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.
Citing the case of Attorney-General, Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) 483, learned Senior Advocate submitted that the functions of an Attorney-General can only be performed by the holder of the office or delegated personally by him to any delegate. The immediate past Attorney-General of the Federation who ceased to hold office upon the dissolution of the Federal Executive Council before 27th May, 2003 ‘died’ within the con of section 150 of the 1999 Constitution, learned Senior Advocate reasoned. He cited PDP v. INEC (1999) 11 NWLR (Pt. 626) 200 at 246; Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) 163, (1988) 19 NSCC (Pt. 1) 1071; Atanda v. Olanrewaju (1988) 4 NWLR (Pt. 89) 394 at 409; Whyte v. Jack (1996) 2 NWLR (Pt. 431) 407 at 422; Adizua v. Isubua (1993) 5 NWLR (Pt. 295) 604 and Oyeyemi v. Commissioner for Local Government, Kwara State (1992) 2 NWLR (Pt. 226) 661.
Learned Senior Advocate pointed out that since the 3rd respondent who was seeking the declarative reliefs has emphatically stated that he is disinterested in the appeal, the person who rightly championed the appeal is no more in it. As the appeal is brought on behalf of an uninterested pat1y, it cannot stand. He cited Mustafa v. Monguno (1987) 3 NWLR (Pt. 62) 663 at 670; Mobil Production (Nigeria) Unlimited v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Jamarkani Transport Ltd. v. Kalla (1965) 4 NSCC 56, (1963) NMLR 194.
Learned Senior Advocate argued that since there are no life issues to adjudicate upon in this appeal, this court cannot embark on an academic exercise. He cited Badejo v. Federal Ministry of Education (1996) 8 NWLR (Pt. 464) 15; Olemiyi v.Aroyelulu (1991) 5 NWLR (Pt.194) 652; Anaekwe v. Mashasha (2001) 12 NWLR (Pt. 726) 70 at 89-90; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162; Abubakri v. Smith (1973) 6 SC 31; Adelaja v. Alade (1999) 6 NWLR (Pt. 608) 544 at 563; Global Transport Oceanic S. A. v. Free Enterprise (Nig.) Ltd. (2001) 5 NWLR (Pt. 706) 426; Union Bank v. Edionseri (1988) 2 NWLR (Pt. 74) 93; Salihu v. State (1984) 10 SC 111; and Adeyemi v. Opeyori (1976) 9-10 SC 31.
In the event of the preliminary objection not upheld, Chief Olanipekun submitted on issue No.1 that the doctrine of locus standi is applicable in appeals. He cited Adesanya v. President of Nigeria (1981) 2 NCLR 358; Owodunni v. Registered Trustees of CCC (2000) 10 NWLR (Pt. 675) 315; Shofolahan v. Fowler (2002) 14 NWLR (Pt. 788) 664 at 683 and Order 8 rule 2(1) of the Supreme Court Rules. Counsel submitted that both at the lower court and in this court the appellant has no locus standi to prosecute any appeal. He cited Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156; Ogunkunle v. Eternal Sacred Order of C and S (2001) 12 NWLR (Pt. 727) 359 at 370-371 and Coleman v. Clarence Miller 122 American Law Reports 695 at 711, (1939) SC Reporter 307 U.S. 973.
On issue No.2. learned Senior Advocate, in essence, submitted that section 182 of the Constitution cannot be interpreted retrospectively, and that the Court of Appeal was wrong in so interpreting the section. He cited numerous authorities on the interpretation of the Constitution and to substantiate his argument, he urged the court either to strike out the appeal or dismiss it.
In his reply brief. Chief Babalola (SAN) for the appellants, submitted that as the 1st respondent neither filed an affidavit in support nor filed a separate notice of objection, the preliminary objection is misconceived and incompetent.
On the submission of learned Senior Advocate for the 1st respondent that there was no Attorney-General at the time the appeal was filed, Chief Babalola submitted that the office of the Attorney-General created under the Constitution is a corporation sole and not a natural person and it is vested with powers to sue and be sued, and has perpetual succession. He cited Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt. 105) 558; Alapiki v. Governor of Rivers State (1991) 8 NWLR (Pt. 211) 575, 588, 599; Royal Pet. Co. Ltd. v. FBN Ltd. (1997) 6 NWLR (Pt. 510) 584, 599; Carlen Nig. Ltd. v. Unijos (1994) 1 NWLR (Pt. 323) 631 and submitted that the “death” of the holder of the office does not mean the “death” of the office. The cases of Attorney-General, Kaduna State v. Hassan (supra) and PDP v. INEC (supra) cited by counsel for the 1st respondent are inapplicable, learned Senior Advocate argued.
On the position taken by the 2nd and 3rd respondents, learned Senior Advocate urged the court to hold that it is no longer open to them in the circumstances to say that they are no longer interested
in the case. Learned Senior Advocate made specific replies in respect of the locus standi of the appellant and the construction of section 182(1)(b) of the 1999 Constitution.
On the application of Alhaji Adamu Maina Waziri, Chief Babalola filed a brief of argument. He formulated three issues as follows:
“(1) Whether in the circumstances of this case, the applicant is not entitled to leave to appeal as an interested party against the judgment of the Court of Appeal.
(2) Whether or not the applicant is entitled to be granted leave to appeal on grounds other than grounds of law.
(3) Whether the applicant is not entitled to a stay of further proceedings in the Governorship and Legislative Houses Election Tribunal, Damaturu.”
The 1st respondent, in its brief, adopted the above three issues but expressed concern that the third issue is now merely academic.
On issue No.1, learned Senior Advocate for the applicant. Chief Babalola, submitted that by virtue of section 243(a) of the 1999 Constitution, any other person having an interest in a matter can exercise the right of appeal in a civil proceeding though he was not a party to the original proceeding. He submitted that a person having an interest in the matter is synonymous with a person aggrieved, that is, a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something; or wrongfully affected his title to something. It is not only a person already affected but a person who is likely to be affected by such a decision may appeal as an interested party. He cited Akande v. General Electric Co. and Others (1979) 3-4 SC 115.
In considering whether an applicant comes within the expression of interested party, an applicant who has shown that he is so connected with the subject matter of the suit that any order made in the suit will be prejudicial or beneficial to him is entitled to appeal against the decision, learned Senior Advocate contended. He cited In Re: Williams (No. 1) (2001) 9 NWLR (Pt. 718) 329 at 340. Relying on In Re: Mbamalu (2001) 18 NWLR (Pt.744) 143, 158, 159 and 168, learned Senior Advocate submitted that a person who has shown that the decision of the court has caused him grief, loss, advantage and has affected his title or position will be a person interested in the judgment who is entitled to appeal against it. Learned Senior Advocate gave reasons in paragraph 4.03 why the applicant is an interested person in the appeal.
Learned Senior Advocate submitted that section 233(5) of the Constitution is made in order to obviate such unnecessary litigation as a person instead of going through the whole gamut of appeal in order to get a decision “which has adversely affected him set aside can appeal as an interested party to get same set aside.” Citing In Re: Eke (1993) 4 NWLR (Pt.286) 176, 185, 187; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; In Re: Mbamalu (2001) 18 NWLR Pt. 744) 143, 163, learned Senior Advocate contended that an unnamed representative has a right to appeal against any judgment as an interested party.
On a possible accusation of standing by when his interest was at stake, learned Senior Advocate argued that he cannot be seriously so accused having regard to the fact that the applicant’s cognizable rather than contingent interest never arose until he went to the elections in April 19, 2003.
On issue No.2, learned Senior Advocate submitted that an applicant for extension of time to appeal must satisfy the court that there are good and substantial reasons for failure to appeal within time and that the proposed grounds of appeal show prima facie why the appeal should be heard. He cited Order 2 rule 31(2) of the Supreme Court Rules; Kotoye v. Saraki (1995) 5 NWLR (Pt. 395) 256 and CBN v. Ahmed (2001) 11 NWLR (Pt. 724) 369, 392.
Referring to the applicant’s affidavit on the issue of delay, learned Senior Advocate submitted that what the law requires is not a justification for the period of delay, but that where an application is not wholly untenable or amounts to no explanation, the court will not shut out an appellant from appealing against a judgment he is dissatisfied with. He cited Iyalabani Coy. Ltd. v. Bank of Baroda (1995) 4 NWLR (Pt. 387) 20, 25; Ude Ubada and Sons Ltd. v. C. C. Ezekwem and Co. (2000) 10 NWLR (Pt. 676) 600; CBN v. Ahmed (supra); Shanu v. Afribank (Nig.) Plc. (2000) 13 NWLR (Pt. 684) 392 and urged the court to hold that the delay in the prosecution and delivery of the ruling at the Court of Appeal constitute good reason to extend time to appeal in this case.
On the grounds of appeal, learned Senior Advocate submitted that the grounds have inter alia raised issues of the interpretation of section 182(1)(b) of the Constitution and the constitutionality of the reading of the judgment of a High Court by a Judge who did not write the judgment. Calling in aid CBN v. Ahmed (supra), learned Senior Advocate submitted that the issues raised by the grounds of appeal are substantial, recondite, arguable, and worthy of being considered in this appeal. He cited further Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 527, 541-542; Yesufu v. Co-operative Bank (1989) 3 NWLR (Pt. 110) 483, 504; In Re: Madaki (1996) 7 NWLR (Pt. 459) 153 at 164-165.
On issue No.3, learned Senior Advocate submitted that an applicant for a stay of proceedings only need to establish special and exceptional circumstances entitling him to a stay of proceedings. He submitted that where a substantial issue of constitutionality has been raised, the Court would grant a stay of proceedings. He cited Owena Bank (Nig.) v. Olatunji (1999) 13 NWLR (Pt. 634) 218 at 229; Almaroof v. Awoyemi (1999) 10 NWLR (Pt. 623) 444 at 450; NDLEA v. Okorodudu (1997) 3 NWLR (Pt. 492) 221 at 241. Relying further on Eze v. Okolonji (1997) 7 NWLR (Pt. 513) 515 at 528, learned Senior Advocate submitted that at this stage, the applicant has no duty to prove that the appeal will succeed, and that once he shows that the appeal is arguable and there are chances of success, an application for stay should be granted.
Learned Senior Advocate also called the attention of the court that the applicant’s right to fair hearing is also in imminent danger of being breached by the election tribunal. He pointed out that the proceeding before the tribunal “has been conducted and would be decided upon the judgment that is being appealed against”. When this happens and the applicant succeeds in this appeal, he will not have any opportunity to have the judgment reversed as the tribunal would have become functus officio in respect of the petition, learned Senior Advocate explained. He urged the court to grant the application.
In his reply brief, learned Senior Advocate for the 1st respondent submitted that no constitutional provision entitles the applicant to approach this court by way of application to overturn a decision of the court of Appeal. He cited section 233(1) of the Constitution and the following cases: Dike v. Aduba (2000) 3 NWLR (Pt. 647) 1; Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 and Oyeti v. Soremekun (1963) 3 NSCC 282, (1963) I SCNLR 320.
Pointing out that the applicant’s complaint is in respect of the gubernatorial election held in Yobe State on the 19th day of April, 2003, learned Senior Advocate submitted that this court has no jurisdiction to hear an election petition except by way of appeal from the Court of Appeal in respect of a presidential election petition.
It was the submission of learned Senior Advocate that the applicant in seeking to appeal as a person having an interest in this matter, is meddling in a matter that does not, in any conceivable manner in law, concern him in such a way that would confer a recognizable interest that he can protect by way of an appeal. He questioned the appearance of Chief Babalola both for the applicant and the appellant.
Calling the attention of the court to Ikonne v. Commissioner of Police, Imo State (1986) 4 NWLR (Pt. 36) 473, (1986) 17 NSCC (Pt. 11) 1130 at 1153; Nigerian Bottling Plc. v. Osofisan (2000) 10 NWLR (Pt. 675) 370, 381 and Adelaja v. Alade (1999) 6 NWLR (Pt. 608) 544, learned Senior Advocate submitted that only a person who has suffered a legal grievance or against whom a decision has been pronounced which has wrongly deprived him of something or wrongly affected his title to something can apply for leave to be joined as an interested party. The acid test in an application of this nature, is whether the person seeking leave to appeal could have been joined in the case in the first place, learned Senior Advocate contended. To counsel, no lis or contestable case exists or remains for the applicant to energize by way of an appeal by him (a total stranger) to this court. The proposed appeal is purely academic, vis-a-vis the facts of the case, learned Senior Advocate submitted.
Let me take the preliminary objection first. Chief Babalola submitted that since the preliminary objection is not supported by an affidavit, it is not competent. With respect, he cannot carry me along in that submission. Preliminary objection, by its very nature, deals strictly with law and there is no need for a supporting affidavit. In a preliminary objection, the applicant deals with law and the ground is that the court process has not complied with the enabling law or rules of court and therefore should be struck out. It could be on abuse of court process. The preliminary objection is successful, the court will not hear the merits of the matter as it will be struck out. However, if a preliminary objection leaves the exclusive domain of law and flirts with the facts of the case, then the burden rests on the applicant to justify the objection by adducing facts in an affidavit. The applicant, in that circumstance, stands the risk of his objection being thrown out or rejected, if he fails to satisfy the court of the facts he has relied upon.
That takes me to the merits of the objection. Chief Olanipekun, SAN, seriously attacked the appellant on the ground that at the time he appealed, the office of the Attorney-General was vacant, and that meant that the Attorney-General was “dead” legally. He took so much time to cite authorities particularly on the expression “dead” to buttress the point that it does not mean in the con physical cessation of breath in medical parlance.
Section 150(1) of the Constitution of the Federal Republic of Nigeria, 1999 creates the office of Attorney-General of the Federation. Let me read it quickly:
“There shall be an Attorney-General of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation.”
It would appear that the Attorney-General is the only Minister specifically created in the Constitution. Section 147(1) of the Constitution ominously creates the office of Minister of the Government of the Federation.
In view of the fact that the office is created in the Constitution, and unless or until the office is abrogated, it will continue in perpetuity. And any suit by or against the Attorney-General will in law be absorbed by the office, which never dies unless the Constitution abrogates it. At the time the appellant, the Attorney-General, filed the appeal, the office was and is in existence. It is very much alive and not dead as contended by Chief Olanipekun.
The law recognises two categories of persons who can sue and be sued. They are natural persons with life, mind and brain, and other bodies or institutions having juristic personality. In Alhaji Mailafia Trading and Transport Company Limited v. Veritas Insurance Company Limited (1986) 4 NWLR (Pt. 38) 802, the court held that a party who should commence action in court must be a person known to law, that is, a legal person. The office of the Attorney-General, being a creation of the Constitution, is a legal person known to law.
In the English case of Knight and Searle v. Dove (1964) 2 All ER 307, Mocatta, J. said at page 309:
“The proposition was that no action can be brought by or against any party other than a natural person or persons unless such party has been given by statute, expressly or impliedly, or by common law, either (a) legal person under the name by which it sues or is sued or (b) a right to sue or be sued by that name.”
In Chief Fawehinmi v. Nigerian Bar Association (No. 2)(1989) 2 NWLR (Pt. 105) 558, a case cited by Chief Babalola, Agbaje, JSC, fell back on Halsbury’s Laws of England, 3rd edition, vol. 9. page 7, article 8 which provides:
“A corporation sole is a body politic having perpetual succession, constituted in a single person, who, in right of some office or function, has a capacity to take, purchase, hold and demise (and in some particular instances, under qualifications and restrictions introduced by statute, power to alienate) lands, tenements and hereditaments, and now, it would seem, also to take and hold personal property…”
The position was made clearer in Alapiki v. Governor of Rivers State (1991) 8 NWLR (Pt. 211) 575. Delivering the leading judgment of the court, Ogundare, JCA (as he then was), said:
“Does the word ‘person’ as used in section 2 mean natural person only or what is the scope of the law in the light of the section 2 thereof Does it include artificial persons as well The 1st respondent (the Governor of Rivers State) is not a natural person but an office created by the Constitution, although the office is occupied at any given time by a natural person. As a constitutional office it is a corporation sole and having regard to the functions conferred on it by the Constitution, it can be safely said to be a public authority. As a public authority and a corporation sole, it is a legal person that can sue and be sued.”
In Royal Petroleum Company Limited v. First Bank of Nigeria Limited (1997) 6 NWLR (Pt. 510) 584, the court held that a limited liability company is an entirely different and distinct entity from its Managing Director and other human agents who act for it. The relevance of this judgment to this appeal is that the office of the Attorney-General of the Federation is different and distinct from the person occupying it. And so while the office continues in perpetuity, unless abrogated by the Constitution, the holder of the office could leave the office at the expiration of his tenure or removed as the case may be. Physical death can also result in the person not occupying the office any longer. This is merely saying the obvious.
In Carlen (Nig.) Limited v. University of Jos (1994) 1 NWLR (Pt. 323) 631, the Supreme Court defined a corporation as a body of persons (in the case of a corporation aggregate) or an office (in the case of a corporation sole) which is recognised by law as having a personality which is distinct from the separate personality of the members of the body or the personality of the individual holder for the time being of the office in question. The court also held that any person natural or artificial may sue and be sued in court. This decision, by analogy, also makes it clear the distinction between the office of the Attorney-General and the incumbent of the office. While the office of the Attorney-General is stable and constant, being a creation of the Constitution, the incumbent could be transient and varied, in the sense that it is not permanent.
Chief Olanipekun cited Attorney-General, Kaduna State v. Hassan (supra). That case dealt with a different situation. The issue before this court in that case was whether the constitutional duties of the Attorney-General under section 191 of the 1979 Constitution can, in his absence, be exercised by the Solicitor General. In that case, there was no incumbent Attorney-General in office when the Solicitor-General purportedly exercised the powers of the Constitution, the exercise of the powers of the Attorney General is personal to him and cannot be exercised by any other functionary unless those powers have been delegated to him by the Attorney-General. Before such delegation can take place, there must be an incumbent Attorney-General in office who can be the donor of the powers.
Hassan’s case is quite different from the case here. The facts are clearly different. There is no issue here in which the Solicitor-General tried to perform the constitutional functions of the Attorney-General. What happened here is that the office of the Attorney-General, which is created in the Constitution, filed an appeal in this matter. Accordingly, Hassan is not helpful to the 1st respondent.
In the light of the foregoing, the preliminary objection is basically unmeritorious and it is hereby struck out.
That takes me to the appeal of the Attorney-General. It is clear from the brief of the appellant that the main issue centres on the interpretation of section 182(1)(b) of the Constitution, particularly whether the provision can be interpreted retrospectively. Can this court involve itself in the interpretation of the subsection when the office of Governor of Yobe State has been occupied in the April 19, 2003 gubernatorial election That is the relevant question. What purpose or objective will this court achieve by the interpretation of the provision
I can hardly see any purpose or objective in the interpretation of the provision other than embarking on a mere academic exercise. And courts of law do not embark on academic exercise because they are not academic institutions. See Adelaja v. Alade (1999) 6 NWLR (Pt. 608) 544; Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530; UBN Plc. v. Sepok (Nig.) Ltd. (1998) 12 NWLR (Pt. 578) 439; Nnubia v. A.-G., Rivers State (1999) 3 NWLR (Pt. 593) 82; A.-G. Kwara State v. Alao (2000) 9 NWLR (Pt. 671) 84. I say this because the interpretation of the provision will not affect the position of the present occupant of the office, who is understandably not a party to the action. And what is more, the 2nd and 3rd respondents who were directly involved in the action have thrown in the towel and are no more interested in pursuing the matter. This was indicated at the hearing of the appeal.
I entirely agree with the constitutional role of the Attorney-General spelt out by the learned Senior Advocate. He, as the Chief Law Officer, should be interested in “any question relating to the validity and or the correct interpretation of the laws of the Federation including the Constitution”. But in a situation such as this, the interpretation of the constitutional provision, apart from being interpretation qua construction will, as I have said, serve no useful purpose.
Learned Senior Advocate also submitted in paragraph 2.05 of the brief that since there were other State Governors whose right to contest the governorship election for a third time was at stake, the issue in the appeal is therefore an issue whose relevance transcends the personal rights of the parties to the action. With the greatest respect, I cannot go along with this submission. The general principle of law is that the outcome of litigation by way of judgment binds only the parties. A judgment in this matter will certainly not bind all other State Governors whose right to contest the governorship election for a third time has been questioned. This is because they are not parties to the litigation. See generally Ige v. Olunloyo (1984) 1 SCNLR 158.Courts of law can only make enforceable orders, and like nature, they do not act in vain. See Nigerian National Supply Company Ltd. v. Alhaji Hamajoda Sabana and Company Limited (1988) 2 NWLR (Pt. 74) 23.
In the light of the foregoing, I am of the opinion that the appeal should be dismissed and it is hereby dismissed.
Let me take the application by Alhaji Waziri to join the appeal as an interested party. I do not think I should go into the merits of the application. In view of the fact that the appeal is struck out, there is no appeal, in law, for the applicant to join. Accordingly, the application by Alhaji Waziri is also struck out.
In sum, the appeal of the Attorney-General of the Federation is hereby dismissed and the application of Alhaji Waziri is hereby struck out. I make no order as to costs.
SC.142/2003
