling and I need not repeat same except where desirable. It is not in dispute that the applicant was voted in for a four year term as the executive Governor of Oyo State of Nigeria sometime in April, 2003. The office got on the balance. The appellants/respondents herein filed the action that culminated in this appeal before the Oyo State High court on 23-12-05. The kernel of the case was to challenge the notice of allegation of impeachment raised by 18 factional members of the House of Assembly, against the applicant herein. Ige, J. handed out his ruling on 28-12-05 and declined jurisdiction. Undoubtedly, the object of the action initiated at the lower court was to protect the office of Governor which the applicant was holding.
To my mind, the applicant could have been joined as a necessary party at the lower court as his interest was central in the matter. A necessary party should be allowed to have his fate in his own hands.
A necessary party is someone whose presence is essential for the effectual and complete determination of the issues before the court.
It is a party in the absence of whom the whole claim cannot be effectually and completely determined in such a way as to bind him.
See Chief Abusi David Green v. Chief E. T Dublin Green (1987) 3 NWLR (Pt. 61) 480. Uku v. Okumagba (1974) 1 All NLR 475; N.N.N. Ltd. v. Ademola (1997) 6 NWLR (Pt. 507) 76 at 83.
The applicant has shown that he is a person aggrieved. He clearly qualifies as a person having an interest in the matter as provided in section 243(a) of the 1999 Constitution. To find otherwise will be tantamount to saying that he has no locus standi. If he has no standing in the matter, one can hardly point at any other person with direct interest in the office of Governor which he seeks to protect and be bound by the outcome of this court’s pronouncement at the end of the day. This court should not give room for the appellant’s hair to be trimmed behind his back. The case of Funduk Engineering Ltd. v. James MacArthur (1990) 4 NWLR (Pt.143) 266 at 277-278 cited by the senior counsel for the applicant is in point. I am of the firm view that all things being equal, the applicant should be let in to appeal as an interested person in the matter without much ado.
On behalf of the plaintiffs/respondents, it was contended that the applicant did not first seek the leave of the lower court and no special circumstance has been shown why same was not done, The learned counsel referred to the case of AMB. A. Y. Eke & Anr. v. Nagro Rubber (1993) 4 NWLR (Pt. 286) 176 at p. 190. He felt that the application is incompetent.
In reply, senior counsel for the applicant pointed it out that the record of appeal was received in the registry of this court on 6-2-06 and the application was filed on 8-2-06. He submitted that as at 6-2-06, this court became seized of the proceedings and all steps must be taken in this court since the appeal had been entered in this court’s registry. As such, he felt that there was no need to go back to the trial court for leave to appeal as a person interested in the matter.
Let me state it clearly that as soon as appeal was entered on 6-2-06 in the registry of this court, the court became fully seised of the matter. From thence forward, the court becomes dominus litis. It has full and complete dominion over all processes filed and ensuing proceedings to the exclusion of the lower court. An appeal is deemed as duly entered as soon as all salient records are transmitted to the registry of the appellate court which cannot be heard to be competing with the lower court over applications in respect of the appeal. That clinches the alluring argument that the leave of the lower court should have been first sought and obtained. The case of A. Y.Eke v. Nagoro Rubber (supra) cited to prop the surmised incompetence of the application for that reason is not apposite. I am afraid.
Learned senior counsel for the respondents felt that the application is deficient as the records of proceedings and ruling of the lower were not attached. I feel that the complaint savours of technicality since the record of appeal is before this court. It would amount to “a waste of time, effort and money” to further embark upon such an exercise. In this case, the record and ruling need not be attached to the application. The rule is not iron-cast, rigid or immutable. See University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 156 at 166.
There is no way by which the applicant’s right and interest will not be affected one way or the other by the outcome of the appeal.
The special appellate right created for an interested person under S. 243(a) of the 1999 Constitution should not be denied the applicant who has shown that all things are equal. It will certainly take a compelling reason to deny the applicant the right so granted more especially when the respondents have not shown any prejudice that they will suffer if the court grants the same.
My learned brother has comprehensively covered all the other points raised by the parties. I need not belabour such points any further. For my observations above and the lucid reasons comprehensively set out in the lead ruling, I agree that the application is in order and should be granted. I order accordingly and endorse all consequential orders therein contained.
UDOM-AZOGU, J.C.A.: I have had a preview of the ruling just delivered by my learned brother Amina Augie, JCA in which he meticulously addressed the issues arising from the application. I however wish to comment on some aspects merely for emphasis.
The focus of the application brought pursuant to section 243 of the Constitution of the Federal Republic of Nigeria and the inherent jurisdiction of the Honourable Court is the interest of the applicant in the matter sought to be appealed. In the motion on notice dated 8/2/06 and filed on the same day the applicant prayed inter-alia for “Leave of the Honourable Court allowing the applicant to appeal against the ruling of Honourable Justice J. O. Ige delivered on 23rd December, 2005 “as an interested party or party having an interest in the matter.”
Also paragraph (vii) of the grounds of application states: “The interest of the applicant is deeply involved in the case.”
The ruling referred to was delivered by Honourable Justice J. O. Ige of the High Court of Oyo State sitting in the Ibadan Judicial Division on 28th day of December, 2005. The court declined jurisdiction on the ground, inter alia,
“that it is not part of the duty of the court to forage into areas that ought to vest either directly or impliedly in the legislators such as the issue of impeachment which is a matter that comes within internal affairs of the House of Assembly.”
The application was supported by 20-paragraphs affidavit deposed to by G. Yakubu Dauda, legal practitioner of Yusuf O. Ali & Co.
One of the most hotly contested aspects of this application was the issue of exact date of delivery of the judgment. Learned counsel for plaintiff/respondent Aare I. Abdul-Salam, Esq. citing his counter affidavit dated 8/3/06 and filed on the same day, paragraph 6(a) where it was deposed
“Suit No. 1/1050/05 was not struck out on 23rd December, 2005 as the presiding trial Judge J. O. Ige of the Oyo State High Court before whom the said suit was then pending did not sit on that date.”
He also referred to paragraph 1 of the application and paragraph 12 of the supporting affidavit and said that they are erroneous. He referred to the further affidavit of the applicant which sought to correct the date in paragraph 3. That paragraph states:
“That I know as a fact that it was after the motion had been filed before this court on 8th February, 2006 that a copy of the record was received and upon perusal of the record that I discovered that the ruling we sought to appeal against was delivered on the 28th December, 2005 and not 23rd December, 2005 as wrongly referred to in the motion, notice of appeal and the affidavit in support.”
The plaintiff/respondent argued that the error cannot be cured by a further affidavit and the only way is to re-swear the affidavit in line with the provision of section 85 of the Evidence Act. He cited Jang v. INEC (2004) 12 NWLR (Pt. 886) 46, (2004) All FWLR (Pt. 2000) 1545 at 1546. In reply the learned Senior Advocate Yusuf Ali referred to S. 84, of the Evidence Act stating that it is a saving provision and rectifies any defect if sworn before a person duly authorized. Section 84 provides –
“The court may permit an affidavit to be used, notwithstanding it is defective in form according to this Act, if the court is satisfied that it has been sworn to before a person duly authorized.”
Ex facie the further affidavit was sworn to before a Commissioner in the registry of Court of Appeal Ibadan on 18th day of February, 2006. By 6/2/06 the appeal had been entered, warranting all transactions including the further affidavit to be taken in the court and not in the court below as suggested by the plaintiff/respondent.
I am therefore satisfied that by virtue of section 84, the further affidavit can be used, the resultant effect being to effect the change of date from 23rd to 28th December, 2005.
On whether the applicant qualified as person having an interest in the appeal for which leave is sought to prosecute, Yusuf Ali learned Senior Advocate for the applicant after citing S. 243 of the Constitution of the Federal Republic of Nigeria, enumerated seven items which he said were not in dispute starting from the election of the applicant as Governor of Oyo State to his removal as a result of the conspiracy of 18 members of the House of Assembly. This culminated in the appeal in the Oyo State High Court challenging the notice of allegation of impeachment raised by the 18 members of the House of Assembly against the appellant.
It is the case of the plaintiff/respondent that an interested party who took no part in the proceedings in the court below and who wishes to appeal to the Court of Appeal must first seek the leave of the lower court. He cited Ambassador A. Y. Eke & Anor. v. Nagro Rubber Industries Ltd. & 2 Ors. In Re Mrs. Clara Novogiere Eke, He submitted that from the totality of applicants’ affidavit in support, no special circumstance has been sworn to warrant the grant of leave to appeal. He contended that the appellant was aware of the looming case but failed to show interest. The applicants’ counsel had earlier pointed out that from the date of filing and date of ruling was one week interspersed by public holidays like Christmas day, boxing day etc. See page 48 of the records. Having regard to the speed of events the applicants could not legitimately be accused of standing by. He pointed out that the gravamen of the ruling was S. 188(10) of Constitution. He submitted that if the case had not been struck out the applicant would have been joined since his interest was central. I could not agree more. The applicant was a person who has been wrongfully deprived of his title and therefore qualifies under section 243 as “a person having an interest in the matter.”
See Funduk Engineering Ltd. v. James Macarthur in Re: Colonel Yohannah Anjeyag Madaki (1990) 4 NWLR (Pt. 143) 266 at 277 where section 222(a) of the 1979 Constitution, “a person having the matter” was interpreted as
“synonymous with a person aggrieved, meaning a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title or something etc.”
See also Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806 at 815. In Harry Akande v. General Electric & Ors.; In Re Electric Co. of USA (Nig.). Ltd. (1979) 3-4 SC 115 at 125 Aniagolu JSC said –
“Such a person includes a person affected or likely to be affected or aggrieved or likely to be aggrieved.”
Section 222(a) of the 1979 Constitution is in pari materia with S. 243 of the 1999 Constitution. See also Ambassador A. Y.Eke & Anor v. Nagro Rubber Industries Ltd. & 2 Ors. In Re Mrs. Clara Noyogiere Eke supra where a person interested was interpreted inter alia as”
a person must be aggrieved in that a decision in court proceedings, of which he is unaware, has been pronounced by that court which wrongfully deprived him of something or wrongfully affected his title to something or …”
(a) a person who has a genuine grievance because an order has been made, which prejudicially affects his interest.”
We have already explained that the doctrine of standing by cannot apply to the applicant in view of the very short time between the filing and the ruling at the court below. The acid test, says Nnaemeka-Agu, JSC, is whether such a person could have been joined. Indeed in several paragraphs of the originating summons in suit No. 1/1050/05 the applicant was mentioned by name. The entire drama revolved around the applicant. Common sense dictated that he be joined as a “necessary party”.
Who is a necessary party? This was comprehensively dealt with by Oputa, JSC in the locus classicus Chief Abusi David Green v. Chief Dr. E. T. Dublin Green (1987) 3 NWLR (Pt. 61) 480 at 482 and 493 where he described necessary parties “as those who are not only interested in the subject-matter of the proceedings but also who in their absence the proceedings could not be fairly dealt with.” See also Amon v. Raphael Tuck & Sons Ltd. (1956) 1 Q.B. 357 and Nabaruma v. Ofodile (2004) 13 NWLR (Pt. 891) 599 at 617-618 per Fabiyi, JCA, and Mobil Oil Plc. v. Drexel Energy & Natural Resources Ltd. & 4 Ors. (2004) 1 NWLR (Pt 853) 142 at 158 B-D per Adekeye, JCA – where the Justices of the Court of Appeal followed the Supreme Court’s decision in ‘Green v. Green.’
The last issue which I wish to comment on is that of annexure of the ruling to the application. The plaintiff/respondent submitted that failure to annex the ruling renders the application incompetent and referred to Order 23 rules 3(7) Court of Appeal Rules, 2002. In particular certified true copy of the ruling must be exhibited.
However the argument of learned Senior Advocate Yusuf Ali that since the appeal had been entered all documents are before this court and therefore annexure of certified true copy could be superfluous is correct. Surely the Court of Appeal can refer to the documents contained in its own records including the certified true copy of the ruling. The argument of the plaintiff/respondent is therefore misconceived.
See Jejumade A. Clement & Anor. v. Bridget J. Iwuanyanwu & Anor. (1989) 3 NWLR (Pt. 107) 39 at 55 D-H 56A particularly the dictum of Akpata JCA where he said,
“It appears to me unnecessary for us to insist that the judgment of the lower court which this court has pronounced upon should be exhibited before this court.”
I fully agree. It would have been a waste of time, effort and money to annex and exhibit all the documents and judgments mentioned in Ibodo v. Enarofia in this case. That would amount to following that decision blindly, literally and foolishly.”
The rational in Ibodo v. Enarofia is that the grants of leave to appeal being something discretionary, any application or such leave will all documents and facts upon which the discretion asked for judicially and judiciously be exercised.
However Nnaemeka-Agu, JSC in University of Lagos v. Olaniyan (1985) 1. NWLR (Pt. 1) 156 at 166 made it clear that Ibodo’s case has not laid down rigid rules.
It is not in every case that all the material and mentioned therein, record of proceedings; judgment etc must be annexed to an application. This buttresses the applicant’s argument that the appeal having been entered and the Court of Appeal now being seised of all the documents in the appeal from the court below, it is not mandatory that the ruling in the court below be exhibited. It would be superfluous. I agree.
From the above reasons and the more comprehensive reasons contained in the lead ruling, I hereby dismiss the objection of the plaintiff/respondents. The applicant is hereby granted leave to appeal as an “interested party or party having an interest in the matter.” There shall be no order as to costs.
Application granted.
Appearances
Yusuf Ali, SAN (with him, Yakubu Daudu, Esq.) For Appellant
AND
Adeniyi Akintola, SAN (with him, Dr. Doyin Adebowale;
Sunday Aborishade, Esq.; (with him, Kunle Jimoh) – for the Appellants/Respondents
Aare Abdul-Salam, Esq. (with him, A. T. Adebayo, Esq.; W. A. Olajide, Esq.) – for the Plaintiff/Respondent
O. Ayanlaja, SAN (with him, L. O. Fagbemi, SAN; M. F. Lana, Esq.; H. O. Afolabi, Esq.; L. O. Adedigba, Esq. and L. L. Akanbi, Esq.) – for the 18 Respondents For Respondent
