Isiyaku Musa Jikantoro & Ors V. Alhaji Haliru Dantoro & Ors (2002)
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MUSDAPHER, J.C.A.
The applicant herein, Alhaji Umaru Sanda Ndayako, Etsu Nupe, the Chairman of the Niger State Council of Chiefs has applied to this court, for leave to appeal against the decision of this court, entered on 26th day of February, 2002, as an interested party to the Supreme Court of Nigeria, on his own behalf, and on behalf of the other members of the Niger State Council of Chiefs. In that wise, he is also praying for leave to appeal to the Supreme Court, against the aforesaid decision as an interested and affected party on grounds of mixed law and facts. The application brought pursuant to the provisions of S. 233(3) and (5) of the 1999 Constitution is supported with an affidavit of 14 paragraphs. Attached to the affidavit, are the judgment of this Court entered as aforesaid on the 26/2/2002 and a proposed Notice of appeal. The grounds on which the application is based are:-
“1. The pronouncement of this court trampled on the rights of the applicant;
- Applicant has duties to discharge in the process leading to the appointments of Chiefs under the Chiefs (Appointment and Deposition) Law Cap. 9 Laws of Niger State of Nigeria.”
The facts leading to this application may be summarised thus. This court dismissed the appeal of the appellants in the aforesaid judgment of this court of 26/2/2002. This court confirmed the decision of the trial court which directed the 3rd appellant, the Governor of Niger State, to appoint Alhaji Haliru Dantoro, the 1st respondent, as the Emir of Borgu, having held that the said Alhaji Haliru Dantoro was validly elected as the Emir of Borgu by the Kingmakers. Specifically, in confirming the decision of the trial court, this court held at page 30 of the leading judgment thus:
“I therefore hold that the duty of the Governor to appoint the 1st respondent as the Emir of Borgu is not discretionary, but mandatory after he had been selected as the Emir of Borgu under the tradition and custom of Borgu and as directed by the Governor himself.”
The applicant’s grouse with this finding is that, since the applicants have statutory duty to perform in the appointment of the Emir of Borgu, the directive to the Governor to appoint the Emir of Borgu by the trial court and as confirmed by this court, has prevented the applicant and the other members of the Niger State Council of Chiefs from exercising their statutory duty of taking part in the process of appointing an Emir of Borgu. It is for the above reason that, the applicant has now applied to this court for leave to appeal as an interested and affected party.
It is submitted by the learned Counsel for the applicant, that the applicant has a statutory right to enjoy and duty to perform in the appointment of an Emir of Borgu vide S.7 of the Chiefs (Appointment and Deposition) Law of Niger State. The judgment of the trial court as confirmed by this court has adversely affected him and the other members of the Council of Chiefs in that they are sidelined in the appointment of the Emir of Borgu. The applicant have been adversely affected by the directive to the governor to appoint the Emir without any input from them. Learned Counsel referred to the case of Aliyu v. Adewuyi (1995) 3 NWLR (Pt. 381) 116.
Mr. Omotunde of counsel for the 1st – 5th respondents opposed the application on the grounds that paragraphs 5 and 6 of the affidavit in support offend the provisions of the Evidence Act and ought to be struck out. It is also contended that the applicant cannot be said to be adversely affected vide Re Aribara (1996) 5 NWLR (Pt. 451) 693, Re Mbamalu (2001) 18 NWLR (Pt. 744) 143.
Mr. A.O. Mohammed of counsel for the 6th and 7th respondents, also opposed the application. He submitted that the applicant has not shown how his rights have been infringed to entitle him to appeal as an interested party. It is further argued that since the provisions of S.7 of the Chiefs law aforesaid contain purely legal matter, the grouse
of the applicant has been taken care of by the appeal for the appellants to the Supreme Court in which the appellants have questioned the same issue for which the applicant is seeking leave to appeal. It is further argued that the 3rd appellant, the Governor of Niger State was not prevented from seeking the input of the applicant and the other members of the council of chiefs.
Mr. L.O. Fagbemi, SAN associated himself with the submissions of the learned counsel for the applicant.
The law is settled and is obviously an advantageous course that persons interested, who wish to question a judgment affecting their interests should be enabled to query the judgment on appeal, without going through the elaborate course of starting new proceedings with the necessity of a fresh trial at first instance. See in Re Afolabi (1987) 4 NWLR (Pt. 63) 18 at 28. But a person who is not a party to a suit and claims that he has an interest in the matter or order made therein and desires to appeal against the decision may do so with the leave of court under S. 233 of the 1999, Constitution.But such an applicant must show sufficient interest to entitle him to appeal. He must show that the decision he is seeking to appeal against has affected his interest, right or duty. See Akinbinu v. Oseni (1992) 1 NWLR (Pt. 215) 97.
The test to determine whether an interested party can be granted leave to appeal is whether such a person could have been joined as a party to the suit. See Re Madaki (1990) 4 NWLR (Pt. 143) 266. A person having interest has been judicially defined as including a person affected or likely to be affected or aggrieved or likely to be aggrieved. See Harry Akande v. General Electric & Others (1979) 4 SC 115. In Re General Electric Co. of USA Nigeria Ltd (1979) 3 -4 SC 115 at 125, Mbanu v. Mbanu (1961) 2 SCNLR 305 (1961) 4 ALL NLR 652. It is noteworthy that a person aggrieved or a person having interest means a person who has suffered a legal grievance or a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something. In Re Mbamalu supra. It is stressed that an application for leave to appeal as interested party must show that decision has caused him some grief, loss, disadvantage or affected his title, rights or position. See Re Madaki supra.
Applying these principles, it is crystal clear that the judgment of the trial court and as confirmed by this court on appeal has directed the Governor of Niger State, to appoint Alhaji Haliru Dantoro as the Emir of Borgu. It is a statutory requirement that before the Governor exercises his powers to appoint an Emir or Chief, he must consult the council of chiefs of Niger State.
In my view the necessary consultation and recommendation for the appointment of an Emir or Chief under the Chiefs law is a right, privilege and duty to be enjoyed by the applicant and the other members of council of chiefs whom he represents.
I accordingly, allow the application and grant the applicant leave to appeal as an interested party to the Supreme Court against the aforesaid decision in a representative capacity. I also grant the applicant leave to appeal on questions of facts and mixed law and facts.
Other Citations: 2002)LCN/1201(CA)
