ALIOKE v. OYE & ORS
CITATION: (2018) LPELR-45153(SC)
In the Supreme Court of Nigeria
ON FRIDAY, 13TH JULY, 2018 Suit No: SC.717/2017
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
COMRADE MIKE ALIOKE - Appellant(s) And 1. DR. VICTOR IKE OYE 2. ALL PROGRESSIVES(2018) GRANDLPELR-45153(SC) ALLIANCE 3. INDEPENDENT NATIONAL ELECTORAL - Respondent(s) COMMISSION (INEC) 4. INSPECTOR GENERAL OF POLICE 5. COMMISSIONER OF POLICE ENUGU STATE
RATIO DECIDENDI
1. ACTION - JOINDER OF PARTY(IES): Effect of failure to join a neccessary party in an action "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 VS 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." Per BAGE, J.S.C. (Pp. 17-18, Paras. E-A) - read in context 2. APPEAL - APPEAL BY INTERESTED PARTY: Whether a party interested in an appeal, who was not originally a party to the decision complained of, must first seek leave as an interested party "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 VS A.C.B (2008) VOL. 3 M.J.S.C 191 at 206 Paragraphs F-G, See also (2008) 1 SC (Pt.II ) 1 at 16-17 paragraphs 10-20. See also THE REGISTERED TRUSTEES CHRIST APOSTOLIC CHURCH NIGERIA VS 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 as he then was). In WILLIAMS VS MOKWE (2005) 14 NWLR (Pt.945) 249, this Court had declared, Per Kalgo JSC (as he then was), 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." Per BAGE, J.S.C. (Pp. 18-19, Paras. D-C) - read in context
3. APPEAL - INTERFERENCE WITH THE EXERCISE OF DISCRETION: Attitude of appellate courts to the exercise of discretion made by a trial Court "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. Failure to join him before summarily securing the order of mandamus leaves much to be desired. In view of this, 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.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 VS OLANIYAN (SUPRA), Per NNAMANI, JSC (Blessed Memory as he then was) (P.11, Paragraphs C-E). See also TETTEH WORBI AND ORS VS ADAMALI ASAMANYUAM AND ORS. 14 W.A.C.A. 669 at 671, and DEMUREN VS ASUNI (SUPRA); SONEKAN VS SMITH (1967)1 All N.L.R. 329 and ODUTOLA VS KAYODE (1994) 2 NWLR (Pt.324) 1." Per BAGE, J.S.C. (Pp. 19-20, Paras. D-D) - read in context
(2018) LPELR-45153(SC) 4. APPEAL - APPEAL BY INTERESTED PARTY: Whether a party interested in an appeal, who was not originally a party to the decision complained of, must first seek leave as an interested party "The stance of the 1st respondent/objector is that the appeal was brought by a party who was not involved at the trial Court and who has approached this Apex Court without seeking and obtaining leave. Also that the appeal has become spent and an academic exercise. The appellant rejecting that point of view of the objector contends that leave of Court is not required for the appellant to appeal as the matter has to do with the challenge of the exercise of jurisdiction of the Court of Appeal and being grounds of law, no leave was required to come before the Court on appeal by an aggrieved party. Indeed what I see is an appeal by a party who though not party to the suit at the trial Court but had his interest affected by the decision of that Court of first instance which on the face of it looked like an interlocutory order but substantially is a final order for which no leave is expected first to be sought and obtained before the appeal by the herein appellant. This is particularly so since the grounds of appeal being grounds two and three question the jurisdiction by the lower Court. Therefore assuming some of the other grounds are of mixed law and facts, one of the two grounds of law alone would suffice to give a valid appeal. Also to be said is that it is now trite in law and settled that leave is not required to raise the issue of jurisdiction which jurisdictional point can be raised at anytime even if at the apex Court and without a method carved in stone as to how it can be raised. I rely on the cases of Otti v Ogah (2017) 7 NWLR (Pt.1563) 1 at 28-29; Maraire v State (2017) 3 NWLR (Pt.1552) 283 at 305. It follows that the objection brought by the 1st respondent was upon a misconception of the provisions of Section 233 (2) (a) of the Constitution of the Federal Republic of Nigeria 1999 which have stipulated thus:- "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 ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal..." In Umanah (Jnr) v NDIC (2016) 14 NWLR (Pt.1533) 458 at 476-477, paras D-E, the Supreme Court held, per Rhodes-Vivour, JSC, that no leave is required when an appeal is brought under Section 233 (2) (a) and (c) of the Constitution. Furthermore, I agree with learned counsel for the appellant that assuming what is at play is that appellant failed to seek and obtain leave before making an interlocutory decision a subject of a ground of appeal against the final judgment of the lower Court, it cannot render the appellant's appeal incompetent. I am anchoring the point on the dicta of this Court in Iweka v S. C. O. A. (Nig) Ltd (2000) 7 NWLR (Pt.664) 235 at 348 per Ogundare JSC thus:- "The reason given by the Court below for refusing the plaintiff's first motion was that there was no appeal against Iguh, J.'s ruling of 11/6/1990 striking out the motion before him for amendment. The plaintiff has argued that the Court below was in error since he complained about the trial judge's order in his appeal against the final judgment of Iguh, J. (as he then was) and cited NIPOL LTD V BIOKU INVESTMENT PROPERTY CO. LTD (1992) 3 NWLR (Pt.232) 727 at 753 in support. I think the Court below was wrong in the reason given by it for refusing the first motion. Order 3 Rule 22 of the Rules of the Court of Appeal provides: 22. No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just. ?Under this rule, a party who is dissatisfied with a judgment and who appeals against it may raise complaint against any interlocutory order made by trial Court even though he has not appealed against that interlocutory order when it was made. See OKOBIA V AJANYA & ANOR. (1998) 6 NWLR (Pt.554) 348 at 365-365". (underlining mine) Again to be said is that the other angle of the Objection being that the appeal is spent and academic and the Court(2018) should discountenance LPELR-45153(SC) the appeal. It has to be said that the matter of jurisdiction occupying its paramount position in litigation is not to be dispatched with levity having reached the Apex Court must be considered and determined for it to be said to have been given a final pronouncement."Per PETER- ODILI, J.S.C. (Pp. 35-39, Paras. E-C) - read in context
5. APPEAL - INTERFERENCE WITH THE EXERCISE OF DISCRETION: Attitude of appellate courts to the exercise of discretion made by a trial Court "Clearly the appellant is not in good standing to impugn the exercise of discretion of the Court below which can be seen as done judicially and judiciously acting on the materials available before it and in context of the peculiar circumstances of a mandamus order obtained by 1st respondent. This Court in the prevailing situation is hard pressed not to interfere in that exercise of discretion well covered neither will it substitute its own discretion for that of the lower Court as there is no reason to sustain such an eventuality. See University of Lagos & Anor v Aigoro (1985) 1SC Reprint 182, Olaniyan v University of Lagos (1985) 2 NWLR (Pt.9) 599." Per PETER-ODILI, J.S.C. (Pp. 52-53, Paras. F-B) - read in context
6. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S): Instances when an appellate Court will not interfere with findings of fact of the lower Courts "For a fact the judgment of the Court below cannot be faulted being well grounded in the light of the materials before them and there is no basis on which this Court can interfere with the findings and decision of that lower Court." Per PETER-ODILI, J.S.C. (P. 58, Paras. D-E) - read in context 7. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Principles of fair hearing "This appeal also touches and concerns the issue of justice and fairness i.e "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 VS ATTORNEY GENERAL OF OYO STATE (1987) NWLR (Pt.53), Page 709 paragraph G, per Obaseki JSC (Blessed Memory as he then was) 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 VS RAPHAEL OBIORA (1959) 4 FSC 226; (1959) SCNLR 577 cited with approval by Iguh, JSC (as he then was) in EKIYOR & ANOR. VS BOMOR (1997) 9 NWLR (Pt.519) 1 at 14."Per BAGE, J.S.C. (Pp. 26-27, Paras. A-B) - read in context
8. CONSTITUTIONAL LAW -BREACH OF RIGHT TO FAIR HEARING:Effect of failure to hear all the necessary parties to a dispute before a decision is reached "The refusal to join the 1st Respondent in this appeal appears to be a similar political ploy to edge him out of the scheme of things in the affairs of the Appellant, being a political party. Thus, the decision of this Court in PRINCE BIYI POROYE & ORS VS MAKARFI & ORS (2017) LPELR - 42738 SC 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 VS 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 proceedings well conducted." See also SALU VS EGEIBON (1994) 6 NWLR (Pt.348) 23 at 40, CEEKAY TRADERS LTD. VS GENERAL MOTORS CO. LTD. (1992) 2 NWLR (Pt.222) 132, ATANO VS ATTORNEY GENERAL OF BENDEL STATE (1988) 2 NWLR (Pt.75) 201."Per BAGE, J.S.C. (Pp. 27-28, Paras. C-C) - read in context
(2018) LPELR-45153(SC) 9. CONSTITUTIONAL LAW -BREACH OF RIGHT TO FAIR HEARING:Effect of failure to hear all the necessary parties to a dispute before a decision is reached "The question that naturally arises is if the Court below to whose recourse the said affected person would go, should do nothing as remediation in such a clear breach of fair hearing in the light of being stripped of his rights unheard? My answer is in the negative as such an affected party is entitled ex debito justitiae to be given an opportunity to have his rights or interests protected if nothing else, at least to have his grievance heard and all the facts laid bare before Court to decide either way especially in this instance where the appellant has not established a miscarriage of justice or how any injustice will be visited upon him in the Court giving opportunity to be heard of the 1st respondent. See Akomolafe v Guardian Press Ltd (2010) 3 NWLR (Pt.1181) 338 at 357; Amasike v C.A.C (2010) 5-7 SC (Pt.1) 147 at 172. A situation such as this was well captured by this Court in the case of Okwu v Umeh (2016) NWLR (Pt.1501) 120 at 143-144 by my learned brother, Okoro JSC thus:- "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 this case. See: OLAWOYE V JIMOH (2013) 3-4 SC. (Pt.5) 59, NDP v INEC (2012) 12 SC (Pt.4) 24". His Lordship continued: "The end result of what I have said is that although then trial court has jurisdiction to hear the suit as constituted, the judgment generated thereby which had massive impact on the activities of APGA, 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". Also in the recent decision of this Court in PRINCE BIYI POROYE & ORS. v MAKARFI & Ors. (2017) LPELR -42738: "...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 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 entiled 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 plaintiff/appellants claim could not have been fairly, effectually and completely(2018) determined without themLPELR-45153(SC) 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". Taking a cue from the laid down principles the Court below held thus in its judgment dated 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 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 are 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"."Per PETER-ODILI, J.S.C. (Pp. 54-58, Paras. B- D) - read in context
10. COURT - DUTY OF COURT: Duty of the Court to do substantial justice "As a Court of law and justice, our duty must be to look beyond procedural technicalities to do substantial justice, particularly where fair-hearing is in issue."Per BAGE, J.S.C. (P. 24, Paras. A-B) - read in context 11. JUDGMENT AND ORDER - ORDER OF COURT: Whether the court can make an order against or in favour of a person who is not a party to a suit "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 VS NIGERIAN CONSTRUCTION & FURNITURE CO. LTD. & ORS. (1991) 7 SC (Pt.III) (REPRINT) 33 at 56; GREEN VS GREEN (1987) 3 NWLR (60) 480. See also UWAZURIKE & ORS VS ATTORNEY GENERAL OF THE FEDERATION (2013) 4-5 SC (Pt.l) 90 at 119 Lines 16-21; (2013) LPELR-20392 (SC) 1 at 24, Per FABIYI, JSC (as he then was)."Per BAGE, J.S.C. (P. 18, Paras. A-D) - read in context
12. JUSTICE - SUBSTANTIAL JUSTICE: Role of the courts to ensure substantial justice is done "... 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. See the case of OYEYEMI & ORS VS OWOEYE & ANOR (SUPREME COURT SUIT NO. SC.102/2013). See also MAKERI SMELTING CO. LTD VS ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt.766) 411 at 476-417. The need to do substantial justice and avoid delving into the error of technicalities is well settled. 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 VS IDEHIA (1991) 8 NWLR (Pt.364) 504, ARTRA IND. LTD VS NBC ( 1997) 1 NWLR (Pt.483) 574, DAKAT VS DASHE (1997) 12 NWLR (Pt.531) 46, BENSON VS NIGERIA AGIP CO. LTD (1982) 5 S.C. 1." Per BAGE, J.S.C. (Pp. 28-29, Paras. E-E) - read in context
13. PRACTICE AND PROCEDURE - ISSUE OF JURISDICTION: When and how to raise the issue of jurisdiction "The law is settled that jurisdiction as 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 VS OLUJITAN (2000) 5 NWLR (Pt.655) 159, AMADI VS NNPC (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 PDP VS 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 VS LEVENTIS TECHNICAL CO. LTD (1992) 5 NWLR (Pt.244) page 675, MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341, and OLORIODE VS OYEBI (1984) 1 SCNLR page 390."Per BAGE, J.S.C. (Pp. 7-8, Paras. D-E) - read in context
14. PRACTICE AND PROCEDURE - STAY OF PROCEEDINGS: Whether an appeal can operate as a stay of proceedings "The Appellant's(2018) contention that havingLPELR-45153(SC) 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 is misplaced. It is settled law that an appeal does not operate as a stay of proceedings. Appropriate motion ought to be first filed at the lower Court. However, where appeal has been validly entered, the application must be filed in this Court. Clearly, this Court has granted no stay of Proceedings, thus the pendency of the Motion for Stay becomes a matter of fact to be proved by cognisable and admissible evidence. Even at that, the lower Court's power to grant or refuse stay of its proceedings remains discretionary. It becomes peremptory only if ordered by this Court." Per BAGE, J.S.C. (Pp. 20-21, Paras. D-B) - read in context SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decisions of the Court of Appeal, sitting in Enugu delivered on 15th and 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 17th August 2017, as contained at pages 691-697 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 appeals Nos. SC.598/2017 and SC.600/2017 before this Court (Supreme Court). Ground two alleges error of law on the part of the Court below for assuming jurisdiction to entertain and determine Appeal No. CA/E/367/2017 which was initiated by a party interested without the prior leave of the Court first sought and obtained. The third and final ground of the appeal alleges error of law on the part of the lower Court in seeking (2018)to regularise LPELR-45153(SC) the notice of Appeal filed in Appeal No. CA/E/367/2017.
SUMMARY OF FACTS: The 1st Respondent herein who had occupied the
1 position of the National Chairman of the 2nd Respondent (APGA) was suspended from acting in that capacity on ground of misconduct. Subsequently, the National Working Committee (NWC) of the 2nd Respondent 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 2nd Respondent.
The 3rd Respondent refused to recognise the adoption of Chief Martin Agbaso as Acting National Chairman of the 2nd Respondent. Due to this development, an application for order of Mandamus to compel the 3rd to 5th Respondents to recognise the appointment of Chief Martin Agbaso as Acting National Chairman of the 2nd Respondent was filed on 21st April 2017, by the Appellant purportedly acting on behalf of the 2nd Respondent asking amongst others, for an order of Mandamus compelling the 3rd Respondent(2018) to accept LPELR-45153(SC) and recognise the decision of the 2nd Respondent appointing one Chief Martin Agbaso as the Acting Chairman of the 2nd Respondent.
The 1st Respondent was neither joined as a party to the application for order of Mandamus nor was heard in the
2 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. As contained at pages 202 and 203 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 15th June 2017. Also filed along with the Notice of Appeal is an application for leave to appeal as an interested party against the decision of the trial Court dated 16th June 2017, as contained in pages 245-283 of the Record of Appeal.
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 Respondent to appeal(2018) against theLPELR-45153(SC) judgment of the trial Court as an interested party. In the said order, the Court below also deemed the Notice of Appeal dated and filed 20th June 2017, as properly filed and served. The Court
3 made order for abridgement of time for parties to file their respective briefs given the nature of the subject matter of the order of Mandamus. The substantive appeal was heard on 15th August 2017, and the Court below delivered its judgment in the appeal on 16th August. Being dissatisfied with the judgment, the Appellant has filed this appeal on the grounds earlier summarised above.
The 14-page Appellant's Brief of argument is dated 25th September 2017, but filed 26th September 2017. The Appellant further filed a Reply Brief to the 1st Respondent's Brief. The 9 pages Reply was dated 17th April 2018, and 18th April 2018.
On its part, the 1st Respondent filed its Respondent's Brief dated 15th March 2018, and deemed properly filed and served on 24th April 2018. In its Respondent Brief, the Respondent raised and argued its Notice of Preliminary Objection dated and filed 15th March 2018. The objection is premised(2018) on two grounds,LPELR-45153(SC) 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 against the judgment of the trial Court. The second ground
4 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 dated 10th July 17, which has since given its final decision on 16th August 2017. The 1st Respondent submits that the appeal against the interlocutory decision has become spent and now academic, citing the cases of ZENITH BANK PLC
VS JOHN (2015) 7 NWLR (Pt.1458) 393 at 423; ATTORNEY- GENERAL OF ANAMBRA STATE VS OKAFOR (1992) 2 NWLR (Pt.224) 396 at 430; BADEJO
VS FEDERAL MINISTER OF EDUCATION (1996) 1 NWLR (Pt.464) 15; ATTORNEY GENERAL OF PLATEAU(2018) STATE VSLPELR-45153(SC) ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR (Pt.967) 246; CBN VS JACOB OLADELE AMAO & 2 ORS (2010) 16 NWLR (Pt.1219) 271 SC; PPA VS INEC (2012) 13 NWLR (Pt.1317) 215 at 247-248.
The Appellant also joined issues with the 1st Respondent
5 as to the Preliminary Objection in his Reply Brief, dated 17th April 2018, filed 18th April 2016, but deemed 24th April 2018, wherein the Appellant contented that the preliminary objection of the 1st Respondent is misconceived and a misapplication of the law. The Appellant contended that this appeal is captured and envisaged within the boundaries of Section 233(2)(a) of the Constitution. The Appellant submitted that the instant appeal comes within the ambit of Section 223(2) and not Section 233 (3) of the Nigerian Constitution.
The Appellant contended further that assuming without conceding that leave was not sought or obtained before making an interlocutory decision a subject of a ground of appeal against the final decision of the lower Court, it cannot render the appeal incompetent on the authority of
IWEKA VS S.C.O.A (NIG.) LTD (2000) 7 NWLR (Pt.664) 235 at 348, Paragraphs E-G.
On whether(2018) the appeal LPELR-45153(SC) has become an academic exercise as alleged by the Respondent, the Appellant contended that the issue of lower Court's jurisdiction is certainly not spent, as it is trite that jurisdiction being the heart and live
6 wire of a matter, can only be spent when the Supreme Court has finally decided on it. The Appellant concluded that, to this end, this appeal is not academic as it is very much alive. The Appellant then urged this Court to dismiss or discountenance the objection of the Respondent and proceed to hear and determine the appeal on its merit.
RESOLUTION OF PRELIMINARY OBJECTION As in the sister appeal, 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 Respondent and Appellant's response to same, both which have been summarised above.The law is settled that jurisdiction as 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 VS OLUJITAN (2000)
5 NWLR (Pt.655) 159, AMADI VS NNPC (2000) 5 WRN 47;(2018) (2000) 10 LPELR-45153(SC) 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
7 PDP VS OKOROCHA & ORS (2012) LPELR - 7832(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 VS LEVENTIS TECHNICAL CO. LTD (1992) 5 NWLR (Pt.244) page 675, MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341, and OLORIODE
VS OYEBI (1984) 1 SCNLR page 390.
In view of(2018) the foregoing, LPELR-45153(SC) I hold that the issue raised in the grounds 1 and 3 of the Appellant's Notice of Appeal dated 17th August 2017, are jurisdictional in nature, and same
8 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 identifying the real issues for determination in the substantive appeal to enable me determine and resolve same.
ISSUES FOR DETERMINATION: The Appellant formulated three issues at page 5 of its Appellant's Brief, thus:-
"(1) Whether the learned Justices of the Court of Appeal were right when they refused to stay proceedings in Appeal No. CA/E/367/2017, notwithstanding the pendency of a Motion for Stay of Proceedings at the Supreme Court in Appeal Nos. SC.598/2017 and SC/600/2017 in respect of and pertaining to Appeal No. CA/E/367/2017 (Ground one). 1) Whether(2018) the learnedLPELR-45153(SC) Justices of the Court of Appeal were right when they assumed jurisdiction to entertain and determine Appeal No. CA/E/367/2017 which was initiated by a party interested (id est,1st Respondent herein) without prior leave of the Court having been sought and obtained (Ground two). 2) Whether the learned Justices of the Court of Appeal were right when they held that the order of
9 the Court of Appeal of 10th July 2017 in Appeal No. CA/E/358/2017, granting leave to the 1st Respondent herein to appeal as an interested party, effectively regularised the Notice of Appeal that the 1st Respondent had filed before obtaining leave to appeal (Ground one)."
On his part, the 1st Respondent 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). (a) 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 (2018)affected the LPELR-45153(SC) 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)."
I have taken time to carefully consider the issues
10 formulated by both parties for the purpose of determining this appeal. It is clear that there are two main issues in this appeal; namely one of fairness and exercise of judicial discretion. I wish to also add 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, like I did in the sister appeal, I have also modified the issues respectively formulated by the Appellant and the 1st Respondent, and have adopted the two issues below for the purpose of deciding this appeal, 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 Court. (2) Whether(2018) or notLPELR-45153(SC) 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."
CONSIDERATION AND RESOLUTION OF THE ISSUES:
11 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 parties have substantially re-argued or re-adopted their arguments and submissions in the sister case (SC.718/2017). 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. The Appellant contended that by virtue of Order 8 Rule 11 of the Supreme Court Rules, after an appeal has been entered at the Supreme Court against a decision of the Court of Appeal, and until the appeal is finally disposed of, the Supreme Court shall be seized of the whole of the proceedings as between the parties thereto. The Appellant relied on the case ofBIOCON
AGROCHEMICALS(2018) LPELR-45153(SC) (NIG) LTD & 3 ORS VS KUDU HOLDING (NIG) LTD & ANOR (1996) 2 SCNJ, Page 212 at 219, per KUTIGI JSC (former CJN as he then was).
The Appellant contended that it was wrong for the Court below to have expected an application for stay of
12 proceedings to be filed before it to enable that Court stay proceedings, and that the Court of Appeal ought to have stayed proceedings as soon as it became aware that a motion for stay had been filed at the Supreme Court. To draw home its arguments, the Appellant further relied on and quoted extensively from the decision of this Court in
ALHAJI SULAIMAN MOHAMMED & ANOR VS LASISI SANUSI OLAWUNMI & 9 ORS (1993) 5 SCNJ Page 94 at 112-113, per OLATAWURA JSC. (Blessed Memory as he then was).
In its contention on the issue, the 1st Respondent contented that there was no cognisable pending Motion for Stay of proceedings before the Supreme Court against the hearing of Appeal No. CA/E/367/2017. There was also no indication or evidence that any date had been assigned for the hearing of the Motion on Notice for Stay of Proceedings allegedly filed at the Supreme Court. The 1st Respondent further argued that the process filed before the Supreme Court is (2018)a public record LPELR-45153(SC) within the meaning of Section 102 of the Evidence Act and by the combined effect of Sections 104 and 105 of the Evidence Act 2011 and Sections 87(a) and 89(e) and 90(1)(c) of the Evidence Act.
13 Thus, the only evidence admissible is to prove the alleged Motion on Notice claimed to have been filed before the Supreme Court is a certified copy of the said Motion on
Notice. The 1st Respondent relied onPDP VS INEC
(2014) 17 NWLR(Pt.1437) 525 SC; ALHAJA SHITTU & ORS VS OTUNBA FASHAWE (2005) 14 NWLR (Pt.946) 671; 2005 LPELR -3058 (SC) at 19-20; FAWEHINMI VS IGP(2000) FWLR (Pt.12), ZENITH BANK VS JOSEPH AKINNIYI (2015) LPELR - 24715 (CA).
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 submits that the authority of ALHAJI
SULAIMAN MOHAMMED & ANOR VS LASISI SANUSI OLAWUNMI & 9 ORS (Supra) cited by the Appellant in his Brief is good law, but completely inapplicable to the facts and(2018) circumstances LPELR-45153(SC) of the instant appeal. The
1st Respondent submitted that the case of MOHAMMED V
OLAWUNMI (SUPRA) cited by the Appellant is also inapplicable to this case.
The 1st Respondent contended that the learned Justices of
14 the Court below could not reasonably be said to be aware of the purported Motion on Notice for stay of proceedings at the Supreme Court. The ruling of Court below comprehensively referred to the documents on which the Appellant's had relied upon. 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.
The 1st Respondent submitted that the lower Court rightly exercised its discretion not to stay proceedings but to 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(2018) interfere with LPELR-45153(SC) 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
15 pendency of the Motion for Stay of proceedings at the Supreme Court. The 1st Respondent relied on the case of
UNIVERSITY OF LAGOS & ANOR VS AIGORO (1985) 1 SC (REPRINT) 182; OLANIYAN VS UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt.9) 599; BABATUNDE VS 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.
The parties approached issue one in this sister appeal differently like they did in other appeal on the subject matter. The Appellant sees it as jurisdictional in nature, 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,(2018) assuming LPELR-45153(SC) there was a pending application for stay of proceedings at the Supreme Court, it is a matter of discretion for the Court below to also stay its proceedings.
16 But, 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.
Divergent approach to the issue notwithstanding, 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, the whole issue revolves around his status, and the effect of the order of mandamus on his right. 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(2018) against such LPELR-45153(SC) a party is not a nullity but shall be to no avail. In AZUH VS 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
17 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 VS
NIGERIAN CONSTRUCTION & FURNITURE CO. LTD. & ORS. (1991) 7 SC (Pt.III) (REPRINT) 33 at 56; GREEN VS GREEN (1987) 3 NWLR (60) 480. See also
UWAZURUIKE & ORS VS ATTORNEY GENERAL OF THE FEDERATION (2013) 4-5 SC (Pt.l) 90 at 119 Lines 16-21; (2013) LPELR-20392 (SC) 1 at 24, Per FABIYI, JSC (as he then was).
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(2018) the Court determineLPELR-45153(SC) whether it is proper in law to grant the party permission to appeal in the circumstances of the case. See OTU VS A.C.B (2008) VOL. 3 M.J.S.C
191 at 206 Paragraphs F-G, See also (2008) 1 SC (Pt.II
) 1 at 16-17 paragraphs 10-20. See also THE REGISTERED TRUSTEES CHRIST APOSTOLIC CHURCH
18 NIGERIA VS 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 as he then was).
In WILLIAMS VS MOKWE (2005) 14 NWLR (Pt.945)
249, this Court had declared, Per Kalgo JSC (as he then was), 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. Failure to join him before summarily securing the order of mandamus leaves much to be desired. In view of this, I hold that the exercise of judicial discretion by the lower(2018) Court in LPELR-45153(SC) granting leave to the 1st Respondent to appeal as an interested party against the order for Mandamus made by the trial Court has not
19 occasioned a miscarriage of justice. 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 VS OLANIYAN
(SUPRA), Per NNAMANI, JSC (Blessed Memory as he then was) (P.11, Paragraphs C-E). See alsoTETTEH WORBI
AND ORS VS ADAMALI ASAMANYUAM AND ORS. 14 W.A.C.A. 669 at 671, andDEMUREN VS ASUNI (SUPRA); SONEKAN VS SMITH (1967)1 All N.L.R. 329 and ODUTOLA VS KAYODE (1994) 2 NWLR (Pt.324) 1.
The Appellant's contention 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(2018) of the LPELR-45153(SC) appeal is misplaced. It is settled law that an appeal does not operate as a stay of proceedings. Appropriate motion ought to be first filed at the lower Court. However, where appeal has been validly entered, the application must be filed in this Court. Clearly, this
20 Court has granted no stay of Proceedings, thus the pendency of the Motion for Stay becomes a matter of fact to be proved by cognisable and admissible evidence. Even at that, the lower Court's power to grant or refuse stay of its proceedings remains discretionary. It becomes peremptory only if ordered by this Court.
The issue in this appeal relates to the exercise of judicial discretion in granting leave to the 1st Respondent. To all intents and purposes, in this appeal, the application for Stay of Proceedings calls for the exercise of discretion of the Court, which the lower 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 for obvious reasons.
In view of the foregoing, I'm unable to fault the approach of the lower Court in doing justice in this appeal. To the best of my evaluation, the lower Court was right in exercising its discretion(2018) in favour LPELR-45153(SC)of the 1st Respondent amidst obvious ploy to edge him out through what I referred to in the sister case as "judicial" means without joining him as party. I hold that the 1st Respondent
21 ought to have been joined being a necessary party to the suit. In sum, I resolve issue one formulated in this appeal by against the Appellant.
ISSUE 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."
In its submission on issue two, the Appellant contended that 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 the learned Justice of the Court of Appeal were wrong when they held that the Motion on Notice and the order of the Court of Appeal of 16th July 2017, in Appeal No. CA/E/367/2017 had cured the fatal defect in the appeal since the Court of Appeal did not make or grant (2018)order regularising LPELR-45153(SC) the notice of Appeal earlier filed in Appeal No. CA/E/367/2017 which was filed before leave to appeal as an interested party was granted to the 1st Respondent.
The Appellant also argued in its Reply Brief dated 17th April 2018, that when the 1st Respondent moved its application
22 for leave to appeal as an interested party. it was obvious that he had abandoned the deeming order in relief 3. Thus, the Latin maxim and cases cited by the 1st Respondent are not applicable. The Appellant further urged this Court to discountenance the 1st Respondent submissions and allow this appeal.
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 safe for relief No 2, relying on the latin maxim, 'Expressio unius est exclusion alterius'. or inclusion unis est exclusion alterius'. The 1st
Respondent referred to the cases of SHINKAFI & ORS VS
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 VS MAKARFI & ORS (supra) and submitted that the Court below rightly allowed the appeal(2018) against the LPELR-45153(SC) 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
23 Respondent's arguments as made above and resolve issue two against the Appellant.
As a Court of law and justice, our duty must be to look beyond procedural technicalities to do substantial justice, particularly where fair-hearing is in issue. One issue keeps resonating all through the instant appeal, which is failure to join the Respondent and Chief Martin Agbaso as interested parties. It is particularly fishy that an order of mandamus granted against the interest and right of the 1st Respondent by the trial Court without joining him. This is what formed the basis of the leave granted to him to appeal as an interested party through a Motion dated 20th June 2017, which had a deeming order as its prayer 3.
In the instant case, like in the sister appeal on the subject matter, I observe that by 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(2018) was moved LPELR-45153(SC) in terms and ordered as prayed by the lower Court safe for relief 2. These facts are crystal clear on pages 400-405 of the Record of Appeal.
The question is, was deeming order refused specifically or
24 by implication by the Court below in this circumstance for the purpose of determining the validity 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 relief 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(2018) reliefs 1 LPELR-45153(SC)and 3. See the case ofSHINKAFI &
ORS VS YARI & ORS (2016) LPELR-26050 (SC) where the maxim was applied by this Court, per Okoro JSC. See also
25 BUHARI VS YUSUF (2003) 14 NWLR (Pt.841) 446 at 499; AGBAREH VS MIMRA (2008) NWLR (Pt.1071) 378.
This appeal also touches and concerns the issue of justice and fairness i.e "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 VS ATTORNEY
GENERAL OF OYO STATE (1987) NWLR (Pt.53), Page 709 paragraph G, per Obaseki JSC (Blessed Memory as he then was) 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."(2018) LPELR-45153(SC) 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
26 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. SeeKANO NATIVE
AUTHORITY VS RAPHAEL OBIORA (1959) 4 FSC 226; (1959) SCNLR 577 cited with approval by Iguh, JSC (as he then was) in EKIYOR & ANOR. VS BOMOR (1997) 9
NWLR (Pt.519) 1 at 14.
The refusal to join the 1st Respondent in this appeal appears to be a similar political ploy to edge him out of the scheme of things in the affairs of the Appellant, being a political party. Thus, the decision of this Court in PRINCE
BIYI POROYE & ORS VS MAKARFI & ORS(2017) LPELR - 42738 SC 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(2018) interest LPELR-45153(SC)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
27 EKPETO VS WANOGHO (2005) 3 W.R.N 75on 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 proceedings well conducted." See also SALU VS EGEIBON (1994) 6
NWLR (Pt.348) 23 at 40, CEEKAY TRADERS LTD. VS GENERAL MOTORS CO. LTD. (1992) 2 NWLR (Pt.222) 132, ATANO VS 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 is cheap and unconvincing. The Appellant tried hard to convince this Court that because the lower Court did not specifically pronounce on deeming order as it relates to the Notice of Appeal beyond declaring "ordered as prayed" then the notice of Appeal is invalid. This is a typical case of needless resort to technicalities to defeat the ends of justice.Our duty as (2018)an Apex Court LPELR-45153(SC) 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
28 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. See the case of OYEYEMI & ORS VS OWOEYE & ANOR
(SUPREME COURT SUIT NO. SC.102/2013). See also
MAKERI SMELTING CO. LTD VS ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt.766) 411 at 476-417. The need to do substantial justice and avoid delving into the error of technicalities is well settled. 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
VS IDEHIA (1991) 8 NWLR (Pt.364) 504, ARTRA IND. LTD VS NBC ( 1997) 1 NWLR (Pt.483) 574, DAKAT VS DASHE (1997) 12 NWLR (Pt.531) 46, BENSON VS NIGERIA AGIP CO. LTD (1982) 5 S.C. 1. (2018) LPELR-45153(SC)
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
29 the judgment of the trial Court dated 22nd May, 2017 was predicated is also resolved against the Appellant, for reasons canvassed above. 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. The ruling and judgment of the lower Court respectively dated 15th and 16th August 2017, are 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 agree with the judgment just delivered by my learned brother, Sidi Dauda
Bage JSC and to underscore the support I have in the reasonings from which the decision came I shall make some remarks.(2018) LPELR-45153(SC)
This appeal arose from the decisions of the Enugu Division of the Court of Appeal Coram: Abdu Aboki, I. S Bdliya, M. O. Bolaji Yusuf JJCA delivered on the 16th of August, 2017 setting aside the judgment of the trial Federal High Court
30 which had entered judgment for the appellant herein.
The background facts leading to this appeal are well set out in the lead judgment and I shall not repeat them save for the reference of any part thereof when the occasion warrants.
On the 24th day of April, 2018 date of hearing, learned counsel for the appellant, Paul Erokoro SAN adopted the brief of argument filed on 26th September 2017 and a reply brief to the 1st respondent's brief which reply was filed on 18th April, 2018 and deemed filed on 24th April, 2018. Learned counsel for the appellant had crafted in the appellant's brief, three issues for determination, thus:-
(i) Whether the learned justices of the Court of Appeal were right when they refused to stay proceedings in Appeal No. CA/E/367/2017, notwithstanding the pendency of a motion for stay of proceedings at the Supreme Court in Appeal Nos. SC/598/2017(2018) and LPELR-45153(SC) SC/600/2017 in respect of and pertaining to Appeal No. CA1E136712017 (Ground one) (ii) Whether the learned justices of the Court of Appeal were right when they assumed jurisdiction to entertain and determine Appeal No. CA/E/367/2017
31 which was initiated by a party interested (id est, 1st respondent herein) without the prior leave of the Court having been sought and obtained (Ground two) (iii) Whether the learned justices of the Court of Appeal were right when they held that the order of Court of Appeal of 10th July, 2017 in Appeal No. CA/E/358/2017, granting leave to the 1st respondent herein to appeal as an interested party, effectively regularized the Notice of Appeal that the 1st respondent had filed before obtaining leave to appeal. (Ground three)
Learned Senior Advocate, Chief Wole Olanipekun for the 1st respondent adopted the brief of argument filed on 15th March, 2018 and deemed filed on 24th April, 2018. In the brief was argued the Preliminary Objection but in the event the Objection failed, 1st respondent distilled two issues for determination which are as follows:-
(a) Whether the hearing and determination of the appeal against(2018) the LPELR-45153(SC) 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 properly, rightly and on the accepted principles exercised the discretion to
32 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, which directly affected the respondent herein as envisaged by Section 243 (a) of the 1999 Constitution, as amended and in also deeming the Notice of Appeal against the said judgment as properly filed and served. (Ground 2 and 3).
Learned counsel for the 2nd respondent, Chukwu Maduka did not file any brief nor adduced any arguments. The 3rd-5th respondents were absent and not represented though properly notified of the hearing.
It needs no saying that the Preliminary Objection filed by the 1st respondent on 15th March, 2018 and argued in the 1st respondent's brief would be first tackled before anything else can be done in the appeal.
NOTICE(2018) OF PRELIMINARY LPELR-45153(SC) OBJECTION TAKE NOTICE that at the hearing of this appeal, the 1st respondent will, pray/urge the Supreme Court to dismiss/strike out 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
33 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.
Advancing the position of the respondent/objector on this Preliminary Objection, learned counsel contended that the absence of leave before the filing of this appeal either from the Court of Appeal or the Supreme Court being a condition precedent to the filing of the appeal vitiated the appeal. He cited Sections 233 (2) & (3) of the Constitution of the
Federal Republic of Nigeria. 1999 (as amended): 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 etc.
That the(2018) appeal has LPELR-45153(SC)been rendered academic and it is not the business of the Court to determine and pronounce on academic issues. He referred to A-G. Plateau State v
Attorney General of the Federation (2006) 3 NWLR (Pt.967) 346; CBN v Jacob Oladele Amao & 2 Ors
34 (2010) 16 NWLR (Pt.1219) page 271; P. P. A. v INEC (2012) 13 NWLR (Pt.1317) 215 at 247-248.
Responding, learned counsel for the appellant contended that this appeal challenges the jurisdiction of the Court of Appeal to hear and determine an appeal that was brought by the 1st respondent herein, who was not a party at the trial Court and who did not first seek and obtain the leave of Court before appealing. That the Grounds Two and Three of the appellant's Notice and Grounds of Appeal clearly challenge the exercise of jurisdiction by the lower Court and these being grounds of law, leave is not needed. He relied on Otti v Ogah (2017) 7 NWLR (Pt.1563) 1 at
28-29; Maraire v State (2017) 3 NWLR (Pt.1552) 283 at 305: Umanah Jnr v NDIC (2016) 14 NWLR (Pt.1533) 458 at 476-477; Iweka v SCOA (Nig) Ltd (2000) 7 NWLR (Pt.664) 235 at 348.
The stance of the 1st respondent/objector is that the appeal was brought(2018) by a party LPELR-45153(SC) who was not involved at the trial Court and who has approached this Apex Court without seeking and obtaining leave. Also that the appeal has become spent and an academic exercise. The appellant rejecting that point of view of the objector
35 contends that leave of Court is not required for the appellant to appeal as the matter has to do with the challenge of the exercise of jurisdiction of the Court of Appeal and being grounds of law, no leave was required to come before the Court on appeal by an aggrieved party. Indeed what I see is an appeal by a party who though not party to the suit at the trial Court but had his interest affected by the decision of that Court of first instance which on the face of it looked like an interlocutory order but substantially is a final order for which no leave is expected first to be sought and obtained before the appeal by the herein appellant. This is particularly so since the grounds of appeal being grounds two and three question the jurisdiction by the lower Court. Therefore assuming some of the other grounds are of mixed law and facts, one of the two grounds of law alone would suffice to give a valid appeal. Also to be said is that it is now trite in law and settled that leave is not required to raise the issue of jurisdiction which jurisdictional(2018) point canLPELR-45153(SC) be raised at anytime even if at the apex Court and without a method carved in stone as to
36 how it can be raised. I rely on the cases of Otti v Ogah
(2017) 7 NWLR (Pt.1563) 1 at 28-29; Maraire v State (2017) 3 NWLR (Pt.1552) 283 at 305. It follows that the objection brought by the 1st respondent was upon a misconception of the provisions of Section 233 (2) (a) of the Constitution of the Federal Republic of Nigeria 1999 which have stipulated thus:-
"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 ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal..." In Umanah (Jnr) v NDIC (2016) 14 NWLR (Pt.1533)
458 at 476-477, paras D-E, the Supreme Court held, per Rhodes-Vivour, JSC, that no leave is required when an appeal is brought under Section 233 (2) (a) and (c) of the Constitution. Furthermore, I agree with learned counsel for the appellant that assuming(2018) what isLPELR-45153(SC) at play is that appellant failed to seek and obtain leave before making an interlocutory decision a subject of a ground of appeal against the final judgment of the lower Court, it cannot render the
37 appellant's appeal incompetent. I am anchoring the point on the dicta of this Court in Iweka v S. C. O. A. (Nig) Ltd
(2000) 7 NWLR (Pt.664) 235 at 348 per Ogundare JSC thus:-
"The reason given by the Court below for refusing the plaintiff's first motion was that there was no appeal against Iguh, J.'s ruling of 11/6/1990 striking out the motion before him for amendment. The plaintiff has argued that the Court below was in error since he complained about the trial judge's order in his appeal against the final judgment of Iguh, J. (as he then was) and cited NIPOL LTD V BIOKU INVESTMENT PROPERTY CO. LTD (1992) 3 NWLR (Pt.232) 727 at 753 in support. I think the Court below was wrong in the reason given by it for refusing the first motion. Order 3 Rule 22 of the Rules of the Court of Appeal provides: 22. No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice(2018) the Court LPELR-45153(SC) from giving such decision upon the appeal as may seem just. Under this rule, a party who is dissatisfied with a judgment and who appeals against it may raise complaint against any interlocutory order made by
38 trial Court even though he has not appealed against that interlocutory order when it was made. See OKOBIA V AJANYA & ANOR. (1998) 6 NWLR (Pt.554) 348 at 365-365". (underlining mine) Again to be said is that the other angle of the Objection being that the appeal is spent and academic and the Court should discountenance the appeal. It has to be said that the matter of jurisdiction occupying its paramount position in litigation is not to be dispatched with levity having reached the Apex Court must be considered and determined for it to be said to have been given a final pronouncement.
Therefore on all fronts, this Preliminary Objection lacks merits and deserves nothing less than a dismissal. Objection is dismissed.
MAIN APPEAL I shall make use of the issues as distilled by the 1st respondent for convenience and into them are subsumed the issues(2018) of the appellant. LPELR-45153(SC)
ISSUES (a) & (b) (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. (b) Whether the Court below properly, rightly and on
39 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 in also deeming the Notice of Appeal against the said judgment as properly filed and served.
Learned counsel for the appellant, Paul Erokoro SAN submitted that the Court below was wrong as it should have inquired from its own Registry to know, if as claimed, the Records had been transmitted and received in the Supreme Court and whether the registrar had been served with the processes filed at the Supreme Court as the unchallenged affidavit claimed. Also that the Court should have taken counsel's word since counsel spoke from the Bar and was not contradicted by counsel on the other side. That the(2018) summary is LPELR-45153(SC) that the Court of Appeal adjudicated without jurisdiction and so all proceedings from the 8th of August, 2017 including the judgment of the Court delivered on the 16th of August, 2017 were a nullity. He relied on
40 Order 8 Rule 11 of Supreme Court Rules;Biocon
Agrochemicals (Nig) Ltd & 3 Ors v Kudu Holdings (Nig) Ltd & Anor (1996) 2 SCNJ 212 at 219.
Learned Senior Counsel for the appellant further stated that the refusal of the Court below to stay proceedings in Appeal No.CA/E/367/2017 following the pendency of Appeal No. SC/600/2017 at the Supreme Court appears to be an affront and disrespect to the authority of the Supreme Court and a disregard to the principle of stare decisis and hierarchy of Courts as established by the Supreme Court.
He cited Alhaji Suileman Mohammed & Anor v Lasisi
Sanusi Olawunmi & 9 Ors (1993) 5 SCNJ 94 at 112-113.
For the appellant, learned Senior Advocate submitted that the Court below was wrong when it assumed jurisdiction to entertain and determine Appeal No. CA/E/367/2017 which was initiated by a party interested that is 1st respondent herein without(2018) the LPELR-45153(SC)prior leave of the Court having been sought and as the appellant was not a party in Suit No. E/291M/2016 which gave rise to Appeal No.
CA/E/367/2017; Chief Olisa Metuh v FRN (2017) 4
NWLR (Pt.1555) 108 at 121.
That the entire Notice of Appeal was incompetent in the
41 circumstance and should be struck out. He relied on
N.W.D.M. Ltd v UFT Engr. Ltd (2011) 8 NWLR (Pt.1249) 308 at 327; Etubom (Dr) Anthony Asuquo Ani & 4 Ors v Etubom Ekpo Okon Abasi Out & 4Ors (2017) 12 NWLR (Pt.1578) 30 at 70-71.
Chief Wole Olanipekun SAN. learned counsel for the 1st respondent contended that from the combined provision of Sections 104 and 105 of the Evidence Act, 2011 alongside Sections 87 (a), 89 (e) and 90 (1) (c) of the Evidence Act 2011, the only evidence admissible to prove the alleged Motion on Notice claimed to have been filed before the Supreme Court is a certified copy of the said Motion on Notice. That the uncertified photocopies are therefore not admissible and ought to be discountenanced by the Court.
He referred to PDP V INEC (2014) 17 NWLR (Pt.1437)
525 (SC); Alhaja Shittu & Ors v Otumba Fashawe
(2005) 14 NWLR (Pt. 946) 671, Fawehinmi v I. G. P. (2000) FWLR (Pt.12); Zenith Bank v Johnson Akinniyi (2015) LPELR-24715(2018) LPELR-45153(SC) (CA).
That appellants conduct in the instant appeal particularly during the hearing thereof before the Court below on 15th August 2017 prohibits and estops the appellant from
42 contending that the Court below attempted to silence the complaints of the appellant. He relied on A.G. Rivers
State v A.G. Akwa Ibom State (2011) 8 NWLR (Pt. 1248)31 at 82.
He stated further that this is one of those instances where the Supreme Court ought not to interfere with the exercise of discretion of a lower Court. He relied on University of
Lagos & Anor v M. I. Aigoro (1985) 1 SC (Reprint) 182; Olaniyan v University of Lagos (1985) 2 NWLR (Pt.9) 599.
Learned Senior Advocate for the 1st respondent stated that whilst granting the application as prayed, the Court below only refused and struck out prayer 2 and in the motion dated/filed on the 20th June, 2017 and so only the rest of the prayers including prayer 3 seeking a deeming order are in law taken as having been granted. He cited Shinkafi &
Anor v Yari & Ors LPELR(2016)-26050 (SC); Buhari v Yusuf (2003)(2018) 14 NWLR LPELR-45153(SC) (Pt.841) 446 at 499: Agbareh v Mimra (2008) NWLR (Pt.1071) 378; Orji v Dorji Textile Mills Nig Ltd (2009) 18 NWLR (Pt.1173) 467.
That the legal position is now firmly established that where a party's right has been adversely affected by a judgment or decision taken in his absence or behind his
43 back, such an affected party is entitled in the interest of justice to be allowed an opportunity to protect his right/interests. He citedOkwu v Umeh (2015)
LPELR-26042 (SC); Prince Biyi Poroye & Ors v Makarfi & Ors (2017) LPELR-42738.
Learned counsel for the 1st respondent concluded by stating the rightness of the judgment of the Court in allowing the appeal against the judgment of the learned trial judge which was given in clear denial of the right to fair hearing guaranteed the 1st respondent herein and so this Court should uphold the said decision of the Court below.
In considering this appeal, a backward movement in time is necessary to at least remind one of what really is at the base of this dispute. The 2nd respondent (APGA) is the duly registered political party with its National Officers including the National Chairman which seat the 1st respondent(2018) is occupying. LPELR-45153(SC) However by an application for Mandamus filed on 21st April, 2017 the appellant prayed the trial Court by the following reliefs inter alia, thus:-
"a) An order of Mandamus compelling the 1st respondent (INEC) to accept and or recognize the
44 decisions of the 2nd applicant (APGA) in appointing Chief Agbaso as the acting National Chairman of All Progressives Grand Alliance (APGA) b) A declaration of the Honourable Court that by Section 4 of the Police Act, the 2nd and 3rd respondents are bound to ensure the compliance of the decision of the 2nd applicant as it regards the appointment of Chief Martin Agbaso as the Acting National Chairman of All Progressive Grand Alliance in order to forestall a breakdown of law and order. c) An order of the Honourable Court prohibiting the 1st respondent (INEC) and his privies from recognizing and for accepting any other person as the National Chairman of the All Progressive Grand Alliance (APGA) other than the name submitted to it by the 2nd applicant in the person of Chief Martin Agbaso".
Of interest is that the 1st respondent on the seat of Chairman(2018) which appellant LPELR-45153(SC) sought a declaration from the Court to install him was not made a party to the suit. Part of the grounds on which the order of mandamus was sought were as follows:-
"5. The fact culminating to the suit is that at a duly convened meeting of the National Working Committee of the All Progressive Grand Alliance
45 (APGA) held on 5th October, 2016, issues of gross misconduct and breaches of APGA Constitution among others raised against the then National Chairman of APGA — Mr. Victor Ike-Oye and others. 6. The net effect of the above emerged offences received against the said then National Chairman at the meeting duly convened by him was his suspension pending the outcome of the disciplinary committee constituted relating to the suspension."
With reference to the alleged suspension of Chief Victor Ike-Oye as the National Chairman of APGA, it is common ground that the "coup plotters" headed by one Ozo Nwabueze Okafor Instituted a suit before the High Court of the Federal Capital Territory, Abuja. (Suit No: CV/2683/2016) seeking to legitimize suspension of Chief Victor Ike —Oye as the National Chairman of APGA.
Following an Order made by the learned trial Court in the said suit(2018) No.CV/2683/2016, LPELR-45153(SC) the defendants therein appealed to the Court of Appeal seeking, inter alia, for orders allowing the appeal, setting aside the proceedings on 30th November. 2016 and for the Suit to be remitted back to the trial Court for hearing before another judge.
46 Neither the above referenced Suit No. CV/2683/2016 nor the appeal relating thereto has been determined as at the time Mandamus Application was commenced by the Appellant herein. Both the said Suit No. CV/2683/2016 and the Appeal filed in respect thereof were both alive and pending as at 22nd May, 2017 when the learned trial Court issued the order for Mandamus in these proceedings.
Of note is that both the appellant herein and learned counsel who represented him and filed the Mandamus Application, claim to be members of APGA. Indeed, in Exhibit F attached to their substantive Affidavit and in the Affidavit verifying the facts relied upon in support of the Motion on Notice for the grant of the order of Mandamus. Hon. Chiagozie Amujiogu. Esq was shown as having stated "Barr. Amujiogu, the acting Deputy National Legal Adviser informed the NWC of the need to quickly replace late Ozo Nwabueze Okafor in view of the legal matters pending in Court". (2018) LPELR-45153(SC)
The said Exhibit F was the Minutes of Emergency meeting of NWC of APGA held on 30th January, 2017. The pending legal matters referred to in Exhibit F was the above
47 mentioned Suit No.CV/2683/2016 and the Appeal pending before the Court of Appeal.
Despite being aware of the pendency of "the legal matters" and that the alleged suspension of National Chairman was sub judice, could the appellant herein and his group go ahead and obtain the questioned order of Mandamus from the learned trial Court without joining the National Chairman of the Party (APGA)?
The 1st respondent upon learning of what was on course filed a motion for leave to appeal as an interested party- firstly at the trial Court and later before the Court of Appeal. The Motion on Notice for leave to appeal came up before the Court of Appeal firstly on 4th July, 2017. On the said 4th July 2017, the Honourable Court was informed that the process served on Hon. Chiagozie Amujiogu, Esq of Counsel who appeared for the appellant herein before the learned trial Court were returned as the said counsel claimed (2018)that he had LPELR-45153(SC) no instruction of his client to accept service of the Motion on Notice for leave to appeal and other processes. Both the appellant and the said Hon. Chiagozie Amujiogu, Esq of counsel were, however, present in the Court below on 4th July, 2017.
48 After enquiring from the appellant herein about his proposal to retain Counsel for the purpose of the proceedings before the Court below, the Court below on the fateful 4th July 2017 commendably ordered for the service of the processes on the appellant by substituted means, to wit, by posting at the Registered Office of his Political Party (APGA) at No. 41 Libreville Street off Aminu Kano Crescent Wuse 2 Abuja.
It is instructive to point out that for the Mandamus proceedings before the learned trial Court, both the appellant and Political Party (APGA) whom he purported to protect its interest were represented by one Counsel namely. Hon. Chiagozie Amujiogu, Esq. However, in the Court below the Political Party (APGA) on whom the Motion on Notice for leave to appeal was duly served was separately represented by Tochukwu Maduka, Esq of Counsel.
The Order(2018) of substituted LPELR-45153(SC) service which was made in the presence of the parties, and without opposition, was to ensure that the Appellant herein is duly served with the motion on Notice for leave to Appeal and the other Processes. The matter was thereafter adjourned by the Court below to 10th July, 2017.
49 On the 10th July, 2017, the matter came up before the Court below and all parties were present and represented by Counsel and after hearing from the parties the Motion for leave was granted and the Notice of Appeal deemed duly filed and served.
The appeal was eventually heard by the Court below which in its judgment struck out the suit of the Mandamus application for lack of jurisdiction of the trial High Court hence recourse to the Supreme Court by the appellant in dissatisfaction of the decision of the Court below.
A salient point arises and it has to do with whether it can be rightly contended that the Court below which heard the appeal before it on 15th August, 2017 could be accused of being aware of the said Motion on Notice for stay of proceedings purportedly filed before the Supreme Court.
The lower Court had at the Ruling upon the motion for stay of proceedings(2018) before LPELR-45153(SC) them held per Aboki JCA thus:-
"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
50 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. Section 89 (e) and (f) of the Evidence Act to borrow the words NIKI-TOBI, JSC, has put the 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 public document. The fact that the 2nd respondent's documents are attached to an affidavit cannot be an exception to a well settled principle at law both statutorily and by case law. In summary, in the 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 the hearing of this appeal is hereby refused.(2018) We shall LPELR-45153(SC) proceed with the hearing of the appeal".
What can be gleaned from the gymnastics exhibited by the appellants are stated hereunder as follows:-
51 (a) Despite allegedly filing the Motion on Notice for stay of proceedings before the Supreme Court on 28th July 2017, the 2nd Respondent herein (who jointly with the Appellant herein obtained the order for Mandamus before the learned trial Court) applied to the Court below vide Motion on Notice dated 8th August 2017 but filed on 9th August 2017 to inter alia amend the 2nd respondents brief in the appeal. (see Pgs 610-646 of the ROA). (b) All the parties duly filed their briefs of argument before the Court below and the appeal was admitted by the appellant's learned Senior Gounsel to be "ready for hearing" on 15th August,2017. (See pgs 650, lines 27-28 ot the ROA). (c) Learned Gounsel for the 2nd respondent herein moved the application dated 8th August 2017 seeking leave to amend the 2nd respondent's brief and deem same as properly filed and served on 15th August 2017, without any opposition from all Counsel, including(2018) learned SeniorLPELR-45153(SC) Counsel for the Appellant. (d) Learned Counsel for all the parties, including the appellant, duly adopted their respective briefs of argument and fully argued the Appeal before the Court below.
Clearly the appellant is not in good standing to impugn the exercise of discretion of the Court below which can be seen as done judicially and judiciously acting on the materials 52
(2018) LPELR-45153(SC) available before it and in context of the peculiar circumstances of a mandamus order obtained by 1st respondent. This Court in the prevailing situation is hard pressed not to interfere in that exercise of discretion well covered neither will it substitute its own discretion for that of the lower Court as there is no reason to sustain such an eventuality. See University of Lagos & Anor v
Aigoro (1985) 1SC Reprint 182, Olaniyan v University of Lagos (1985) 2 NWLR (Pt.9) 599.
In respect of the submission of learned counsel for the appellant that the appellant in Appeal No.CA/E/367/2017 did not obtain leave of Court to appeal against the decision in suit No. E/291/m/2016 which contention flies off the handle in view of the record showing not only that the application for leave to appeal was granted, there was a further deeming order by that Court below which in effect regularized the process thereby validating it and giving it a retrospective effect. The Notice of Appeal by that deeming order was(2018) taken as properlyLPELR-45153(SC) filed and served whatever the earlier irregularities that had been with the process. See
William v Mokwe (2005) 14 NWLR (Pt.945) 249 at 267; Prince Biyi Poroye & Ors v Makarfi & Ors (2017) LPELR - 42738.
53 The stance of the appellant in throwing in these legal technical spanners against the appeal of the appellant at the Court below beats clear understanding since the Mandamus Order granted by the trial Court took away the status and rights of the 1st respondent, who was not made a party at the trial Court. The question that naturally arises is if the Court below to whose recourse the said affected person would go, should do nothing as remediation in such a clear breach of fair hearing in the light of being stripped of his rights unheard? My answer is in the negative as such an affected party is entitled ex debito justitiae to be given an opportunity to have his rights or interests protected if nothing else, at least to have his grievance heard and all the facts laid bare before Court to decide either way especially in this instance where the appellant has not established a miscarriage of justice or how any injustice will be visited upon him in the Court giving opportunity to be heard of the 1st respondent. See
Akomolafe v Guardian Press Ltd (2010) 3 NWLR (Pt.1181)(2018) 338 at 357; LPELR-45153(SC) Amasike v C.A.C (2010) 5-7 SC (Pt.1) 147 at 172. A situation such as this was well captured by this Court in the case ofOkwu v Umeh (2016)
NWLR (Pt.1501) 120 at 143-144 by my learned brother, Okoro JSC thus:-
54 "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 this case. See:OLAWOYE V JIMOH (2013) 3-4 SC. (Pt.5) 59, NDP v INEC (2012) 12 SC (Pt.4) 24". His Lordship continued:
"The end result of what I have said is that although then trial court has jurisdiction to hear the suit as constituted, the judgment generated thereby which had massive impact on the activities of APGA, including ITS LEADERSHIP, cannot be allowed to stand. A(2018) plaintiff LPELR-45153(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".
Also in the recent decision of this Court in PRINCE BIYI
POROYE & ORS. v MAKARFI & Ors. (2017) LPELR -42738:
55 "...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 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 entiled to be heard before any Court take any decision on the allegations that were raised against(2018) them and LPELR-45153(SC) 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
56 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 plaintiff/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". Taking a cue from the laid down principles the Court below held thus(2018) in its judgment LPELR-45153(SC) dated 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
57 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 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 are 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".
For a fact the judgment of the Court below cannot be faulted being well grounded in the light of the materials before them(2018) and there LPELR-45153(SC) is no basis on which this Court can interfere with the findings and decision of that lower Court.
From the foregoing and fuller and better articulated lead judgment I too find no merit in this appeal which I dismiss. I abide by the consequential orders made.
58 JOHN INYANG OKORO, J.S.C.: I read in draft the lead judgment of my learned brother, Sidi Dauda Bage, JSC just delivered and I agree with him that this appeal is devoid of merit and ought to be dismissed. His Lordship has meticulously resolved all the issues submitted for the determination of this appeal and I have nothing new to add. Accordingly, I adopt both his reasoning and conclusion as mine, I too, dismiss this appeal for lacking in merit. I also make no order as to costs. Appeal Dismissed.
AMIRU SANUSI, J.S.C.: Having read the lead judgment just rendered by my learned brother Sidi Bage JSC, I agree with his reasoning and the conclusion arrived at that this appeal is devoid of merit. It is accordingly dismissed by me. I also decline to award any costs.
(2018) LPELR-45153(SC)59 Appearances:
Paul Erokoro (SAN) with him Ogwu Onoja (SAN), K.C. Nwufor, C.I. Nkpe and M. Ajara For Appellant(s)
Chief Wole Olanipekun (SAN) with him A. Raji (SAN), P.I.N. Ikwueto (SAN), K.D. Ezeh, A. Ajibade, for the 1st Respondent.
T. Maduka with A.V. Izibili, for 2nd Respondent.
3rd to 5th Respondents served not presented For Respondent(s)
(2018) LPELR-45153(SC)