Senator Nkechi Justina Nwaogu V. Hon. Emeka Atuma & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

By a motion on notice filed on 30th March, 2012 under Sections 36(1) and 233(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Orders 2 Rules 12, 28(1) and (2); 31 and 6 Rule 1 of the Supreme Court Rules and the Inherent Jurisdiction of the Court, the Applicants sought the following reliefs –

(a) Extension of time within which to apply for leave to appeal as an interested Party against the decision of the Court of Appeal, Abuja Division, given on 13th December, 2012 in suit No. CA/A/264/2011.

(b) Leave to appeal as an interested party interested in the subject matter;

(c) Extension of time within which to file and serve the Notice of Appeal;

(d) An order Deeming the Notice of Appeal already field and served as properly filed and served;

(e) Leave to appeal on grounds of fact and mixed law and fact;

(f) Leave to adduce additional evidence.

The above reliefs were being sought on the grounds among others that

1. The Applicants were not party to the appeal in which a decision adversely affecting their interest was made by the Court below.
2. Applicants fundamental Rights to be informed, to participate, be heard and to equal treatment and fair hearing among others were breached thereby.
3. The judgment sought to be appealed against denied Applicants of their right to participate in politics and be fairly and equitably represented in accordance with section 71 of the Constitution.
4. The Applicants had no opportunity to participate in the proceedings and Present their position in the matter.
5. If the Applicants are not heard in the present Appeal their right to be heard in a judgment permanently exercising the people of Osisioma Ngwa Local Government Area from their present Senatorial District which is a matter adversely affecting their fundamental human rights to fair and equal treatment and to be informed to participate and be heard will be finally lost.
6. Judgment of the lower court was in flagrant disregard of Section 71, 73, 74 and particularly Section 72 of the 1999 Constitution as amended.
7. The Court below acted without and beyond its jurisdiction.
8. The Applicants’ earlier application for leave to appeal could not be filed and heard before the expiration of time limited for appeal.

This application is supported by a 35 paragraph affidavit to which a number of relevant documents have been exhibited including the judgment of the court of Appeal Abuja Division being appeal against which was delivered on 13th December, 2011, judgment of the trial Federal High court, Abuja delivered on 21st April, 2011, the Applicants proposed Notice of appeal and the applicants brief of argument in support of the application. Learned senior counsel contended for the Applicants that from available records and uncontroverted facts, Osisioma Ngwa Local Government Area has from inception in 1996 been delineated part of Abia Senatorial District Central and the Applicants have continuously registered and participated in elections; that the fundamental rights of the Application, have grossly been abused by the judgment of the Court below and that there are substantial grounds of appeal which clearly elucidated the grievances of the Applicants. Learned senior counsel who explained that this application was not sought at the Court below because the record of appeal had already been transmitted to this Court after the judgment, maintained that having regard to the averments in the affidavit in support of the application, the Applicants have shown that they are necessary parties in this appeal who ought to have been joined at the trial Court and the Court below thus satisfying the requirements of the law that they are parties interested in the case who will be adversely by the outcome of the appeal in this Court thereby justifying the grant of their application on the authority of the case of Ojora v. Odunsi (1964) 1 All N.L.R. 55.

Learned senior counsel for the Appellant does not oppose this application which he saw as an opportunity for the Applicants to exercise their Constitutional right of appeal.

Learned senior counsel for the 1st Respondent, however, is of a different view. The application was therefore opposed by the 1st Respondent and a counter-affidavit in this respect was filed on 24th April, 2012 and a further affidavit on 27th April, 2012. A written address was also filed on 24th April, 2012. Relying on all these processes, learned senior counsel submitted that the Applicants have no genuine interest at all in this appeal as their grounds in support of the application are unfounded having regard to the judgment of the Court below which did no exercise any Local Government Area from any Senatorial District. Learned senior counsel explained that the political rights of the Applicants have not been affected by the judgment to justify granting them leave to appeal against it relying on a number of cases including In Re Ugadu (1988) 5 N.W.L.R. (pt.93) 189 at 199 and 202 and Ojora Agip (2005) 4 N.W.L.R. (Pt.915) 515 at 532. With regard to the Applicants’ last relief asking to be allowed to adduce additional evidence, learned senior Counsel for the 1st Respondent observed that the relief is rather premature which must await the grant of the application first before that relief can arise for consideration and therefore urged this court to dismiss the application.

Learned senior counsel for 2nd Respondent was also of the view that the Applicants have a constitutional right which is not within the discretion of the court, to appeal against the judgment of the court below and therefore does not oppose the application, pointing out that time is not ripe for the grant of the last relief on additional evidence.

The learned senior Counsel for the 3rd Respondent also does not oppose the application having taken into consideration that the judgment of the Court below affected the right of the Osasioma Ngwa Local Government Area Community regarding their rights of choice of candidate and that, the Applicants’ application is in order and can be granted in the interest of justice.