All Progressive Grand Alliance (Apga) & Anor. V. Chief Victor Umeh & Ors (2011) LLJR-SC

All Progressive Grand Alliance (Apga) & Anor. V. Chief Victor Umeh & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

DAHIRU MUSDAPHER, J.S.C,

In the High Court of the Federal Capital Territory Holden at Abuja and FCT/HC/CV/278/2005, the appellants herein and two others commenced this suit against the respondents as the defendants jointly and severally and claimed against them in their Amended Statement of Claim as follows:

“(a) A DECLARATION that the defendants are no longer members/and or National Officers of ALL PROGRESSIVE GRAND ALLIANCE (the 1st Plaintiff) as they stand expelled from the party with effect from January 12, 2005, in accordance with the Constitution of the All Progressive Grand Alliance.

(b) A DECLARATION that the 2nd, 3rd and 4th Plaintiffs are the duly and only recognized and authentic National Chairman, Deputy National chairman (North) and Deputy National chairman (South) respectively of ALL PROGRESSIVE GRAND ALLIANCE (1st plaintiff),

(c) A DECLARATION that the 1st Defendant is not the National Chairman or Acting National Chairman of ALL PROGRESSIVE GRAND ALLIANCE (the 1st Plaintiff) and is not competent to parade himself as such.

(d) A DECLARATION that the 1st to 11th Defendants are no longer national officers of the 1st Plaintiff, having been constitutionally and duly expelled from the Plaintiff by the 1st Plaintiff.

(e) A DECLARATION that the 1st to 14th Defendants are no longer members of ALL PROGRESSIVE GRAND ALLIANCE (the 1st Plaintiff) having been constitutionally and duly expelled from the Party.

(f) AN ORDER of perpetual injunction restraining the 1st Defendant from parading himself or continuing to parade himself as the National Chairman or Acting National Chairman of the ALL PROGRESSIVE GRAND ALLIANCE, including issuing press statement purporting to be acting as the National Chairman of the 1st plaintiff, or summoning, convening and/or holding any meetings in such capacity.

(g) AN ORDER of perpetual injunction restraining the 1st to 11th Defendants from parading themselves or continuing to parade themselves as national officers or acting national officers of the ALL PROGRESSIVE GRAND ALLIANCE or issuing press statements purporting to be acting in such capacities or summoning, convening and/or holding any meetings in such capacities.

(h) AN ORDER of perpetual injunction restraining the 1st to 14th Defendants from parading or continuing to parade themselves as members of the ALL PROGRESSIVE GRAND ALLIANCE or holding any meetings in such capacities.

(i) AN ORDER of perpetual injunction restraining the Defendants whether by themselves their agents or privies from using the official logo, letter-headed papers or other stationeries or symbols of the ALL PROGRESSIVE GRAND ALLIANCE (1st plaintiff) in any correspondence, meeting, conference or any gathering whatsoever and for any purpose whatsoever and in any manner howsoever.

(i) A DECLARATION that the Defendants’ purported suspension and/or expulsion of the 2md, 3rd and 4th Plaintiffs from the 1stt Plaintiff, is illegal, null, void and of no effect, as same was done without capacity, and in flagrant violation of the constitution of the 1st Plaintiff and without due process.”

During the prolonged and protracted trial that spanned 3 years after the parties called evidence and closed their cases, the learn m ed trial judge ordered written address to be filed by each the defendants and the plaintiffs respectively the order for address was made on 23/1/2008 and the matter was adjourned to 25/2/2008 for the adoption of the final address, On the 25/2/2008 the plaintiffs filed applications asking for stay of proceedings pending appeal. The learned trial judge refused the applications for the stay of proceedings thereafter the learned trial judge closed the issue of final written address since the plaintiffs have failed to file any written address ordered since January and the matter was adjourned for judgment to 7/4/2008. On the 7/4/2008 when the matter resumed, the learned counsel for the appellants herein filed a motion to discontinue with the matter already earlier on adjourned for judgment. After hearing arguments of counsel in the matter, the learned trial judge adjourned the matter for ruling on the application to discontinue with the suit to the 16/4/2008. On the 16/4/2008, the learned trial judge refused the application to discontinue with the suit and thereafter proceeded to deliver his judgment in the substantive suit. Whereat he dismissed the plaintiffs’ suit as lacking in merit.

The appellants herein felt dissatisfied with the Ruling and the Judgment of the trial court and appealed to the court of Appeal. At the Court of Appeal, learned counsel for the appellants therein who are also the appellants herein, formulated and submitted two issues for the determination of the appeal. The issues were:-

“Issue 1.

Was the learned trial judge right when he refused the appellants’ application for discontinuance of the case and proceeded to enter judgment against the appellants

Issue II

Was the learned trial judge right when he held that the 2nd appellant was validly expelled from the party when no such relief was sought by the parties.”

In its determination of the issues submitted to it, the Court of Appeal held that the learned trial judge exercised his discretion properly in refusing to allow the application to discontinue the matter having regard to the stage the matter had reached. On the second issue, the court also found that on the evidence adduced by the parties, the learned trial judge was right to have dismissed the appellants’ suit before him. The appellants still felt unhappy with the decision of the Court of Appeal and filed a further appeal to this court.

Now in his brief for the appellants, the learned counsel has identified and formulated five issues arising for the determination of the appeal and the issues are:-

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“(1) Whether the learned justices of the court below were right in coming to the conclusion that the learned trial judge was right in holding that the 2nd appellant was validly suspended/expelled as the National Chairman of the 1st appellant when same was not done in accordance with the express provisions of the Constitution of the party, binding on the parties.

(2) Whether the learned justices of the Court of Appeal were right in holding that the findings of the learned trial judge on allegation of embezzlement and anti-party activities against the 2nd appellant were consistent with the evidence before the court when there was no such proof beyond reasonable doubt.

(3) Whether the learned justices of the Court of Appeal did not misdirect themselves by holding that the trial court properly resolved conflicting evidence before it when it ignored and failed to review the evidence of the appellants.

(4) Whether the learned justices of the Court of Appeal properly directed themselves on the appropriate course of action to be taken by the trial court upon refusal to grant an application for discountenance.

(5) Whether the learned justices of the Court of Appeal directed themselves properly in holding that the trial court was right in declaring in favour of the respondents that the 2nd appellant was properly expelled from the party rather than merely dismissing the claims of the appellants.”

I have alluded and reproduced the issues formulated and submitted to the Court of Appeal for the determination of their appeal. The decision of the court of Appeal at the tail end of its judgment was only to dismiss the appeal as lacking in merit. In order to fully appreciate the issues that could legitimately arise in this appeal, it may be necessary to again reproduce the issues submitted by the appellants at the Court of Appeal:

“1. Was the learned trial judge right when he refused the appellant’s application for the discontinuance of the case and proceeded to enter judgment against the appellants

  1. Was the learned trial judge right when he held that the 2nd appellant was validly expelled from the party when no such relief was sought by the parties.”

In my view, these are the only matters upon which the Court of Appeal was called upon to make a decision. Any other issue discussed at hearing of the appeal or mentioned in the judgment, has no direct bearing with the complaints of the appellants before the Court of Appeal. Any other issue or issues raised were obiter dicta and had nothing to do with the crucial issues properly raised by the appellants for the determination of the appeal. It must be remembered that it was the appellants herein and others who first went to the trial court claiming the reliefs reproduced at the befinding of this judgment, there was no counter-claim by the defendants, the respondents herein and the sum total of the judgment of the trial court as affirmed by the Court of Appeal was that the claims of the appellants were dismissed as lacking in merit. Accordingly any other issues or findings made by the courts were for no moment. Hence not all the issues now raised by the appellants this appeal, five of them are relevant or legitimately arose from the complaint of appellants before the Court of Appeal. It has been held time and time again that it is not every error or mistake that can be made a complaint in an appeal, the complaint or error must arise from and affect the crucial issues discussed at the decision.

In the final analysis, both the trial court and the Court of Appeal merely dismissed the reliefs sought by the appellants.

Accordingly, the only relevant issues that arise legitimately for the determination of the appeal before this court are two (1) whether the Court of Appeal was right in affirming the decision of the learned trial judge to refuse the application for the discontinuance of the suit and (2) whether the decision of the learned trial judge as confirmed by the court below was right that the respondents had validly dismissed or removed the 2nd appellant when nobody sought that relief.

In this appeal, I shall first deal with the issue of whether the learned trial judge was justified in holding that the 2nd appellant was properly expelled from the party when there was no claim on that score by the any of the parties.

On this issue, the learned trial judge made the following pronouncement.

“l have considered the evidence of the parties on this point and I am satisfied from the exhibits tendered that NWC and NEC met on the dates stated and took decisions to expel the 2nd – 4th plaintiffs xxxxxxxxxxxxxxxxxxxxx

Now, the allegation of embezzlement of party funds xxxxxxxxxxxxxxxxxxxxxxxxxxxxx This conduct is clearly an act of high handedness and the sign that the 2nd plaintiff was running the party as he liked to the exclusion of other officers. This conduct was unbecoming of an officer of a party. All these clearly fall under Article 19(3) as the party was correct to have acted accordingly by removing him. xxxxxxx”

Thus the learned trial judge on the evidence adduced before him was satisfied that the 2nd appellant was validly removed as the chairman of the party.

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Elsewhere in the judgment the learned trial judge also stated:-

“xxxxxx If the relevant organs of the party met, is there proof that the allegations of anti-party activities and embezzlement was established against the 2nd plaintiff and his co-travelers ” xxxxxxxxxxxxxxxxxxxxxxxxxxx. The conducts of the 2nd plaintiff highlighted above which have not been refuted constitute anti-party activities and conduct capable of bringing the image of the 1st plaintiff to ridicule and disrespect.”

In its consideration of this issue the Court of Appeal, having examined the findings o1’fact made by the learned trial judge affirmed the finding in the following words:-

“xxxxxx the learned trial judge made findings of fact which are consistent with the evidence before the court and this is a proper exercise of judicial function vested in the court to assess and evaluate evidence before it.

In view of the foregoing, it is my view that the learned trial (sic) court on the evidence before (sic) it correctly found as a fact that the 2nd appellant was validly suspended/expelled as a member/officer of APGA and in accordance with the Constitution of the party.”

Upon a careful examination of the issue as formulated by the appellants, his complaint is that no one claimed this finding as a relief in this matter since the respondents did not counter-claim. It is claimed that both courts were wrong to have decided that the 2nd appellant was validly expelled from the party.

Again, I have alluded to the claims and the reliefs sought by the appellants in this matter and I have reproduced them at the beginning of this judgment. It is the appellants who under paragraph “J” of the Amended Statement of Claim sought the relief in these terms:-

(i) A DECLARATION that the defendants’ purported suspension and/or expulsion of the 2nd, 3rd and 4th Plaintiffs from the 1st Plaintiff, is illegal, null, void and of no effect, as same was done without capacity, and in flagrant violation of the constitution of the 1st Plaintiff and without due process’”

As can be seen it is manifest that it was the appellants who asked the court to decide and pronounce on the issue. The Court of Appeal in my view rightly agreed with the finding and consequently the appellants, having asked the court for the relief in the manner it was couched as reproduced above, cannot now claim that nobody prayed for it. It was the appellants prayer for the court to determine one way or the other whether the 2nd appellant was validly expelled or removed from the party and the court by relying on the evidence adduced came to the inescapable conclusion, that the 2nd appellant was validly removed as the chairman of the party.

As mentioned above, it was the appellants who went to court seeking for certain reliefs, there was no counter-claim and at the end of the day, the trial court and as confirmed by the Court of Appeal merely affirmed the decision of the trial court in dismissing the appellants’ suit as it was devoid of any merit. The crucial decision of both courts was that of the dismissal of the appellants’ claims and no more. Accordingly all the arguments of counsel go to no legitimate issue. I accordingly resolve this issue against the appellants.

I will now discuss the question of the application of discontinuance as the last issue. This is the appellants’ issue No. 4 which reads:-

“Whether the learned justices of the Court of Appeal properly directed themselves on the appropriate course of action to be taken by a trial court upon refusal to grant an application for discontinuance.”

The learned counsel for the appellants maintains that the learned trial judge ought to have called upon the appellants to address the court before proceeding to read the judgment after refusing the application to discontinue. Learned counsel referred to BABATUNDE VS, PAN ATLANTIC SHTPPING TRANSPORT AGENCIES LTD & 2 OTHERS (2007) 3 NWLR (Pt 1050) 113 at 165. It is submitted that final address is fundamental to a proper adjudication learned counsel referred to and relied on SOL FOND FOODS LTD. VS. ELEREWE (1996) 8 NWLR (465) 248 at 253, AYISA VS. AKANJI & ORS (1995) 7 NWLR (406) 129, SALAMI VS. ODOGUN (1991) 2 NWLR (Pt. 173) 291, AKABOGU & ORS. VS. AKABOGU (2003) 9 NWLR (826) 445 and IHOM VS. GAJI (1997) 6 NWLR (Pt. 509) 526.

The learned counsel further argued that the delivery of the judgment immediately after refusing the application for the discontinuance of the suit without asking the appellants to address the court amounted to denial of the right of fair hearing. Learned counsel referred to the case of AMOUGH VS. ZAKI (1998) 3 NWLR (Pt. 542) 484 at 491; NYA VS. EDEM (2005) 4 NWLR (916) 345; AG. ANAMBRA VS. OKEKE (2002) 12 NWLR (Pt. 782) 575; AKWA VS. C.O.P. (2003) 4 NWLR (Pt.81l) 461.

It is again submitted that Order 27 rule 3 of the High Court (civil procedure) Rules of the FCT High Court is inapplicable to the circumstances of this case, and both the trial court and the Court of Appeal acted erroneously in holding that the learned trial judge could dismiss the case rather than strike out the claims of the appellants. The delivery of the judgment under the circumstances on the merits negated the principles of fair hearing. Learned counsel referred to the case of EGWU VS, UNIVERSITY OF PORT HARCOURT (1995) 8 NWLR (Pt. (414) 419.

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Before I discuss the submissions of the learned counsel for the respondents, it is important to keep in mind the crucial issue as argued by the appellants in the Court of Appeal, the main complaint of the appellants in the Court of Appeal centered on the proprietary or otherwise of the trial court in refusing the application for discontinuance. The issue of the immediate and simultaneous delivery of the judgment did no feature significantly. So all the arguments of counsel for the appellants as narrated above, did not actually arise for the determination by the Court of Appeal. Most of the arguments bordering on fair hearing and on miscarriage of justice were not actually argued or submitted, what was argued by the learned counsel for the appellants was that the learned trial judge was in error to have delivered the judgment on the merits instead of striking out the suit, after he had refused the application to discontinue the suit as filed.

It is apt at this stage to capture how in the lead judgment of the Court of Appeal the matter was resolved. At page 1432 Vol. iv of the record it is provided:-

“On the 23/1/2008 the trial court closed the case of the 4th defendant after refusing his application for adjournment. Consequently, the Learned Senior Counsel for 1st, 2nd, 5th – 14th defendants took 3 days to deliver this final address, counsel for the 3rd and 4th defendants took her statutory days while counsel for the plaintiffs now appellants took 21 days. The court then adjourned to 25/2/2008 for the adoption of the final (written) address (see page 1061 of the records).

However on 25/2/2008, counsel for the plaintiffs/appellants instead of the adoption of his address brought two applications for stay of proceedings which were taken and dismissed by the learned trial judge. (See page 1070) 1074 of the record.

Upon the dismissal of the plaintiffs/appellants’ applications for stay of proceedings, learned counsel for the plaintiffs/appellants sought for adjournment to enable the plaintiffs respond to the address of the defendants. The application was objected to and the trial court ruled as follows:-

“The parties seeking adjournment were ordered by this court on 23/1/2008 xxxx to file their written address before today. That was not done and no reason has been tendered as an inhibiting factor xxxxxxxxxxxxx. Accordingly there is no cogent reason for adjournment the final address is closed and the case is adjourned for judgment. The judgment is adjourned to 7/4/2008.”

It is important to point out that there is no appeal against the refusal to grant the stay of proceedings nor the application sought on the 25/2/2008. However on 7/4/2008, the judgment could not be delivered because counsel for the plaintiffs/appellants referred to the trial court to a fresh application filed to discontinue the case. The application was taken and ruling was fixed for 16/4/2008. On that day leave (to discontinue) was refused and the judgment of the court was delivered.”

I have examined the record and this clearly was what had transpired before the trial court. In my view, the arguments for counsel reproduced above clearly go to no legitimate issue. At the time the judgment was read, the issue of address was closed and obviously there was nothing left except to read the judgment. The appellants have failed to complain in an appeal against the decision to refuse their application for adjournment and/or for an extension of time to file the final address, or for the closure of the address. Having not appealed, the appellants must be deemed to have accepted the decision made by the trial court to have closed the issue of address and they cannot be heard to complain at this stage.

As mentioned above these are the only two legitimate issues arising for the determination of the appeal, all the other issues and arguments of counsel are irrelevant. This appeal is clearly unmeritorious and frivolous. The judgments of the lower courts in dismissing the claims of the appellants is also affirmed. The appeal is accordingly dismissed. The 2nd appellant is to pay costs of N50,000.00 to the respondents.


SC.21/2010

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