IKWUBUE & ORS v. OBINNA & ORS (2020)

IKWUBUE & ORS v. OBINNA & ORS

(2020)LCN/14543(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Wednesday, August 05, 2020

CA/OW/163M/2020(R)

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

HON. EDDY IKWUBUE 2. CHIEF (MRS.) PERPETUA MADUIKE 3. HON. ROBERT AZUBUIKE (For Themselves And As Representing Concerned Appellants In SC/537/2016 Who Are The Local Government Council Chairmen, Vice Chairmen, Supervisors And Councilors Unconstitutionally Dissolved By The 2nd Defendant In June, 2011 Whose Appeal In Respect Thereof Are Still Pending At The Supreme Court) APPELANT(S)

And

CHIKEZIE AUSTINE OBINNA (Chairman, Onuimo Local Government Council) 2. REGINALD NWOSU (Chairman, Ehime Mbano Local Government Council) 3. ADACTUS ONUOHA (Chairman, Ahiazu Mbaise Local Government Council) 4. OKEZIE PASCHAL (Chairman, Obowo Local Government Council) 5. CHIDI NWATURUOCHA (Chairman, Aboh Mbaise Local Government Council) 6. CHIOMA ONWUMERE (Chairman, Ezinihitte Mbaise Local Government Council) 7. JOY EZEBUIRO (Chairman, Ideato North Local Government Council) 8. EMEKA OGUORJI (Chairman, Ideato South Local Government Council) 9. BANA VENTURE KAFOR (Chairman, Ihitte Uboma Local Government Council) 10. CHUKWUYERE METU (Chairman, Ikeduru Local Government Council) 11. NWADIKE CHIMEZIE (Chairman, Isu Local Government Council) 12. MBA BERTHRAM CHIKE (Chairman, Mbaitoli Local Government Council) 13. KENNETH OBIOHA (Chairman, Njaba Local Government Council) 14. CHIZOBAM CHIZOBAM (Chairman, Nwangele Local Government Council) 15. MBAGWU AUGUSTINE (Chairman, Nkwerre Local Government Council) 16. MBACHU JUDE EVANS (Chairman, Isiala Mbano Local Government Council) 17. DANIEL ONYEGBULE (Chairman, Orlu Local Government Council) 18. OKONKWO KINGSLEY NDUBUISI (Chairman, Orsu Local Government Council) 19. DURU EVARISTUS (Chairman, Oru East Local Government Council) 20. UDENTA OBI PAULINUS (Chairman, Oru West Local Government Council) 21. AGOR JOSEPH (Chairman, Owerri Municipal Local Government Council) 22. IHEANYI VITALIS ANYANEGBU (Chairman, Owerri North Local Government Council) 23. ORBA CHIDI ANTHONY (Chairman, Owerri West Local Government Council) 24. G.T.O MGBERUKWU (Chairman, Oguta Local Government Council) 25. AMADI EBENEZER (Chairman, Ohaji Egbema Local Government Council) 26. ONWUMERE FRANK ALOZIE (Chairman, Okigwe Local Government Council) 27. OBINNA CHINWE (Chairman, Ngor Okpala Local Government Council) AND 1. ATTORNEY GENERAL OF IMO STATE 2. GOVERNOR OF IMO STATE 3. FEDERATION ACCOUNT ALLOCATION COMMITTEE 4. ATTORNEY GENERAL OF THE FEDERATION 5. SOLOMON ONWUEGBU CHULAM (Chairman, Owerri North Local Government Council) 6. DR. ANSELEM OPARA (Chairman, Ikeduru Local Government Council) 7. HON. INNOCENT EKEMMA (Chairman, Owerri West Local Government Council) 8. HON. EBERE CHUKWUEMEKA (Chairman, Owerri Municipal Local Government Council) 9. UGO CANDICE MBA (Chairman, Mbaitoli Local Government Council) 10. JONATHAN ONYENKE (Chairman, Aboh Mbaise Local Government Council) 11. SAM AHIARAKWEM (Chairman, Ahiazu Mbaise Local Government Council) 12. GETRUDE IROEME (MRS.) (Chairman, Ezinihitte Mbaise Local Government Council) 13. OKEY ONYEJIAKA (Chairman, Nwangele Local Government Council) 14. LAWRENCE NWADIKE (Chairman, Nkwerre Local Government Council) 15. OBODOSHAA AGWUBUO (Chairman, Njaba Local Government Council) 16. NNAMDI NSOROMOTU (Chairman, Isu Local Government Council) 17. IFEANYI OKWARA (Chairman, Ideato South Local Government Council) 18. HON. ERNEST NJESI (Chairman, Ideato North Local Government Council) 19. HON. ALOYSIUS OLUUIGBO (Chairman, Orlu Local Government Council) 20. HON. HERBERT UBAH (Chairman, Orsu Local Government Council) 21. DYMPNA MBIAMNOZIE (MRS.) (Chairman, Oru East Local Government Council) 22. AKUNNAKWE KENNETH (Chairman, Oru West Local Government Council) 23. HON. HILARY EBERENDU (Chairman, Oguta Local Government Council) 24. HON. DAMIGU EZERUO (Chairman, OhajiEgbema Local Government Council) 25. CHIEF SILAS ONYEURU (Chairman, Onuimo Local Government Council) 26. HON. JASPER CHUKWUEMEKA (Chairman, Obowo Local Government Council) 27. ENGR. BEN NWAOLUKA (Chairman, Ehime Mbano Local Government Council) 28. BARR. MAURREN ONYEKELE (MRS.) (Chairman, Ihitte Uboma Local Government Council) 29. HON. PAUL UCHE (Chairman, Okigwe Local Government Council) 30. NGOZI OGUIKE (MRS.) (Chairman, Isiala Mbano Local Government Council) 31. HON. CHARLES ABARA (Chairman, Ngor Okpala Local Government Council) IN RE: APPLICATION FOR THE LEAVE OF THE HONOURABLE COURT TO APPEAL AGAINST THE JUDGMENT OF THE FEDERAL HIGH COURT OWERRI DIVISION DELIVERED ON THE 1ST DAY OF JULY, 2020 IN SUIT NUMBER FHC/OW/CS/136/2019RESPONDENT(S)

RATIO

FACTORS TO BE ESTABLISHED BY AN INTERESTED PARTY SEEKING TO APPEAL

“Also Applicant seeking to appeal, as an interested party, must also establish, by detailed deposition in his affidavit in support:
(a) His interest in the matter
(b) Why he was not a party at the trial Court, and
(c) Good reasons for delay in filing the application.”
In the case of Sheriff & Ors Vs PDP & Ors (2017) LPELR – 41805 CA, it was held:
“It is trite that a person aggrieved is a person who has suffered legal grievance, a person against whom a decision has been given, which has deprived him of something or refused him of something.”
See also Seciete General Bank Nig. Ltd Vs Afekoro (1999) 11 NWLR (Pt. 628) 521 which was adopted in the case of Dibiakwu Vs Uzonwanne & Ors (2017) LPELR – 43074 CA), where we held:
“Where a person has an interest in a case, which was taken out in his absence and decided in a manner that compromised his right/interests, he is an aggrieved person in the circumstances, entitled to a grant of leave to appeal against the decision reached behind him, as his right of fair hearing is, automatically, activated. See the case of Makarfi Vs Poroye & Ors (2016) LPELR – 41296 CA; Ayoade Vs Spring Bank Plc (2014) 4 NWLR (Pt.1396) 93 at 132.” PER MBABA, J.C.A.

WHETHER OR NOT THERE IS A LIMITATION OF TIME FOR AN INTERESTED PARTY TO BRING AN APPLICATION FOR LEAVE TO APPEAL
The law is trite also that there is no limitation of time for an interested party to bring an application for leave to appeal, especially, prior to his coming to the knowledge of the judgment he wants to appeal against, and so, there may be no need to apply for extension of time to appeal. The provisions inherent in the laws regulating application to appeal, by the regular parties to a judgment (sought to be appealed against), should be distinguished from one seeking to appeal, as an interested party, having not been a party to the Suit, in the first place. See the case of Keystone Bank Ltd Vs EMBECO NIG LTD & Ors (2018) LPELR – 46178 (CA) where my Lord, Lokulo-Sodipe, JCA, held as follows:
“Now, I think there is some confusion with regards to the prayer in the application in question here for extension of time within which to seek leave to appeal. By the Provision of Section 222 of the Constitution of the Federal Republic of Nigeria, 1990, only a party to Civil (or Criminal) Proceeding can appeal to the Court of Appeal without any inhibition on his capacity to do so. Any other person who has interest in the case but is not a party to the case, cannot appeal in the proceeding, 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 brought… The manner in which to make the application is provided by both the Court of Appeal Act, 1976 (Cap.75) and the Court of Appeal Rules… Neither the Constitution, nor the Court of Appeal Act or Rules, prescribes any period within which an interested party may bring application for leave to appeal as a person having an interest in the matter…”
In Poroye & Ors Vs Makarfi & Ors (2017) LPELR – 42738 (SC), the Supreme Court said:
“Ordinarily, an application for leave to appeal, as an interest party, has been held not to have time limit. In Re Madaki (1996) 7 NWLR (Pt.459) 153.”
See also Assams & Ors Vs Ararume & Ors (2015) LPELR – 40828 (SC) and UBA Vs South Land Ass. Ltd &Ors (2019) LPELR – 47121 CA, where Aboki JCA, said:
“It has been stated, repeatedly, that one who applies for leave to appeal, as interested party, does not need extension of time to seek leave to appeal. This is because time does not run against him, upon coming to know of the judgment, to appeal against him (sic) and having not yet been a party to the Suit he seeks to contest the judgment, he cannot, in my view, be questioned for not bringing the appeal within 90 days from the date of delivery of the judgment. See the case of IN RE Vs MADAKI (1996) 7 NWLR (Pt.459) 153.” PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Applicants filed this Application on the 13th July, 2020, seeking:
“Order of the Honourable Court granting the Applicants leave to, as persons having interest in the matter, appeal against the judgment of the Federal High Court, Owerri, presided over by Honourable Justice T.G. Ringim in FHC/OW/CS/136/2019 and delivered on the 1st day of July, 2020.
And for other Order(s) or further Order(s) as the Honourable Court may deem fit to grant, in the circumstances.”
The grounds for the Application were stated, as follows:
(1) The Applicants were duly elected as Chairmen, Vice Chairmen and Councilors and sworn into the Local Government Councils in Imo State in August, 2010 but, unfortunately, Rochas Okorocha, in his maiden broadcast in June, 2011, as Governor of Imo State, unconstitutionally, dissolved the Councils, few months into their tenures.
(2) The Owerri Division of the Court of Appeal in CA/OW/215/2011, declared the purported dissolution unconstitutional and ordered the re-instatement of the Applicants, but the 2nd Defendant used crude force, and hired thugs who

stopped the Applicants from entering their offices even when their tenure was still subsisting.
(3) Applicants went back to the High Court, in Suit Number HOW/499/2012, and made the question of tenure, one of the issues for determination and that question is still one of the issues for determination, the matter having now reached the Supreme Court of Nigeria in SC/537/2016.
(4) On the 23rd day of April, 2018, when the appeal was called up at the Supreme Court, the Applicants informed the Apex Court that the Government of Rochas Okorocha was beginning to tamper with the res in the appeal by making frantic efforts to conduct local government election and the Presiding Justice, Hon. Justice Rhodes-Vivour, immediately, warned the then Attorney-General of Imo State, M.O. Nlemadim Esq, who was physically present, not to do so.
(5) When, in spite of the warning of the Supreme Court, as aforesaid, the said Government of Rochas Okorocha, the then Attorney-General and the Imo State Independent Electoral Commission, continued with their preparations to conduct the local governments elections, which the Plaintiffs/Judgment Creditors/Respondents claim to be

products of, we filed an application for injunction, pending appeal and duly served them to restrain them from conducting the election, they contemptuously proceeded with the exercise by selecting the Plaintiffs, in purporting them to be new Council Chairmen, notwithstanding that political parties in the State withdrew, because of the pendency of the Appeal aforementioned at the Supreme Court.
(6) Incidentally, the same Rochas Okorocha, contemptuously proceeded to swear his selected loyalist as Chairmen, Vice-Chairmen and Councilors into the Local Government Councils and there were no election Tribunals for any aggrieved person to run to. Both Rochas Okorocha and the Plaintiffs have no powers to disregard the pendency of the two aforestated processes and indeed the substantive appeal to select the Plaintiffs as his local government elected officials.
(7) The Applicants also filed an application at the Supreme Court on the 7th day of May, 2019 to set aside the entire process from which the Plaintiffs’ ‘selection’ is anchored on and by virtue of the foregoing, the Applicants have acquired sufficient interest to appeal.

(8) The major issue, from the foregoing, is that the Federal High Court Owerri has no jurisdiction to make any pronouncement in FHC/OW/CS/136/2019, until the Supreme Court decides on the applications before it and indeed in the substantive appeal.
(9) Access to the Courts is a right under the 1999 Constitution (as amended) and the same Constitution gives right of appeal to any person interested in an action. (See pages 4 to 6 of the Motion)

The Application is supported by an affidavit of 19 Paragraphs, deposed to by Hon. Robert Azubuike, one of the Applicants in the Case No. SC/537/2016 at the Supreme Court (and 3rd Applicant herein), with the consent and authority of the other Applicants, on records. They attached 7 Exhibit – A to G to support the affidavit.

The Exhibit A is the judgment of this Court in Appeal No. CA/OW/215/2011, delivered on 5/7/2012, in favour of the Applicants, herein;
Exhibit B is the Applicants’ Amended Notice of Appeal in SC/537/2016, pending at the Supreme Court, emanating from Appeal No. CA/OW/229/2012, which was delivered in favour of the Defendants/Respondents in this Application.

Exhibit C is Applicants’ Amended Brief in the said Appeal No. SC/537/2016 at the Supreme Court – said to be still pending.
Exhibit D is Applicants’ Motion at the Supreme Court in the Appeal No. SC/537/2016, seeking to set aside the Selection by Rochas Okorocha (the Governor of Imo State) of his supporters as Chairmen and Vice Chairmen of Local Government Councils in Imo State (motion said to be pending).
Exhibit E is Amended Originating Summons in Suit No. HOW/704/2019, filed by Plaintiffs/Respondents, challenging the dissolution or truncation of their tenure as the members of the Local Government Council in the 27 Local Government Areas in Imo State by the Defendants/Respondents on 18/6/2019 through a media directive, issued by the 2nd Defendant/Respondent (case said to be still pending).

Exhibit F is the Applicants’ proposed Notice of Appeal; and Exhibit G is the Judgment of the Lower Court (Federal High Court, Owerri) for which leave is sought to be appealed against, delivered on 1/7/2020, in the Suit No. FHC/OW/CS/136/2019, whereof Applicants say they were not joined, despite their pending interest in the subject matter, as shown

in the Exhibits A, B, C and D.

At the hearing of this Application on 23/7/2020, Applicants’ Counsel, L.M. Alozie Esq, SAN, with him Ngozi Olehi Esq., (and others) relied on the supporting affidavit and Exhibits and urged us to grant the application sought. Counsel said the 1st to 4th Defendants/Respondents were in disobedience of the Exhibit A (decision of this Court, serving the job of Applicants and re-instatement of the Applicants to complete their tenure). Counsel said Issue(s) relating to that order, restoring Applicants, herein, to their jobs/offices, became the subject matter of the Appeal in the Supreme Court, (SC/573/2016), as per the Exhibit B, which is still pending in that Court; that Applicants’ Amended Brief of argument in the said Appeal at the Supreme Court is the Exhibit C.

He argued that, despite the pendency of the matter at the Supreme Court and the warning of that Court, that Defendant/Respondent should not take any step that would frustrate the res at the Supreme Court, the 1st to 4th Defendants/Respondents, (under Gov. Rochas Okorocha), went ahead to conduct a purported fresh election to fill the offices of the

Applicants, which never expired, and thereby selected the Plaintiffs/Respondents, who were supporters of the then said Governor (Rochas Okoroacha); he said that at the end of the tenure of the said Governor Okorocha, upon another Governor assuming power, the Plaintiffs/Respondents herein were sacked, and that lead to the Suit (Exhibit E), whereof the Plaintiffs/Respondents challenged that decision, sacking them (and the said Suit is still pending in the High Court of Imo State). Counsel said that while the Exhibit E was/is still pending at the High Court Imo State, the Plaintiffs/Respondents took out this Suit (Exhibit G) on 16/9/2019(the Suit Applicants seek leave to Appeal against as interested parties) at the Federal High Court Abuja, on the same issues raised in the Exhibit E at the State High Court; that Applicants had applied to be joined as parties at the State High Court; and the said application was fixed by the State High Court for 14/7/2020, for Applicants’ reply to the Plaintiffs’ arguments. But that while the matter was still pending at the State High Court, Applicants discovered that the Plaintiffs/Respondents had filed this Suit at

the Federal High Court, Abuja (and same was transferred to Owerri), and the said Court granted the reliefs sought by the Plaintiffs/Respondents, on the said 1/7/2020. (See Paragraphs 4 to 17 of the Applicants Affidavit in support of the Motion).

Counsel submitted that the interest of the Applicants in the Judgment (the Exhibit G) is obvious, Applicants being the persons having interest in the office of Chairmen and Vice Chairmen of the said 27 Local Government Councils of Imo State, and so entitled to leave to appeal against the said judgment. Counsel said the Plaintiffs/Respondents (and Defendants/Respondents), not only defied the decision of this Court, in Exhibit A and the pendency of the matter at the Supreme Court (Exhibits B, C and D), that the Plaintiffs/Respondents also defied the pending matter (on the same issues) at the State High Court (which they (Applicants) had applied to join, as parties). Counsel urged us to grant the application and relied on decided authorities, including the case of Ibilobo Vs Sobomaro (2017) 6 NWLR (Pt.1652) 426; In Re – Abiola (2019) 12 NWLR (Pt.1685) 27; CPC Vs Nyako (2011) 17 NWLR (Pt.1277) 451; Chukwu Vs INEC

(2014) 10 NWLR (Pt.1415) 285.

Counsel said that, in application, like this one, seeking leave to appeal, as interested party, the Court is not concerned, at this stage, about whether or not the appeal will succeed, but whether the Applicants have shown good and substantial reasons, why they should be allowed to appeal; that that has been disclosed in this application.

Counsel for the Plaintiffs/Respondents, Oba Maduabuchi Esq, SAN, with him Nelson Ezeriooha (and others), said that they did not file Counter affidavit, but were relying on the processes, filed by the Applicants, to oppose the application. Counsel said the judgment which Applicants sought leave to appeal against, was delivered on 1/7/2020; that Applicants cannot come here (to the Court of Appeal) to seek leave to appeal, without going to the Lower Court first, and when the 90 days they have to appeal have not expired; he said that the jurisdiction of this Court has not crystallized. He relied on the case of NNPC Vs O&E Nig Ltd (2008) 8 NWLR (Pt.1090) 583 at 606. He said that there is no prior application at the Lower Court.

He further argued that this application tries to lead

this Court into a collision course with the Supreme Court, since Applicants said that Appeal on the issues was pending at the Supreme Court, and so he said this Court should refuse being dragged into entertaining the Appeal. He also said that Applicants’ interest in the subject matter had already been determined in the Exhibit A, and the same was not on appeal, and Applicants were the winners of the Appeal; he said that Applicants therefore have no interest in the case and Judgment (Exhibit G). He relied on Assam Vs Ararume (2016) 1 NWLR (Pt.1493) 368 at 395; Rgtd Trustees of Acts of Apostle Church Vs Fasunde (2016) 11 NWLR (Pt.1523) 211 at 226 – 228; Elelu Habeeb Vs A.G. Fed. (2012) 13 NWLR (Pt.1318) 423 at 464 – 465. He urged us to refuse the application and to dismiss it.

Counsel for the Defendants/Respondents, B.N. Amagheronu Esq, Assistant Director, M.O.J., Imo State did not oppose the application.

Responding on points of law, Counsel for the Applicants said there is no law that forbids Applicants from bringing the application to this Court, the Exhibit G being a final decision of the Lower Court; that Applicants need not apply

to the Lower Court, first; he further submitted that there is no law that requires Applicants to wait till the expiration of 90 days, before they can exercise their right of Appeal; that when it has to do with Applicants seeking leave to appeal, as interested parties, there is no time limit for them to bring the application. He relied on Poroye Vs Makarfi (2017) LPELR – 42738 SC at 69 – 70; In Re Madaki (1996) 7 NWLR (Pt.459) 93. He added that Section 24 of the Court of Appeal Act applies to parties in the case at the Lower Court, not to one seeking leave to appeal, as an interested party. He relied on Manarahd Vs Odoba (2004) 4 NWLR (Pt.863) 229, to say that the arguments of Plaintiffs/Respondents, rather relate to the substantive issues in the Appeal, which cannot be considered at this stage.

RESOLUTION OF THE ISSUE
I think the Issue, to be resolved in this Application, is whether the Applicants have disclosed their interest in the judgment (Exhibit G), to justify being granted leave to appeal against the judgment, as interested parties.
The application was predicated on Section 243(1) (a) of the 1999 Constitution, as Amended,

and Order 6 Rule 1 of the Court of Appeal Rules, 2016, which permit application for leave to appeal from any party to a Suit; or at the instance of any other person having interest in the matter.
For Applicant to qualify, as a person interested, to warrant grant of leave to appeal, as interested party:
“He 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 against, pre-judicially affects his interest. In other words, to succeed in the application, the applicant 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 wrongly deprived them of something or wrongly refused them, something or wrongly affected their title to something.” See Nwaogu Vs Atuma (2013) ALL FWLR (Pt.6069) 1022 at 1034; Re: Ugadu (1988) 5 NWLR (Pt.93) 189; Diamond Bank Vs Opara & Ors (2018) LPELR – 43907 (SC).
Also in the case of FRN Vs Alioha & Ors (2016) LPELR – 40940 CA, this Court held, as to who is aggrieved interested:

(2016) LPELR – 41296 CA; Ayoade Vs Spring Bank Plc (2014) 4 NWLR (Pt.1396) 93 at 132.”
The law is trite also that there is no limitation of time for an interested party to bring an application for leave to appeal, especially, prior to his coming to the knowledge of the judgment he wants to appeal against, and so, there may be no need to apply for extension of time to appeal. The provisions inherent in the laws regulating application to appeal, by the regular parties to a judgment (sought to be appealed against), should be distinguished from one seeking to appeal, as an interested party, having not been a party to the Suit, in the first place. See the case of Keystone Bank Ltd Vs EMBECO NIG LTD & Ors (2018) LPELR – 46178 (CA) where my Lord, Lokulo-Sodipe, JCA, held as follows:
“Now, I think there is some confusion with regards to the prayer in the application in question here for extension of time within which to seek leave to appeal. By the Provision of Section 222 of the Constitution of the Federal Republic of Nigeria, 1990, only a party to Civil (or Criminal) Proceeding can appeal to the Court of Appeal without any

inhibition on his capacity to do so. Any other person who has interest in the case but is not a party to the case, cannot appeal in the proceeding, 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 brought… The manner in which to make the application is provided by both the Court of Appeal Act, 1976 (Cap.75) and the Court of Appeal Rules… Neither the Constitution, nor the Court of Appeal Act or Rules, prescribes any period within which an interested party may bring application for leave to appeal as a person having an interest in the matter…”
In Poroye & Ors Vs Makarfi & Ors (2017) LPELR – 42738 (SC), the Supreme Court said:
“Ordinarily, an application for leave to appeal, as an interest party, has been held not to have time limit. In Re Madaki (1996) 7 NWLR (Pt.459) 153.”
See also Assams & Ors Vs Ararume & Ors (2015) LPELR – 40828 (SC) and UBA Vs South Land Ass. Ltd &Ors (2019) LPELR – 47121 CA, where Aboki JCA, said:
“It has been stated, repeatedly, that one who applies

for leave to appeal, as interested party, does not need extension of time to seek leave to appeal. This is because time does not run against him, upon coming to know of the judgment, to appeal against him (sic) and having not yet been a party to the Suit he seeks to contest the judgment, he cannot, in my view, be questioned for not bringing the appeal within 90 days from the date of delivery of the judgment. See the case of IN RE Vs MADAKI (1996) 7 NWLR (Pt.459) 153.”
In this application, there is ample disclosure of the interests of the Applicants in the judgment they are seeking leave to appeal against, in my view; and the Learned Senior Counsel for the Plaintiffs/Respondents appears to have acknowledged that interest, when he admitted in his short argument, opposing the application, thus:
“We acknowledge that they have interest, but that interest has been decided already by this Court in Exhibit A, which is not appealed against. Applicants won in Exhibit A.”
Of course, the Plaintiffs/Respondents did not file any Counter-affidavit to contest any of the affidavit evidence produced in this Application, that the Applicants had judgment

in Exhibit A, delivered by this Court in 2011, but the 1st to 4th Defendants/Respondents (under Okorocha) defied it, and in disobedience of same, conducted, or purported to have conducted the elections or selections that brought the Plaintiffs/Respondents into the offices, which Applicants claimed rights to, and all that happened while there was an Appeal in Exhibits B and C at the Supreme Court, in SC/537/2016, wherein Applicants, herein, had even filed a motion (Exhibit D) seeking the setting aside of the said selection of the Plaintiffs/Respondents, who were inaugurated, in disobedience of the existing Court decision and orders (and/or pending matters).
Exhibit E also shows that, upon another regime (Government Administration) sacking the Plaintiffs/Respondents in June 2019, they sought the intervention of the State High Court to nullify their sack, questioning the powers of the new administration to sack them, and replace them with 5th to 31st Defendants/Respondents. They even relied on the decision in Exhibit A!
Applicants, on becoming aware of the Exhibit E, applied to the State High Court to join the Suit and the Application/Suit was adjourned

for further argument, to 14/7/2020. But while that Suit (HOW/704/2019) was pending at the State High Court, the Plaintiffs/Respondents originated this Suit (FHC/OW/CS/136/2019) at the Federal High Court (on the same complaints and issues pending at the State High Court in HOW/704/2019 and obtained the judgment on 1/7/2020, which Applicants seek leave to appeal against, as interested parties.
There is no dispute that Applicants have in my view, disclosed their interest in the said judgment, considering their judgment in the Exhibit A, delivered by this Court; the Appeal at the Supreme Court, over issues relevant to their claims and the claims of the Respondents in the Appeal. Above all, the Exhibit E, wherein Applicants’ application to be joined to defend the Suit, was and is still pending at the State High Court at the time the judgment in Exhibit G was delivered, on similar issues pending at the State High Court!
This Application therefore has merit in my view especially as the Exhibit F (the proposed grounds of Appeal by the Applicants) appear to have disclosed good grounds to be argued on Appeal. Applicants are therefore allowed 21

days to file their said Appeal at the Lower Court, from the date of this Ruling.

At the time of hearing the motion ex-parte, to serve the processes on the Respondents, this Court ordered the parties to maintain the status quo ante belum, to avoid dissipation of the res, and that Order was extended at the hearing of this Motion. Applicant had also filed a motion for stay of execution of the said judgment in Exhibit G, pending the hearing of the Motion on Notice (and, of course, the Appeal, upon the grant of the leave to Appeal). I think it would therefore be appropriate and reasonable to consequentially order the stay of execution of the judgment in the Exhibit G, upon the grant of this Application for leave to Appeal. The execution of the said judgment (Exhibit G) is hereby stayed, pending the hearing and/or determination of the Appeal.
Parties shall bear their respective costs.

RAPHAEL CHIKWE AGBO, J.C.A.: I was privileged to read in draft the lead ruling just delivered by my learned brother Mbaba, JCA and I agree completely with both his reasoning and conclusions. In opposing the application, counsel made heavy weather

of the fact that the applicants approached this Court without first applying to the Court of 1st instance and therefore the jurisdiction of this Court has not been properly activated. He relied on a number of decisions of this Court. A critical look at the provisions of our Rules will show that the objection is not well founded. Order 6 Rule 4 of the Court of Appeal Rules 2016 provide as follows:
“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.”
The above provision is clearly not cast in stone. It does not invalidate this application. More importantly, this application is not founded on any provision of the Rules of this Court. It is rather founded on Section 243 of the 1999 Constitution. It is therefore not subject to any limitation created by Order 6 Rule 4 of the Court of Appeal Rules 2016. The application is well founded and I have no hesitation in joining my brother to grant it. I abide by all the consequential

Orders contained in the lead Ruling.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege to read in advance the Ruling just delivered by my learned brother I. G. Mbaba, JCA, and I completely agree with his reasoning and conclusion that there is merit in this application.

The facts and issues raised in this matter have adequately been treated and I need not repeat same. However I feel bound to add my voice to the well reasoned Ruling by way of emphasis.

Having gone through all the processes in this application, I am convinced that there is ample disclosure of the interests of the Applicants in the judgment they now seek leave to appeal against, which interests the Learned Silk for the Plaintiffs/Respondents clearly acknowledged in his brief in opposing the application. I hereby quote him:-
“We acknowledge that they (Applicants) have interest but that interest has been decided already by this Court in Exhibit A, which Is not appealed against. Applicants won In Exhibit A.”

It is noted that while the Applicants copiously stated their case in their affidavit evidence, there was no counter affidavit to controvert or counter any of the

averments in the affidavit of the Applicants to the effect that the Applicants got judgment in Exhibit “A” which was delivered in their favour In the year 2011, which said judgment was contemptuously defied by the 1st – 4th Defendants/Respondents under the administration of Governor Rochas Okorocha who conducted a sham or purported elections bringing on board the Respondents despite the pendency of litigations up to the Supreme Court. See Exhibits “B” and “C”.

For this reason and the more elaborate reasons contained in the lead Ruling of my Noble Lord I. G. Mbaba, JCA, I hold that there is merit in this application which I accordingly grant, adopting all the consequential orders as mine.

Appearances:

L.M. ALOZIE, ESQ., (SAN) with him, NGOZI OLEHI, ESQ., B.O. ALOZIE (MISS) and ESINNE EKE (MRS.) For Appellant(s)

OBA MADUABUCHI, ESQ., (SAN) with him, C. A. N. SOUNDU, ESQ., and J.S. NWANKWO, ESQ. for the Plaintiffs/Respondents

B.N. AMAGBEROUNU Assistant Director Imo State M.O.J for the Defendants/Respondents For Respondent(s)