Anambra State Government & Anor. V. Nze Edward Madukwe & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Lead Ruling)

The application before the Court dated 15/11/2007 and filed on 22/11/2007 has been brought by the Applicants/interveners (hereafter simply referred to as “the Applicants” under Sections 6(6)(a) and 222(a) of the 1999 Constitution praying for the following: –

“(a) An Order granting the applicants leave to be joined in this appeal as co-appellants.

(b) An Order joining the appellants in the appeal as co-appellants.”

The Applicants filed an affidavit in support of the application. It was deposed to by the 2nd Applicant on 22/11/2007 and filed on the same date. The 2nd Applicant deposed to the said affidavit for himself and on behalf of the other Applicants who gave him authority in that regard.

The 1st – 16th Respondents (hereafter simply referred to as “the 1st Set of Respondents) filed a counter-affidavit to the application. It was deposed to by the 1st Respondent for himself and on behalf of the other 15 Respondents.

The process was filed on the same date.

The Applicants responded to the counter-affidavit, by filing a Further Affidavit on 6/6/2008. The Further Affidavit was sworn to by the 2nd Applicant on the same 6/6/2008. The Further Affidavit provoked the filing of a 2nd counter-affidavit by the 1st Set of Respondents on 9/7/2008. The process was deposed to on 9/7/2008 by Samuel Nwanegbo with the consent and mandate of the 1st Set of Respondents. As a result of the 2nd counter-affidavit of the 1st Set of Respondents, the Applicants filed on 19/3/2009 a Further, Further Affidavit deposed to by the 2nd Applicant on the same date for himself and on behalf of the other Applicants. The Applicants filed yet a 3rd Further Affidavit on 5/4/2011. The process is basically to remedy the lapse in the supporting affidavit of the instant application as it relates to the document marked Exhibit “A”.

Given the contentious nature of the application as evinced by the various affidavits and counter-affidavits filed therein, the Court ordered parties to file written addresses in respect of the application. The Applicants in compliance with the order of Court filed their written address dated 8/11/2010 on 10/11/2010. They also filed a Reply on point of law dated 31/3/2011 on 5/4/2011. Both written addresses were settled by H.N.C. Moghalu Esq. The written address of the 1st Set of Respondents dated 2/21/2010 and filed on 3/12/2010 was settled by Dr. Onyechi Ikpeazu SAN, OON. The Appellants/Respondents and the 2nd Set of Respondents respectively, did not file any affidavit in the application and also did not file written addresses. The application was entertained on 5/4/2011 and learned lead counsel for the Applicants, H.N.C. Moghalu Esq and Nri-Ezedi of counsel, for the 1st Set of Respondents respectively, adopted and relied on the written addresses of their clients as hereinbefore identified, in moving the application. B.A. Obiora Esq. and P.I.B. Agbata Esq. for the Appellants/Respondents and 2nd Set of Respondents respectively, did not oppose the application.

In their written address, the Applicants relied upon the affidavits they filed in respect of the instant application as hereinbefore identified. The Applicants submitted to the effect that this Court is empowered and indeed has inherent jurisdiction pursuant to Section 6(6)(a) of the 1999 Constitution to entertain the instant application and grant same. That even though they (i.e. Applicants) did not take part in the proceeding at the lower court, this Court can properly grant the order sought in the application. In this regard the Applicants relied on the case of In Re: Yinka Folawiyo & Sons Ltd (1991) 7 NWLR (Pt. 202) 237 at 244. It is the submission of the Applicants that the proposition of law enunciated in the Folawiyo case (supra), is reinforced by Section 243 of the 1999 Constitution. It is the stance of the Applicants that even though they were not parties in the case on appeal at the lower court, they qualify to be joined as parties to the instant appeal by operation of Section 6(6)(6) (supra) and on the authority of the Folawiyo case (supra).

That the only condition which they are required to satisfy as provided in Section 243(a) (supra) is to show that they are persons interested or persons having interest in the matter on appeal.

It is the submission of the Applicants that they have shown that they have interest in the subject matter of the instant appeal in the supporting affidavit and further affidavit filed in the application. The Applicants further submitted that they have shown that they will be affected directly by any order which this Court might make or likely to be made in this appeal, if they are not joined as co-appellants. The interest of the Applicants which will be affected, as set out in their affidavit are: –

“a) By the judgment now appealed against which nullified the Autonomous Communities (Recognition) Repeal law 2004, their case exhibit “A”, which was struck out based on the repeal law, was affected.

b) By the said judgment which was based on the fact that people who wanted to associate should be allowed to associate, an impression was created that the applicants who are from the community that was purportedly constituted Isi-Oba Autonomous Community, one of the purported Autonomous Communities that took out this action now on appeal, are in agreement and supported the purported creation of the Isi-Oba community,”