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2018) Lpelr-45153(Sc 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.
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