Bereau Of Public Enterprises V. Interstella Communications Limited & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Ruling)

By the application filed in the Registry of this court on the 27/8/09 and dated the 11/7/09, the applicant, Bureau of Public Enterprise, applied for the leave of this court as an interested party for the following:

“1. Extension of time within which to seek leave to appeal as a person interested, against the judgment of the Federal High Court Umuahia (Abia State) delivered in Suit No. FHC/UM/CS/95/2004 Interstellar Communications Ltd and another v. Nigerian Telecommunications Ltd. dated 6th November 2007.

2. Extension of time within which to seek leave to appeal against the Consent Ruling/judgment of the court dated the 17th June 2009 in the same suit.
3. Leave to appeal against the said judgment and the Consent Ruling.
4. Extension of time within which to file notice and grounds of appeal against the said judgment and the Consent Ruling.
5. Deeming the Notice and Grounds of Appeal herein annexed as exhibit C as having been properly filed/served, appropriate filing fees having paid.”

In support of the application is an affidavit of 38 paragraphs deposed to by the N.I. Odinukaeze, a legal practitioner of No. 14 Mbaise Road, Owerri. The affidavit has Exhibits B and C. Upon the service of the motion on the respondents they filed a joint counter affidavit of 26 paragraphs with Exhibits A, B, C1, C2, D1, D2, E1, Exhibits 2, F, G, H, and J. The applicant in reaction filed a 51 paragraph further affidavit.

This application has raised a number of issues for determination and I wish to adopt the issues framed by the Respondent in this application viz:

“1. Whether the applicant has the locus standi to bring this application

2. Whether the application is competent.
3. Whether the application is not an abuse of court process.
4. Whether the application has any merit to Warrant its being granted.”

On the issue of locus standi learned counsel for the applicant argued that where there is a manifestation of the applicants interest in the judgment sought to be appealed against or where there is a link between the applicant and the subject matter of the judgment sought to be appealed against, the applicant is a person interested and has locus standi. The signifies of that interest is a matter to be determined in the substantive appeal and not at this interlocutory stage.

See, OMATHA INVESTMENT AND PROPERTIES LTD. VS. ALHAJI SALAWU AWOSANYA & ORS. (2005) ALL FWLR Pt. 259 2071 at 2074 Raion 4. Learned counsel further cited the case of ENYIBROS FOOD PROCESSING CO. LTD vs. NDIC (2007) ALL FWLR Pt. 367, 793 & 798 where the Supreme Court held thus:

“The test of interest to determine a person interested is whether the person could have been joined as a party to the suit. A person interested includes a person affected or likely to be affected or aggrieved by the proceedings.”

See also OJUKWU VS. MILITARY GOV. OF LAGOS STATE (1988) 2 NWLR (Pt. 10) 806.

Learned counsel further argued in his supporting affidavit that the applicant has deep rooted interest in NITEL – the judgment debtor and had at all material times been in charge of the management and control of NITEL. He further reiterated the fact that the applicant has locus standi as the burden of paying the judgment debt rests on them.

The Respondent on the other submits through his counsel that the onus is on the applicant to disclose his locus standi ex facie and that failure to do so is fatal to his case. He cited the case of GOMBE V. P.W. NIG. LTD. (1995) SCNJ 19 at 39.

Learned counsel for the Respondent further argued that a statutory body must in the performance of its functions act only within the purview of its enabling statute. That the applicant has no life or power of its own to commence this action as its functions are limited to carrying out policies and making recommendations to that parent body which is the National Council on Privatization.

That the applicant is at best a sub-agency of the Federal Government. He concluded that the Applicant is without competence to appeal against a consent judgment given in favour of the Federal Government of Nigeria. That it has absolutely no interest to protect by so doing and thus lacks the locus standi to apply for leave to appeal as a person interested.