Otunba Abdul Lateef Owoyemi V Prince Yinusa Oladele Adekoya (2003)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

This appeal deals with two distinct and separate matters apparently or seemingly roped together by a single twine. One is the main appeal. The other is parasitic on the main appeal. It is not an appeal. The main appeal is filed by the Attorney-General of the Federation. The second matter is in respect of an applicant seeking to join in the appeal as an interested party.

Let me take the facts of the cases briefly. In the main appeal, Baba Aliyu Adamu, the 3rd respondent as plaintiff, commenced an action at the Federal High Court against the 2nd and 1st respondents, claiming two declaratory reliefs and three injunctive reliefs to bar the 2nd respondent from contesting the 2003 election into the office of Governor of Kogi State. The 2nd respondent, who was the Governor of Kogi State at the material time, in his counter-claim, asked for three declaratory reliefs.

At the end of the case, the learned trial Judge dismissed the claim of the plaintiff. He granted the counter-claim of the 2nd respondent. Aggrieved by the decision, the Attorney-General of the Federation appealed. The Court of Appeal dismissed the appeal. The Attorney-General has appealed to this court.

In the second matter, the applicant, Alhaji Adamu Maina Waziri, was a gubernatorial candidate of the Peoples Democratic Party (PDP) in Yobe State in the last election along with Alhaji Bukar Abba Ibrahim, who was declared winner of the election. He feels that he is prejudicially affected by the judgment of the Court of Appeal, and has come to us. His earlier motion to the Court of Appeal for leave to appeal against the judgment of that court delivered on 25th March, 2003 as an interested party, was refused by the court.

Briefs were filed and exchanged. The appellant formulated two issues for determination:

“(i) Whether or not the appellant had the locus standi to institute this appeal in the court below

(ii) Whether having regard to the provisions of S. 182(1)(b) of the 1999 Constitution a person who had been elected at any two previous elections before the commencement of the Constitution can again be elected into the office of a State Governor.”

The 1st respondent adopted the above issues.

On issue No.1, Chief Babalola, SAN, submitted that the Court of Appeal erred in corning to the conclusion that the appellant lacked locus standi to appeal against the judgment of the trial court. He cited IMB Securities v. Tinubu (2001) 16 NWLR (Pt. 740) 670; CMI Trading Services Ltd. v. Yuriy (1998) 11 NWLR (Pt. 573) 284, 298 and section 233(5) of the 1999 Constitution. Counsel submitted that a person who ought to be made a party and who is being affected by the order made automatically entitled him to appeal or apply against the judgment as a party to the case. He cited Alamieyeseigha v. Yeiwa (2002) 7 NWLR (Pt. 767) 701; Odita v. Okwudima (1969) NSCC (Vol. 6) 198, (1969) NMLR 121; Obimonure v. Erinosho (1966) 1 All NLR 250 and Okukuje v. Akwido (2001) 3 NWLR (Pt. 700)261, 326.

Learned Senior Advocate argued in the alternative that the issue of locus standi of the appellant ought to be given a liberal interpretation to enable him appeal against the judgment. He cited Rabiu v. State (1981) 2 NCLR 293; Attorney-General, Ondo State v. Attorney-General, Ekiti State (2001) 7 NWLR (Pt. 743) 706, 767- 768; PDP v. INEC (1999) 11 NWLR (Pt. 626) 200, 240-241 and Adesanya v. President of the Federal Republic (1981) 2 NCLR 358, 373, 376.

Learned Senior Advocate submitted on issue No.2 that the Court of Appeal erred in interpreting section 182(1)(b) of the Constitution. Relying on the golden rule of interpretation, counsel cited Attorney-General, Osun State v. International Breweries Plc. (2001) 7 NWLR (pt. 713) 647, 662; Attorney-General, Ondo State v. Attorney-General, Ekiti State (supra).

Chief Wole Olanipekun, SAN, for the 1st respondent, in his preliminary objection, called the attention of the court to Order 2 rule 2 of the Supreme Court Rules, and Black’s Law Dictionary definition of appellant and submitted that an appellant is a living or existing person, capable of giving instructions to counsel to file an appeal on his behalf, and cannot therefore be a fictitious personality and neither can his existence be assumed nor presumed when it is clear that he had ceased to be in existence at a particular point in time or that his existence had been temporarily terminated.

Learned Senior Advocate claimed that as at 27th May, 2003 when this appeal was purportedly filed against the decision of the lower court, Mr. Godwin Kanu Agabi (SAN) the immediate past Attorney-General of the Federation, was no longer in office and there was no substantive holder of the office appointed in his stead. Citing section 74(1)0) and (2) of the Evidence Act, 1990; Cole v. Akinyele (1960) SCNLR 192, (1960) 5 FSC 84 and Preston-Jones v. Preston Jones (1951) AC 391, learned Senior Advocate urged the court to take judicial notice of the above fact which counsel said is notorious.