Attorney-general and Commissioner for Justice, Ekiti State & Ors. V. Prince James Lagunju Osho (2000)
LawGlobal-Hub Lead Judgment Report
AMAIZU, J.C.A.
This is a motion on notice praying the court for the following reliefs –
“1. Extension of time within which to ask for leave of this court to appeal against the judgment of the lower court delivered by Honourable Justice J. O. Akinyede of the Ikole High Court on the 17th day of March, 1998, as an interested party to the subsisting appeal herein.
- Leave to appeal against the judgment of the lower court as an interested party, that is, the 9th appellant.
- Enlargement of time within which the applicant should file and serve his notice of appeal.
- An order deeming the already filed and served notice of appeal herein attached as properly filed and served.
- Leave for continuance of stay of execution granted in the lower court against the judgment delivered by Hon. Justice J. A. Akinyede (now rtd.) on 17th March, 1998, the subject matter of this appeal. And for such further order or other orders as this Honourable court may deem fit to make in the circumstances.”
The application was supported by an affidavit of twenty paragraphs, and also a further affidavit.
It is necessary, in my considered view to give a brief narrative of the facts which constitute the back drop to this application.
The stool of Atta of Aiye Ekiti Chieftaincy became vacant some time in 1991. There is only one ruling house qualified to contest for the stool. Initially, the plaintiff now the respondent and three other princes indicated their intention to contest for the stool. Later, the number increased to seven.
One Ezekiel Agbetayo, the Eleberi for the ruling house refused to forward the names of those who indicated their intention to contest to the kingmakers. The meeting of the ruling house scheduled to hold in connection with the selection at Atta Hall on 12/11/91 was aborted by the said Eleberi.
The Oye Local Government later wrote the Eleberi to forward all the names of those who were contesting to the kingmakers. The Eleberi refused. Eventually he forwarded the name of one of the contestants to the king makers. The Kingmakers refused to act on the name of the lone candidate and asked for names of other princes who were contesting for the stool. Several meetings were held to resolve the dispute. The Kingmakers insisted on the names of all the contestants being sent to them in accordance with the White paper on the Report of Morgan’s Commission of Enquiry. The ruling house warned the Oye Local Government against imposition of a particular candidate on the town.
When the government mooted the idea of appointing warrant chiefs, there were protests against the proposed appointments. The warrant chiefs were eventually appointed. They met and appointed the applicant as the Atta of Aiyede-Ekiti. It was in the process of appointing the applicant that the respondent brought an action against the Attorney-General & Commissioner for Justice, Ekiti State, the Secretary, Oye Local Government and the eight warrant chiefs appointed by the Government.
The further amended writ of summons dated 2nd day of October, 1997, filed by the respondent contained the endorsements of the respondent’s claims as follows:-
“The plaintiff’s claim is against the defendants jointly and severally for:-
(a) A declaration that the appointment of the third, fourth, fifth, sixth, seventh and eighth defendants as warrant chiefs in Aiyede-Ekiti on 30th December, 1992 by the first defendant is contrary to the provisions of the Chiefs Law and Declaration of Atta of Aiyede Chieftaincy and therefore, illegal, wrongful, unconstitutional, null and void and of no effect whatsoever.
(b) An injunction restraining the third, fourth, fifth, sixth, seventh and eight defendants from parading themselves or doing any act as warrant chiefs in Aiyede-Ekiti or taking any part or aiding any person in the process of selecting a new candidate for the Atta of Aiyede Chieftaincy.
(c) An order of this Honourable Court setting aside all the actions already taken by the third to eight defendants towards the selection and or appointment of a new candidate for the vacant stool of Atta of Aiyede.”
Pleadings were exchanged by the parties. Thereafter the trial commenced. During the trial, the respondent applied to withdraw relief (b). The defendants did not object to the application. Accordingly, relief (b) was struck out.
The trial Judge after hearing the evidence of the parties and their witnesses, and the addresses of counsel gave judgment in the following terms” Accordingly, I hereby declare the appointment of the third, fourth, sixth, seventh and eighth defendants as warrant Chiefs in Aiyede Ekiti on 30th December, 1992 by the first defendant is contrary to the provisions of the Chiefs Law of Ekiti State (Chiefs Law of Ondo State (as amended) and now applicable to Ekiti State) and therefore illegal, null and void, of no effect whatever. It is my order that all the actions already taken by the third to the eighth defendants towards the selection and appointment of a new candidate for the vacant stool of Alta of Aiyede-Ekiti shall be and are hereby set aside.”
The defendants were dissatisfied with the judgment. They appealed to this court. In addition, they filed a motion on notice in the court below praying for:-
“1. A stay of execution of the judgment of this Honorable Court delivered on the 17th March, 1998 pending the determination of the appeal filed in the case.
- An order of injunction restraining the 1st and 2nd defendants/respondents either by themselves or their gents, privies or servants from taking any step towards the realization of the judgment delivered by this Honourable Court on the 17th day of March, 1998.”
The lower court after hearing arguments for and against the application ruled as follows:-
“Having regard to the nature of the substratum of this case, and all that I have said above, the reasons given and after a very careful and deep consideration of all the matters involved, I have come to the conclusion that this application be granted and it is hereby granted.
The 1st and 2nd defendants/respondents, either by themselves, their agents, privies and or servants are hereby restrained from taking any step towards the realization ofthe judgment delivered by His Lordship Hon. J. O. Akinyede on the 17th day of March, 1998 pending the determination of the appeal filed in this case by the 3rd – 8th defendants/applicants”.
The respondent was dissatisfied with the ruling. He has appealed against it to this court. I observe that the only part played by the applicant during the hearing of the motion on notice referred to above was that, he swore to an affidavit in support of the motion. The applicant brought the present application on 22nd day of October, 1999, that is:-
(1)A year and seven months after the delivery of the judgment in the substantive suit; and
(2) Two weeks after the ruling on the motion for a stay of execution was delivered.
When the application came up for hearing before this court on 10th February, 2000, the court advised the parties to file briefs of arguments. The parties have exchanged their briefs of argument. The applicant, in addition, filed a reply brief. The learned counsel for the parties adopted their briefs of argument during the hearing of the application. Gbadeyan Esq., of counsel, formulated one issue. It is:-
Whether this court, going by the totality of the affidavit evidence before it, should grant the applicant herein leave to appeal as an interested person against the judgment of the trial court. On his own part, Akanle, Esq., of counsel, formulated one issue. It does appear to me that this lone issue is adequately covered by the above issue formulated by the applicant. I consider it therefore not necessary to reproduce the issue here. Arguing the only issue, Gbadeyan Esq., of counsel, referred to section 243 of the 1999 Constitution of the Federal Republic of Nigeria. The section provides “Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be:-
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter etc.”
The learned counsel also referred to the case of Harry Akande v. General Electrical Co. Ltd. (1979) 3-4 SC 115 and submitted that a party or person interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings. It is further his submission that the combined effect of paragraphs 4-9,11, 14-16 of the affidavit in support, and, paragraphs 5-9 of the further affidavit shows clearly that the applicant is a desirable party, though not a necessary party. He referred to the decision of the Supreme Court in Green v. Green (1987) 3 NWLR (Pt.61) 480 that where the determination of an action between two parties would directly affect a third party’s legal rights or his pecuniary interest, the court has a discretion to order the third person to be added as a party.
The learned counsel observed that the applicant was appointed and installed as the Atta of Aiyede-Ekiti to the knowledge of every body. He submitted that it is necessary that a person interested who wishes to question a judgment affecting his interest, as the applicant now wishes to do, should be allowed to lodge an appeal without going through the elaborate course of starting new proceedings. He cited the case of Akintolen Maja & Ors. v. Harriet Johnson 13 WACA 194.
The learned counsel then raised objections to some paragraphs of the counter-affidavit. It is his view that the averments in the counter-affidavit are in many respects defective. He referred in particular to:-
(1) Paragraphs 3 and 4, 11 and 12 thereof. It is his view that the averments therein are legal conclusions.
(2) Paragraphs 7 and 13. He contended that the source of information to the deponent should have been disclosed, and
(3) Paragraph 6. It is his view that the averment is a prayer.
He submitted that the averments offended the provisions of sections 86-90 of the Evidence Act, 1990. He cited cases of:-
Governor of Lagos State v. Odumegu Ojukwu (1986) 1 NWLR (Pt.18) 621 and Nahman v. Wolowicz (1993) 3 NWLR (Pt.282) 443.
He urged the Court to grant the application.
In his reply, Akanle Esq., of counsel, referred to the history of the present suit. It is his view that the applicant was non-challant about the case. He reminded the court that when the defendants in the lower court applied for a stay of execution, the applicant swore to an affidavit in support of the application. It is after the respondent had appealed against the order for a stay, that the applicant belatedly brought the present application to join as a person interested. He contended that the application is late in the day and the court should not allow him to be joined. He relied on Ademola v. Sodipo (1992) 7 NWLR (pt.253) 251 at 261 and Owena Bank Nig. Plc. v. Nigerian Stock Exchange Ltd. (1997) 8 NWLR (Pt.515) 1 at 19. He also raised objections to certain paragraphs of the affidavit in support. He urged the court to strike out the application…
It is trite that all rights of appeal are statutory. In order to exercise a right of appeal therefore an appellant must show that such a right has been or is conferred on him by some statute. See Godfrey Ugwuh v. A.-G., E.C.S. and Ors. (1975) 6 SC 13 at 16.
The provisions of section 243 of the Constitution of the Federal Republic of Nigeria, 1999 (supra) are clear and unambiguous. Under the section, in the case of civil proceedings a person having an interest in a matter may with the leave of the Federal High Court or the High Court or the Court of Appeal, appeal to the Court of Appeal. The question however is, when is a person said to have an interest in a matter?
In the case of Harry Akande v. General Electric Co. & Ors. (1979) 3-4 SC 115, Aniagolu JSC (as he then was) held that a party or person interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings. Also, in the case of Funduk Engineering Ltd. v. James Mcarthur & Ors. (1990) 4 NWLR (Pt.143) 266 it was held that “a person having an interest in the matter” is synonymous with a person aggrieved meaning a person who has suffered a legal grievance etc. With the above definitions in mind, I now look at the affidavit in support of the motion to be joined as an interested party.
The relevant averments are as follows:-
“6. That he was appointed and installed in 1994 by the then enlarged Ondo State Government and all his rights, emoluments and even salaries, since then, as the incumbent Atta of Aiyede, were promptly paid or offered to him.
- It was his appointment and installation thereafter that the plaintiff/respondent said annoyed him, and necessitated the filing of an action at the lower court which is now the subject-matter of an appeal before this court.
- That the claims of the plaintiff/respondent attacked mainly the 3rd – 8th defendants/appellants as to:-
a) The validity of their appointments as warrant chiefs.
(b) Setting aside what they might have done in respect of the selection and appointment of a new candidate to the vacant stool.
- That the applicant wants to be a party now so as to protect himself, his office as the Atta of Aiyede and his interest from any unjustifiable and unwarranted abuse either in fact or in law.”
Akanle Esq., of counsel, referred the court to two cases where the apex court refused applications similar to the present one. The cases are-
(a) Hon. Justice Adenekan Ademola v. Akanni Osho Sodipo (1992) 7 NWLR (pt.253) 251, and
(b) Owena Bank (Nig.) Pic. v. Nigerian Stock Exchange Ltd. (1979) 8 NWLR (pt.515) 1 at 19.
In Ademola’s case (supra), the applicant had given evidence in the lower court, during the trial of the suit. The evidence runs thus:-
“I was not affected in any way by the repairs being carried out by the defendant. I have no property in the house.”
It is to be noted that the property in question was the subject matter of the suit. The Supreme Court in the light of the above held that the applicant should not have been joined as a party.
In Owena Bank’s case (supra) the facts of the case showed that the applicant had no legal function to perform in the subject matter of the suit at the time the suit was heard. The Supreme Court held that the applicant could not be a person aggrieved because its interest, if it had any, had lapsed by the time it made the application.
These cases are therefore not on all fours with the present suit. Consequently, they are not helpful to the respondent’s case.
I have no doubt that from the above facts that the applicant is a person “having an interest in the matter.”
The point was made that the applicant had delayed in bringing the application. That may well be true. It is trite however that a court must balance the application of its discretionary power to grant or refuse an application for an extension of time with its duty of giving the applicant the opportunity of obtaining substantial justice by allowing him to be joined in a matter in which he has an interest. In that light, I grant the application. Consequently, the applicant is granted:-
- An extension of time within which to ask for leave of this Court of Appeal against the judgment of the lower court delivered by Honourable Justice J. O. Akinyede of lkole High Court on 17th day of March, 1998.
- Leave to appeal against the judgment of the lower court.
- Enlargement of time within which the applicant should file and serve his notice of appeal.
Finally, the notice of appeal attached to this application is deemed properly filed and served subject to the payment of the prescribed fees.
As the applicant abandoned in his brief of argument the fifth relief for leave for continuance of stay of execution granted in the lower court against the judgment delivered by Hon. Justice J. A. Akinyede on 17th March, 1998, the relief is hereby struck out. There is no order as to cost.
Other Citations: (2000)LCN/0877(CA)
