HON. (MRS) ANTHONIA TABANSI -OKOYE v. HON. LYNDA CHUBA-IKPEAZU & ORS
(2016)LCN/8115(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of January, 2016
CA/A/416A/2015(R)
RATIO
PRACTICE AND PROCEDURE: WHAT AN APPLICANT MUST SHOW TO QUALIFY AS A PERSON INTERESTED IN A MATTER
In the case of NWAOGU V. ATUMA (2013) ALL FWLR (669) 1022, 1034 MOHAMMED, JSC (now CJN) stated that;
“…for a person to qualify as a person interested, the applicant must show not only that he is a person having interest in the matter but also that the order or judgment of the Court below he is seeking leave to appeal against prejudicially affects his interest. In other words, to succeed in the application, the applicants must show that they are persons who are aggrieved, or persons who have suffered legal grievances, or persons against whom decisions have been pronounced which have wrongfully deprived them of something or wrongly refused them something or wrongly affected their title to something.” See also In Re: UGADU (1988) 5 NWLR (93) 189, In Re: Madaki (1990) 4 NWLR (143) 266 and ENYIBROS FOODS PROCESSING COMPANY LTD V. NIGERIAN DEPOSIT INSURANCE CORPORATION (2007) 9 NWLR (1039) 216. per. JOSEPH EYO EKANEM, J.C.A.
PRACTICE AND PROCEDURE: THE ACID TEST FRO DETERMINING WHETHER OR NOT AN APPLICANT IS A PERSON HAVING INTEREST IN A MATTER
The acid test for determining whether or not an applicant is a “person having interest in the matter” is whether the person could have been joined as a party to the suit in the trial court. See Re: Madaki supra and ENYIBROS FOODS PROCESSING COMPANY V. NIGERIAN DEPOSIT INSURANCE CORPORATION supra. per. JOSEPH EYO EKANEM, J.C.A.
APPEAL: THE NATURE OF AN APPEAL: WHETHER AN APPEAL IS A NEW ACTION OR A CONTINUATION OF THE ORIGINAL ACTION
An appeal is not a new action but a continuation of the original action which cannot be changed in nature and character on appeal.
See NWAOGU V. PEOPLES DEMOCRATIC PARTY (2015) 6 NWLR (1456) 527, 550. per. JOSEPH EYO EKANEM, J.C.A.
PRACTICE AND PROCEDURE: HOW THE INTEREST OF THE APPLICANT MUST BE CLEARED
The law is that the interest of the applicant must be clear from the record of proceedings and not from the affidavit filed in support of the application. See CHUKWU V. INDEPENDENT ELECTORAL COMMISSION supra. 415. per. JOSEPH EYO EKANEM, J.C.A.
JUSTICES
MOORE ASEIMO A. ADUMEIN Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
HON. (MRS) ANTHONIA TABANSI -OKOYE
(AS PERSON AFFECTED/INTERESTED
IN THE MATTER OF INTERVENER APPEAL IN RE: Appellant(s)
AND
1. HON. LYNDA CHUBA-IKPEAZU
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. NATIONAL WORKING, COMMITTEE (PEOPLES DEMOCRATIC PARTY)
5. IDU GODWIN EMEKA Respondent(s)
JOSEPH EYO?EKANEM, J.C.A. (Delivering the Lead Ruling):
By a motion on notice dated 9/11/2015 and filed on 11/11/015, the applicant prays for a grant of the following prayers:
“1. An order of this Honourable Court of Appeal granting to the Applicant herein leave to appeal as an interested person/party affected by the judgment of Federal High Court, Abuja Division Coram Hon. Justice A. F. Ademola delivered on 25th June, 2015 in Suit No- FHC/ABJ/CS/254/2015 between Hon. LYNDA CHUBA-IKPEASU V. PEOPLES DEMOCRATIC PARTY & 3 ORS.
2. An order of this Honourable Court extending the time within which the Applicant shall seek leave of this court to appeal against the judgment of Federal High Court, Abuja Division Coram Hon. Justice A. F. A Ademola delivered on 25th?June, 2015 in suit No. FHC/ABJ/CS/254/2015 between Hon. LYNDA CHUBA- IKPEAZU V. PEOPLE’S DEMOCRATIC PARTY & 3 ORS.
3. An order of this Honourable Court granting the applicant leave to appeal against the judgment of Federal High Court, Abuja Division Coram Hon. Justice A. F. A. Ademola delivered on 25th?June, 2015 in Suit No.
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FHC/ABJ/CA/254/2015 between Hon. LYNDA CHUBA-IKPEAZU V. PEOPLES DEMOCRATIC PARTY & 3 ORS.
4. An order of this Honourable Court enlarging the time within which the applicant shall appeal against the judgment of Federal High Court, Abuja Division Coram Hon. Justice A. F- A. Ademola delivered on 25th June, 2015 in Suit No. FHC/ABJ/CS/254/2015 between Hon LYNDA CHUBA-IKPEAZU V. PEOPLES DEMOCRATIC PARTY & 3 ORS.
5. And for such further/other orders as this Honourable Court may deem fit to make in the circumstances”.
The grounds for the prayers are set out in the motion paper and are numbered (1) to (24).
The application is supported by:
(i) a 48 – paragraph affidavit deposed to by the applicant with Exhibits A, B, C, D, E, F1, and F2 attached;
(ii) a written address titled Applicant’s Brief of Argument” dated 9/11/2015 and filed on 11/11/2015;
(iii) a further and better affidavit of 15 paragraphs deposed to by one Evelyn Ihuaralam, a litigation officer in the law firm of Ifeanyi M. Nrialike & Co (the law firm representing the
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applicant) with Exhibit G1, G2, H and I attached to it; and
(iv) a reply on points of law dated and filed on 27/11/2015.
In opposing the application the 1st respondent filed the following processes:
(i) a 16 – paragraph counter affidavit deposed to by the 1st respondent; and
(ii) a written address titled “1st Respondent’s Brief of Argument in opposition to Applicants Motion” filed on 11/11/2015.
The 5th respondent filed;
(i) a 19 -paragraph counter affidavit deposed to by Charity Adah, a legal practitioner in the law firm of Alex A Izinyon (SAN) and Co; the law firm representing the 5th respondent; and
(ii) a written address;
The 2nd, 3rd and 4th respondents, inspite of being served with the processes, did not respond.
At the hearing of the application, counsel for the parties who filed processes adopted their various processes and urged the Court to determine the application in favour of their clients.
?In the applicant’s “Brief of Argument” settled by Emeka Chukwudi, Esq; one issue is formulated for the determination
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of the application, viz;
“Whether putting into consideration the circumstance of this case, the applicant is entitled to the prayers sought”.
Counsel proposed to argue the issues on two grounds, viz, whether the applicant has an interest to enable this Court grant her leave to appeal as an interested party and whether this Court can grant the trinity prayers.
Counsel argued that the applicant had shown by her affidavit that she is a party whose interest is affected by the orders made by the trial Court. He referred to Section 243 (a) of the Constitution of Nigeria and paragraphs 2 – 22, 28 – 34 of the applicant’s affidavit in support of the motion on notice. He submitted that the Court, at this stage, is not concerned with the merits of the proposed appeal of the applicant but with whether applicant has established interest in the issue of which judgment was delivered. He asserted that the issue in contention is the legislative seal of Onitsha North/South Federal Constituency and that the applicant had shown that she has interest in the legislative seat, and contested on the platform of All Progressive Grand Alliance.
It
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was his further argument that the applicant had shown that the 2nd respondent presented more than one candidate for the election contrary to Sections 87(1) (4) (c) and 31 (1) and (2) of the Electoral Act, 2010 (as amended). Counsel referred to Re: Ojukwu (1999)5 NWLR (551) 673 and submitted that since the applicant did not know of the pendency of the suit at the trial Court, he was entitled to leave to appeal as a person interested.
Counsel pointed out that second leg of his prayers is dependent on the favourable consideration of the first prayer by the Court. He submitted that it had been shown that there was no delay in bringing the application for leave to appeal as an interested party. He referred to and relied on paragraphs 38, 39, 40 and 50 (sic) of the applicant’s affidavit. He finally urged the court to grant the application.
In the 1st respondents “Brief of Argument…”Settled by Tobechukwu Nweke, Esq; one issue is presented for the determination of the application, viz:
“Whether the applicant qualifies as an interested party or party affected by the judgment of the lower Court so as to entitle her to reliefs
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sought”.
Counsel stated that the grouse of the applicant is with the alleged conduct of the 2nd respondent in presenting multiple candidates for the election thus giving the 1st, 2nd and 5th respondents an undue advantage over her. He pointed out that the applicant did not file a petition at the Election Tribunal to challenge the outcome of the election, thus accepting its outcome. He submitted that the applicant, not being an aspirant on the platform of PDP who can engage in the pre-election suit over the candidate of the 2nd respondent, her legal right which was tied to the election she contested and lost evaporated in the absence of any petition challenging the said election.
He referred to Re: Ndayako (2003) 4 NWLR (809) 42 and E.F.P. CO. LTD. V. NDIC (2007) 9 NWLR (1039) 216 and submitted that the applicant could not have been joined in the matter before the lower court as she, a candidate of the All progressive Grand Alliance, could not meddle into a dispute as to who the candidate of the peoples Democratic Party was. He further cited NWAOGU V. ATUMA (2013) ALL FWLR (669) 1022 and submitted further that the reliefs sought by the applicant
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in the proposed notice of appeal showed an attempt to convert the case from “who the candidate of the 2nd respondent was” to a case of the alleged propriety and consequences of sponsoring multiple candidates by a political party.
He finally submitted that if the Court identifies the real controversy in the case to be who between the 1st and 5th respondents was the candidate of the 2nd respondent, the court would have no difficulty in holding that the applicant has no business in the matter He finally urged the court to dismiss the application.
For the 5th respondent, one issue was identified for the determination of the application, viz;
“Whether in the light of the facts and circumstances of the case fought before the trial Court as shown in Exhibit B attached to the Applicant’s motion, the applicant is a person interested to warrant the grant of this application for leave?”
Counsel submitted that the fact that the applicant was a candidate of All Progressive Grand Alliance (APGA) at the general election did not cloth her with interest to seek leave to appeal against a Judgment that only determined the pre-election issue
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as to who the candidate of the 2nd respondent for the general election for Onitsha North/South Federal Constituency was. He was of the view that the applicant could not have been joined as a party at the trial Court and so he could not be granted leave to appeal as a party interested. He placed reliance on Re: Madaki (990) 4 NWLR (143) 266 in support of his view.
It was his further submission that the applicant having predicated her application on the fact of what transpired at the election ought to ventilate her supposed grievance in an Election Tribunal. He finally urged the Court to dismiss the application.
In his reply on points of law, applicants counsel argued that the law allows a party to challenge a flagrant violation of the provisions of the Electoral Act in the regular Courts. He also argued that the case of NWAOGU V. ATUMA supra is inapplicable to his application for the reasons set out by him.
?The applicant, as earlier stated is seeking for;
(i) Leave to appeal as an interested party in respect of the judgment of the Federal High Court in Suit No. FHC/ABJ/CS/254/2015 – LYNDA CHUBA – IKPEAZU V- PEOPLES DEMOCRATIC PARTY & 3
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ORS.
(ii) Extension of time to apply for leave to appeal against the said judgment.
(iii) Leave to appeal against the judgment, and
(iv) Enlargement of time to appeal against the judgment.
Section 241(1) of the Constitution of Nigeria 1999 (as amended) confers a right of appeal as of right from a decision of the Federal High or High Court of State to the Court of Appeal. Where the appeal does not fall within any of the categories in Section 241(1), then leave is required to appeal under Section 242(1) of the Constitution. The right of appeal conferred by the two sections is exercisable in Civil Proceedings either at the instance of a party to the case 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.
?Section 243 of the Constitution of Nigeria 1999 (as amended) provides in part as follows:
“Any right of appeal to the Court of Appeal from the decision of the Federal High Court or a High Court conferred by this Constitution shall be-
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(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having interest in the matter…”
It is common ground that the applicant was not a party to the suit the decision in respect of which she seeks to appeal against. To be able to appeal, she must obtain leave to do so as a “person having interest in the matter”. It is also noteworthy that the judgment which she seeks leave to appeal against was delivered on 25/6/2015 while her application was filed on 11/11/2015 far beyond the period of three months for appeal or notice of application for leave to appeal as prescribed in Section 24 (2) (a) of the Court of Appeal Act, 2004.
In the above circumstances, the applicant is required to apply for:
(i) Leave to appeal as a person having an interest in the case:
(ii) Enlargement of time to seek leave to appeal;
(iii) Leave to appeal; and
(iv) Extension of time to appeal.
It is the success or the grant of the first
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prayer that will open the door for the consideration and, where it is deserving, the grant of the remaining three prayers. In other words, if prayer (i) is not successful then the other prayers cannot be considered as the door to the other prayers remains shut. See CHUKWU V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2014) 10 NWLR (1415) 385,408 – 409.
It is the duty of the applicant to demonstrate to the Court
that she is indeed a person having an interest in the matter within the contemplation of Section 243(a) of the Constitution. The question then is has the applicant shown that she is a person having an interest in the matter? To answer the question, we must first answer another question, viz; who qualifies as a “person having an interest” in a matter within the purview of Section 243(a) of the Constitution?
The above question has been answered in a plethora of cases.
In the case of NWAOGU V. ATUMA (2013) ALL FWLR (669) 1022, 1034 MOHAMMED, JSC (now CJN) stated that;
“…for a person to qualify as a person interested, the applicant must show not only that he is a person having interest in the matter but also that the order or
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judgment of the Court below he is seeking leave to appeal against prejudicially affects his interest. In other words, to succeed in the application, the applicants must show that they are persons who are aggrieved, or persons who have suffered legal grievances, or persons against whom decisions have been pronounced which have wrongfully deprived them of something or wrongly refused them something or wrongly affected their title to something.” See also In Re: UGADU (1988) 5 NWLR (93) 189, In Re: Madaki (1990) 4 NWLR (143) 266 and ENYIBROS FOODS PROCESSING COMPANY LTD V. NIGERIAN DEPOSIT INSURANCE CORPORATION (2007) 9 NWLR (1039) 216.
The acid test for determining whether or not an applicant is a “person having interest in the matter” is whether the person could have been joined as a party to the suit in the trial court. See Re: Madaki supra and ENYIBROS FOODS PROCESSING COMPANY V. NIGERIAN DEPOSIT INSURANCE CORPORATION supra.
Suit No. FHC/ABJ/CS/254/2015, the judgment in which the applicant seeks leave to appeal as an interested person, was a pre, election matter between the 1st respondent and 2nd to 5th respondents.
?It centred around who
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was the lawful candidate of the 2nd respondent (Peoples Democratic Party) for the Onitsha North/South Federal Constituency in the 2015 general election.
The applicant contested the general election for the same seat as the candidate of the All Progressive Grand Alliance (APGA). She, of course, did not contest the primary election of the PDP the subject of the suit. She could not by any legal ingenuity have been joined as a party to the suit by virtue of Section 87(9) of the Electoral Act, 2010 (as amended). She therefore can not be said to be a “person having interest in the matter” to ground her being given leave to appeal as a person having interest.
The application of the applicant is founded on three grounds:
(i) That the issue in contention in the case the legislative seat of Onitsha North/South Federal Constituency.
(ii) That she was a candidate of the APGA in the general election; and
(iii) That the PDP fielded multiple candidates for the election and thus gained an undue advantage over her.
With all due respect to the applicant, it seems that she did not understand the
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nature of the suit at the trial Court The issue in contention at the trial Court was as to who was the candidate of the PDP for the election. Not being a contestant at the primary election of the PDP, she has no interest to ground her application for leave to appeal against the judgment as a person who has interest in the matter. In the case of NWAOGU V. ATUMA supra 1040 – 1041 NGWUTA, JSC, stated that:
“In a contest as to who is the flag bearer of a political party in an election, the one complaining and the one complained against are necessary members of the same political party. It is essentially an internal wrangling within the party and a non-member cannot be heard to complain against the nomination of a candidate to stand an election on the platform of a party to which he is not a member. The issue as to who is the authentic flag bearer of the 3rd respondent is essentiality between the appellant and the 1st respondent.
The applicants herein can not be said to have “genuine and legally recognised interest” in a matter the resolution of which cannot affect them.”
The above dictum applies with great
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force to the applicant.
As stated earlier, the applicant contented that she was a candidate of APGA in the general election and that the PDP gained an undue advantage over her by fielding multiple candidates. In her proposed notice of appeal-Exhibit E attached to her affidavit in support of the motion -some of the reliefs she seeks are:
“3. An order pursuant to allowing this appeal (to) grant…
(ii) A declaration that the 2nd respondent has no validly nominated candidate who contested the March 28, 2015 general election…
(iii) An order of Court directing the 4th respondent to issue forthwith a certificate of return to the appellant as the candidates with highest number of vote cast among the validly nominated candidate of political parties who contested the March 28, 2015 general election…
OR ALTERNATIVELY
(iv) An order of Court directing the 4th respondent to conduct a re-run election for Onitsha North/South Federal Constituency of the House of Representative with 1st respondent or whoever the Appeal Court may declare as the candidate of the
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Peoples Democratic Party (PDP).
(v) An order… directing the Hon. Speaker of the House of Representatives and the Clerk of the National Assembly to swear in the appellant as the candidate who had the highest number of valid vote cast”.
It is my view that those reliefs can only be sought for by the applicant in an election petition in an Election Tribunal in the light of Section 285 (1) (a) of the Constitution of Nigeria 1999 (as amended) Section 138 (1) (a) and (c) and Section 140 (1) (2) and (3) of the Electoral Act, 2010 (as amended).
An appeal is not a new action but a continuation of the original action which cannot be changed in nature and character on appeal.
See NWAOGU V. PEOPLES DEMOCRATIC PARTY (2015) 6 NWLR (1456) 527, 550. Granting the applicant leave that is sought for will lead to a change of the nature and character of the suit from a pre-election/intra -party dispute to an election petition/interparty dispute.
This is completely unacceptable in law.
I have read the judgment of the trial Court including the reliefs granted by that Court. I do not see any interest of the applicant that has
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been affected by the same. I fail to see what she has been deprived of or what title of hers to anything that she has been denied of by the judgment. To crown it all, the deposition that she did not file any petition at the Election Tribunal to challenge the victory of the PDP in election (see Paragraph 7 (vi) of the 1st respondent’s counter- affidavit) has not been countered. It is therefore established as a fact. Having therefore accepted the victory of PDP in the election, her application is but an attempt to pursue her dead interest in the seat through the back door.
At P.7 Par 4. 02 of the applicants “brief of argument” it is stated that
“… the applicant have (sic)shown by her affidavit before the Court that she is a party whose interest is affected by the orders made by the trial court in the judgment…”
This appears to me to be a misconception of the law that misled the applicant to bring this application. The law is that the interest of the applicant must be clear from the record of proceedings and not from the affidavit filed in support of the application. See CHUKWU V. INDEPENDENT ELECTORAL COMMISSION supra. 415.
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There is nothing on the record to show the interest of the applicant in the suit.
On the whole, I come to the inexorable conclusion that the applicant has failed to show that she is a person having an interest in the matter within the contemplation of Section 243 (a) of the Constitution of Nigeria, 1999 (as amended) to warrant her being granted leave to appeal against the judgment of the trial Court. It follows therefore that her prayer I must fail and with it, her prayers 2, 3 and 4 cannot be considered as the door leading thereto remains under lock and key.
The application fails and I hereby dismiss it with costs of N100, 000:00 (One Hundred Thousand Naira) in favour of each of the 1st respondent and 5th respondent against the applicant.
MOORE ASEIMO A. ADUMEIN, J.C.A.: I had a preview of the ruling just rendered by my learned brother, Joseph E. Ekanem, JCA, My noble Lord has elaborately dealt with the live issues in this application.
I completely agree with my learned brother that the applicant, being a stranger to People’s Democratic Party (PDP), has no interest to protect in respect of a dispute on a
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primary election conducted by the said party. This is even so when the applicant contested the general election on the platform of a party other than PDP.
It is for these reasons and the very comprehensive reasons given by my learned brother that I also dismiss this application for lacking in merit.
I abide by the other as to costs.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read before now the Ruling just delivered by my learned brother Ekanem, JCA.
I am in complete agreement with his reasoning and conclusion that the application is devoid of any merit and it fails.
I abide by the orders made therein.
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Appearances
Ifeanyi M. Nrialike, Esq.For Appellant
AND
Emeka Etiaba (SAN) with him, Messrs Tochukwu Nwaeki, Moses Ani, Henry Leonard, Obinna Onya and Maxwe Ezumezu for 1st Respondent
C. S. Ekeocha, Esq. with him, Miss C. U. Adah for 5th respondentFor Respondent
