A Federal High Court sitting in
Abuja has ruled in favour of Linas International Limited and 235 others against
the Federal Government of Nigeria in the Paris Fund Refund.
In a suit with no
FHC/ABJ/130/2013, Justice J.T Tsoho ruled in favour of Linas International and
others (plaintiffs) against the Federal Government of Nigeria, The Attorney
General of the Federation, The Minister of Finance and the Accontant General of
the Federation (defendants)
Below are unedited details of the
ruling
IN THE FEDERAL HIGH COURT
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
ON WEDNESDAY, THE 1ST DAY OF
DECEMBER, 2021
BEFORE THE HON. JUSTICE J.T.
TSOHO
CHIEF JUDGE
BETWEEN:
LINAS INTERNATIONAL LIMITED &
235 ORS….PLAINTIFFS/RESPONDENTS
AND
}
THE FEDERAL GOVERNMENT OF NIGERIA
DEFENDANTS/RESPONDENTS
THE ATTORNEY GENERAL OF THE
FEDERATION
THE HONOURABLE MINISTER OF
FINANCE
THE ACCOUNTANT GENERAL OF THE
FEDERATION
RE: THE INCORPORATED TRUSTEE OF
THE NIGERIA GOVERNORS’ FORUM…………………………………………………….INTERESTED PARTY/APPLICANT
(Suing for and on behalf of the
36 States of the Federation)
RULING
The interested Party/Applicant
sought the leave of this Court to appeal against the judgment of Hon. Justice
A.F.A Ademola (Rtd.) by a Motion on Notice dated 12/4/2021 but filed on
15/6/2021 brought pursuant to Section 6, 36, 162, and 243(1) of the CFRN 1999 (As
Amended), Sections 13(2) and 32 of the Federal High Court (Civil Procedure)
Rules, 2019 and under the inherent jurisdiction of this Court.
However, the
3rd Defendant/Respondent (Hon. Minister of Finance) filed a Notice of
Preliminary Objection challenging the competence of the Motion on Notice filed
by the Interested Party/Applicant. Since the NPO shall be first disposed of.
It is necessary to follow the
time honored principle of law to the effect that when an issue of jurisdiction
of a Court to entertain a case is raised, the law requires that it should
be considered and determined first before any further steps are taken by the
Court in the proceedings due to its not only intrinsic but extrinsic nature to
such proceedings. The reason for this position is that it is prudent and
expedient to determine the issue of its jurisdiction first in order to avoid
what might turn out to be exercise in futility in conducting proceedings
or taking steps in the case, if it eventually turned out that it lacks the
requisite jurisdiction to adjudicate over the case. See B.A.S.F. Nig. Ltd. V.
Faith Ent. Ltd. (2010) 4 NWLR (1133) 704: Comm. for L.G. v. Ezemwokwe (1991) 3
NWLR (181) 615: A. G., Lagos State v. Dosunmu (1989) 3 NWLR (111)552:
Nokoprise Int Co. Ltd. v. Dobest Trad. Corp. (1997) 9 NWLR (520) 334. This
position of the law on the need for Court to determine the question/issue of
its jurisdiction to entertain a case expeditiously and first, simply means that
the issues raised by the parties in the case on the merit.
By Notice of Preliminary
Objection dated and filed 22/9/2021, the 3rd Defendant is challenging the
competence of the Interested Party/Applicant’s application on the following
ground.
That the judgment in this Suit
sought to be appealed against by the Interested Party/Applicant/Respondent has
been fully executed pursuant to a Garnishee Order Absolute made by this
Honourable Court on 29/6/2016. Per Hon. Justice A.F.A Ademola which is Exhibit
NGF 2 attached to the Affidavit of the Interested Party/Applicant and payments
of the judgment debts effected by the Federal Government of Nigeria to the
various beneficiaries.
The 3rd Defendant sought
Relief in the following terms:
An Order dismissing this
application for being incompetent and for constituting an abuse of the process
of this Court.
Also the
3rd Defendant/Respondent filed a Written Address on 22/9/2021 and
formulated a single issue for determination thus:
Whether the Motion on Notice filed by the Interested Party/Applicant is not
incompetent in view of the fact that the Judgment in Suit No:
FHC/ABJ/CS/130/2021 (sic) between Linas International Limited & Ors vs. The
Government of Nigeria & 3 Ors sought to be appealed against has been fully
executed pursuant to a Garnishee Order Absolute made by this Government of
payments effected by the Federal Government of Nigeria to the various
beneficiaries of the Judgment sum including the 774 Local Government Councils.
The 3rd Defendant submitted
that the Interested Party’s application is incompetent considering the
garnishee Order Absolute delivered on 29/6/2016 by Hon. Justice Ademola in Suit
No: FCH/ABJ/CS/130/2013 between Linas International Limited & 3 Ors
The Federal Government of Nigeria & 3 Ors The 3rd Defendant submitted
further that once Garnishee Order Nisi is made respecting money due to a
judgment debtor in possession of the Garnishee, such funds or money is deemed
to have been attached for the satisfaction of the judgment debt for order
Absolute to be made. Reference made to Exhibit NGF 2 in the Interested Party’s
Motion on Notice. The 3rd Defendant cited Sections 83 to 86 of the SCP Act
and the cases of Zenith Bank Plc v. Chief Arthur John & 2 Ors (2016) All
FWLR (Pt. 827) p. 633 at 654 paras A-F and Union Bank of Nigeria Plc v. Boney
Marcus Industries Limited (2005) All FWLR (Pt. 278) p. 1037.
According to the
3rd Defendant, the essence of Order for stay of execution is to maintain
status quo before the order to prevent the successful party from invoking the
powers of the Court. That since the judgment in this Suit which the Interested
Party is seeking to stay execution has been fully executed, the purpose of
granting a stay of execution pending determination of appeal is defeated. Cited
INEC v. Mbonu (2018) LPELR-44018(CA). The 3rd Defendant urged the Court to
hold that the Interested Party is a total stranger to this action which has
been fully executed and is also out of time to appeal by several years. That it
is more so, as the application was brought without first obtaining leave for
extension of time to appeal as Interested Party. The 3rd Defendant
therefore urged the Court to dismiss the application of the Interested Party.
In reply to the objection, the
Interested Party/Application argued that the NPO is an unsigned process and
that even if it is signed, the signed, the said process is incompetent Referred
to Order 26 Rules 24 of FCH Rules, 2019. He argued further that a NPO cannot be
a response to Motion on Notice and that what ought to have been filled should
have been a Counter Affidavit or a Reply on Points of Law Cited Eyitayo v.
Kazeem (2020) LPELR-50630 ap. 7 paras B-D. He urged the Court to strike out the
incompetent process.
A threshold issue to be first
resolved under the Notice of Preliminary Objection is whether the Notice of
Preliminary Objection is unsigned and that even signed, it is an
incompetent process. I have perused the 3rd Court’s Main File and confirm
that it is signed and the Court’s record binds it and the parties. That being
the position, I hold the humble opinion that it is a competent process, despite
not being a counter affidavit. This is the particularly having regard to the
3rd Defendant/Respondent’s perception of the Applicant’s Motion as being
an abuse of process. In that context, a drastic, though inappropriate reaction
could be tolerated. Thus, for the purpose of this application, the Notice of
Preliminary Objection is considered competent.
In determining whether or not
this Court has the jurisdiction to grant the prayers sought by the applicants,
I have carefully perused the ground, affidavit and exhibits attached in support
of the application for leave and the counter affidavit and exhibits attached in
opposition to the application for leave to appeal and for stay of execution and
or injunction. From the facts contained in the affidavit it is not in dispute
that the judgment of Honorable Justice A.F.A. Ademola of the Federal High
Court, Abuja Division, was delivered on 3rd December, 2013 in this Suit,
that is, Suit No: FCH/ABJ/CS/130/2013: Linas International Limited & Ors v.
The Federal Government of Nigeria & 3 Ors.
It is also not in dispute that
the Interested Party/Applicant filed this application on 15th June 2021: being
outside the 90 days allowed for, an appeal against the final decision of
this Court. In PROYO V. MAKAFI (2018) 1 NWLR 1 NWLR (Pt 1599) 91, the Supreme
Court stated:
“There is no doubt that the
respondents were not part of the proceedings at the trial Court, hence they
sought to appeal as respondent had, inter alia, sought an order of the
Court below extending time for them within which to seek leave to appeal
against the judgment of the trial Federal High Court of 29/6/2016 Coram:
Abang.J. Thereafter, their Notice of Appeal was filed on 02/11/2016 at the
Court below”.
Ordinarily, an application for
leave to appeal as an interested party has been held not to have time limit In
Re: Madaki (1996) 7 NWLR (Pt. 459) 153 this Court, per Uwals, CJN opined that.
“neither the Constitution nor the
Court of Appeal Act or the Court of Appeal rules prescribe any period within
which an interested part may bring application for leave to appeal.” And once
granted leave to appeal, he can now formally file the processes. If already out
of time then the trinity prayers as others who were originally part of the
proceedings. See: Chief Cyprian Chukwu & Anor V. INEC & Ors
(2014) 10 NWLR (Pt. 1415) 385. In the instant case, there was no need to have
asked for extension of time to seek leave to appeal as interested parties”.
From the above decision, where
time to appeal had elapsed before the applicant became aware of the decision
appealed against as in the case at hand, it stands to reasoned that this court
has lost the power to grant such leave. This is so because it is trite law that
the Federal High Court can neither extend the time within which to file a
notice of appeal nor grant extension of time to apply for leave to appeal. Only
the Court of Appeal has the jurisdictional competence so to do.
Under the doctrine of stare
decisis, this court is bound to follow the decision of the Supreme Court on
this issue. I am therefore bound to apply the decision of the Supreme Court in
POROYO V. MAKARFI (supra). Accordingly, I hold that this court lacks the
jurisdiction to grant the reliefs sought on the motion paper. Therefore the
motion dated 12th April, 2021 but filed on 12th June 2021 is liable
to be struck out for being incompetent. In effect, the Notice of Preliminary
Objection filed by the 3rd Defendant/Respondent against the Motion on
Notice of the Interested Party/Applicant is sustained.
An Order of this Honorable Court
granting the interested Party/Applicant leave to Appeal the Judgment of
Honorable Justice A.F.A Ademola of the Federal High Court, Abuja Division,
delivered on 3rd December, 2013 in this Suit, that is Suit NO:
FCH/ABJ/CS/130/2013 between Linas
International Limited & Ors vs The Federal Government of Nigeria & 3
Ors as an interested party.
An Order of this Honorable Court
staying execution of and/or injunction restraining the Respondents, their
servants, agents and /or further enforcing the judgment in this Suit that is,
Suit No: FCH/ABJ/CS/130/2013 delivered by Honorable Justice A.F. A. Ademola of
the Federal High Court, Abuja Division, on 3rd December,2013 by way of
Garnishee proceedings, writ of execution or by any other means howsoever.
The application is premised upon
the following grounds:
By an Originating Summons dated
11th June, 2013, the 1st to 236th Plaintiffs/Respondents
commenced and action against the 1st to 4th Defendants/Respondents
inviting the Court amongst others, to make declaration on whether it was
constitutional for the 1st Defendants/Respondent to utilize moneys from
the Federation Account for debts servicing by way of first line charges between
June 1995 and London Club Debt buy in 1992 and 2002: and London Club exit
payment 2006, without the authorization of other tiers of Government.
The 1st to
236th Plaintiffs/Respondents sought for refund of USD$2,624,812,616.76 to
the LGAs and Federation and additional USD$563,266,88.20 due to the LGAs and
Area Councils, thus bringing the amount claimed to USD$3,188,079,505,96. The
Plaintiffs/Respondents also sought a further order mandating the 1st Defendant/Respondent
to pay to the 1st Plaintiff/Respondent through its attorneys, 20% of the
said sum as consultancy fees.
The judgment of Honorable Justice
A.F.A Ademola of the Federal High Court, Abuja Division, delivered on
3rd December, 2013 (SIC) granted all the reliefs sought including the
payment of 20% of the judgment sum to the 1st Plaintiff/Respondent Linas
International Limited.
The State Governors who are
beneficiaries of the Federation Account under the provision of the Section
162(3) of the Constitution and Trustee of Funds due to the Local Government
from the Federation Account by the provision of Sections 7, 162(5), (6), (7)
and (8) of the CFRN and Section 3 of the Allocation of Revenue (Federation
Account, etc) Act were not joined as parties to the Suit.
The Plaintiffs/Respondents
invited the Court to resolve questions on fiscal provisions contained in Section
162(1), (3), (5), Subsection 5 particularly provides that the amount due to the
Local Government Councils.
The Interested Party/Applicant is
the umbrella body of democratically elected Governors of all States in
Federation of Nigeria and Chief Executive Officers of the36 States with the
funding thereof. The Interested Party/Applicant has commenced this action for
and on behalf of the 36 States of the Federation and on their authority.
The State Governments as Trustees
of the funds due to the Local Governments within their Territory are
prejudicially affected by the judgment of Honorable Justice A.F.A Ademola,
particularly the award of 20% of the judgment sum due to Local Governments
within their territories to the 1st Plaintiff/Respondent for alleged “consultancy
service”
The Federal Government through
the Debt Management Office has recently finalized plans to charge allocations
due to the Local Governments for several years to come of liquidating the
judgment sum in favor of the 1st Plaintiff/Respondent.
The Interested Party/Applicant’s
application is predicated on a proposed notice of appeal and grounds of appeal
raising Constitutional and Jurisdiction issues which constitute special and
exceptional circumstances upon which this application should be granted.
It is necessary in the interest
of justice and the economic stabililty of States to stay enforcement of the
judgment and restrain parties from taking any steps to give effect to, activate
and/or enforce the judgment pending the determination of the appeal which
implicate a determination of Constitutional and Jurisdictional questions raised
in this appeal.
It is in the interest of justice
to grant this application.
The Motion is supported by
a 23 paragraph Affidavit deposed to on 15/6/2021 by Asishana B Okauru, a
Director General of the Nigeria Governors Forum (NGF) with the consent and
authority of the Interested Party/Applicant. Accompanying the application are
documents marked as Exhibits NGF1-NGF5. There is also a Written Address dated 17/9/2021
In opposition to the Motion, the
Plaintiffs filed a Counter Affidavit of 26 paragraphs deposed to on 13/9/2021
by Ewer
A. Aliemeke. There are documents
attached to the Counter Affidavit and marked as Exhibits A-C and also a Written
dated 6/9/2021
In the Written Address in support
of the Motion on Notice, the Interested Party/Applicant formulated 2 issues for
determination as follows:
Whether the Applicant has
fulfilled the requirement of law for leave to appeal as interested party, to
wit – shown sufficient Interest in the proceedings and judgment of trial Court.
Whether the Applicant has shown
special and exceptional circumstances and established strong and arguable
grounds of appeal to warrant the grant of an injunction on the enforcement of
the judgment of the trial Court pending appeal.
The Plaintiffs in their address
accompanying the Counter Affidavit formulated 4 issues for determination:
Whether the Applicant’s
application for leave to appeal as an Interested Party ought not to be struck
out for being Incompetent.
Whether the Applicant can be
granted leave to appeal the decision in the circumstances of this matter.
Whether the Applicant is a person
interested in the decision of the Court in Suit No: FHC/ABJ/CS/130/2013 to be
granted leave to appeal as an Interested Party
Whether the Honourable Court can
grant an Order of Stay of Execution pending appeal in the circumstances of this
case.
On issue 1, the interested
Party/Applicant submitted as trite that there is no time limit within which the
Court can entertain or grant an application for leave to appeal as an
interested party Cited Bi-Courtney Ltd v. A-G-F; (2019) 10 NWLR (Pt 1679) 112
and Poroye&Ors v. Makarfi&Ors (2017) LPELR-42738 (SC) among others. The
Applicant also cited Section 243(1) of the Constitution and paragraphs 5-22 of
the Affidavit in support, The Applicant urged the Court to hold that he has
shown interest. For the definition of interested Party, the Applicant cited
Assams&Ors v. Ararume&Ors (2015) LPELR – 40828, Par Chima Cantus Nweze,
JSC pp,27-28 paras D-F, The Applicant argued that the Originating Summons at
the trial Court invited this Court to interpret Section 162 of the CFRN, 1999
(As Amended) to determine the rights of the Federal, Local and Governments in
respect of Federation Account Referred to A-G Bendel State v. A-G Federaion
(1983) LPWKE-3153(SC).
He then urged the Court to
consider the interests of the States which are affected by the judgment of the
trial Court and urged the Court to hold.
On issue 2, the Applicant
referred to Ndaba Nig. Ltd & Anor v. UBN Plc &Ors (2007) LPELR-8316(CA)
for the conditions the Court considers in granting injunction to restrain a
successful party from enjoying the fruits of his judgment. For the special
circumstances under which an Order of injunction pending appeal may be made,
the Applicant also cited SPDC (Nig.) Ltd v. Amadi&Ors (2011)
LPELR-3204(SC). It is argued that should this application be refused, the
Federal Government, 1st Defendant/Respondent would proceed to make
deductions on allocations due to the Local Governments of the Federation and
pay same to the plaintiffs in satisfaction of the judgement sum. That the Respondents
will not suffer any inconvenience by the grant or refusal of this application.
The Applicant made reference to the Proposed Notice of Appeal which contained
jurisdictional and constitutional issues on the judgement of the trial Court
which is an exceptional circumstances necessitating the grant of injunction
pending determination of the proceed appeal. They urged the court to grant the
reliefs sought in this application.
The Respondents in argument of
their issue 1, contented that a person who was not a party but is affected by
the decision of the trial Court must apply to the same Court for leave to
appeal to the court of Appeal within the same time prescribed for appealing or
after the expiration of that time. Apply to the Court of Appeal for extension
of time to seek leave to appeal. The Respondents conceded that there is no time
limit to bringing an application to appeal as an interested party and once the
time expired and for the application to be competent, it must contain trinity
prayers for extension of time within which to seek leave to appeal, leave to
appeal and extension of time to appeal. That the application must be made to
the court of appeal and that failure to comply renders the application
incompetent and liable to be struck out. Cited among others are the cases of
Owena Bank Nigeria Plc v. N.S.E. Ltd (1997) 8 NWLR (Pt. 515)pp. 13 paras D-F;
17 paras F-G; 20 paras F-G and Bello v. INEC (2010) 8 NWLR (PT. 1196) p. 342 at
388 paras A-C.
According to them, there isno
dispute that the decision sought to be appealed by the interested party was
delivered on 3/12/2013 and that the time within which to appeal against the
judgment has since expired on then must apply to the court of appeal, as the
federal high court would not have jurisdiction to entertain the application.
They urged the court to so hold.
On issue 2. It is submitted that
appealed is a complaint against a decision of the court and the only person
entitled to appeal is aperson aggrieved who has suffered a legal grievance who
has suffered a legal grievance. Referred to Essienv. Eskot(2020) 11NWLR
(pt.1734) 177 at pp. 199-200 Paras h-c. it is submitted further the decision of
the trial court, then he does ot have a right of appeal against the decision of
the court. Referred to Ntungv. Llongkwang(2021) 8 NWLR (pt. 1779) 431 at 493
para B. for the options available to the person who is not a party to an action
but whose interest was directly in issue, the respondents cited bello v. INEC
(Supra). The respondents argued that it is not in dispute that states of the
federation have been receiving payments of the judgment sums in suit no:
FHC/ABJ/CS/130/2013 reference made to paragraph 11 of the applicant’s affidavit
and exhibit B hey also made reference to exhibit C o show that the current
applicant’s counsel acted for the 2nd to 236th respondents in this
case in favour of the same judgment they urged the court to resolve this issue
against the applicant.
On issue 3, the
Plaintiffs/Respondents highlighted the provision of Section 243(a) of the
Constitution on the right to appeal According to them, Courts have interpreted
the term “person having an interest in the matter” to be synonymous with a
person aggrieved or a man against whom a decision has been pronounced which has
wrongfully deprived him of something or wrongfully affected his title to
something Citied P.P.A v. INEC (2012) 13 NWLR (Pt. 1317) 215 at 247 paras
E-G: Ede v, Nwidenyi In Re: Ugadu (1988) 1 NWLR (Pt 93) 189 at 199 paras A-B
Per Karibi, Whyte JSC, The Plaintiffs stated that the complaint of the
Applicant is on the interpretation of Section 162 (5) of the Constitution
relating to the award of 20% of the total judgement sum in Suit No:
FHC/ABJ/CS/130/2013 due to the local governments within the states in the
federation to the 1st Plaintiff/Judgement Creditor/Respondent as
consultancy fees That the percentage not being a party privy thereto.
They submitted that assuming
without conceding that any person can challenge the agreed consultancy
percentage other than the parties to the contract, it is the interest of the
state of the federation that can be affected by the decision of the court and
not the Applicant. Reference made to paragraph 2 of the Applicant’s Affidavit
and the cases of A-G, Adamawa State v. A-G-F; (2005) 18 NWLR (Pt.958) 581 at
623 paras E-F; 654paras H-A and Nigeria Engineering Works Ltd v. Denap Ltd
(2001) 18 NWLR (Pt. 746) 726 at 749 paras F-H among others. The Plaintiffs also
cited Section 195 of the Constitution.
They urged the Court to consider
the Applicant as a busy body and meddlesome interloper who usurps the duties of
Attorney General of the States within the Federation.
On issue 4, the
Plaintiffs/Respondents contented that this Court has no jurisdiction to grant
stay of execution in the circumstance, as execution in the judgement of Hon
Justice Ademola has been completed vide the grant of Order Absolute. The
Plaintiffs contended further as trite that a Garnishee Order Absolute means
that a judgement is a completed act and such, an Order for stay can neither be
Ordered nor carried out when judgment has already been executed Citied Zenith
Bank Plc v. John (2015) 7 NWLR (Pt. 1458) 393 at 423-424 paras C-C and 424
paras A-C Per Odilli, JSC, and Exhibit NGF 2.
They urged the Court to hold that
the Prayer for stay of execution has been overtaken by the events of grant
Garnishee Order Absolute which was upheld by the court of Appeal. Referred to
Exhibit A. They finally urged the court to resolve all issues in their favour.
On his part, Ezechukwu, SAN for
the 236th Defendant completely associated himself with the submissions
made nyNjikonye , SAN. He further pointed out that the cases of Comptroller
General NCS & Anor v. Minaj Holdings Ltd (2017) LPELR -40355(CA) pp. 17-19
paras D-Cnd Bi Courtney Ltd v. A-G-F; (2019) 10 NWLR (Pt. 1679) 112 at 129- 137
ere cited out of context, because the facts of those cases are identical
with the present matter and that the Supreme Court held that a compromised
judgement cannot be contested by the parties involved.
KelesoshoEsq, for the
1st and 2nd Defendants an also holding the brief of YahayaAbubakar
for the 4th Respondent also aligned with the submission made by Learned
Counsel for the 1st to 236th Respondents. In addition, he emphasized
that the proper Applicants in this application should be the Attorney- General
of the respective States and that the Applicant lack the locus standi and to
dismiss the application for the lacking in merit.
In reply on points of law,
pertaining to the arguments of the Plaintiffs in issue 1, that there is a time
limit for a person to appeal relying on Section 234(1) (a) of the Constitution,
the Applicant referred to the Supreme Court case of B Courtney Ltd v.
A-G-F;(2019) 10 NWLR (Pt. 1679) 112 at 128-137 and Chukwu v. INEC (2014)
10 NWLR (Pt. 1415) 385 at 439 para C, per Kekere- Ekun, JSC. On the argument of
the Plaintiffs in issues 2 and 3 that the Applicant ought not to be granted
leave to exercise its Constitutional right of appeal against the interested
party, the Applicant responded that a party who seeks to exercise his right of
appeal should not be shut out unless there are compelling reasons to do so.
Referred to Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254 at 279-280 and
Vandighl v. Hale (2014) LPELR-24196 pp.47-48 paras B-D (CA).
Pertaining to the argument of the
Plaintiffs in their issue 4, whether the Court can grant stay of execution
pending appeal, it is contended that an Applicant for leave to appeal is an
Appellant and is entitled to enjoy all the remedies available for preservation
of the res. The Applicant submitted that the fact that a judgment has been
partially or fully executed does not stop a right of appeal by anyone desiring
to appeal against such a judgement. Citied Kalu v. Odili (1992) LPELR-1653 pp.
91-92 paras E-B (SC); Comptroller General, Nigeria Customs Service &Ors v.
Minaj Holdings Ltd, (2017) LPELR-43055 pp. 17-19 paras D-C (CA) and FIRS v.
Governing Councils of the Industrial Training Fund & Anor (2018)
LPELR-46857 pp. 9-12 paras D-A.
On the argument of the 1st -4th Respondents
that the Applicant lacks locus standi, the Applicant referred to paragraph 4 of
their Affidavit, to show that they actually have a locus standi.
I will now consider the issues
formulated by the parties, in case I am wrong in holding vide the Notice of
Preliminary Objection that this Court lacks the jurisdiction to grant the
prayers on the motion paper.
RESOLUTION OF ISSUES SUBMITTED BY
THE INTERESTED PARTY APPLICANT
Whether the Applicant has
fulfilled the requirement of law for leave to appeal as interested party, to
wit-shown sufficient interest in the proceedings and judgment of trial court.
The Applicant in this action
approached this court for leave to appeal against the judgement of my Learned
Brother, Honorable Justice A.F.A Ademola J. (as he then was) in Suit No.
FHC/ABJ/CS/130/13 delivered on 03/12/2013 and upheld by the judgement of the
Court of Appeal in Appeal No.CA/A/521/2016 CENTRAL BANK OF NIGERIA V. LINAS
INTERNATIONAL LIMITED & ORS.
The primary question to be
answered is who is a person interested? The Supreme Court in ASSAMS V ARAUME
(2016) 1 N.W.L,R. (Pt. 1473) 368 at 396 (Paras, C-H) SC referring to its
decision in Odedo v. Oguebego (2015) 13 NWLR (PT. 1476) 229 @ 271, stated thus:
“When the drafts person of the
1999 Constitution (as amended) Speaks of “person having and interest”, in the
second clause of Section 243 (1) (a) (Supra, he uses the phrase as synonymous
with the person aggrieved” that is a person against whom a decision has been
pronounced which has wrongfully deprived him or her of something or
wrongfullyrefused him or her of something. Such a person includes a person who
has a genuine grievance because an order has been made which prejudicially
affects his interest.”
It follows from the above
definition that to qualify as a person 9interested, one must be a person
aggrieved with a genuine grievance: not just any grievance against which a
decision has been pronounced the definition knowledge and on his behalf by
others and who because he does not like the judgment applies for leave to
appeal against it. See the case of GWANDO V. MAIDOYA (1990) 4 NWLR (Pt.
147) 805. The interested party/applicant in this application has not shown by
affidavit evidence that it was not aware or did not know of the pendency of the
suit in this court as to warrant the indulgence sought. He has to explain the
reason for delay in appealing the decision within time. It is not sufficient to
state that the applicant was not made a party. What was the reason for waiting
for over 7 years before coming to a decision to appeal? This has not been
explained in the affidavit in support of the application.
Application for leave to appeal,
being an equitable remedy is never granted for the asking. The court must be
satisfied that there is a justifiable reason which prevented the applicant from
exercising its constitutional right of appeal before the prayers can be
granted. The only interest shown in the Governors forum is a registered
political pressure group for Nigerian governors within the Nigerian polity. I
do not see how the judgment arising from enforceable contract between the
judgment creditor and judgment debtor and the garnishee has affected the
applicant who is not a party to the contract. The applicant is neither a state
nor a local government. I therefore resolve this issue against the applicant
and hold that the interested party/applicant did not fulfil the requirement for
leave to appeal.
Whether the applicant has shown
special and exceptional circumstances and established strong and arguable
grounds of appeal to warrant the grant of an injunction on the enforcement of
the judgment of the trial court pending appeal.
It is observed that this issue is
at variance with prayer B on the motion paper. Whilst prayer B on the motion
paper is for stay of execution and/or injunction. Without stating that it is
injunction pending appeal. Issue 2 formulated for determination by the
applicant is for injunction pending appeal. The court of appeal Lagos division
considered this issue in NATIONAL PENSION COMMISSION V. FIRST GUARANTEE
PENSION LTD & ANOR (2013) LPELR-20824(CA) and stated as follows:
“as Onnoghen, JSC held in
Aboseldehyde laboratories plc V union merchant Bank Ltd and Anor (2013)
LPELRSC.276/2003: for a court to declare whether or not to grant an injunction
pending appeal, it has, as of legal necessity to go into a consideration of the
competing legal rights of the parties to the protection of the injunctive
relief. It is a duty placed on an applicant seeking injunction pending appeal
to establish by evidence in affidavit(s) the legal right he seeks to protect by
the order which of necessity makes it mandatory for the court to go into the
facts to determine whether such entitlement has been established.” PER NWEZE,
J.S.C (Pp. 43-44, Paras. E.A)
From the affidavit in support of
the application. There is nowhere the applicant deposed that it hs legal right
which it seeks to protect or that further to say that this constitutive
requirement for the grant of an injunction pending appeal is closely related to
the issue of disclosing special circumstances invariably it has to be
considered that in an application for an injunction or stay of executing the
applicant has the burden to show that the balance of convenience he would
suffer by the refusal of the application is more than that which the respondent
would suffer if it is granted see Ukechkwu V. Iwugo (1989) 2 NWLR (pt101)29,
Total(nig.) Plc V. Efakire (1998) 5 NWLR(Pt.549) 307. Approvingly,
endorsed in SPDC nig ltd V. Amadi (Supra)
The rationale of all binding
authorities n this point is that in an application for injunction pending appeal,
the balance of convenience is a relevant consideration and such application
would not be granted where compensation would not suffice and/or where the
applicant cannot compensate the respondent in the damages to be suffered. See
Nwaganga V. Military Governor of Imo state (1987) 3 NWLR (pt 59) 185: Oyo.
Governor of Oyo state (1993) 1 NWLR (pt.303) 437.
The onus is on the party applying
for a stay of execution to satisfy the court that in the peculiar circumstance
of his case. A refusal of a stay would be unjust and inequitable from decided
cases, the court will grant an application for stay of execution in the
following circumstances:
There must be a pending appeal
and the pending appeal must be valid in law. Where there is no pending appeal
in a matter, an application for stay of execution will not be granted as the
application is incompetent.
Where a judgment is declaratory
and executor, a court will grant a stay of execution. The applicant in such
circumstance ought to apply for an injunction pending appeal.
Where the judgment being sought
to be stayed has already been carried out or executed. And order of stay would
not ordinarily lie or made since there will be nothing to be stayed
A prayer for stay of execution
cannot be for an indefinite period or large but must be made “pending the
determination of the appeal filed by the applicant”
The 1st-236 Plaintiffs/judgment
creditors/respondents stated in paragraph 23 of their counter affidavit that
the judgment has been executed. But in therefore deemed admitted. From all the
foregoing. Issue two formulated by the applicant is resolved against the
applicant and prayer two on the motion paper is refused
What then is the fat of the 4 issues
for determination formulated in the address of plaintiffs/respondents filed
with their counter affidavit. Viz:
Whether the applicant’s
application for leave to appeal as an interested party ought not to be struck
out for being incompetent.
Whether the applicant can be
granted leave to appeal the decision in the circumstance of this matter.
Whether the applicant is a person
interested in the decision of the court in suit
No: FHC/ABJ/CS/130/2013 to be granted leave to appeal as an
interested party:
Whether the honourable court can
grant an order of stay of execution pending appeal in the appeal in the
circumstances of this case these issues and/or questions as posed by the
respondents having earlier been pronounced upon inter alia, now seem of superfluous
merit the pronouncements are hereby adopted as appropriate.
As a consequence of the foregoing
findings, the application of the interested party/applicant fails in it’s
entirely and accordingly dismissed
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