CHIEF CYPRIAN CHUKWU &ANOR V. INEC & ORS

CORAM

MUHAMMAD SAIFULLAH MUNTAKA- COOMASSIE

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

PARTIES

CHIEF CYPRIAN CHUKWU GOVERNOR ROTIMI AMAECHI  APPELLANTS

INEC & ORS

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant in Sc. 336/2012 but 2nd respondent in SC. 111/2012 filed an originating summons against Appellant in Appeal No. SC. 111/2012 and other Respondents at the Federal High Court seeking an interpretation of the judgment in Amaechi v. INEC (2008) 5 NWLR (PL 1080) page 227. The Federal High Court granted the reliefs sought which culminated into the conduct of the fresh Governorship election in Rivers State in April, 2011. The 4th Respondent in Appeal No. Sc.111/2012, who was also 1st Respondent in Appeal No. Sc. 336/2012 brought an application at Court of Appeal asking for leave to appeal against the Federal High Court’s decision as an interested party which application was granted by the Court of Appeal. Irked by the decision of the court of Appeal granting leave to Celestine Omehia, the Appellants filed two separate appeals to the Supreme Court in Appeal No. Sc.111/2012 and Appeal No. Sc. 336/2012 which appeals was consolidated by the Supreme Court.

HELD

Appeal allowed.

ISSUES

1. Whether the 1st respondent’s application for leave to appeal as an interested party as (such) is competent?

2. Whether having regard to the facts and materials before the lower court and the inherent lack of locus in the applicant (now is respondent) the lower court was right in granting leave to the applicant (1st respondent) to appeal as an interested party against the judgment of the trial court?

3. Whether the lower court was right in exercising the discretion in favour of the applicant (1st respondent herein) by granting him leave to appeal as an interested party, considering the conduct of the applicant and the peculiar circumstance of the application?

RATIONES DECIDENDI

INTERESTED PARTY-DUTY OF AN INTERESTED PARTY TO SEEK LEAVE WHERE NOT ORIGINALLY A PARTY TO THE DECISION COMPLAINED OF-WHETHER THERE IS TIME LIMIT FOR LEAVE TO APPEAL

“Pursuant to Section 243 (1) (a) of the Constitution, a party interested in an appeal, who was not originally a party to the decision complained of, must first seek leave to appeal as an interested party. There is no time limit within which the application for leave to appeal as an interested party may be brought”. PER KEKERE-EKUN, JSC

RIGHT OF APPEAL-CATEGORIES OF PERSONS WHO CAN APPEAL-SECTION 243 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

“By the provisions of section 243(a) of the Constitution of the Federal Republic of Nigeria (as amended), there are two categories of persons who can appeal. The 1st category belongs to parties to the proceedings who may appeal as of right.
The second category can only do so with leave of the court and not as of right. The right to appeal in this instance is only exercisable with leave, at the instance of the person who can show that he has an interest in the matter. Such a person has the herculean duty to satisfy the court that he has a legal grievance in the matter and that the decision pronounced has wrongfully and prejudicially refused him something which he had a right to demand. PER MUNTAKA-COOMASSIE, JSC

RIGHT OF APPEAL-HOW EXERCISABLE

“The right of appeal conferred by Sections 241 (1) & 242 (1) of the Constitution is exercisable at the instance of a party thereto or with leave at the instance of a party having an interest in the matter. Thus, an aggrieved person who was not a party to a decision, which falls within the purview of Sections 241 (1) or 242 (1) of the Constitution, can only appeal against those decisions if he first seeks and obtains leave to appeal as an interested party. The leave to appeal as an interested party is the gate that opens the path to seek any other relief connected with the decision complained of”. PER KEKERE-EKUN, JSC

INTERLOCUTORY AND FINAL APPEALS -TIME LIMIT FOR GIVING OF NOTICE OR NOTICE OF APPLICATION FOR LEAVE TO APPEAL- SECTION 24(2) OF THE COURT OF APPEAL ACT, 2004

“The period for giving of notice or Notice of application for leave to Appeal are:-
(a) in appeal in a Civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
(b) In an appeal in criminal cause or matter, ninety days from the date of the decision appealed against”
By this provision a party whether appealing as of right or as interested party must always file his appeal within the stipulated time by the Court of appeal Act”. PER GALADIMA, JSC

APPEAL BY PERSONS HAVING INTEREST- HOW EXERCISABLE- SECTION 243 (A) AND (B) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999-NEED FOR INTERESTED PARTY TO SEEK LEAVE AND APPEAL WITHIN TIME

“A party whose interest has been affected by a decision of Federal High Court or a High Court must seek the leave of Court to bring appeal against such a decision and in addition in accordance with the provisions of the Court of Appeal Act and Rules made pursuant thereto. Furthermore, in ventilating his grievance, an aggrieved party must file his appeal within the time allowed by law regulating the filing of an appeal to the Court to which the appeal is to be heard, that is the Court of Appeal. PER GALADIMA, JSC

APPEAL AS OF RIGHT-WHEN APPLICABLE TO A PARTY

“A party to any decision covered by Section 241 (1) (a) of the Constitution may appeal as of right but within the period prescribed by the Court of Appeal Act in Compliance with Section 243 (1) (b) of the Constitution. Where he is out of time, he simply applies for enlargement of time within which to appeal against the decision. PER KEKERE-EKUN, JSC

APPEALS-FAILURE TO APPEAL WITHIN TIME-DUTY ON A PARTY THEREOF

“If a party fails to appeal within time, even as an interested party, a party must seek for the usual trinity prayers: – for extension of time to seek leave to appeal; leave to appeal and extension of time to appeal. PER GALADIMA, JSC

FINDING OF FACT-WHEN CAN BE SAID TO BE PERVERSE

“A finding is said to be perverse where it is runs counter to the evidence on record or where it has been shown that the lower Court took into account matters which they ought not to have taken into account or shut their eyes to the obvious”. PER MUNTAKA-COOMASSIE, JSC

PARTY-WHETHER COVERS A PERSON WITH A GENERAL INTEREST

“Only a person whose interest has been directly, and not obliquely, affected by a decision that can validly seek leave to appeal as an interested party. This would not cover a person who has a general interest in the said decision to appeal against same. PER MUNTAKA-COOMASSIE, JSC

NOTICE OF APPEAL AND LEAVE TO APPEAL- STATUTORY PERIOD WITHIN WHICH TO FILE SAME

“Now by section 25(2) (a) of the Court of Appeal Act, No. 43 of 1976, an appellant or any person desirous of appealing shall give notice of his appeal within 3 months of the date of final decision, and by several decisions of this court, a person applying for leave to appeal must do so within the statutory period of 3months”. PER MUNTAKA-COOMASSIE, JSC

LOCUS STANDI-HOW DETERMINED

“The law on locus standi is not static and that the circumstances of each case are to be considered. Hence, what constitutes a legal right, sufficient or special interest adversely affected will, of course, depend on the facts of each case”. PER MUNTAKA-COOMASSIE, JSC

RIGHT OF APPEAL-HOW DETERMINED

The right of appeal is determined by two factors – the nature of the appeal and the party exercising the right. Where the appeal falls within Section 241 (1) of the Constitution, an appeal lies as of right. Where the appeal does not fall within Section 241 (1) of the Constitution, Section 241 (1) applies. In other words, leave is required. PER KEKERE-EKUN, JSC

CASES CITED

Ault & Wiborg (Nig.) Ltd vs Nibel Tnd. Ltd (2010) 16 NWLR (1220) 486 @ 498 -499 H-ABala v. Dikko (2013) 4 NWLR (Pt. 1343) page 52 at 63-64Omotosho v. Abdullahi (2008) 2 NWLR (Pt. 1072) page 526 at 543Owena Bank (Nig) Pic V. N.S. E. Ltd (1997) 8 NWLR (Pt 515) 1 at 3Re Madaki (1996) 7 NWLR (Pt.459) 153 @ 164 A – B

STATUTES REFERRED TO

The 1999 Constitution of the Federal Republic of Nigeria (as amended)

The Court of Appeal Act, 2004?

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