All Progressives Grand Alliance V. Dr. Victor Ike Oye & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, J.S.C.

This is an appeal against the final Judgment of the Court of Appeal, sitting in Enugu. The judgment that formed the basis of this appeal was delivered on 16th August 2017, in Appeal No. CA/367 as contained at pages 651-690 of the Record of Appeal. The Appellant being dissatisfied with the said decision of the Court below filed a Notice of Appeal dated 25th August 2017, as contained at pages 691-698 of the Record of Appeal.

Ground one alleges error of law on the part of the lower Court for assuming jurisdiction in the subject matter of the appeal during the pendency of four appeals before this Court (Supreme Court). Ground two alleges error of law on the part of the Court below on the ground that there was no competent Notice of Appeal filed by the 1st Respondent upon which the appeal was predicated at the Court below. The third and final ground of the appeal relates to page 5 of the judgment (page 655 of the Record of Appeal), where the lower court observed that “…. From the records of this Court, the two motions were heard and granted on 10th July 2017.”

SUMMARY OF FACTS

The 1st Respondent herein who had occupied the position of the National Chairman of the Appellant (A.P.G.A.) was suspended from acting in that capacity on ground of misconduct. Subsequently, the National Working Committee (N.W.C.) of the Appellant appointed one Hon. Ozo Nwabueze as Acting National Chairman. Unfortunately, Hon. Nwabueze died and one Chief Martin Agbaso was purportedly adopted on 30th January 2017, as Acting National Chairman of the Appellant.

The 3rd Respondent refused to recognize the adoption of Chief Martin Agbaso as Acting National Chairman of the Appellant. Due to this development, an application for order of Mandamus to compel the 2nd-4th Respondents to recognise the appointment of Chief Martin Agbaso as Acting National Chairman of the Appellant was filed on 21st April 2017, by the 5th Respondent purportedly acting on behalf of the Appellant asking amongst others, for an order of Mandamus compelling the 2nd Respondent to accept and recognise the decision of the

Appellant appointing one Chief Martin Agbaso as the Acting Chairman of the Appellant.

The 1st Respondent was neither joined as a party to the application for order of Mandamus nor was heard in the said application despite making copious references to his status, office and standing as person to be affected directly by the outcome of the Mandamus application. The trial Court granted as prayed, the reliefs sought in paragraphs A, B and C of the application. The decision of the trial Court is contained specifically at page 305 of the Record of Appeal.

Following the order made by the trial Court, the 1st Respondent herein filed a Notice of Appeal against the decision of the trial Court dated the 16th June 2017. Also filed along with the Notice of Appeal an application for leave to appeal as an interested party against the decision of the trial Court. The 1st Respondent filed a similar application before the Court below in Appeal No. CA/E/358M/2017 dated 20th June 2017, praying for the same reliefs.

The Appellant filed a counter affidavit to the 1st Respondent’s application. The lower Court heard the application on 10th July 2017, and overruled the Appellant’s opposition and granted leave to the 1st Respondent to appeal against the judgment of the trial Court as an interested party. Prior to this, the 1st Respondent had on 28th June 2017, filed a Motion on Notice before the Court below praying for an order granting leave to the 1st Respondent to compile and transmit the Record of Appeal and to deem the said Record of Appeal as properly compiled and transmitted. The Appellant being dissatisfied with the two decisions of the Court below, i.e. CA/358/2017 and CA/367/2017 on 19th July 2017, appealed to the Supreme Court against the said decisions.

The instant appeal, (SC.718/2017) arose from the decision of the Court below in Appeal No. CA/E/367/2017. The 26-pages Appellant’s Brief is dated 11th September 2017, but filed 15th September, 2017. The Appellant further filed a Reply Brief to the 1st Respondent’s Brief. The 19-pages Reply was dated and filed 16th April, 2018.

On its part, the 1st Respondent filed its Respondent’s Brief dated 19th March 2018, and deemed properly filed and served on 24th April 2018. In its Respondent Brief, the 1st Respondent raised and argued its Notice of Preliminary Objection filed pursuant to Order 2 Rule 9(1). The objection is premised on two grounds, to the effect that the appeal relates to the exercise of discretion by the Court of Appeal which granted leave to the 1st Respondent to appeal the judgment of the lower Court as an interested party. The second ground of the Preliminary Objection relates to the fact that the appeal has become purely academic, as it relates to interlocutory decision of the lower Court of 15th August, 2017, when the lower Court had on 15th August 2017, given its judgment in the substantive appeal.

The twin preliminary issue raised by the 1st Respondent on jurisdiction relate to the fact that the appeal has become academic and liable to be dismissed on the ground that the appeal relates to interlocutory decisions of the lower Court dated 10th July 2017, which has since given its final decision on 16/8/2017. The 1st Respondent submits that the appeal against the interlocutory decision has

become spent and now academic, citing the cases of ZENITH BANK PLC v. JOHN (2015) 7 NWLR (Pt. 1458) 393 AT 423: ATTORNEY GENERAL OF ANAMBRA STATE v. OKAFOR (1992) 2 NWLR (Pt. 224) 396 AT 430; BADEJO v. FEDERAL MINISTER OF EDUCATION (1996) 1 NWLR (Pt. 464) 15; PLATEAU STATE v. ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR (Pt. 967) 246; C.B.N. v. JACOB OLADELE AMAO & 2 ORS (2010) 16 NWLR (Pt. 1219) 271 SC; PPA v. I.N.E.C. (2012) 13 NWLR (Pt. 1317) 215 at 247-248.