Economic & Financial Crimes Commission (Efcc) V. The Attorney-general For Rivers State & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Ruling)

In suit No. FHC/PH/CS/78/2007 between the Attorney/General of Rivers State v. The EFCC and 3 others, sitting in Port Harcourt, was heard determined and delivered on 20th March, 2007 in favour of the plaintiff and made the 1st to 4th declaratory orders and also granted the 5th – 8th injunctive relief’s sought by the same plaintiff as contained at pages 108-111 of the trial court’s judgment on pages 135-246 of the record, which was transmitted to this court on 28th November 2008. Dissatisfied with the decision of the lower court, the appellant, simply to be referred to as EFCC, filed its notice of appeal on 20th October, 2008 containing six grounds of appeal.

At this stage, it is pertinent to note that Dr. Peter Odili, was not a party to the civil matter appealed against, but he filed on 4th February,2009, a motion on notice pursuant to section 15 of the Court of Appeal Act, 2004 and Order 6 Rule 8; 7 rule 1 of the Court of Appeal Rules 2007 and also under the inherent jurisdiction of this court for an order joining the applicant (Peter Odili) as a party interested in the appeal. The second relief is for an order directing the EFCC being appellant, to serve on the party interested applicant, all court processes relating to this appeal, and for such further order (s) as the Honourable Court may deem fit to make in the circumstances of this matter. The grounds upon which the application is brought are that the applicant was the Governor of Rivers State between May 29th, 1999 and May 29th, 2007; that the appellant respondent (EFCC) invaded Rivers State in December, 2006 and February 2007 and arrested some key officials of the Government of the day including the Commissioner of Works, Transport and Local Government, the Auditor General and the Accountant General seeking information and documents relating to the public funds of Rivers State during the tenure of the interested applicant seeking to be joined as a party.

The 3rd ground for the application to be joined is predicated on the facts that the then Attorney General of Rivers State instituted suit No.PHC/114/2007 between the Attorney General of Rivers State Vs. The Speaker, Rivers State House of Assembly and got judgment in his favour, and also instituted another suit No.FHC/PH/CS/78/2007 between the Attorney General vs. the EFCC and 3 Ors (the matter appealed against; and after full hearing, as earlier stated above, the learned trial judge granted all the relief’s declaratories and injunctions sought against the EFCC, hence the appeal. The further grounds for the applicant is that, after the end of his tenure as Governor of Rivers State, the (appellant) EFCC, invited him to come and defend an alleged findings against him, and based on the alleged findings, the interested party applicant but as plaintiff, filed suit NO. FHC/PH/CS/1291/2007, between Dr. Peter Odili Vs. EFCC and the Attorney General of the Federation.

The suit was heard and determined on merit and was delivered on 6th March 2008 by the same trial judge who also delivered judgment in suit No. FHC/PH/CS/78/2007. Applicant’s application is supported by 11 paragraph affidavit deposed to by Babatunde Fasuyi a legal Practitioner. After being served with the interested party motion seeking leave to be joined, the EFCC appellant filed on 16th June, 2009, a counter-affidavit containing 11 paragraphs deposed to by Aminu Sadauki a legal practitioner with the law firm of Dikko & Mahmoud. Paragraphs 9 and 10 relied upon by the EFCC are reproduced thus: –

“9. I am informed by Mr. A.B. Mahmoud, SAN and I verily believe him that the issue at stake in suit No.FHC/PH/C8/78/2007 and the appeal to the court of Appeal arising there from are all legal or constitutional issues and do not affect the right of the applicant perse.

10. I am informed by Mr. A.B. Mahmoud, SAN and I verily believe him that joinder of the applicant is not necessary for the determination of any matter arising from this appeal”.

As usual in support of the application and the counter affidavit in opposition, which were dully filed and served, this court made an order directing parties to file and serve their respective written addresses which were complied with and were duly adopted and relied upon on 23rd November, 2010.

The applicant’s written address on his motion on notice for joinder is dated and filed on 27th September 2010, and learned Senior Counsel for the applicant is Chief Wole Olanipekun who argued and adopted the written address as well as the applicants reply on points of law to the appellant/respondents reply. The reply on points of law is dated and filed on 19th October, 2010. In his introductory remark on the written address, learned senior advocate relied on the affidavit of 11 paragraphs deposed to by Mr. Babatunde Fasuyi, of counsel, one of the counsel representing the applicant. Learned senior counsel also relied on the two exhibits, namely a certified true copy of the Enrolled Order of the Federal High Court sitting in port Harcourt in suit No. FHC/CS/78/2007 between the Attorney General For Rivers State Vs.

The EFCC & 3 Ors and is marked as Exhibit “A”; which was annexed to the affidavit of Mr. Babatunde Fasuyi ESQ in support of the application to be joined as a party to the instant appeal. Senior Counsel is of the contention that, it is the judgment in the aforesaid Exhibit “A” that has led to the instant appeal now before this appellate court. Learned Senior Advocate also relied on the second Exhibit “B”, which is also the judgment of the same Federal High court presided and delivered by I. N. Buba, judge, in suit No.FHC/PH/CS/1291/2007, between the present applicants Dr. Peter Odili Vs. The Attorney General of the Federation and Another. The Learned senior advocate has submitted, that, the judgment in Exhibit “B”, was predicated on the judgment in Exhibit “A”, appealed by the appellant.

Learned Senior Counsel for the applicant raised a single issue for determination that reads as follows:-

“whether, having regard to the entire circumstances of the present appeal, and in particular to the fact that the applicant has obtained a judgment in his favour, on the basis of the subject matter of the appeal, the applicant qualifies as a person claiming to be affected by the appeal to justify joining him as a co-respondent to the appeal?”

To buttress his argument, Mr. Olanipekun, SAN, referred to and relied strongly on the statutory court of Appeal Act in section 15, as well as Order 6 rule 8 of the Court of Appeal Rules 2007 which according to learned silk, is the jurisdictional power of the Court of Appeal to make an order for joinder of an interested party. To support the position for joinder under section 15 of the Act, Senior Counsel for the applicant referred to and relied on the Supreme Court decision in the case of Jadesimi vs. Okotie-Eboh (1986) NWLR (pt 16) 264 at 274, which is to the effect that, one of the general powers of the court of Appeal under section 16 of the Act, now section 15 of the Act in 2004, is to exercise full jurisdiction over the whole proceedings as if the proceedings had been instituted in the court of Appeal as a court of first instance.

Learned Senior counsel for the applicant has further submitted that, under Order 6 rule 8 of the rules of this court 2007, this court can, in appropriate case, make an order to add a person to an existing appeal as a co-respondent under the provision to that rule and that all the applicant needs to do as in the instant appeal, is to show that he may be affected by the outcome of the appeal. The applicant also referred to and relied on the Supreme Court decision in the case of Yakubu v. Governor of Kogi State (1995) 8 NWLR (Pt.414) 386, which has explained the principle of needs for all applicant to be joined as a co-respondent in an appeal matter.

In his conclusion, the learned Senior Counsel for the applicant contended that the present appeal was filed after the instant applicant had sought to take advantage of the decision of the Federal High Court in Exhibit “B”, which was annexed to the affidavit deposed to, by Mr. Babatunde Fasuyi of counsel in support of the application for leave to be joined as co-respondent in the appeal. The applicant has demonstrated that the out come of the present appeal will certainly affect him, because, having obtained a judgment in his favour on the basis of the case now on appeal, he is a beneficiary of the decision of the Federal High Court in Suit No.FHC/CS/78/2006, and that therefore, he is the appropriate person who qualifies as the person who will be definitely affected by the appeal, and then urged the court to grant the application for joinder as a co-respondent.