APGA v. OYE & ORS
CITATION: (2018) LPELR-45196(SC)
In the Supreme Court of Nigeria
ON FRIDAY, 13TH JULY, 2018 Suit No: SC.718/2017
Before Their Lordships:
OLABODE RHODES-VIVOUR Justice of the Supreme Court MARY UKAEGO PETER-ODILI Justice of the Supreme Court JOHN INYANG OKORO Justice of the Supreme Court AMIRU SANUSI Justice of the Supreme Court SIDI DAUDA BAGE Justice of the Supreme Court
Between
ALL PROGRESSIVES GRAND ALLIANCE - Appellant(s) And 1. DR. VICTOR IKE OYE 2. INDEPENDENT(2018) NATIONAL LPELR-45196(SC) ELECTORAL COMMISSION (INEC) - Respondent(s) 3. INSPECTOR GENERAL OF POLICE 4. COMMISSIONER OF POLICE ENUGU STATE 5. COMRADE MIKE ALIOKE
RATIO DECIDENDI 1. ACTION - NECESSARY PARTY(IES): Effect of failure to join a neccessary party in an action "The appellant had a question on the competence of the appeal which arguments thereof seem to me out of context in view of the record. To clear the air, the relevant Motion on Notice was filed 20th June, 2016 seeking leave to appeal and numbered as CA/E/358/M/2017. When the Record of Appeal from the trial Court was compiled and transmitted to the Court of appeal, the substantive appeal was numbered as CA/E/367/2017 and the order of the Court of Appeal dated 10th July, 2017 deeming the Records of Appeal as properly complied and transmitted which CA/E/367/2017 became the extant appeal number and took a retrospective effect, thereby regularizing the Notice of Appeal earlier filed with its fault lines. See Williams v. Mokwe (2005) 14 NWLR (Pt. 945) 249 at 267; Prince Biyi Poroye & Ors v. Makarfi & Ors (2017) LPELR-42738. Having settled the matter of competence of the appeal which was properly before Court, the next issue is whether the Court below was right in its decision. The matter at hand bears semblance to what was thrown up in the case of Okwu v. Umeh (2016) NWLR (Pt. 1501) (2015) LPELR-26042 SC per Okoro, JSC as follows:- "However, while it is the law that no cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party, yet, in the absence of a proper party or necessary party before the Court, it appears an exercise in futility for the Court to make an order or decision which affects a STRANGER to the suit who was never heard or given an opportunity to defend himself. This will certainly be against the tenets and tenor of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as (amended)... This is sadly the lot in the case. See Olawoye v. Jimoh (2013) 3-4 SC (Pt. iv) 58, N.D.P. v. I.N.E.C. (2012) 12 SC (Pt. iv) 24". (Emphasis added). His Lordship continued: "the end result I have said above is that although the trial Court has jurisdiction to hear the suit as constituted, the judgment generated thereby which had massive impact on the activities of A.P.G.A. including ITS LEADERSHIP, cannot be allowed to stand. A plaintiff is not bound to sue a particular party. However, where the outcome of the suit will affect that party one way or the other, it will be fool hardly not to join him in the suit." (Emphasis ours) In the recent decision of this Court in Prince Biyi Poroye & Ors. v. Makarfi & Ors. (2017) LPELR-42738 it was held thus:- "...there is no doubt that a careful reading of the averments of the appellants in the affidavit in support of the originating summons for the above reliefs, shows that the rights of the 1st and 2nd respondents is affected adversely. The above reliefs were sought and granted by the trial Court in favour of the appellants behind the respondents. That is, without hearing their own side of the story. This, no doubt, is in breach of the constitutionally guaranteed right to fair hearing... it is clear from the record and in particular, in the affidavit evidence of the appellants in support of their claim in the originating summons that the Caretaker Committee is alleged to have been involved in various illegalities. And that this Caretaker Committee has as its Chairman and Secretary - Senators Ahmed Makarfi and Ben Obi, respectively. These persons are ordinarily entitled to be heard before any Court take any decision on the allegations that were raised against them and their Committee. They were not made parties in the action instituted by the appellants at the trial Court where the above reliefs were sought and granted... Who then is a necessary party to an action? A necessary party in an action has been held to be that person who is not only interested in the subject matter of the proceedings but also who in his absence, the proceedings could not be fairly dealt with. In other words, the question to be settled or determined in the action between the existing parties must be a question which cannot be properly and fairly settled unless he is a party to the action, instituted by the Plaintiff... in the instant matter, having regard to the claims of the appellants as plaintiffs at the trial Court, I am of the firm view that the interest of the respondents were affected, to the effect that the plaintiffs/appellants claim could not have been fairly, effectually and completely determined without them being joined as defendants. In other words, they were necessary parties to the suit instituted by the appellants. The Court below was therefore right to have, on the basis, set aside the judgment of the trial Court." The Court below following in the heels of those principles above enunciated on the 16th August, 2017 held inter alia: "in the instant case, there is no doubt that the orders made by the Court below affected the right of the appellant who is said to have been suspended for misconduct and who was not given the opportunity of being heard before the decision of the Court. Where there is failure to hear all necessary parties to a dispute is before a decision is reached as in the case on appeal, there is a breach of Section 36 (1) of the Constitution as amended. The party affected by such a decision is entitled to have it set aside as such decision is null and void and without any legal effect. The learned trial judge seriously erred in law when he granted the orders sought by the 1st and 2nd respondents which tantamount to a recognition of Chief Martin Agbaso and upholding the alleged suspension of the appellant without affording him an opportunity of being heard. Issue 1 is resolved in favour of the appellant." I have no difficulty in agreeing with what the Court of Appeal did as a decision reached in the absence of an adjudged necessary party will be a nullity and an exercise in futility as the fair hearing principle has been breached since the 1st respondent was not taken along when his right was determined at least to hear him out. The decision such as the trial Court had taking in issuing the Mandamus was in clear violation of the 1st respondent's right to fair hearing and so liable to be set aside, which the Court of Appeal did and I agree with that. See Prince Biyi Poroye v. Makarfa (supra)."Per PETER-ODILI, J.S.C. (Pp. 57-62, Paras. A-C) - read in context
2. APPEAL - APPEAL BY INTERESTED PARTY: When will a person be joined in an appeal as an interested party "Irrespective of the colourised dimensions the parties arguments have taken in respect of issue one, the main contention to be resolved here remains "whether or not a miscarriage of justice has been occasioned by the lower Court in granting leave to the 1st Respondent to appeal as an interested party against the order for Mandamus made by the trial Court." The fact of this appeal relates to the order of mandamus which was granted against the 1st Respondent's interest. It is apparent that the order granted by the trial Court relates to the chairmanship of the Appellant. Although the 1st Respondent had allegedly been suspended, I am not in doubt that the whole issue revolves around his status, and the effect of the order of mandamus on his status. The 1st Respondent is a party that ought to have been joined in the suit, being one without which the Court cannot effectively or efficaciously decide the matter. The law is settled that where a necessary party who ought to be joined is not joined in an action, any judgment obtained against such a party is not a nullity but shall be to no avail. In AZUH v. UBN PLC (2014) LPELR-22913 (SC), this Court had reiterated the clear position of the law that non-joinder of a necessary party in a suit is an irregularity that does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, an order made against a person who was not a party to the action before the Court, though not a nullity, is to no avail. It cannot stand the test of time and is not binding on such non-party to the action. See: OKOYE v. NIGERIAN CONSTRUCTION & FURNITURE CO. LTD. & ORS. (1991) 7 SC (Pt. III) (REPRINT) 33 at 56; GREEN v. GREEN (1987) 3 NWLR (60) 480. See also UWAZURUIKE & ORS v. ATTORNEY-GENERAL OF THE FEDERATION (2013) 4-5 SC (Pt. 1) 90 at 119 Lines 16-21; (2013) LPELR-20392 (SC) 1 at 24, Per FABIYI, JSC. A party who has an(2018) interest in an appeal from the High LPELR-45196(SC) Court to the Court of Appeal must, under Section 222 of the Constitution, seek leave of either the High Court or the Court of Appeal to appeal. The rationale for the provision is to enable the Court determine whether it is proper in law to grant the party permission to appeal in the circumstances of the case. See OTU v. A.C.B (2008) Vol. 3 M.J.S.C 191 at 206 Paragraphs F-G, See also (2008) 1 SC (Pt. 11) 1 AT 16-17 paragraphs 10-20. See also THE REGISTERED TRUSTEES CHRIST APOSTOLIC CHURCH NIGERIA v. UFFIEM (1998) 10 NWLR (Pt. 569) 312; IN RE WILLIAMS (No. 1) (2001) 9 NWLR (Pt. 718) 329; IN RE OJUKWU (1998) 5 NWLR (Pt. 551) 673. "Per Tobi JSC (Blessed memory)." In WILLIAMS v. MOKWE (2005) 14 NWLR (Pt. 945) 249, this Court had declared, Per Kalgo, JSC, in a similar situation as in the instant appeal, that the Court of Appeal has the discretion in granting or refusing an application before it for leave to appeal as an interested party and any such discretion exercised by it remains valid unless it is shown to have been wrongly exercised on erroneous principles or tainted with illegality. I am unable to see any miscarriage of justice in the exercise of judicial discretion by the lower Court in granting leave to the 1st Respondent to appeal the order of mandamus as an interested party. Beyond pretension, the said order is directed at, and affected the right, status and interest of the 1st Respondent over and above other parties to this appeal, given the facts and circumstances of this appeal. Failure to join him before summarily securing the order of mandamus leaves must to be desired. I hold that the exercise of judicial discretion by the lower Court in granting leave to the 1st Respondent to appeal as an interested party against the order for Mandamus made by the trial Court has not occasioned a miscarriage of justice. This above position follows a long established tradition of not undermining the exercise of judicial discretion. In ODUTOLA v. KAYODE (1994) 2 NWLR (Pt. 324) 1, this Court reiterated the well-established principle of law that all judicial discretion must be exercised according to common sense and according to justice, and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of an appeal Court to have it reviewed. The attitude of this Court, being the appellate Court in the circumstances of this appeal, is to respect the exercise of discretion by lower Court. Therefore, the settled position is, irrespective of technicalities or ancillary issues, unless the exercise of discretion by a lower Court is manifestly wrong, arbitrary, reckless or injudicious, this Court would not interfere. See UNIVERSITY OF LAGOS v. OLANIYAN (Supra), Per Nnamani, JSC (Blessed Memory) (page 11, paragraphs C-E). See also TETTEH WORBI AND ORS v. ADAMALI ASAMANYUAM AND ORS. 14 W.A.C.A. 669 at 671, and DEMUREN v. ASUNI (Supra) AND SONEKAN v. SMITH (1967) 1 ALL N.L.R. 329. Having acted promptly in seeking leave to appeal as an interested party, the lower Court was right in exercising its discretion in favour of the 1st Respondent amidst patent, but carefully designed scheme to edge him out through "Judicial" means without joining him as party. I hold that the 1st Respondent ought to have been joined being not just a necessary, but as a vital and crucial party to the suit. I hold that the lower Court has not caused a miscarriage of justice to be occasioned by granting the 1st Respondent leave to appeal as an interested party."Per BAGE, J.S.C. (Pp. 18-23, Paras. E-D) - read in context 3. APPEAL - APPEAL BY INTERESTED PARTY: Whether the grant of leave to appeal as an interested party amounts to a valid notice of appeal "Whether or not having been granted leave to appeal as an interested party, the 1st Respondent has a valid Notice of Appeal upon which the appeal against the Judgment of the trial Court dated 22nd May, 2017 was predicated." In its submission on issue two, the Appellant contended that by Order 7 Rule 2(1) of the Court of Appeal Rules 2016, the 1st Respondent who was not a party to the suit at the trial Court has no automatic right of appeal. The Appellant contended that after leave was granted to the 1st Respondent to appeal against the judgment of the High Court as an interested party by the Court below, the only option available to the 1st Respondent was to file a fresh Notice of Appeal, as his appeal was predicated on the Notice of Appeal filed on 16th June, 2017, prior to granting of leave to appeal. The Appellant contended further that the leave to compile and transmit record and to deem same as having been properly compiled and transmitted made by the 1st Respondent was not in respect of Appeal No. CA/E/367/2017 as no leave to appeal as an interested party was granted to the 1st Respondent. The Appellant contended that the appeal which was heard and determined by the Court below, i.e. CA/E/367/2017 was incompetent to the effect that it was not predicated on a competent Notice of Appeal. The Appellant then urged this Court to resolve issue two in its favour and to hold that the Court below did not have jurisdiction to hear and determine the appeal as there was no competent Notice of Appeal upon which the appeal was predicated. On the issue of multiplicity of application by the 1st Respondent, the Appellant further replied to the 1st Respondent through its Reply Brief dated 16th April 2018, to the effect that the basis on which the Court below granted leave to appeal as an interested party to the 1st Respondent was wrong, being an abuse of Court and judicial process. The Appellant replied further that incompetent motion would necessarily give birth to incompetent and stillborn appeal. The Appellant also further responded that the Motion on Notice for Stay of Proceedings at the Supreme Court was filed bona fide while also insisting that the case MOHAMMED v. OLAWUNMI (Supra) is applicable, to the extent that the reasonable thing for the lower Court was to have stayed proceedings and not disregard the process pending at the apex Court. The Appellant also argued in closing in its Reply Brief, that the cases of WILLIAMS v. MOKWE (SUPRA) and PRINCE BIYI POROYE & ORS v. MAKARFI & ORS (2017) LPELR-42738 SC, cited and relied upon by the 1st Respondent are totally inapplicable to the instant appeal. The Appellant then reiterated its contention that the lower Court lacks jurisdiction and urge this Court to allow this appeal and grant the reliefs sought by the Appellant. On its part, the 1st Respondent contended that in its ruling dated 10th July, 2017, the Court below granted as prayed the application dated 20th June 2017, save for relief No. 2, relying on the latin maxim, 'Expressio unius est exclusio alterius', or 'inclusion unis est exclusion alterius." The 1st Respondent referred to the case of SHINKAFI & ORS v. YARI & ORS (2016) LPELR-26050 (SC) where the maxim was applied by this Court, per Okoro JSC. The 1st Respondent made copious references to the case of PRINCE BIYI POROYE & ORS v. MAKARFI & ORS (Supra) and submitted that the Court below rightly allowed the appeal against the judgment of the learned trial Court which was given in obvious denial of right of fair hearing guaranteed to the 1st Respondent herein. The 1st Respondent then urged this Court to uphold the 1st Respondent's arguments as made above and resolve issue two against the Appellant. As a Court of law and justice, this Court must look beyond procedural technicalities to do substantial justice, particularly where fair-hearing is in issue. This is because the order of mandamus granted against the 1st Respondent by the trial Court formed the basis of leave granted to him to appear as an interested party through a Motion dated 20th June 2017, which had a deeming order as its prayer 3. I observe that in ordering "as prayed", the lower Court specifically refused prayer 2 which was sought to enable the appeal operate as a stay of proceedings. The application was moved in terms and ordered as prayed by the lower Court safe for relief 2. These facts are crystal clear on pages 290-352 of the Record of Appeal. The question is, was deeming order refused specifically or by implication by the Court below in this circumstance for the purpose of determining the validly of the Notice of Appeal on which the decision of the lower Court was based? The answer is a capital NO. This is because in its ruling dated 10th July 2017, the Court below granted as prayed the application dated 20th June 2017, safe for relict No. 2. Prayer 3 was not specifically denied and was not expressly granted either. It was nonetheless granted "as prayed" by the lower Court. Based on the above narratives, it is my considered view that if the Court below so desired that prayer 3 be refused, it would have expressly declared both reliefs 2 and 3 refused. This is not the case here. Thus, this means it was not refused but granted. The only relief in the motion refused was relief No. 2, and it was expressly denied and refused. Thus, relying on the Latin maxim, 'Expressio unius est exclusion alterius', or 'inclusion unis est exclusion alterius,' the lower Court would be deemed to have granted as prayed reliefs 1 and 3. See the case of SHINKAFI & ORS v. YARI & ORS (2016) LPELR-26050 (SC) where the maxim was applied by this Court, per Okoro, JSC. See also BUHARI v. YUSUF (2003) 14 NWLR (Pt. 841) 446 at 499; AGBAREH v. MIMRA (2008) NWLR (Pt. 1071) 378. The issue in this appeal revolves around the cardinal principle of justice and fairness-fair hearing. The Court has over the years consistently maintained that the principle of natural justice is sacrosanct in our judicial system and it must as a matter of constitutional obligation be observed by a judicial umpire. The Supreme Court in ADIGUN v. ATTORNEY GENERAL OF OYO STATE (1987) NWLR (Pt. 53), Page 709 paragraph G, per Obaseki, JSC (Blessed Memory), further had this to say on principles of natural justice:- "If the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at, in the absence of the departure from the essential principles of Justice, the decision must be declared to be no decision." The principle of fairness is crucial and sacrosanct in our judicial system and adjudicatory functions at all level of the judicial hierarchy. It must, as a matter of constitutional obligation, be observed by all judicial officers. This is because fairness and natural justice requires that a party to a cause, or a party who ought reasonably to be a party in the suit, must be given the opportunity to put forward his case or defence freely and fully. See KANO NATIVE AUTHORITY v. RAPHAEL OBIORA (1959) 4 FSC 226; (1959) SCNLR 577 cited with approval by Iguh, JSC in EKIYOR & ANOR v. BOMOR (1997) 9 NWLR (Pt. 519) 1 at 14. The issue of fair hearing was brutally silenced by the trial Court given the circumstances of this appeal. The refusal to join the 1st Respondent in this appeal appears to be a similar political ploy or orchestrated scheme to edge out the 1st Respondent from the scheme of things in the affairs of the Appellant, being a political parry. Thus, the decision of this Court in PRINCE BIYI POROYE & ORS v. MAKARFI & ORS (supra) is particularly more relevant given the nature and circumstances of this appeal. The 1st Respondent, who ordinarily ought to be heard as a necessary and indispensable party, was not heard before the order of mandamus that directly affected his rights, status and interest was made. No better way to breach fairness or deny fair hearing than this. A position similar as those in this case and POROYE's was reiterated by this Court in the case of EKPETO v. WANOGHO (2005) 3 W.R.N. 75 on the principle of fair hearing to the effect that: "There is no doubt at all that the principle of fair hearing is fundamental to all Court procedure and proceedings, and like jurisdiction, the absence of it vitiates proceeding well conducted." See also SALU v. EGEIBON (1994) 6 NWLR (Pt. 348) 23 at 40, CEEKAY TRADERS LTD. v. GENERAL MOTORS CO. LTD. (1992) 2 NWLR (Pt. 222) 132, ATANO v. ATTORNEY GENERAL OF BENDEL STATE (1988) 2 NWLR (Pt. 75) 201. The heavy climate(2018) made of the issue of lack of a validLPELR-45196(SC) Notice of Appeal by the Appellant simply because the lower Court did not specifically pronounce on deeming order as it related to the Notice of Appeal beyond declaring "ordered as prayed" is cheap and needless resort to technicalities to defeat the ends of justice. We must continue to take deliberate measures and steps to instill and enforce a change of mindset to demonstrate that the era of technicalities is gone, and gone for good in the annals of justice in this country. All other Courts down in the judicial ladder and all counsel as officers in the hallow temple of justice must maximally comply and uphold this new trend. This above resolve is further demonstrated in OYEYEMI & ORS v. OWOEYE & ANOR (SUPREME COURT SUIT NO. SC.102/2013), where the above position of law and attitude of this Court to justice and the need to avoid technical justice was reiterated thus:- "Our duty as an Apex Court is to do substantial, justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context. We are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities. The need to do substantial justice and avoid delving into the error of technicalities is well settled. See also the case of MAKERI SMELTING CO. LTD v. ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt. 766) 411 at 476-417. The above cases have pictured clearly that the attitude of the Courts now is that cases should always be decided, wherever possible on merit. Even in cases where errors of omission or commission called blunders have been made, it is unjust to hold that because blunders have been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. See also AJAKAIYE v. IDEHIA (1991) 8 NWLR (Pt. 364) 504, ARTRA IND. LTD v. N.B.C. (1997) 1 NWLR (Pt. 483) 574, DAKAT v. DASHE (1997) 12 NWLR (Pt. 531) 46, BENSON v. NIGERIA AGIP CO. LTD (1982) 5 S.C. 1. In view of the foregoing, the second issue in this appeal which revolves around whether or not the 1st Respondent has a valid Notice of Appeal upon which the appeal against the judgment of the trial Court dated 22nd May 2017 was predicated is also resolved against the Appellant, for reasons canvassed above."Per BAGE, J.S.C. (Pp. 23-33, Paras. E-E) - read in context
4. CASE LAW - JUDICIAL PRECEDENT/STARE DECISIS: Guiding principles to the application of the doctrine of stare desisis or judicial precedent "At the risk of sounding repetitive, it has to be said that citing judicial authorities with the invocation of stare decisis principle would not change the situation where the peculiarity of a given case has not tallied with the circumstances that prevailed in the earlier decided cases. This is because each case stands on its own and an earlier judicial authority is only of use where the facts are apposite or similar to the case at hand and not an authority applied in the air to each and every case that seems to bear a semblance of similarities. In this, I am supportable by the cases of Adegoke Motors Ltd v. Adesanya (1989) NWLR (109) 250; Babatunde v. P.A.S. & T.A. Ltd (2007) 8 NWLR (Pt. 1050) 113; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 at 137."Per PETER-ODILI, J.S.C. (P. 56, Paras. B-F) - read in context 5. PRACTICE AND PROCEDURE - ISSUE OF JURISDICTION: When and how to raise the issue of jurisdiction "The law is settled that jurisdiction is a threshold or foundational issue that can be raised anytime during the trial of a suit up to finality. However, where raised in an appellate Court as a new issue, proper application must be made to raise it as a ground of appeal. See OSHATOBA v. OLUJITAN (2000) 5 NWLR (Pt. 655) 159, AMADI v. N.N.P.C. (2000) 5 WRN 47; (2000) 10 NWLR (Pt. 674) 76; (2000) 6 SCNJ 1; (2000) 49 LRCN 1951; (2000) 10 NWLR (Pt. 674) 7. The same principle was also upheld by this Court in P.D.P. v. OKOROCHA & ORS (2012) LPELR-7822 (SC), where this Court held that jurisdiction is visualized as the very basis on which any Court or Tribunal tries a case. It is the lifeline of all trials. Any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of a proceeding. A question of jurisdiction must however be properly raised before the Court may rightly entertain it. In that wise, it can be raised at any stage of a case both at the trial and on appeal by any of the parties, and it can even be raised orally. The Court can also raise it by itself suo motu where the question involves a substantial point of law, substantive and procedural and no further evidence needs be adduced which would affect the decision. See PETROJESSICA ENTERPRISES LTD. v. LEVENTIS TECHNICAL CO. LTD. (1992) 5 NWLR (Pt. 244) page 675, MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341, and OLORIODE v. OYEBI (1984) 1 SCNLR page 390. In view of the foregoing, I hold that the issue raised in the grounds 1 and 3 of the Appellant's notice of Appeal are jurisdictional in nature, and same having be raised and argued in the Appellant's Brief and Reply are live issues and are neither dead, moot nor academic."Per BAGE, J.S.C. (Pp. 7-9, Paras. E-B) - read in context
(2018) LPELR-45196(SC) 6. PRACTICE AND PROCEDURE - ISSUE OF JURISDICTION: Whether leave of Court is required to raise the issue of jurisdiction on appeal "I shall quote Section 233(2) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN for short) thus: "233 (2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases- (a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal; (b) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution; (c) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person; (d) Decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other Court; (c) Decisions on any question- (i) Whether any person has been validly elected to the office of president or Vice-President under this Constitution, (ii) Whether the term of office of president or Vice-President has been ceased, (iii) Whether the office of President or Vice-President has become vacant; and (c) Such other cases as may be an Act of the National Assembly. (Underlining supplied) The grounds of the appeal shorn of their particulars are hereunder stated as follows: GROUND 1 The Court below erred in law when it assumed jurisdiction, entertained and determined Appeal No. CA/E/367/2017; DR. VICTOR IKE OYE v. COMRADE MIKE ALIOKE & ORS notwithstanding the pendency of four appeals before the Supreme Court which relate to the appeal at the Court below; and notwithstanding the service on the Court below motions for stay of further proceedings in the said Appeal before the Court below which applications for stay of further proceedings were pending before the Supreme Court. GROUND 2 The Court below erred in law when it assumed jurisdiction, entertained and determined Appeal No. CA/E/367/2017; DR. VICTOR IKE OYE v. COMRADE MIKE ALIOKE 7 ORS notwithstanding that there was no competent Notice of Appeal filed by the 1st Respondent upon which the Appeal was predicated. GROUND 3 The Court below erred in law when it held at page 5 of its judgment that: "From the records of this Court, the two motions were heard and granted on 10/12/11." Clearly grounds 1 and 2 are based on a contest on jurisdiction and since it can be raised at any stage of the litigation and even on appeal for the first time is a matter of error of law and no leave is required to so raise it. This situation is well captured in the dictum of Elias CJN in Obikoya v. Registration of Companies and Official receiver of Pool House GRP (1925) 4 SC (Reprint) 23 thus:- "Our rules of practice permit the issue of jurisdiction to be raised at any stage of the proceedings up to the final determination of an appeal by this Court. This is because the existence or absence of jurisdiction in the Court of trial goes to the root of the matter so as to sustain or nullify the trial Judge's decision or order in respect of the relevant subject-matter." In ONI v. CADBURY NIGERIA PLC (2016) 9 NWLR (Pt. 1516) 80 the Supreme Court dealt with the issue, held, inter alia, at pages 96-98 of the report that: "On their part, the respondents to the main appeal, for the first time, canvassed a jurisdictional issue, namely, that the "trial Court lacked the jurisdiction" to entertain the case. In consequence, it invited the Court to dismiss the appeal. Although, the respondent raised this question, for the first time, in the respondent's brief filed on May 15, 2015, it cannot be gainsaid that it was properly raised, and in consequence cannot be wished away. Surely, the rationale of all binding authorities on this point is that a jurisdictional issue, such as the one now canvassed by the respondent, could be raised at any time, even in this Court for the first time." As this Court held in Wema Securities and Finance Plc v. NAIC (2015) LPELR-24833 (SC), (2015) 16 NWLR (Pt. 1484) 93 at 123-124 paras. A-E, per Nweze, JSC: "Of course, it is still a valid general principle that where a party seeks to raise a fresh issue on appeal, he must obtain the leave of Court. Where he fails to do so, the issue, which ipso facto is rendered incompetent, would be liable to be struck out. A-G, Oyo State v. Fairlakes Hotel Ltd (1988) 12 SC (Pt. 1) 1; (1988) S NWLR (Pt. 92) 1; Uor v. Loko (1988) 2 NWLR (Pt. 27) 430. However, the issue of jurisdiction constitutes an exception to this general principle, for it (such an issue of jurisdiction), could be raised for the first time before an appellate Court with or without leave. Obiakor & Anor v. The State (2002) 10 NWLR (Pt. 776) 612 at 625, para G; Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Oyakhire v. The State (2006) 7 SCNJ 319, 327-328; (2006) 15 NWLR (Pt. 1001) 157; Okoro v. Nigerian Army Council (2000) 3 NWLR (pt. 647) 77, 90-91; Ajakaiye v. Military Governor, Bendel State (1993) 9 SCNJ 242; Yusuf v. Cooperative Bank Ltd (1994) 7 NWLR (Pt. 359) 676. "...The reason is not far to seek. Due to its fundamental nature, it is exempted from the disabilities and restrictions which hamper other legal points from being canvassed or agitated for the first time on appeal. Western Steel Works Ltd. and Anor v. Iron Steel Workers Ltd (No. 2) (1987) 1 NWLR (Pt. 49) 284. In effect, such an issue of jurisdiction could always be raised without leave. Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592, 615 paragraphs C-G; Comptroller Nigerian Prisons Services, Lagos v. Adekanye (2002) 15 NWLR (Pt. 790) 332; Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt. 450) 531; Management Enterprises Ltd v. Otunsanya (1987) 2 NWLR (Pt. 55) 179. "In consequence, it can never be too late to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration. Magaji v. Matari (2000) 8 NWLR (Pt. 670) 722 at 735; Akegbejo v. Ataga (1998) 1 NWLR (Pt. 534) 459 at 465; State v. Onagoruwa (1992) 2 SCNJ 1, (1992) 2 NWLR (Pt. 221) 33; A-G., Lagos v. Dosunmu (1989) 3 NWLR (Pt. 111) 552. Indeed, leave of the appellate Court is unnecessary since it can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so. Obikoya v. The Registrar of Companies (1975) 4 SC 31, 35; N.N.P.C. v. Orhiowasele and Ors (2013) LPELR-20341 (SC); Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76; Ndaeyo v. Ogunaya (1977) 1 SC 11; Chacharos v. Ekimpex Ltd (1988) 1 NWLR (Pt. 152) 516; Oyakhire v. State (2006) 15 NWLR (Pt. 1001) 157; Oloriode v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 193; Akegbejo v. Ataga (1998) 1 NWLR (Pt. 534) 459, 468, 469; Bronik Motors v. Wema Bank Ltd (1983) 6 SC 158; Senate President, F.R.N. v. Nzeribe (2004) 41 WRN 60; Odiase v. Agho (1972) 1 ALL NLR (Pt. 1) 170; Dickson Moses v. The State (2006) 7 SCM 37, 169 (2006) 11 NWLR (Pt. 992) 458." The third ground of the appeal posits pure error of law even from its contents. This Court has had on numerous occasions put across some guides in the determination of whether a ground of appeal is of law, fact(s) or mixed law and facts but I shall set out what my learned brother, Sanusi, JSC in restating the point said in State v. Omoyele (2016) LPELR-40842 (SC) thus:- "The Supreme Court has over the years evolved some criteria to be applied in distinguishing a ground of law from that of, mixed law and facts. Few of these criteria are summarized(2018) hereunder:- LPELR-45196(SC) (i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted. (ii) Where a ground complains of a misunderstanding by the lower Court of the law or misapplication of the law to the facts already proved or admitted, it is a ground law. (iii) Where a ground of appeal questions the evaluation of facts before the application of law, it is ground of mixed law and fact. (iv) A ground which raises a question of pure fact is a ground of fact. (v) Where the lower Court finds that the particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law. (vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact. (vii) Where the lower Court approached the construction of a legal term of art in a statue on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law. (viii) Where the lower Court or Tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law. (ix) Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the appeal Court will assume that there has been a misconception of law. This is a ground of law. (x) Where the conclusion of the lower Court is one of possible resolutions but one which the appeal Court would not have reached if seized of the issue, that conclusion is not an error in law. (xi) Where the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by Court of Appeal are issues of fact and not law. (xii) Where the Court of Appeal interferes in such a case and there is a further appeal to a higher Court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower Court of Appeal is a ground of law not of fact. (xiii) A ground of appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a Court of Appeal or a further Court of appeal). See the cases of Board of Custom and Excise v. Barau (1982) 10 SC 48, OR (1982) 10 SC (Reprint) 23 and Ogbechie v. Onochie (1986) 3 SC 58-64 OR (1986) 3 SC (Reprint) 32 where this Court had interpreted the provisions of Sections 213(3) and 214(3) of the Constitution of Federal Republic of Nigeria 1963, which are in pari materia with the provisions of Sections 233(3) and 232(2) (a) of 1999 Constitution. See also the cases of Ojemen v. Momodu II (1983) 3 SC 173; at 207; Rabiu v. Kano State (1980) 8-11 SC 130; Nwadike v. Ibekwe (1987) 12 SC 14; Abidoye v. Alawode (2001) 3 SC 1; Ifediora v. UME (1988) 3 SC (Reprint) 278; Oforkire v. Maduike (2003) 1 SC (Pt. iii) 74; Idowu v. State (2000) 7 SC (Pt. ii) 50." Walking in the path of the guiding principles as depicted above, grounds 1 and 2 are questions of jurisdiction while ground 3 questions the holding of the Court below on two motions purportedly heard and granted by that Court on 10th July, 2017 which holding is erroneous in the face of the records of proceedings on the said date. These are clearly matters of law or error therein and so needs no leave to appeal."Per PETER-ODILI, J.S.C. (Pp. 39-49, Paras. E- E) - read in context 7. PRACTICE AND PROCEDURE - ACADEMIC OR HYPOTHETICAL QUESTION(S)/ISSUES/SUIT/EXERCISE: Instance where an issue will not be referred to as being academic "On the question whether or not this appeal is academic, it is not difficult to answer negatively as the matter hinges on the correctness or otherwise of the decision of a lower Court to assume jurisdiction over a matter before it. An appeal on such a decision cannot be dispatched as academic without going into the appeal. See Chief Francis Uchenna Ugwu & Ors v. P.D.P. & 6 Ors (2015) 7 NWLR (Pt. 1459)."Per PETER-ODILI, J.S.C. (Pp. 49-50, Paras. E-A) - read in context
8. PRACTICE AND PROCEDURE - STAY OF PROCEEDINGS: General principle governing the exercise of discretion by the Court in applications for stay of proceedings "It needs be said that when a stay of proceedings is brought before a Court, it calls for the exercise of discretion of that Court which the Court carries out judicially and judiciously based on the materials before it and taking into account the unique circumstances of a given case. When that Court has so exercised that discretion and there is nothing found untoward by the higher Court then the Apex Court holds it peace and does not go into interfering just for the heck of it. In this instance, the Court below was satisfied that the materials or documents on which the application was anchored were what was usable for such purpose and therefore ruled against the application that cannot be faulted. See P.D.P. v. I.N.E.C. (2014) 17 NWLR (Pt. 1437) 525; Alhaja Shittu & Ors v. Otumba Fashawe (2005) 14 NWLR (Pt. 946) 671."Per PETER-ODILI, J.S.C. (Pp. 55-56, Paras. D-B) - read in context
(2018) LPELR-45196(SC) SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the final Judgment of the Court of Appeal, sitting in Enugu. The judgment that formed the basis of this appeal was delivered on 16th August 2017, in Appeal No. CA/367 as contained at pages 651-690 of the Record of Appeal. The Appellant being dissatisfied with the said decision of the Court below filed a Notice of Appeal dated 25th August 2017, as contained at pages 691-698 of the Record of Appeal.
Ground one alleges error of law on the part of the lower Court for assuming jurisdiction in the subject matter of the appeal during the pendency of four appeals before this Court (Supreme Court). Ground two alleges error of law on the part of the Court below on the ground that there was no competent Notice of Appeal filed by the 1st Respondent upon which the appeal was predicated at the Court below. The third and final ground of the appeal relates to page 5 of the judgment (page 655 of the Record of Appeal), where the lower(2018) court observed LPELR-45196(SC) that ".... From the records of this Court, the two motions were heard and granted on 10th July 2017."
1 SUMMARY OF FACTS The 1st Respondent herein who had occupied the position of the National Chairman of the Appellant (A.P.G.A.) was suspended from acting in that capacity on ground of misconduct. Subsequently, the National Working Committee (N.W.C.) of the Appellant appointed one Hon. Ozo Nwabueze as Acting National Chairman. Unfortunately, Hon. Nwabueze died and one Chief Martin Agbaso was purportedly adopted on 30th January 2017, as Acting National Chairman of the Appellant.
The 3rd Respondent refused to recognize the adoption of Chief Martin Agbaso as Acting National Chairman of the Appellant. Due to this development, an application for order of Mandamus to compel the 2nd-4th Respondents to recognise the appointment of Chief Martin Agbaso as Acting National Chairman of the Appellant was filed on 21st April 2017, by the 5th Respondent purportedly acting on behalf of the Appellant asking amongst others, for an order of(2018) Mandamus LPELR-45196(SC) compelling the 2nd Respondent to accept and recognise the decision of the
2 Appellant appointing one Chief Martin Agbaso as the Acting Chairman of the Appellant.
The 1st Respondent was neither joined as a party to the application for order of Mandamus nor was heard in the said application despite making copious references to his status, office and standing as person to be affected directly by the outcome of the Mandamus application. The trial Court granted as prayed, the reliefs sought in paragraphs A, B and C of the application. The decision of the trial Court is contained specifically at page 305 of the Record of Appeal.
Following the order made by the trial Court, the 1st Respondent herein filed a Notice of Appeal against the decision of the trial Court dated the 16th June 2017. Also filed along with the Notice of Appeal an application for leave to appeal as an interested party against the decision of the trial Court. The 1st Respondent filed a similar application(2018) before LPELR-45196(SC) the Court below in Appeal No. CA/E/358M/2017 dated 20th June 2017, praying for the same reliefs.
3 The Appellant filed a counter affidavit to the
1st Respondent's application. The lower Court heard the application on 10th July 2017, and overruled the Appellant's opposition and granted leave to the 1st Respondent to appeal against the judgment of the trial Court as an interested party. Prior to this, the 1st Respondent had on 28th June 2017, filed a Motion on Notice before the Court below praying for an order granting leave to the 1st Respondent to compile and transmit the Record of Appeal and to deem the said Record of Appeal as properly compiled and transmitted. The Appellant being dissatisfied with the two decisions of the Court below, i.e. CA/358/2017 and CA/367/2017 on 19th July 2017, appealed to the Supreme Court against the said decisions.
The instant appeal, (SC.718/2017) arose from the decision of the Court below in Appeal No. CA/E/367/2017. The 26- pages Appellant's Brief is dated 11th September 2017, but (2018) LPELR-45196(SC) filed 15th September, 2017. The Appellant further filed a Reply Brief to the 1st Respondent's Brief. The 19-pages Reply was dated and filed 16th April, 2018.
4 On its part, the 1st Respondent filed its Respondent's
Brief dated 19th March 2018, and deemed properly filed and served on 24th April 2018. In its Respondent Brief, the 1st Respondent raised and argued its Notice of Preliminary Objection filed pursuant to Order 2 Rule 9(1). The objection is premised on two grounds, to the effect that the appeal relates to the exercise of discretion by the Court of Appeal which granted leave to the 1st Respondent to appeal the judgment of the lower Court as an interested party. The second ground of the Preliminary Objection relates to the fact that the appeal has become purely academic, as it relates to interlocutory decision of the lower Court of 15th August, 2017, when the lower Court had on 15th August 2017, given its judgment in the substantive appeal.
The twin preliminary issue raised by the 1st Respondent on jurisdiction relate to the fact that the appeal has become academic and liable to be dismissed on the ground that the appeal relates to interlocutory decisions of the lower Court (2018) LPELR-45196(SC) dated 10th July 2017, which has since given its final decision on 16/8/2017. The 1st Respondent submits that the appeal against the interlocutory decision has
5 become spent and now academic, citing the cases of
ZENITH BANK PLC v. JOHN (2015) 7 NWLR (Pt. 1458) 393 AT 423: ATTORNEY GENERAL OF ANAMBRA STATE v. OKAFOR (1992) 2 NWLR (Pt. 224) 396 AT 430; BADEJO v. FEDERAL MINISTER OF EDUCATION (1996) 1 NWLR (Pt. 464) 15; PLATEAU STATE v. ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR (Pt. 967) 246; C.B.N. v. JACOB OLADELE AMAO & 2 ORS (2010) 16 NWLR (Pt. 1219) 271 SC; PPA v. I.N.E.C. (2012) 13 NWLR (Pt. 1317) 215 at 247-248.
The Appellant also joined issues with the 1st Respondent as to the Preliminary Objection in its Reply Brief, dated and filed 16th April 2016, wherein the Appellant contented that the preliminary objection of the 1st Respondent is perceptibly misconceived. The Appellant contended that the 1st Respondent has not demonstrated that this appeal is captured and envisaged within the boundaries of Section 233(3) of(2018) the Constitution. LPELR-45196(SC) The Appellant submitted that the instant appeal comes within the ambit of Section 223(2) and not Section 233(3) of the Nigerian Constitution.
6 The Appellant contended that issues 1and 3 raised concerns on the jurisdiction of the Court below to hear and determine Appeal No. CA/E/367/2017, which clearly is an issue of law, and which can be raised at anytime and at any stage of the proceedings, even for the first instance before the Court of Appeal or before the supreme Court with or without leave. To support its contention, the Appellant cited the case ofOBIKOYA v. THE REGISTRAR OF
COMPANIES & OFFICIAL RECEIVER OF POOL HOUSE GRP (1975) 4 SC (REPRINT); ONI v. CADBURY NIGERIA PLC (2016) 9 NWLR (Pt. 1516) 80.
RESOLUTION OF PRELIMINARY OBJECTION Before proceeding to hearing this appeal on its merit, I'll pause to opine and resolve the issue raised in the arguments respectively canvassed by the 1st Respondent and Appellant's response to same, both which have been summarized above. The law is settled that jurisdiction is a (2018) LPELR-45196(SC) threshold or foundational issue that can be raised anytime during the trial of a suit up to finality. However, where raised in an appellate Court as a new issue, proper application must be made to raise it as a ground of appeal.
See OSHATOBA v. OLUJITAN (2000) 5 NWLR (Pt. 655)
7 159, AMADI v. N.N.P.C. (2000) 5 WRN 47; (2000) 10 NWLR (Pt. 674) 76; (2000) 6 SCNJ 1; (2000) 49 LRCN 1951; (2000) 10 NWLR (Pt. 674) 7. The same principle was also upheld by this Court in P.D.P. v. OKOROCHA & ORS (2012) LPELR-7822 (SC), where this Court held that jurisdiction is visualized as the very basis on which any Court or Tribunal tries a case. It is the lifeline of all trials. Any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of a proceeding. A question of jurisdiction must however be properly raised before the Court may rightly entertain it. In that wise, it can be raised at any stage of a case both at the trial and on appeal by any of the parties, and it can even be raised orally. The Court can also raise it by itself suo motu where the question involves a substantial point of law, substantive and procedural and no further evidence needs be adduced which would affect the decision. SeePETROJESSICA
ENTERPRISES LTD. v. LEVENTIS TECHNICAL CO. LTD. (1992)(2018) 5 NWLR LPELR-45196(SC) (Pt. 244) page 675, MADUKOLU v.
8 NKEMDILIM (1962) 2 SCNLR 341, and OLORIODE v. OYEBI (1984) 1 SCNLR page 390. In view of the foregoing, I hold that the issue raised in the grounds 1 and 3 of the Appellant’s notice of Appeal are jurisdictional in nature, and same having be raised and argued in the Appellant's Brief and Reply are live issues and are neither dead, moot nor academic. The preliminary objection is hereby refused and same is accordingly struck- out. I will then proceed to indentifying the real issues for determination in the substantive appeal to enable me determine and resolve same.
ISSUES FOR DETERMINATION: The Appellant formulated two issues at page 7 of its Appellant's Brief, thus:-
"(1) Whether the Court below had the jurisdiction to hear and determine the appeal in view of the pending application before the Supreme Court for stay of further proceedings in the appeal (Ground 1). (2) Whether(2018) the Court LPELR-45196(SC) below had jurisdiction to hear and determine the appeal when there was no competent Notice of Appeal upon which the appeal was predicated (Grounds 2 and 3)."
10 The 1st Respondent also formulated two issues on page 12 of the Respondent brief, thus:
"(a) Whether the hearing and determination of the Appeal against the order for Mandamus by the court below, occasioned and/or resulted in any miscarriage of justice in the peculiar circumstances of this suit (Ground 1). (b) Whether the Court below property, rightly and on the accepted principles exercised the discretion to grant the order dated 10th July 2017 for leave to the 1st Respondent to appeal against the Judgment of the learned trial Court dated 22nd May, 2017 which directly affected the 1st Respondent herein as envisaged by Section 234(a) of the 1999 Constitution, as amended: and in also deeming the Notice of Appeal against the said Judgment as properly filed and served (Grounds 2 and 3)."
Given the facts of this appeal, I have taken time to carefully reconsider(2018) the two issues LPELR-45196(SC) formulated apiece by both parties for the purpose of determining this appeal. I agree that there are two issues in this appeal; namely one of fairness and exercise of judicial discretion.
10 I am not quite convinced that the issues have been well captured by the parties in the way and manner they have respectively formulated issues for determination in this appeal.
I wish to also add briefly that, that grammarians have repeatedly observed that, once the word"Whether " is used in formulating a question, the word or" not" must follow, as a matter of English language, not law. Thus, questions for determination must be formulated by way of;
"WHETHER OR NOT."
That said, in view of the foregoing background, I have modified the two issues respectively formulated by the Appellant and the 1st Respondent, thus:-
"(1) Whether or not a miscarriage of justice has been occasioned by the lower Court in granting leave to the 1st Respondent to appeal as an interested party against the order for Mandamus made by the trial (2018) LPELR-45196(SC) Court. (2) Whether or not having been granted leave to appeal as an interested party, the 1st Respondent has a valid Notice of Appeal upon which the appeal against the Judgment of the trial Court dated 22nd May, 2017 was predicated."
11 CONSIDERATION AND RESOLUTION OF
THE ISSUES:
ISSUE 1: "Whether or not a miscarriage of justice has been occasioned by the lower Court in granting leave to the 1st Respondent to appeal as an interested party against the order for Mandamus made by the trial Court."
The Appellant sought to engage the issues in this appeal from the angle of jurisdiction. In sum, the Appellant contended that the Court below was wrong in granting the 1st Respondent leave to appeal against the decision of the trial Court dated 22nd May 2017, as an interested party on the ground that his interest was affected. The Appellant contention is that the Court below ought to have declined jurisdiction in view of pending motion for Stay of Proceedings at the Supreme Court in SC.598/2017.
(2018) LPELR-45196(SC) The Appellant contended that where a Court lacks jurisdiction, it will have no powers to inquire into the matter or make a determination or pronouncement in the matter and any defect in competence is fatal in that it renders the entire proceedings, trials and findings invalid, null and void ab initio however brilliantly they may have been conducted and concluded.
12 The Appellant relied on BRONIK MOTORS LIMITED &
ANOR v. WEMA BANK LIMITED (1983) 1 SCNLR page 296 and OKOYA v. SANTILLI (1990) 2 NWLR (Pt. 131) page 172.
The Appellant further relied on the case of MADUKOLU v.
NKEMDILIM (1962) 1 ALL NLR 581 on the conditions which must be satisfied before a Court can be said to be vested with competence and jurisdiction to entertain a matter. The Appellant also cited the case ofAJAO v.
POPOOLA (1986) 5 NWLR (Pt. 45) page 802.The Appellant's contention was premised on the pendency of application for stay of proceedings in the appeal, which was filed to stay proceedings pending the hearing and determination of an appeal lodged at the Supreme Court in SC.598/2017, which the Appellant contended is an offshoot of Appeal No. CA/E/367/2017, which led to the instant appeal.
The Appellant(2018) contended LPELR-45196(SC) that having entered the appeal at the Supreme Court in SC.598/2017, the lower Court was bereft of jurisdiction to proceed with the hearing and determination of the appeal. On this supposition, the
Appellant relied on the case of MOHAMMED v.
OLAWUNMI (1993) 4 NWLR(Pt. 287) 245, at 277.
13 The Appellant further amplified and quoted extensively from the decision inMOHAMMED v. OLAWUNMI
(supra) and submitted that the lower Court swam against the tide of the above decisions in refusing stay of proceedings in the appeal notwithstanding the fact that the attention of the Court below was brought to the pending application for stay of proceedings before the Supreme Court.
The Appellant submitted, in closing on issue one, that the only option opened to the Court below was to adjourn proceedings and await the decision of the Supreme Court on the application for stay of proceedings. The Appellant then urged this Court to resolve issue one in its favour and to hold that the Court below lacked jurisdiction to hear and determine the appeal in view of the pending application before the Supreme Court.
In its contention on the issue, the 1st Respondent relied on the provisions(2018) of Section LPELR-45196(SC) 233(2) of the Constitution which provides for instances where appeals lie from decisions of the Court of Appeal to the Supreme Court. The 1st Respondent submits that the present
14 case does not come within the ambit of instances where appeal is of right. This is because leave is required for the purpose of appealing from the Court of Appeal to the Supreme Court as it falls within the category of Section 233(3). The 1st Respondent contended further that the appeal relates to the exercise of judicial discretion in granting leave to the 1st Respondent and that the appeal is dead on arrival as leave of either the Court below or the Supreme Court ought to have been sought to appeal against the exercise of judicial discretion. The
1st Respondent relied on C.B.N. v. OKOJIE (2002) 8
NWLR (Pt. 768), 48; (2002) 3 SC 99, at 104; WILLIAMS v. MOKWE (2005) 14 NWLR (Pt. 945) 249 at 261; F.B.N. v. IBRAHIM (2008) 18 NWLR (Pt. 1118) 172.
The 1st Respondent observed that the contention of the Appellant was that there was a pending Motion for Stay of Proceedings before the Supreme Court and that the Court below ought(2018) to have LPELR-45196(SC) simply declined jurisdiction. The 1st Respondent contended that the argument is misplaced given the fact that application for Stay of Proceedings calls for the exercise of discretion of the Court,
15 which the Court in its equitable jurisdiction may or may not grant, particularly when the 1st Respondent who was directly affected and deprived of his right was not made a party and had promptly taken steps to protect himself and have the said order of Mandamus vacated.
The 1st Respondent contended further that the Appellant had resorted to several ploys to frustrate the hearing of the substantive appeal by holding the hands of the Court of Appeal under the guise that there was a pending Motion on Notice for Stay of proceedings at the Supreme Court. The
1st Respondent submitted that the case of MOHAMMED v. OLAWUNMI (supra)cited by the Appellant is inapplicable to this case. The 1st Respondent contended that, as rightly observed by the Court below at pages 783-784 of the Supplementary Record of Appeal, per Aboki JCA, in law, there is no legally admissible evidence before the lower Court to show or confirm that an appeal has been entered at the Supreme Court. (2018) LPELR-45196(SC)
The 1st Respondent submitted that the lower Court rightly exercised its discretion not to stay proceedings but to
16 rather proceed to give all parties ample opportunities to exercise their right of fair hearing on 15th August, 2017 when the substantive appeal was heard. The 1st Respondent submitted further that there can be no hard and fast rule in matter of the exercise of judicial discretion. Thus, the 1st Respondent contended, it is not for the higher Court to interfere with the exercise of judicial discretion. The 1st Respondent contented that the lower Court was right in its decision to have discountenanced the inadmissible public documents as evidence of the pendency of the Motion for Stay of Proceedings at the Supreme Court. The 1st Respondent relied on the case of
UNIVERSITY OF LAGOS & ANOR v. AIGORO (1985) 1 SC (REPRINT) 182; OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599; BABATUNDE v. P.A.S. & T.A. LIMITED (2007) 8 NWLR (Pt. 1050) 113 and argue this Court to resolve issue one above against the Appellant and to dismiss the appeal for lacking in merit.
(2018) LPELR-45196(SC) I have painstakingly followed and did a recap of the various angles and positions of the parties on issue one formulated in this appeal. The Appellant sees the issue as one of
17 jurisdiction, contending that the lower Court lacks jurisdiction and ought to have stayed further proceedings in view of the pendency of Motion for Stay of proceedings at the Supreme Court. The 1st Respondent sees the appeal as spent and academic, being an appeal against the interlocutory decision of the Court below which granted leave to him (1st Respondent) to appeal as an interested party. To the 1st Respondent, assuming there was a pending application for stay of proceedings at the Supreme Court, it is left for the Supreme Court to Stay Proceedings and that it is a matter of discretion for the Court below to also stay its proceedings unless the Supreme Court has heard and granted stay of proceedings. However, in the instant appeal, the lower Court has heard and specifically refused stay of proceedings on ground of incompetent, uncertified public documents relied upon by the Appellant.
Irrespective of the colourised dimensions the parties arguments have taken in respect of issue one, the main contention(2018) to be resolved LPELR-45196(SC) here remains "whether or not a miscarriage of justice has been occasioned by the lower Court in granting
18 leave to the 1st Respondent to appeal as an interested party against the order for Mandamus made by the trial Court." The fact of this appeal relates to the order of mandamus which was granted against the 1st Respondent's interest. It is apparent that the order granted by the trial Court relates to the chairmanship of the Appellant. Although the 1st Respondent had allegedly been suspended, I am not in doubt that the whole issue revolves around his status, and the effect of the order of mandamus on his status. The 1st Respondent is a party that ought to have been joined in the suit, being one without which the Court cannot effectively or efficaciously decide the matter. The law is settled that where a necessary party who ought to be joined is not joined in an action, any judgment obtained against such a party is not a nullity but shall be to no avail. In AZUH v. UBN PLC (2014) LPELR-22913
(SC), this Court had reiterated the clear position of the law that non-joinder of a necessary party in a suit is an irregularity(2018) that doesLPELR-45196(SC) not affect the competence or jurisdiction of the Court to
19 adjudicate on the matter before it. However, an order made against a person who was not a party to the action before the Court, though not a nullity, is to no avail. It cannot stand the test of time and is not binding on such non-party to the action. See: OKOYE v. NIGERIAN
CONSTRUCTION & FURNITURE CO. LTD. & ORS. (1991) 7 SC (Pt. III) (REPRINT) 33 at 56; GREEN v. GREEN (1987) 3 NWLR (60) 480. See also UWAZURUIKE & ORS v. ATTORNEY-GENERAL OF THE FEDERATION (2013) 4-5 SC (Pt. 1) 90 at 119 Lines 16-21; (2013) LPELR-20392 (SC) 1 at 24, Per FABIYI, JSC. A party who has an interest in an appeal from the High Court to the Court of Appeal must, under Section 222 of the Constitution, seek leave of either the High Court or the Court of Appeal to appeal. The rationale for the provision is to enable the Court determine whether it is proper in law to grant the party permission to appeal in the circumstances of the case. See OTU v. A.C.B (2008) Vol. 3 M.J.S.C 191 at 206 Paragraphs(2018) LPELR-45196(SC)F-G, See also (2008) 1 SC (Pt. 11) 1 AT 16-17 paragraphs 10-20. See alsoTHE REGISTERED TRUSTEES CHRIST APOSTOLIC CHURCH NIGERIA v.
20 UFFIEM (1998) 10 NWLR (Pt. 569) 312; IN RE WILLIAMS (No. 1) (2001) 9 NWLR (Pt. 718) 329; IN RE OJUKWU (1998) 5 NWLR (Pt. 551) 673. "Per Tobi JSC (Blessed memory)." In WILLIAMS v. MOKWE (2005) 14 NWLR (Pt. 945)
249, this Court had declared, Per Kalgo, JSC, in a similar situation as in the instant appeal, that the Court of Appeal has the discretion in granting or refusing an application before it for leave to appeal as an interested party and any such discretion exercised by it remains valid unless it is shown to have been wrongly exercised on erroneous principles or tainted with illegality. I am unable to see any miscarriage of justice in the exercise of judicial discretion by the lower Court in granting leave to the 1st Respondent to appeal the order of mandamus as an interested party. Beyond pretension, the said order is directed at, and affected the right, status and interest of the 1st Respondent over and above other parties to this appeal, given the facts and circumstances of this appeal. Failure to(2018) join him before LPELR-45196(SC) summarily securing the order of mandamus leaves must to be desired.
21 I hold that the exercise of judicial discretion by the lower
Court in granting leave to the 1st Respondent to appeal as an interested party against the order for Mandamus made by the trial Court has not occasioned a miscarriage of justice. This above position follows a long established tradition of not undermining the exercise of judicial discretion. In
ODUTOLA v. KAYODE (1994) 2 NWLR (Pt. 324) 1, this Court reiterated the well-established principle of law that all judicial discretion must be exercised according to common sense and according to justice, and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of an appeal Court to have it reviewed. The attitude of this Court, being the appellate Court in the circumstances of this appeal, is to respect the exercise of discretion by lower Court. Therefore, the settled position is, irrespective of technicalities or ancillary issues, unless the exercise of discretion by a lower Court is manifestly wrong, arbitrary, reckless or injudicious, this (2018) LPELR-45196(SC) Court would not interfere. See UNIVERSITY OF LAGOS v. OLANIYAN (Supra), Per Nnamani, JSC (Blessed
22 Memory) (page 11, paragraphs C-E). See also TETTEH
WORBI AND ORS v. ADAMALI ASAMANYUAM AND ORS. 14 W.A.C.A. 669 at 671, andDEMUREN v. ASUNI (Supra) AND SONEKAN v. SMITH (1967) 1 ALL N.L.R. 329. Having acted promptly in seeking leave to appeal as an interested party, the lower Court was right in exercising its discretion in favour of the 1st Respondent amidst patent, but carefully designed scheme to edge him out through "Judicial" means without joining him as party. I hold that the 1st Respondent ought to have been joined being not just a necessary, but as a vital and crucial party to the suit. I hold that the lower Court has not caused a miscarriage of justice to be occasioned by granting the 1st Respondent leave to appeal as an interested party. In a nutshell, I resolve issue one in favour of the 1st Respondent.
ISSUE 2: "Whether or not having been granted leave to appeal as an interested(2018) party, LPELR-45196(SC) the 1st Respondent has a valid Notice of Appeal upon which the appeal against the Judgment of the trial Court dated 22nd May, 2017 was predicated."
23 In its submission on issue two, the Appellant contended that by Order 7 Rule 2(1) of the Court of Appeal Rules 2016, the 1st Respondent who was not a party to the suit at the trial Court has no automatic right of appeal. The Appellant contended that after leave was granted to the 1st Respondent to appeal against the judgment of the High Court as an interested party by the Court below, the only option available to the 1st Respondent was to file a fresh Notice of Appeal, as his appeal was predicated on the Notice of Appeal filed on 16th June, 2017, prior to granting of leave to appeal. The Appellant contended further that the leave to compile and transmit record and to deem same as having been properly compiled and transmitted made by the 1st Respondent was not in respect of Appeal No. CA/E/367/2017 as no leave to appeal as an interested party was granted to the 1st Respondent. The Appellant contended that the appeal which was heard and determined by the Court below, i.e. CA/E/367/2017 was (2018) LPELR-45196(SC) incompetent to the effect that it was not predicated on a competent Notice of Appeal.
24 The Appellant then urged this Court to resolve issue two in its favour and to hold that the Court below did not have jurisdiction to hear and determine the appeal as there was no competent Notice of Appeal upon which the appeal was predicated. On the issue of multiplicity of application by the 1st Respondent, the Appellant further replied to the 1st Respondent through its Reply Brief dated 16th April 2018, to the effect that the basis on which the Court below granted leave to appeal as an interested party to the 1st Respondent was wrong, being an abuse of Court and judicial process. The Appellant replied further that incompetent motion would necessarily give birth to incompetent and stillborn appeal. The Appellant also further responded that the Motion on Notice for Stay of Proceedings at the Supreme Court was filed bona fide while also insisting that the case
MOHAMMED v. OLAWUNMI (Supra) is applicable, to the extent that the reasonable thing for the lower Court (2018) LPELR-45196(SC) was to have stayed proceedings and not disregard the process pending at the apex Court. The Appellant also argued in closing in its Reply Brief, that the cases of
25 WILLIAMS v. MOKWE (SUPRA) and PRINCE BIYI POROYE & ORS v. MAKARFI & ORS (2017) LPELR-42738 SC, cited and relied upon by the 1st Respondent are totally inapplicable to the instant appeal. The Appellant then reiterated its contention that the lower Court lacks jurisdiction and urge this Court to allow this appeal and grant the reliefs sought by the Appellant. On its part, the 1st Respondent contended that in its ruling dated 10th July, 2017, the Court below granted as prayed the application dated 20th June 2017, save for relief No. 2, relying on the latin maxim, 'Expressio unius est exclusio alterius', or 'inclusion unis est exclusion alterius." The 1st
Respondent referred to the case of SHINKAFI & ORS v.
YARI & ORS (2016) LPELR-26050 (SC) where the maxim was applied by this Court, per Okoro JSC. The 1st Respondent made copious references to the case of
PRINCE BIYI POROYE & ORS v. MAKARFI & ORS (Supra) and submitted that the Court below rightly allowed the appeal against the judgment of the learned trial Court which(2018) was given LPELR-45196(SC) in obvious denial of right of fair hearing
26 guaranteed to the 1st Respondent herein. The 1st
Respondent then urged this Court to uphold the 1st Respondent's arguments as made above and resolve issue two against the Appellant. As a Court of law and justice, this Court must look beyond procedural technicalities to do substantial justice, particularly where fair-hearing is in issue. This is because the order of mandamus granted against the 1st Respondent by the trial Court formed the basis of leave granted to him to appear as an interested party through a Motion dated 20th June 2017, which had a deeming order as its prayer 3.
I observe that in ordering "as prayed", the lower Court specifically refused prayer 2 which was sought to enable the appeal operate as a stay of proceedings. The application was moved in terms and ordered as prayed by the lower Court safe for relief 2. These facts are crystal clear on pages 290-352 of the Record of Appeal. The question is, was deeming order refused specifically or by implication by the Court below in this circumstance for (2018) LPELR-45196(SC) the purpose of determining the validly of the Notice of
27 Appeal on which the decision ofthe lower Court was based? The answer is a capital NO. This is because in its ruling dated 10th July 2017, the Court below granted as prayed the application dated 20th June 2017, safe for relict No. 2. Prayer 3 was not specifically denied and was not expressly granted either. It was nonetheless granted "as prayed" by the lower Court. Based on the above narratives, it is my considered view that if the Court below so desired that prayer 3 be refused, it would have expressly declared both reliefs 2 and 3 refused. This is not the case here. Thus, this means it was not refused but granted. The only relief in the motion refused was relief No. 2, and it was expressly denied and refused. Thus, relying on the Latin maxim, 'Expressio unius est exclusion alterius', or 'inclusion unis est exclusion alterius,' the lower Court would be deemed to have granted as prayed reliefs 1 and 3. See the case ofSHINKAFI &
ORS v. YARI & ORS (2016) LPELR-26050 (SC) where the maxim was applied by this Court, per Okoro, JSC. See (2018) LPELR-45196(SC) also BUHARI v. YUSUF (2003) 14 NWLR (Pt. 841) 446 at 499; AGBAREH v. MIMRA (2008) NWLR (Pt. 1071) 378.
28 The issue in this appeal revolves around the cardinal principle of justice and fairness-fair hearing. The Court has over the years consistently maintained that the principle of natural justice is sacrosanct in our judicial system and it must as a matter of constitutional obligation be observed by a judicial umpire. The Supreme Court inADIGUN v.
ATTORNEY GENERAL OF OYO STATE (1987) NWLR (Pt. 53), Page 709 paragraph G, per Obaseki, JSC (Blessed Memory), further had this to say on principles of natural justice:-
"If the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at, in the absence of the departure from the essential principles of Justice, the decision must be declared to be no decision." The principle of fairness is crucial and sacrosanct in our judicial system and adjudicatory functions at all level of the judicial hierarchy. It must, as a matter of constitutional obligation,(2018) be observed LPELR-45196(SC) by all judicial officers. This is because fairness and natural justice requires that a party to
29 a cause, or a party who ought reasonably to be a party in the suit, must be given the opportunity to put forward his case or defence freely and fully. See KANO NATIVE
AUTHORITY v. RAPHAEL OBIORA (1959) 4 FSC 226; (1959) SCNLR 577 cited with approval by Iguh, JSC in
EKIYOR & ANOR v. BOMOR (1997) 9 NWLR (Pt. 519) 1 at 14. The issue of fair hearing was brutally silenced by the trial Court given the circumstances of this appeal. The refusal to join the 1st Respondent in this appeal appears to be a similar political ploy or orchestrated scheme to edge out the 1st Respondent from the scheme of things in the affairs of the Appellant, being a political parry. Thus, the decision of this Court in PRINCE BIYI POROYE & ORS v.
MAKARFI & ORS (supra) is particularly more relevant given the nature and circumstances of this appeal. The 1st Respondent, who ordinarily ought to be heard as a necessary and indispensable party, was not heard before the order of mandamus that directly affected his rights, (2018) LPELR-45196(SC) status and interest was made. No better way to breach fairness or deny fair hearing than this.
30 A position similar as those in this case and POROYE's was reiterated by this Court in the case ofEKPETO v.
WANOGHO (2005) 3 W.R.N. 75 on the principle of fair hearing to the effect that: "There is no doubt at all that the principle of fair hearing is fundamental to all Court procedure and proceedings, and like jurisdiction, the absence of it vitiates proceeding well conducted." See also SALU v. EGEIBON (1994) 6
NWLR (Pt. 348) 23 at 40, CEEKAY TRADERS LTD. v. GENERAL MOTORS CO. LTD. (1992) 2 NWLR (Pt. 222) 132, ATANO v. ATTORNEY GENERAL OF BENDEL STATE (1988) 2 NWLR (Pt. 75) 201. The heavy climate made of the issue of lack of a valid Notice of Appeal by the Appellant simply because the lower Court did not specifically pronounce on deeming order as it related to the Notice of Appeal beyond declaring "ordered as prayed" is cheap and needless resort to technicalities to defeat the ends of justice. We must continue to take deliberate measures and steps to instill and enforce a (2018) LPELR-45196(SC) change of mindset to demonstrate that the era of technicalities is gone, and gone for good in the annals of justice in this country.
31 All other Courts down in the judicial ladder and all counsel as officers in the hallow temple of justice must maximally comply and uphold this new trend.
This above resolve is further demonstrated in OYEYEMI &
ORS v. OWOEYE & ANOR (SUPREME COURT SUIT NO. SC.102/2013), where the above position of law and attitude of this Court to justice and the need to avoid technical justice was reiterated thus:-
"Our duty as an Apex Court is to do substantial, justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context. We are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities. The need to do substantial justice and avoid delving into the error of technicalities is well settled. See also the case (2018) LPELR-45196(SC) of MAKERI SMELTING CO. LTD v. ACCESS BANK
(NIG.) PLC (2002) 7 NWLR (Pt. 766) 411 at 476-417.
32 The above cases have pictured clearly that the attitude of the Courts now is that cases should always be decided, wherever possible on merit. Even in cases where errors of omission or commission called blunders have been made, it is unjust to hold that because blunders have been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. See also AJAKAIYE v.
IDEHIA (1991) 8 NWLR (Pt. 364) 504, ARTRA IND. LTD v. N.B.C. (1997) 1 NWLR (Pt. 483) 574, DAKAT v. DASHE (1997) 12 NWLR (Pt. 531) 46,BENSON v. NIGERIA AGIP CO. LTD (1982) 5 S.C. 1. In view of the foregoing, the second issue in this appeal which revolves around whether or not the 1st Respondent has a valid Notice of Appeal upon which the appeal against the judgment of the trial Court dated 22nd May 2017 was predicated is also resolved against the Appellant, for reasons canvassed above.
(2018) LPELR-45196(SC) In view of the foregoing, and having resolved the two issues in this appeal in favour of the 1st Respondent. I hold that this appeal fails in whole. This appeal lacks merit and is accordingly dismissed.
33 The judgment of the lower Court dated 16th August 2017, is hereby affirmed. There shall be no order as to cost.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment delivered by my learned brother, Bage, JSC. For the reasons given by his Lordship, I agree that this appeal should be dismissed.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in agreement with the judgment just delivered by my learned brother, Sidi Dauda Bage, JSC and to register the support I have in the reasons from which the decision came about I shall make some comments.
This is an appeal against the decision of the Court of appeal, Enugu Division or Court below or lower Court, Coram: Abdu Aboki, I. S. Bdliya and M. O. Bolaji Yusuf in a judgment(2018) delivered onLPELR-45196(SC) 16th August, 2017 setting aside the judgment of the trial High Court.
On the 24/4/2018 date of the hearing, learned counsel for the appellant, Tochukwu Maduka adopted the brief
34 of argument of the appellant filed on the 15/9/2017 in which were distilled two issues for the determination:
ISSUE ONE Whether the court below had the jurisdiction to hear and determine the appeal in view of the pending application before the Supreme Court for stay of further proceedings in the appeal? (Ground 1) ISSUE TWO Whether the Court below had the jurisdiction to hear and determine the appeal when there was no competent notice of appeal upon which the appeal was predicted? (Grounds 2 and 3)
For the 1st respondent, Chief Wole Olanipekun, SAN of counsel adopted the brief of argument filed on 20/3/2018 and deemed filed on 24/4/2018 in which was argued a Preliminary Objection and in the event it failed, 1st respondent(2018) raised two LPELR-45196(SC) issues for determination as follows:
(a) Whether the hearing and determination of the appeal against the Order for Mandamus by the Court below, occasioned and/or resulted in any miscarriage of Justice in the peculiar circumstances of this suit (Ground 1).
35 (b) Whether the Court below properly, rightly and on the accepted principles exercised the discretion to grant the order dated 10th July, 2017 for leave to the 1st Respondent to appeal against the Judgment of the learned trial Court dated 22nd May, 2017 which directly affected the 1st Respondent herein as envisaged by Section 243(a) of the 1999 Constitution, as amended; and is also deeming the Notice of Appeal against the said Judgment as properly filed and served. (Grounds 2 and 3)
The 2nd, 3rd and 4th Respondents were not represented though served with the hearing notice. They did not file any briefs either.
Learned senior counsel for the 5th Respondent, Paul Erokoro did not file any brief.
There is(2018) no gainsaying LPELR-45196(SC) that the Preliminary Objection would be first tackled because on that depends the competence of the appeal and the Jurisdiction of the Court.
In response to the arguments of the Objection, learned Counsel for the appellant filed a Reply brief on 16/4/2018 and deemed properly filed on 24/4/2018 which learned Counsel, Tochukwu Maduka, Esq. adopted.
36 NOTICE OF PRELIMINARY OBJECTION TAKE NOTICE that at the hearing of this appeal, the 1st respondent will pray/urge the Supreme Court to dismiss/strikeout the appeal on the ground that the entirety of the appeal is incompetent.
TAKE FURTHER NOTICE that the grounds for the objection are: i. The appeal is against the exercise of discretion by the Court of Appeal that is, granting leave to the appellant to appeal against the judgment of the trial High Court. ii. The appeal is purely academic, as it relates to an interlocutory decision of the lower Court of 15th August, 2017, when the lower Court had on 16th August, 2017, given judgment in the substantive appeal.
Chief Wole Olanipekun SAN, for the 1st respondent/Objector contends that the appellant failed to get through the condition precedent in filing this appeal in not seeking leave of either the lower Court or the Supreme Court before(2018) the appeal LPELR-45196(SC) can be deemed properly filed. He cited Sections 233(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or CFRN for short;
37 Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536 at 562, Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 17) 33 at 36-37, Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348, C.B.N. v. Okojie (2002) 8 NWLR (Pt. 768) 48 etc
He further submitted that the appeal is now academic and also spent. He cited Zenith Bank Plc v. John (2015) 7
NWLR (Pt. 1458) 393 at 423, A-G, Anambra State v. Okafor (1992) 2 NWLR (Pt. 224) 396 at 430 etc.
Learned Counsel for the appellant contended that the Preliminary Objection and the arguments in support stemmed from a misconception as the appeal comes within the ambit of Section 233(2) of the CFRN and not within Subsection (3) and so no leave is required to give life to the appeal.
That grounds 1 and 2 are questions of Jurisdiction of the Court below(2018) to hear LPELR-45196(SC)and determine the appeal which is an issue of the law. He relied on Obikoya v. The
Registration of Companies & Official Receiver of Pool House GRP (1975) 4 SC (Reprint) 23; Oni v. Cadbury Nigeria Plc (2016) 9 NWLR (Pt. 1516) 80; State v.
Omoyele (2016) LPELR-40842 (SC).
38 He stated on that ground 3 questions the holding of the lower Court that two motions were heard and granted by that Court on 10/7/17 which decision was erroneous in the face of the record of that Court on the said date. This cannot be said to be academic. He citedChief Francis
Uchenna Ugwu & Ors. v. P.D.P. & 6 Ors (2015) 7 NWLR (Pt. 1459).
The objection is anchored on two prongs, firstly that the appeal being one grounded on mixed law and facts or facts alone, leave of either the Court below or the Apex Court is a condition precedent to its competence and by implication the jurisdiction of the Court. That is, that the appellant had not complied with Section 233(2) of the Constitution. Secondly, that the appeal has become academic and no useful purpose would be derived in pursuing it.I shall quote Section 233(2) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN for short) thus:
"233 (2) An appeal shall lie from decisions of the Court of(2018) Appeal to LPELR-45196(SC) the Supreme Court as of right in the following cases -
39 (a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal; (b) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution; (c) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person; (d) Decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other Court; (e) Decisions on any question - (i) Whether any person has been validly elected to the office of president or Vice-President under this Constitution, (2018) LPELR-45196(SC) (ii) Whether the term of office of president or Vice- President has been ceased, (iii) Whether the office of President or Vice-President has become vacant; and (c) Such other cases as may be an Act of the National Assembly. (Underlining supplied)
40 The grounds of the appeal shorn of their particulars are hereunder stated as follows:
GROUND 1 The Court below erred in law when it assumed jurisdiction, entertained and determined Appeal No. CA/E/367/2017; DR. VICTOR IKE OYE v. COMRADE MIKE ALIOKE & ORS notwithstanding the pendency of four appeals before the Supreme Court which relate to the appeal at the Court below; and notwithstanding the service on the Court below motions for stay of further proceedings in the said Appeal before the Court below which applications for stay of further proceedings were pending before the Supreme Court. GROUND 2 The Court below erred in law when it assumed jurisdiction, entertained and determined Appeal No. CA/E/367/2017; DR. VICTOR IKE OYE v. COMRADE MIKE ALIOKE 7 ORS notwithstanding that there was (2018) LPELR-45196(SC) no competent Notice of Appeal filed by the 1st Respondent upon which the Appeal was predicated. GROUND 3 The Court below erred in law when it held at page 5 of its judgment that: "From the records of this Court, the two motions were heard and granted on 10/12/11." 41
(2018) LPELR-45196(SC) Clearly grounds 1 and 2 arebased on a contest on jurisdiction and since it can be raised at any stage of the litigation and even on appeal for the first time is a matter of error of law and no leave is required to so raise it. This situation is well captured in the dictum of Elias CJN in
Obikoya v. Registrar of Companies and Official receiver of Pool House GRP (1975) 4 SC (Reprint) 23 thus:-
"Our rules of practice permit the issue of jurisdiction to be raised at any stage of the proceedings up to the final determination of an appeal by this Court. This is because the existence or absence of jurisdiction in the Court of trial goes to the root of the matter so as to sustain or nullify the trial Judge's decision or order in respect of the relevant subject-matter." In ONI v. CADBURY NIGERIA PLC (2016) 9 NWLR (Pt.
1516) 80 the Supreme Court dealt with the issue, held, inter alia, at pages 96-98 of the report that:
"On their part, the respondents to the main appeal, (2018) LPELR-45196(SC) for the first time, canvassed a jurisdictional issue, namely, that the "trial Court lacked the jurisdiction" to entertain the case. In consequence, it invited the Court to
42 dismiss the appeal. Although, the respondent raised this question, for the first time, in the respondent's brief filed on May 15, 2015, it cannot be gainsaid that it was properly raised, and in consequence cannot be wished away. Surely, the rationale of all binding authorities on this point is that a jurisdictional issue, such as the one now canvassed by the respondent, could be raised at any time, even in this Court for the first time." As this Court held in Wema Securities and Finance Plc v. NAIC (2015) LPELR-24833 (SC), (2015) 16 NWLR (Pt. 1484) 93 at 123-124 paras. A-E, per Nweze, JSC: "Of course, it is still a valid general principle that where a party seeks to raise a fresh issue on appeal, he must obtain the leave of Court. Where he fails to do so, the issue, whichipso facto is rendered incompetent, would be liable to be struck out. A-G,
Oyo State v. Fairlakes Hotel Ltd (1988) 12 SC (Pt. 1) 1; (1988) S NWLR (Pt. 92) 1; Uor v. Loko (1988) 2 NWLR (Pt.(2018) 27) 430. LPELR-45196(SC) However, the issue of jurisdiction constitutes an exception to this general principle, for it (such an issue of jurisdiction), could be raised for the first time
43 before an appellate Court with or without leave. Obiakor & Anor v. The State (2002) 10 NWLR (Pt. 776) 612 at 625, para G; Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Oyakhire v. The State (2006) 7 SCNJ 319, 327-328; (2006) 15 NWLR (Pt. 1001) 157; Okoro v. Nigerian Army Council (2000) 3 NWLR (pt. 647) 77, 90-91; Ajakaiye v. Military Governor, Bendel State (1993) 9 SCNJ 242; Yusuf v. Cooperative Bank Ltd (1994) 7 NWLR (Pt. 359) 676. "...The reason is not far to seek. Due to its fundamental nature, it is exempted from the disabilities and restrictions which hamper other legal points from being canvassed or agitated for the first time on appeal. Western Steel Works Ltd. and Anor v. Iron Steel Workers Ltd (No. 2) (1987) 1 NWLR (Pt. 49) 284. In effect, such an issue of jurisdiction could always be raised without leave. Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592, 615 paragraphs C-G; Comptroller Nigerian Prisons Services, Lagos v. Adekanye(2018) (2002) 15LPELR-45196(SC) NWLR (Pt. 790) 332;Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt. 450) 531; Management Enterprises Ltd v. Otunsanya (1987) 2 NWLR (Pt. 55) 179.
44 "In consequence, it can never be too late to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration. Magaji v. Matari (2000) 8 NWLR (Pt. 670) 722 at 735; Akegbejo v. Ataga (1998) 1 NWLR (Pt. 534) 459 at 465; State v. Onagoruwa (1992) 2 SCNJ 1, (1992) 2 NWLR (Pt. 221) 33; A-G., Lagos v. Dosunmu (1989) 3 NWLR (Pt. 111) 552. Indeed, leave of the appellate Court is unnecessary since it can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so. Obikoya v. The Registrar of Companies (1925) 4 SC 31, 35; N.N.P.C. v. Orhiowasele and Ors (2013) LPELR-20341 (SC); Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76; Ndaeyo v. Ogunaya (1977) 1 SC 11; Chacharos v. Ekimpex Ltd (1988) 1 NWLR (Pt. 152) 516; Oyakhire v. State (2006) 15 NWLR (Pt. 1001) 157; Oloriode v. Oyebi (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 193;Akegbejo v. Ataga (1998) 1 NWLR (2018)(Pt. 534) LPELR-45196(SC)459, 468, 469;Bronik Motors v. Wema Bank Ltd (1983) 6 SC 158; Senate President, F.R.N. v. Nzeribe (2004) 41 WRN 60; Odiase v. Agho (1972) 1 ALL NLR (Pt. 1) 170; Dickson Moses v. The State (2006) 7 SCM 37, 169 (2006) 11 NWLR (Pt. 992) 458."
45 The third ground of the appeal posits pure error of law even from its contents. This Court has had on numerous occasions put across some guides in the determination of whether a ground of appeal is of law, fact(s) or mixed law and facts but I shall set out what my learned brother, Sanusi, JSC in restating the point said in State v. Omoyele (2016) LPELR-40842 (SC) thus:-
"The Supreme Court has over the years evolved some criteria to be applied in distinguishing a ground of law from that of, mixed law and facts. Few of these criteria are summarized hereunder:- (i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted.
(ii) Where a ground complains of a misunderstanding by the lower Court of the law or misapplication of the law to the(2018) facts already LPELR-45196(SC) proved or admitted, it is a ground law. (iii) Where a ground of appeal questions the evaluation of facts before the application of law, it is ground of
46 mixed law and fact. (iv) A ground which raises a question of pure fact is a ground of fact. (v) Where the lower Court finds that the particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law. (vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact. (vii) Where the lower Court approached the construction of a legal term of art in a statue on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law. (viii) Where the lower Court or Tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law. (ix) Where the lower Court reaches a conclusion which cannot(2018) reasonably LPELR-45196(SC) be drawn from the facts as found, the appeal Court will assume that there has been a misconception of law. This is a ground of law. (x) Where the conclusion of the lower Court is one of possible resolutions but one which the
47 appeal Court would not have reached if seized of the issue, that conclusion is not an error in law. (xi) Where the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by Court of Appeal are issues of fact and not law. (xii) Where the Court of Appeal interferes in such a case and there is a further appeal to a higher Court of appeal on the application of the facts, the grounds of appeal alleging such misdirection by the lower Court of Appeal is a ground of law not of fact. (xiii) A ground of appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a Court of Appeal or a further Court of appeal). See the cases of Board of Custom and Excise v. Barau (1982) 10(2018) SC 48, ORLPELR-45196(SC) (1982) 10 SC (Reprint) 23 and Ogbechie v. Onochie(1986) 3 SC 58-64 OR (1986) 3 SC (Reprint) 32 where this Court had interpreted the provisions of Sections 213(3) and 214(3) of the Constitution of Federal Republic of Nigeria 1963,
48 which are in pari materia with the provisions of Sections 233(3) and 232(2) (a) of 1999 Constitution. See also the cases of Ojemen v. Momodu II (1983) 3 SC 173; at 207; Rabiu v. Kano State (1980) 8-11 SC 130; Nwadike v. Ibekwe (1987) 12 SC 14; Abidoye v. Alawode (2001) 3 SC 1; Ifediora v. UME (1988) 3 SC (Reprint) 278; Oforkire v. Maduike (2003) 1 SC (Pt. iii) 74; Idowu v. State (2000) 7 SC (Pt. ii) 50." Walking in the path of the guiding principles as depicted above, grounds 1 and 2 are questions of jurisdiction while ground 3 questions the holding of the Court below on two motions purportedly heard and granted by that Court on 10th July, 2017 which holding is erroneous in the face of the records of proceedings on the said date. These are clearly matters of law or error therein and so needs no leave to appeal.
On the question whether or not this appeal is academic, it is not difficult to answer negatively as the matter hinges on the correctness(2018) or LPELR-45196(SC)otherwise of the decision of a lower Court to assume jurisdiction over a matter before it. An appeal on such a decision cannot be dispatched as academic without
49 going into the appeal. See Chief Francis Uchenna Ugwu
& Ors v. P.D.P. & 6 Ors (2015) 7 NWLR (Pt. 1459).
The objection from the foregoing lacks merit and is dismissed.
MAIN APPEAL For convenience I shall make use of the issues as distilled by the appellant since they are simple and easy for use and the issues formulated by the 1st respondent are subsumed therein.
ISSUES ONE & TWO Whether the Court below had the jurisdiction to hear and determine the appeal in view of the pending application before the Supreme Court for stay of further proceedings in the appeal. Whether the Court below had the jurisdiction to hear and determine the appeal when there was no competent notice of appeal upon which the appeal (2018) LPELR-45196(SC) was predicated.
For the appellant, it was canvassed the position that the Court below lacked the jurisdiction to hear and determine Appeal No. CA/E/367/2017, the appeal having already entered the Supreme Court and the appellant had already
50 filed a stay of proceedings motion at the Apex Court. He cited Bronik Motors Ltd & Anor v. Wema Bank Ltd
(1983) 1 SCNLR 296; Okoya v. Santilli (1990) 2 NWLR (Pt. 131) 172; Madukolu v. Nkemdilim (1962) 1 ALL NLR 581, Ajao v. Popoola (1986) 5 NWLR (Pt. 45) 802; Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 245 at 277 etc.
That the Court below was bound by the unchallenged fact on oath in the affidavit of fact that there was an application pending before the Supreme Court for stay of further proceedings in the appeal before that Court and so when the Court below went ahead with hearing and determining the process before it, it did so without jurisdiction. He cited
Ezechukwu v. Onwuka (2016) LPELR-2065; (2016) 5 NWLR (Pt. 1506) 529; P.H.S.M.B. v. Goshwe (2013) 10 WRN 14; (2013) 2 NWLR (Pt. 1338) 383.
Learned counsel for the appellant went on further to (2018) LPELR-45196(SC) contend that the Notice of Appeal being the originating process in an appeal is fundamental and so the 1st respondent who was not a party to the suit at the trial Court did not have an automatic right of appeal. He referred to Order 7 Rule 2(1) of the Court of Appeal Rules
2016, Odunze v. Nwosu (2007) 5-6 SC 40 at 58-59.
51 That it follows that the appeal which was heard and determined by the Court below i.e. CA/E/367/2017 was incompetent as it was not predicated on a competent
Notice of Appeal. He cited Ngonadi v. Eze Nwosu (1988)
6 SCNJ 88; Mohammed & Anor v. Olawunmi & Ors (1990) 4 SCNJ 23.
Responding, Chief Wole Olanipekun, SAN for 1st respondent stated that an application for stay of proceedings is one that calls for the exercise of discretion of the Court and is equitable and may or may not be granted as the Court acts on the circumstances of a given case. That 1st respondent who was directly affected and deprived of his rights and needed to have the order of Mandamus vacated and there was no Motion of Notice filed before the Court of Appeal to hold their hand. He cited
Mohammed v. Olawunmi (supra). That the authorities relied on by the appellant are not applicable to the case in hand the peculiar circumstances herein being(2018) at play. LPELR-45196(SC) He citedAdegoke Motors Ltd v.
Adesanya (1989) NWLR (Pt. 109) 250;
52 Babatunde v. P.A.S. & T.A. Ltd (2007) 8 NWLR (Pt. 1050) 113; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 at 137 etc
Learned Senior Counsel for the respondent submitted that the fact that an averment in an affidavit is not controverted is not a fait accompli for its acceptance as true as where there exist facts which impugn the said affidavit or process such an averment cannot hold. He citedR-Benkay Nig.
Ltd v. Cadbury Nig Plc (2012) 3 SC (Pt. 111) 109 at 201; Olofu v. Olofu (2010) 12 SC (Pt. 1) 165 at 198; Orient Bank (Nig) Plc v Bilante Int’l Ltd (1996) 5 NWLR (Pt. 447) 166 at 180; Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30 at 56; Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773 etc.
That by the Ruling of 10th July 2017, the Court below granted the application which allowed the 1st respondent to appeal as an interested party. He cited Shinkafi & Anor v. Yari (2018)& Ors (2016) LPELR-45196(SC) LPELR-26050 (SC); Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 at 499; Agbareh v. Mimra (2008) NWLR (Pt. 1021) 378 etc.
53 The crux of the matter primarilyis whether the Court below who heard this appeal on 15th August, 2017 can be properly accused of being aware of the motion on Notice of stay of proceedings said to have been filed at the Supreme Court went ahead to hear and determine the appeal. I shall quote excerpts of the decision of the Court of Appeal to clear the point and that is as follows:-
"In law, there is no legally admissible evidence before this Court to show or confirm that an appeal has been entered at the Supreme Court or that an application for stay of proceedings has been filed or is pending before the Court. Even if this Court can take judicial notice of the fact that an appeal has been filed by virtue of the fact that the Notice of Appeal was filed in this Court, this Court cannot take judicial notice of the fact that the appeal has been entered at the Supreme Court or that an application has been filed at the Court. Section 89 (e) and (f) of the Evidence Act to borrow the words NIKI-TOBI, JSC, has put the (2018) LPELR-45196(SC) position precisely, concisely and beyond speculation or conjecture by the words "but no other kind of secondary evidence is admissible" to prove the content or existence of a publicdocument.
54 The fact that the 2nd respondent's documents are attached to an affidavit cannot be exception to a well settled principle at law both statutorily and by case law. In summary, in absence of legally admissible and reliable evidence that a motion for stay of proceedings is pending before the Supreme Court, we do not see any impediment to our proceeding with the hearing of this appeal. Therefore, the application for adjournment of hearing of this appeal is hereby refused. We shall proceed with the hearing of the appeal." (See pages 783-784 of the supplementary record; emphasis mine.) It needs be said that when a stay of proceedings is brought before a Court, it calls for the exercise of discretion of that Court which the Court carries out judicially and judiciously based on the materials before it and taking into account the unique circumstances of a given case. When that Court has so exercised that discretion and there is nothing found untoward by the higher Court then the Apex Court holds it peace and(2018) does not goLPELR-45196(SC) into interfering just for the heck of it.
55 In this instance, the Court below was satisfied that the materials or documents on which the application was anchored were what was usable for such purpose and therefore ruled against the application that cannot be faulted. See P.D.P. v. I.N.E.C. (2014) 17 NWLR (Pt.
1437) 525; Alhaja Shittu & Ors v. Otumba Fashawe (2005) 14 NWLR (Pt. 946) 671.
At the risk of sounding repetitive, it has to be said that citing judicial authorities with the invocation of stare decisis principle would not change the situation where the peculiarity of a given case has not tallied with the circumstances that prevailed in the earlier decided cases. This is because each case stands on its own and an earlier judicial authority is only of use where the facts are apposite or similar to the case at hand and not an authority applied in the air to each and every case that seems to bear a semblance of similarities. In this, I am supportable by the cases of Adegoke Motors Ltd v. Adesanya(1989) (2018) LPELR-45196(SC) NWLR (109) 250; Babatunde v. P.A.S. & T.A. Ltd (2007) 8 NWLR (Pt. 1050) 113;Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 at 137.
56 The appellant had a question on the competence of the appeal which arguments thereof seem to me out of context in view of the record. To clear the air, the relevant Motion on Notice was filed 20th June, 2016 seeking leave to appeal and numbered as CA/E/358/M/2017. When the Record of Appeal from the trial Court was compiled and transmitted to the Court of appeal, the substantive appeal was numbered as CA/E/367/2017 and the order of the Court of Appeal dated 10th July, 2017 deeming the Records of Appeal as properly complied and transmitted which CA/E/367/2017 became the extant appeal number and took a retrospective effect, thereby regularizing the Notice of
Appeal earlier filed with its fault lines. See Williams v.
Mokwe (2005) 14 NWLR (Pt. 945) 249 at 267; Prince Biyi Poroye & Ors v. Makarfi & Ors(2017) LPELR-42738. Having settled the matter of competence of the appeal which was properly before Court, the next issue is whether the Court below was right in its decision. The matter at (2018) LPELR-45196(SC) hand bears semblance to what was thrown up in the case of
Okwu v. Umeh (2016) NWLR (Pt. 1501) (2015) LPELR-26042 SC per Okoro, JSC as follows:-
57 "However, while it is the law that no cause or matter shall be defeated by reason of the misjoinder or non- joinder of any party, yet, in the absence of a proper party or necessary party before the Court, it appears an exercise in futility for the Court to make an order or decision which affects a STRANGER to the suit who was never heard or given an opportunity to defend himself. This will certainly be against the tenets and tenor of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as (amended)… This is sadly the lot in the case. See Olawoye v. Jimoh (2013) 3-4 SC (Pt. iv) 58, N.D.P. v. I.N.E.C. (2012) 12 SC (Pt. iv) 24". (Emphasis added). His Lordship continued:
"the end result I have said above is that although the trial Court has jurisdiction to hear the suit as constituted, the judgment generated thereby which had massive impact on the activities of A.P.G.A. including ITS LEADERSHIP, cannot be allowed to stand. A(2018) plaintiff LPELR-45196(SC)is not bound to sue a particular party. However, where the outcome of the suit will affect that party one way or the other, it will be fool hardly not to join him in the suit." (Emphasis ours)
58 In the recent decision of this Court in Prince Biyi Poroye
& Ors. v. Makarfi & Ors. (2017) LPELR-42738 it was held thus:-
"...there is no doubt that a careful reading of the averments of the appellants in the affidavit in support of the originating summons for the above reliefs, shows that the rights of the 1st and 2nd respondents is affected adversely. The above reliefs were sought and granted by the trial Court in favour of the appellants behind the respondents. That is, without hearing their own side of the story. This, no doubt, is in breach of the constitutionally guaranteed right to fair hearing... it is clear from the record and in particular, in the affidavit evidence of the appellants in support of their claim in the originating summons that the Caretaker Committee is alleged to have been involved in various illegalities.And that this Caretaker Committee has as its Chairman and Secretary - Senators Ahmed Makarfi and Ben Obi, respectively.(2018) These LPELR-45196(SC) persons are ordinarily entitled to be heard before any Court take any decision on the allegations that were raised against them
59 and their Committee. They were not made parties in the action instituted by the appellants at the trial Court where the above reliefs were sought and granted... Who then is a necessary party to an action? A necessary party in an action has been held to be that person who is not only interested in the subject matter of the proceedings but also who in his absence, the proceedings could not be fairly dealt with. In other words, the question to be settled or determined in the action between the existing parties must be a question which cannot be properly and fairly settled unless he is a party to the action, instituted by the Plaintiff... in the instant matter, having regard to the claims of the appellants as plaintiffs at the trial Court, I am of the firm view that the interest of the respondents were affected, to the effect that the plaintiffs/appellants claim could not have been fairly, effectually and completely determined(2018) without LPELR-45196(SC) them being joined as defendants. In other words, they were necessary parties to the suit instituted by the appellants. The Court below was therefore right to have, on the basis, set aside the judgment of the trial Court."
60 The Court below following in the heels of those principles above enunciated on the 16th August, 2017 held inter alia:
"In the instant case, there is no doubt that the orders made by the Court below affected the right of the appellant who is said to have been suspended for misconduct and who was not given the opportunity of being heard before the decision of the Court. Where there is failure to hear all necessary parties to a dispute is before a decision is reached as in the case on appeal, there is a breach of Section 36 (1) of the Constitution as amended. The party affected by such a decision is entitled to have it set aside as such decision is null and void and without any legal effect. The learned trial judge seriously erred in law when he granted the orders sought by the 1st and 2nd respondents which tantamount to a recognition of Chief Martin Agbaso and upholding the alleged suspension of the appellant without affording him an opportunity of being heard. Issue 1 is resolved in favour of(2018) the appellant." LPELR-45196(SC)
61 I have no difficulty in agreeing with what the Court of
Appeal did as a decision reached in the absence of an adjudged necessary party will be a nullity and an exercise in futility as the fair hearing principle has been breached since the 1st respondent was not taken along when his right was determined at least to hear him out. The decision such as the trial Court had taking in issuing the Mandamus was in clear violation of the 1st respondent's right to fair hearing and so liable to be set aside, which the Court of
Appeal did and I agree with that. See Prince Biyi Poroye v. Makarfi (supra).
From the foregoing and the better reasoned lead judgment, I see no merit in this appeal and I dismiss it. I abide by the consequential orders made.
JOHN INYANG OKORO, J.S.C.: I have had the advantage of reading before now the lead judgment of my learned brother, Sidi Dauda Bage, JSC just delivered. I agree with the reasons(2018) advanced LPELR-45196(SC) to reach the conclusion that there is no merit in this appeal and that it deserves an order of dismissal.
62 My learned brother has exhaustively dealt with all the issues submitted for the determination of this appeal. His views and conclusion accord with mine. I accordingly adopt the lead judgment as mine. I dismiss this appeal and abide by all consequential orders made in the lead judgment. I also make no order as to costs. Appeal Dismissed.
AMIRU SANUSI, J.S.C.: I had the advantage of reading in draft form, the judgment just delivered by my learned brother Sidi Bage JSC.
I am at one with his reasoning and conclusion, that this appeal lacks merit and is bound to fail. I accordingly dismiss it with no order on costs.
63 (2018) LPELR-45196(SC) Appearances:
T. Maduka with A. V. Izibili For Appellant(s)
Chief Wole Olanipekun (SAN) with him A. Raji (SAN), P. I. N. Ikwueto (SAN), K. D. Ezeh, A. Ajibade for 1st Respondent Paul Erokorro (SAN) with him Ogwu Onoja (SAN), K.C. Nwufor C. I. Nkpe and M. Ajara for 5th Respondent For Respondent(s)
(2018) LPELR-45196(SC)