IN RE: APPLICATION OF CHIEF A. C. B. AGBAZUERE, J. P. IN DR. ORJI UZOR KALU V. U. C. C. ELEKWE & ANOR.(2002)

IN RE: APPLICATION OF CHIEF A. C. B. AGBAZUERE, J. P. IN DR. ORJI UZOR KALU V. U. C. C. ELEKWE & ANOR.

(2002)LCN/1282(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of September, 2002

CA/PH/60M/2002

JUSTICES

JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria

MICHEAL EYARUOMA APKIROROH Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria

Between

IN RE APPLICATION OF CHIEF A. C. B. AGBAZUERE, J. P. APPEALING AS PERSON HAVING INTEREST IN THE MATTER-
DR. ORJI UZOR KALU Appellant(s)

AND

U. C. C. ELEKWE
(Principal Government College, Umuahia)
2. WEST AFRICAN EXAMINATION COUNCIL (WAEC) Respondent(s)

RATIO

THE MEANING OF THE EXPRESSION “PERSON HAVING AN INTEREST”

JAMES OGENYI OGEBE, J.C.A. (Delivering the Lead Ruling): The applicant brought a motion before this court on the 1st March, 2002 seeking the following reliefs:
“(i) Leave for the applicant (as a person having an interest in the matter) to appeal to the Court of appeal from the decision of the Umuahia High Court in Suit No. HU/23/2001 – Dr. Orji Uzor Kalu (MON) V. U.C.C. Elekwa & Anor delivered on 27/3/2001.
(ii) An extension of time to seek leave to appeal against the said judgment.
(iii) Leave to appeal the said judgment and
(iv) An order for extension of time within which to appeal against the said judgment.”
When the motion first came up for hearing, the arguments between the parties were heated and as this court was about to commence vacation it ordered the parties to exchange briefs of argument in order to make the proceedings before the court easier.
On the 19th of September, 2002 the parties argued their briefs. The learned counsel for the applicant relied on his brief and the supporting affidavit. He directed the attention of the court to paragraphs 14 – 16 of the applicant’s affidavit to show his interest in the matter subject to the application. These paragraphs are reproduced hereunder:
“14. That the said action was a mere hoax to fool the electoral authorities to vet him as qualified to contest the 2003 governorship election which he is not entitled to contest as he does not possess West African School Certificate of his own having undergone the previous screening with another person’s certificate.
15. That I am a person interested in this case in which I am aspiring for the same governorship position of Abia State as a citizen of Abia State, on the platform of the Peoples’ Democratic Party (PDP) like the plaintiff and in which my interest will nearly be suffocated by the plaintiff using his force of incumbency and the educational qualification based on another man’s result to seriously jeopardize my chances hence my need to prevent him from qualifying to contest against me by masquerading and pretending to be the owner of West African School Certificate No. SC 124685, the subject matter of this suit. Copy of the WAEC African School Certificate is exhibited and marked Exhibit B2.
16. That in confirmation of my candidature, I exhibit an acknowledgement letter from the Chairman of PDP Abia State over my intention to run for the governorship position in Abia State under the PDP ticket marked Exhibit ‘C’
The learned counsel for the applicant submitted that the applicant has shown from his affidavit and the various exhibits attached thereto that he is a person having interest in the matter because the respondent is striving to use another person’s certificate to qualify for the 2003 governorship election in which he also wants to contest for nomination in the same party. He submitted that the interest of the applicant is not that of a person who has a general interest in seeing that justice is done to a party but a legally recognizable interest by a person directly affected by an adverse decision. He relied heavily on the case of Kalu v. Odili (1992) 5 NWLR (Pt 240) 130. He also relied on the case of Busari v. Oseni (1992) 4 NWLR (Pt 237) 557 where the Court of Appeal held that the test of interest to determine a party interested in the matter is whether that person should have been joined as a party to the suit. A person interested includes a person affected or legally to be affected or aggrieved or legally to be aggrieved by the proceedings. The learned counsel submitted that the interest in the con of a person should be given a narrow construction and the court should take a bold view of the law in this regard and strive not shut out an applicant from appealing in such a situation as this case where he is a contestant for party nomination for governorship under the platform of the Peoples’ Democratic Party (PDP).
In reply to this, the learned counsel, the learned Attorney-General of Abia State, Mr. Kalu (SAN) for the respondent, submitted that only one issue calls for determination in this application, namely, whether or not the applicant has established that he is an interested person to be granted leave to appeal within the con of Section 243(a) of the constitution of the Federal Republic of Nigeria 1999. He submitted that the superior courts of record have repeatedly defined any person having an interest in the matter to mean, a person whose interest has been directly and not obliquely affected by the decision and not a person whose only interest is to see that justice is done. He relied on the case of Kalu. v. Odili (supra) and Owena Bank Nigeria Plc v. Nigerian Stock Exchange Ltd (1997) 8 NWLR (Pt. 515) 1.
Section 243 (a) of the 1999 Constitution reads:
“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 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, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.”
The first part of the sub-section makes it clear that a right of appeal can be exercised by-
(a) party to civil proceedings from which an appeal is desired and
(b) at the instance of arty other person having an interest in the matter.

In the case of Kalu v. Odili (1992) 5 NWLR (Pt 240) 130 at page 194, Karibi-Whyte, JSC had this to say on the definition of person having an interest:
“The expression “any other person having interest in the matter” was construed by me in Re: Ugadu, Christopher Ede (Representing Amaofia Village, Eha-Amufia) v. Ogenyi Nwidenji & Ors. (representing Amagu Village, Nkaliha) (1988) 5 NWLR (Pt 93) 189. In that case S.213 (5) of the Constitution which is in pari material with section 222 (a) of the Constitution in this case was the subject matter for constitution. I said at p. 199;
“the exercise of the right of appeal under section 213(5) of the 1979 Constitution, the interest contemplated can only be that of those directly and not obliquely affected by the adverse decision. It cannot be a general interest which every person has in seeing that justice is done to a party”
It is not disputed that the applicant was not a party to the proceedings in suit No.HU.23/2001 from which he seeks to appeal. He alleges that the respondent is using another person’s certificate to contest for the 2003 governorship election in Abia State.
He too wants to contest in an election and the respondent’s use of another person’s certificate may be prejudicial to his own interest.
With the greatest respect to the learned counsel for the applicant he has not been able to show that the applicant has been directly and not obliquely affected by the decision from which he seeks to appeal. I therefore hold that the applicant is not a person having an interest in the matter to be entitled to the grant of this application. In my humble view the application is entirely speculative and should not have been brought.
Accordingly, I hereby dismiss the application with costs of N5, 000.00 in favour of the respondent.

MICHAEL EYARUOMA AKPIROROH: I have read in advance the lead Judgment of my learned brother OGEBE, J.C.A. just delivered and I agree entirely with his reasoning and conclusion.
The Applicant has failed woefully to show interest in the matter he is seeking to appeal as such the application is not only misplaced but entirely speculative.
I too dismiss it and abide by the order made as to costs.

ABOYI JOHN IKONGBEH, J. C. A.: I have read in advance the ruling just delivered by my learned brother, Ogebe, J. C. A, I agree with him that this application lacks merit and should be dismissed. The applicant has not shown himself to be a person interested in judgment he seeks to challenge on appeal. He is a mere busybody, meddlesome interloper.
I too would dismiss the application and abide by all the consequential orders made by my learned brother.

Appearances

M.I. Ucheji EsqFor Appellant

AND

Awa U. Kalu (SAN) Hon. Attorney-General of Abia State (with John Ukpai and C.H. Apudiogu, Senior State Counsel)For Respondent