Congress For Progressive Change Vs Admiral Nyako (2011)
LAWGLOBAL HUB Lead Judgment Report
MAHMUD MOHAMMED, JSC
Pursuant to the provisions of Sections 6(6) and 233(5) of the Constitution of the Federal Republic of Nigeria 1999 and Orders 2 Rules 28(1) and (2) and 31 and Order 6 Rule 10 of the Rules of the Supreme Court, the Applicants by a motion on Notice dated and filed in this Court on 28th April, 2011, sought for the following orders –
“1. An Order granting leave to the interested Parties/Applicants to appeal against the judgment of the Court of Appeal, Abuja Judicial Division delivered in this matter on 15th April, 2011.
Pursuant to (1.) supra An Order granting leave to the interested Parties/Applicants to rely on and make use of their Notice of Appeal attached hereto in the prosecution of this appeal, the proper filing fee having been paid and the said Notice of Appeal having been served on all the parties.
An Order permitting the interested Parties/Applicants to make use of and rely on the record of proceedings of the lower Court already prepared and certified by the said lower Court in 2 Volumes, together with a supplementary record for the purpose of this appeal, the said record of proceedings having been formally brought before this Honourable Court for use for the purpose of this appeal.
An Order of departure from the Rules of this Honourable Court by accelerating the hearing of this appeal and also abridging the time with which parties are to file their respective briefs of argument.
And for such order or orders as the Honourable Court may deem fit to make in the circumstances.”
The grounds of bringing the application include –
I. The lower Court delivered judgment in this matter on 15th April, 2011, affirming the judgment of the trial High Court dated 23rd February, 2011 to the effect that INEC should not conduct Governorship election in Adamawa State at the on-going general election.
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ii. Before the said judgment Applicants have made and are still making elaborate arrangements to participate and contest in the election on the platform of their political party.
iii. By the judgment of the lower Court the interest shown by the Applicants in the said election earlier fixed for 16th April, 2011 but now postponed to 26th April, 2011 has been And is being truncated.
iv. Applicants applied before the lower Court for leave to be joined as parties to the appeal against the judgment of the trial Court but their application was refused on 31st March, 2011.
v. Applicants timeously appealed to this Court against the decision of the lower Court refusing them leave to appeal on 12th April, 2011, but before the appeal could be entered in this Court, the lower delivered its judgment on 15th April, 2011.
vi. Applicant thus withdrew their said appeal in order to file this application for leave to appeal against the judgment of the lower Court.
vii. Applicants have shown their interest to contest the Adamawa State Governorship election initially slated for April, 16, 2011 by the Independent National Electoral Commission (INEC).
viii. 1st Plaintiff/Respondent has also signified his interest to participate in the said election initially stated for April, 16, 2011.
Financial human and material resources have been committed and still being committed by the Applicants into the preparation for the election.
1st Applicant has conducted its primaries for the said election and forwarded the name of the 2nd Applicant to INEC as its candidate for Adamawa State Governorship polls.”
The application is supported by a 31 paragraph affidavit deposed, on 28th April, 2011 to which various processes including the Notice of Appeal and the records relevant to the hearing of this application were exhibited as Exhibits 1 -14 and a further affidavit dated and filed on 1st May, 2011.
In opposing the motion, the 1st Respondent filed a counter affidavit of 51 paragraphs through his learned Counsel who also filed a written brief of argument in support of the facts averred in the counter affidavit. In the same vein, the 2nd Respondent is also opposing this application through its counter affidavit of 18 paragraphs. In addition, the 2nd Respondent also filed a Notice of Preliminary Objection to the hearing of the application which its learned Counsel described as incompetent and therefore urged this Court to strike it out.
Arguing the application, learned senior Counsel for the Applicants observed that the application was brought under Section 233(5) of the 1999 constitution for the Applicants who were not parties the case at the trial Federal High Court and the Court of Appeal be given leave to appeal against the decision of the Court of Appeal delivered on 15th April, 2011 affirming the judgment of the trial Federal High Court given on 23rd February, 2011 as parties having interest in matter. Relying on the. Nomination Forms submitted to the 3rd Respondent to contest the Governorship election in Adamawa State in April, 2011, the judgment of the trial Court, the judgment of the Court of Appeal, Notice of Appeal containing the proposed grounds of appeal to be argued if leave is granted and the certified records of the Courts below on which the appeal shall be heard if leave is granted, learned senior Counsel urged this Court to find that the Applicants have satisfied the requirement of the Constitution that they are parties having interest in the matter to justify granting the application. Several cases were cited and relied upon in support of the application.
Learned Counsel to the 1st Respondent however in opposing the application pointed out
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that close scrutiny of the judgments of the two Courts below shows that the matter forming the subject of the judgments of the two Courts below relates to the tenure of office of the 1st Respondent which was in issue between the parties in those Courts and as such the Applicants have no interest whatsoever in the matter. Citing and relying on a number of cases, learned Counsel urged this Court to refuse the application.
As for the 2nd Respondent, its learned Counsel is also of the view that the Applicants have no business coming into this matter at this stage, the matter being purely a dispute between the 1st and 2nd Respondents on one hand and the 3rd Respondent on the other hand on the tenure of office of the 1st Respondent. In addition to citing and relying on several cases to support his submission urging this Court to dismiss the application, a Preliminary Objection to the competence of the application was also brought by the learned Counsel who pointed out that the issues arising for determination in this application having been raised and determined by the Court of Appeal which refused the same application, the present application is incompetent and should be struck out as this Court has no jurisdiction to hear it.
Learned senior Counsel to the 3rd Respondent who filed no written processes in this matter responded to the application orally in support of the application on points of law alone. He observed that taking into consideration that the matter under consideration in the application has raised substantial Constitutional and jurisprudential issues, it ought to be granted because Section 233(5) of the 1999 Constitution under which the application was brought, gave this Court powers to grant the Applicants application for leave to appeal against the judgment of the Court of Appeal as parties having interest in the matter.
Starting with the 2nd Respondent’s Preliminary Objection, it was the contention of the learned Counsel that the facts and reliefs sought in the present application have already been considered and settled by the Court of Appeal in its Ruling delivered on 31st March, 2011between the same parties; that as such the Applicants are estopped in law from raising the same issues before this Court. Let me point out right away that the application that was heard and determined by the Court of Appeal on 31st March, 2011 was application for leave to appeal to the Court of Appeal by the Applicants as parties interested in the matter under Section 243(a) of the Constitution against the judgment of the Federal High Court of 23rd February, 2011. This Court has nothing to do with that application as there is no direct appeal to this Court against the decision of the Federal High Court. The present application on the other hand was brought under Section 233(5) of the 1999 Constitution for leave to appeal by the Applicants as parties having interest in the matter against the judgment of the Court of Appeal delivered on 15th April, 2011. The application therefore having been brought under Section 233(5) of the Constitution and NOT under Section 243(a) of the same Constitution is indeed properly before this Court and therefore quite competent. The Preliminary Objection in this respect is clearly misconceived and same is hereby dismissed.
Coming back to the application itself, the facts giving rise to the instant application are not at all in dispute between the parties having regard to the affidavits in support of the application with the exhibits and the counter affidavits of the Respondents opposing the application. ‘The law is well settled that for an Applicant to be entitled to be granted the relief of leave to appeal as person having interest in the matter as prescribed under Section 233(5) of the 1999 Constitution, that Applicant 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 appeal against prejudicially affects his interest. In otherwords to succeed in this application, the Applicants must show that they are persons who are aggrieved; who have suffered legal grievances; against whom decisions have been pronounced which have wrongfully deprived them of something or wrongly refused them something or wrongly affected their title to something. In short the Applicants must be persons whose interest has been prejudicially affected by the decision they are seeking leave to appeal against. See Ubagu v. Okachi (1964) 1 All N.L.R. 36; Sun Insurance Office Ltd. v. Ojemuyiwa (1965) 1 All N.L.R. 1; Jarmakani Transport Ltd. v. Kallo (1965) 1 N.M.L.R. 194 and Maja v. Johnson 13 W.A.C.A. 194 which were decided under the provisions of Section 117(6)(a.) of the 1963 Constitution which are in pari-materia with the provisions of Section 213(5) of the
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1979 Constitution and now Section 233(5) of the 1999 Constitution on the definition of the words – “person having interest in the matter.” The facts and circumstances of each case determines whether or not the requirement of the Constitution had been satisfied to justify granting the Application for leave to appeal by person having interest in the matter.
Coming back to the present application and guided by the above decisions on the subject of this application, the question to be answered is whether or not the applicants have shown on the materials brought in support of their application that they are persons whose interest has been prejudicially affected by the decision of the trial Federal High Court Abuja delivered on 23rd February, 2011 and affirmed by the Court of Appeal Abuja Division in its judgment handed down on 15th April, 2011 which the Applicants are now seeking leave to appeal against. To answer this question I shall simply rely on the undisputed facts averred in support of the application and in opposing the application as presented to this Court by the parties and the judgments of the two Courts below which are the subject of the application.
From the record in support of this application, it is quite clear from the judgment of the trial Federal High Court that the 1st and 2nd Respondents dragged 3rd Respondent (INEC) to the trial Court following the issuance by INEC the 3rd Respondent of the Notice of Election to the stakeholders and the General Public in exercise of its powers under the Constitution that Governorship elections will hold in all the states of the Federal Republic of Nigeria in January, 2011 except in Rivers State, Edo State, Ondo State and Anambra State where Govenorship election shall hold in June 2011 for Rivers, July 2012 for Edo and Ondo and November 2014 for Anambra. Relying on this notice, the Applicants who no doubt as “stakeholders” to whom the Notice of Election was addressed, proceeded with preparation to participate or contest the election by conducting primaries resulting in the emergence of the 2nd Applicant as candidate of the 1st Applicant to contest the Governorship election of 2011 in Adamawa State and by ultimately submitting the Nominations Forms of 2nd Applicant to INEC as the candidate of the 1st Applicant to contest the election.
Therefore when the Federal High Court in its judgment of 23rd February, 2011 granted all reliefs claimed by the 1st Respondent except relief No. 5, it became obvious that the 3rd Respondent had been restrained from conducting the Governorship election in Adamawa State which the Respondents were waiting to participate/contest in April 2011. It is also on record from the Ruling of the Court of Appeal of 31st March, 2011 that the attempt by the Applicants to seek leave to appeal against the judgment of the Federal High Court to the Court of Appeal was not successful hence the present application. However in its judgment in the consolidated suits, the trial Court had granted reliefs 1, 2, 3 and 4 to the 1st Respondent and stated that relief 5 had been overtaken. For the
A declaration that no vacancy Exists in the Governorship seat of Adamawa State for the period up to 30th day of April, 2012 and the Defendants cannot validly conduct any primary or general Governorship election in Adamawa State on a date earlier than the 28th day of February, 2012.
An order of injunction restraining the Defendants from conducting any Governorship election in Adamawa State on a date earlier than the 28th day of February, 2012.
An order of injunction restraining the 3rd Defendant from organizing or conducting any primary election to choose her candidate for the January, 2010 planned election for the Governorship of Adamawa State.”
Looking at the above four reliefs that had been granted to the 1st Respondent by the trial Court and affirmed by the Court of Appeal, it is not difficult to see that while reliefs 1 and 2 relate to the question of tenure of the 1st Respondent, reliefs 3 and 4 are clearly orders affecting the conduct of the Governorship election in April, 2011 which the Applicants were waiting to participate or contest. To say that the order by the trial Court in reliefs 4 sought by the 1st Respondent and granted by the trial Court and affirmed by the Court of Appeal restraining the Defendants from conducting any Governorship election in Adamawa State on a date earlier than
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28th day of February, 2012 does not prejudicially affect the interest of the Applicants who were ready to participate in the election and contest the Governorship election in Adamawa State as scheduled earlier than 28th February, 2012 in April, 2011 as claimed by the Respondents, is certainly far from the reality of the situation. Reliefs 3 and 4 above as granted by the trial Court and affirmed by the Court of Appeal, in my view, certainly affected the interest of the Applicants to bring them within purview of the plain words of the Constitution as persons having interest in the matter. In other words, on the plain facts and circumstances that gave rise to the case at the trial Court and the appeal at the Court of Appeal, particularly the orders of the trial Court postponing the conduct of Governorship election in Adamawa State which were affirmed by the Court of Appeal, I am satisfied that the Applicants have satisfied the requirements of the law to justify the exercise of the discretion of this Court in their favour to grant their application.
In addition, this Court in a plethora of cases had laid down principles for granting application for leave to appeal simplicita which is also included in the requirement under Section 233(5) of the Constitution for application for leave to appeal as person having interest in the matter. The general rule is that an application for leave to appeal will be granted where the grounds of appeal raise issues of general importance or novel points of law or where the grounds of appeal show a prima facie arguable appeal. See Kigo (Nigeria) Ltd Vs Holman Brothers (Nigeria) Ltd. (1980) 5-7 S.C.62. In the present application, the grounds of appeal contained in the Notice of Appeal in support of the application which clearly involve matters of constitutional and jurisprudential importance, in my view, have shown prima facie arguable appeal to justify granting this application.
Accordingly, it is hereby ordered as follows:
Leave is hereby granted to the interested Parties/Applicants to appeal against the judgment of the Court of Appeal, Abuja Judicial Division delivered in this matter on 15th April, 2011.
Leave is also granted to the interested Parties/Applicants to rely on and make use of their Notice of appeal filed in support of their application in the prosecution of this appeal.
Interested Parties/Applicants are permitted to use and rely on the record of proceedings of the lower Court already prepared and certified by the lower Court in two volumes together with the supplementary record for the purpose of this appeal.
An order for departure from the Rules of this Court is also hereby made to give accelerated hearing of this appeal by abridging the time»within which the parties are to file their respective briefs of argument.
Finally, having regard to the fact that this appeal arose from the decision of the Court of Appeal in civil proceedings on questions as to the interpretation or application of the provisions of the 1999 Constitution, the appeal is hereby referred to the Honourable the Chief Justice of Nigeria for constituting a panel of full Court to hear and determine the appeal as required by Section 234 of the Constitution on a date to be communicated to the parties taking into consideration that the relief for accelerated hearing of the appeal has been granted.
I am not making any order on costs.
SC. 141/2011