Lateef O. Fagbemi San v. All Progressives Congress (APC) & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

DANLAMI ZAMA SENCHI, JCA (Delivering the leading judgment)

This appeal is against the portion of the judgment of Rivers State High Court in suit No. BHC/78/2018 delivered on 10th day of October, 2018 by C. Nwogu, J.

The 2nd – 24th respondents (as applicants) before the trial court instituted this action leading to the instant appeal against the portion of the judgment of the trial court against the 1st respondent (respondent) at the trial court presenting the following questions for determination:-

1. Whether having made requisite payment, the applicants are not entitled to be given nomination forms to participate in the ward congress of the respondent.
2. If the answer to one is yes, whether the exclusion of the applicants form the ward congress purportedly held on 5th May, 2018 by the respondent is valid and constitutional.
3. Having regards to the provisions of section 20 (1) of the APC Constitution 2014 (as amended), whether it is proper to hold L.G.A Congress to the exclusion of the applicants.

The applicants then seeks the reliefs as shown on the face of the originating summons if the aforementioned questions are answered in their favour.

Processes were filed and exchanged between the parties thereby joining issues. Then on the 10th day of October, 2018, the trial court delivered its judgment. (See pages 1205 – 1232 of the record of appeal)

The brief facts as stated by the appellant leading to the instant appeal in respect of a portion of the judgment of the trial court was that the 2nd – 24th respondents (as applicants) instituted suit No. BHC/78/2018 dated 7th May, 2018 and filed on 8th May, 2018 against the 1st respondent while then the appellant, a Senior Advocate of Nigeria acted as the lead counsel on behalf of the 1st respondent upon instruction of the 1st respondent. According to the appellant, he appeared before the trial court on 26th June, 2018 and 27th July, 2018 respectively leading some of his Colleagues on behalf of the 1st Respondent sequel to the 1st respondents letter dated 21st June, 2018 from its National body and signed by the National Legal Adviser, Dr. Muiz Banire, SAN.

On 26th June, 2018, when the appellant appeared before the trial court, there was an argument between the appellant and one F.C. Nwafor, Esq who was briefed by the Rivers State chapter of the 1st respondent over legal representation on behalf of the 1st respondent (APC) sued as respondent in the suit.

The court after hearing arguments from the parties adjourned its ruling to 27th July, 2018, but unfortunately, the court did not sit on that day and the proceedings were consequently adjourned off record to 2nd August, 2018.

According to the appellant, while the ruling was still being awaited, the 1st respondent (APC) at the National level through the Head Legal Service (without any prior discussion with the appellant) wrote another letter dated 31st July, 2018 (a letter written after arguments on representation had been concluded on 26th June, 2018), in which it asked the appellant to cease from further appearing for it in the suit, -pending further instruction from the 1st respondent (APC). The appellant states that the said letter was not served on him until late in the evening of 2nd August, 2018, at his Abuja office. See pages 1007 1008; and 1016 1017 of the record of appeal, vol. 2.

However, the counsel to the claimants (now 2nd – 24th respondents) had a copy of the said letter, even before the appellant and he has filed same in court on the 2nd day of August, 2018, being the date the trial court delivered its ruling on the legal representation of the 1st respondent (APC). (See pages 1004 – 1012 of the record of appeal, Vol. 2).

The appellant states that in spite of the fact that the said letter was only brought to his attention on 2nd August, 2018, when the trial court was to deliver its ruling the trial court proceeded to hold that based on the aforesaid letter of 31st July, 2018, the appellant was not the counsel briefed by the 1st respondent (APC) for the case and immediately proceeded to hear the substantive originating summons on the same 2nd August, 2018 and thereafter adjourned for judgment. See pages 1159 – 1161 of the record of appeal, vol. 2.

The appellant further states that, since the letter of 31st July, 2018 was only served on him late in the evening of 2nd August, 2018 at the appellants Abuja office, it was quite obvious that as at the time the trial Judge delivered his ruling on the representation of the 1st respondent (APC) on 2nd August, 2018, he had no knowledge of the letter of 31st July, 2018 and could not have communicated the fact of existence of the said letter to the trial Judge before the ruling of 2nd August, 2018 contrary to the expectation of the trial Judge.

The appellant then contends that by another letter dated 3rd August, 2018 and issued by the same Head of Legal Services, a day after the ruling on legal representation of 1st respondent (APC), the 1st respondent upon further review of the suit, restored the appellants instruction and authority to continue to act as its counsel in the said suit before the trial court. (See pages 1021 1022 of the record of appeal, vol. 2).

Based on the said letter restoring his instruction, the appellant filed a motion before the court to which he exhibited the said letter of 3rd August, 2018, wherein, on the instruction(s) of the 1st respondent (APC) prayed the court to reopen the suit to enable the 1st respondent (APC) to present its defence to the suit. (See pages 1029 1037 of the record, vol. 2).