Whether an Interested Party can Apply to be Joined as a Co-Respondent in an Appeal

PRACTICE AREA: APPEAL- APPEAL BY INTERESTED PARTY

CASE TITLE: IBEJIRIKA AGWU & ORS v. MR. NSIRIMOVU AGWU & ORS (2022) LPELR-57463(CA)

JUDGMENT DATE: 27TH APRIL, 2022

JUSTICES:

• JOSEPH SHAGBAOR IKYEGH, JCA
• GABRIEL OMONIYI KOLAWOLE, JCA
• OLABODE ABIMBOLA ADEGBEHINGBE, JCA

COURT DIVISION: PORT HARCOURT

FACTS:

The Applicants and 2nd & 3rd Respondents are all children of Late Chief Emenike Solomon Agwu who died intestate and whose estate was subsequently partitioned amongst all his children including all the Applicants and the 2nd & 3rd Respondents. The estate of said Late Chief Emenike Solomon Agwu is the subject of an appeal pending in the Court. The Applicants were not parties to the litigation leading to the said appeal.

By an application, the Applicants, as heirs to the Late Chief Emenike Solomon Agwu and having a subsisting and substantial interest in the estate, sought leave of the Court of Appeal to apply to be joined as Interested Parties/Co-Respondents in the appeal and subsequently, an order of the Court joining them as Interested Parties/Co-Respondents in order to defend/protect their interest in the subject matter of the appeal.They also sought an order directing all parties in the appeal to amend their processes filed to reflect the joinder and serve the same on the Applicants’ Counsel.

The Applicants contended that they will be affected by any decision of the Court in the pending appeal in respect of the estate of the Late Chief Emenike Solomon Agwu including the portion partitioned to them. Thus, the application was brought pursuant to their right of appeal provided by Section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

ISSUES:

The Applicants distilled issues for determination of the application thus:

1. Whether Applicants have adduced evidence to prove/show their interest in the subject matter of this appeal, to be entitled to the reliefs sought in this application?
2. Whether Applicants will be affected by the decision of this Court?

COUNSEL SUBMISSIONS

Learned Counsel to the Applicants submitted that the Applicants have showed sufficient interest in the appeal for their application to meet with success. That the Applicants are privies of the late Solomon Emenike Agwu, being his children and beneficiaries of his estate and falling within the ambit of privies by blood and estate as defined in the locus classicus of COKER V. SANYAOLU.

On the other hand, learned Counsel to the Appellant argued that Section 243(1)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999, only provides for a right of appeal and the Applicants are not appealing against the judgment of the trial Court. That the Applicants have not shown that they are persons having interest in the appeal, as demanded by Section 243 of the Constitution.

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DECISION/HELD

In a unanimous decision, the application was refused.

RATIOS:

1. APPEAL- APPEAL BY INTERESTED PARTY: Whether Section 243(1)(a) of the 1999 Constitution vests in a party applying to be joined as a co-respondent the right to appeal as an interested party –

“…the Applicants/parties seeking to be joined brought their application, to be joined as co-Respondents, under Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999. The provision is slightly different from what was provided in Section 222(a) of 1979 (which is the basis of the decisions relied upon by the Applicants). It seems that the provision of Section 243(1)(a) has attracted a different interpretation from what was available earlier than the 1999 Constitution. In the case of Charles Odedo v. PDP & Ors. [2015] LPELR-24738(SC), the Court (per Ogunbiyi, J. S. C.) stated regarding such an application, as follows: “The Applicant from the content of his application is seeking to be joined as Co-Respondents and not as co-Appellant. The provision of Section 243 creates a right that it vests in an intending Appellant and not in an intending Respondent. The reproduction of Section 243(1) states: – “any right of appeal from the party thereto, or decisions of the Federal High Court or a High Court conferred by this Constitution shall be: (a) Exercisable in the cause of any proceedings at the instance of a party thereto or…leaveof the Federal High Court or the Court of Appeal at the instance of any other person having an interest on the matter.” The right is to be exercised by a person who is aggrieved by the judgment and desires to appeal against it. The same benefit or right is not shown to extend also to any other person who was not affected by the judgment being appealed against to be joined for the purpose of defending the said judgment. The Court, as rightly submitted by the 5th Respondent’s counsel, is given the power to interpret the provisions of the Constitution as it is expressed in clear terms. That power does not extend to legislation but is purely adjudicative.

The right as sought by the Appellant/Applicant is novel and has no place as it neither comes under Section 243(1)(a) of the Constitution nor any other provision known to law. It is unfortunate to say that the application is lacking grossly in merit and is an abuse of the Court process; the totality is a bundle of confusion and is hereby dismissed. Consequently, the Appellant has no standing in the appeal herein. He cannot possibly be a necessary party or a desirable party for the determination of the appeal before the Court below. The Appellant is a mere interloper and should go home and keep his peace.” Nweze, J. S. C. in the above-cited case elucidated the point as follows: “From the averment in paragraph (e) of the Grounds of his application, it is evident that the judgment in FHC/ABJ/CS/854/2014 inures in his favour. That being the case, his application under Section 243(1) (a) of the Constitution is not well-taken. When the Draftsperson of the 1999 Constitution (as amended) speaks of “person having an interest” in the second clause of Section 243(1) (a) (supra), he uses the phrase synonymously with the phrase 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 or her of something or, wrongfully, refused him or her of something or wrongfully affected his or her title to something.” It appears to me that the applicants are not persons aggrieved by the judgment of the lower Court. Applicants only benefited from the enforcement of a judgment of the lower Court and thus, they are not aggrieved. There is no provision in the Constitution to accommodate the type of interest the Applicants seek to canvass or project in this appeal. The joinder of the Applicants will place them in the position of claimants in the lower Court, in circumstances in which the Applicants did not have a prayer before the lower Court fashioned to accommodate their peculiar interest. In the case of Eyigebe v. Iyaji [2013] LPELR – 20522(SC), the Court warned that: “The law is also trite and well settled that an appeal is a continuation of the case instituted at the trial Court. The final end result of an appeal cannot reflect or produce a relief different from that which originated at the trial inception.” Per OGUNBIYI, J.S.C (PP. 20-21 paras. F).” Per ADEGBEHINGBE, J.C.A.