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.
The Appellant also joined issues with the 1st Respondent as to the Preliminary Objection in its Reply Brief, dated and filed 16th April 2016, wherein the Appellant contented that the preliminary objection of the 1st Respondent is perceptibly misconceived. The Appellant contended that the 1st Respondent has not demonstrated that this appeal is captured and envisaged within the boundaries of Section 233(3) 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 that issues 1 and 3 raised concerns on the jurisdiction of the Court below to hear and determine Appeal No. CA/E/367/2017, which clearly is an issue of law, and which can be raised at anytime and at any stage of the proceedings, even for the first instance before the Court of Appeal or before the supreme Court with or without leave. To support its contention, the Appellant cited the case of OBIKOYA v. THE REGISTRAR OF COMPANIES & OFFICIAL RECEIVER OF POOL HOUSE GRP (1975) 4 SC (REPRINT); ONI v. CADBURY NIGERIA PLC (2016) 9 NWLR (Pt. 1516) 80.
RESOLUTION OF PRELIMINARY OBJECTION
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 1st Respondent and Appellant’s response to same, both which have been summarized above. The law is settled that jurisdiction is 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 v. OLUJITAN (2000) 5 NWLR (Pt. 655)
159, AMADI v. N.N.P.C. (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 P.D.P. v. 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. v. LEVENTIS TECHNICAL CO. LTD. (1992) 5 NWLR (Pt. 244) page 675, MADUKOLU v.
NKEMDILIM (1962) 2 SCNLR 341, and OLORIODE v. OYEBI (1984) 1 SCNLR page 390.
In view of the foregoing, I hold that the issue raised in the grounds 1 and 3 of the Appellants notice of Appeal are jurisdictional in nature, and same 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 indentifying the real issues for determination in the substantive appeal to enable me determine and resolve same.
ISSUES FOR DETERMINATION:
The Appellant formulated two issues at page 7 of its Appellant’s Brief, thus:-
“(1) Whether the Court below had the jurisdiction to hear and determine the appeal in view of the pending application before the Supreme Court for stay of further proceedings in the appeal (Ground 1).
(2) Whether the Court below had jurisdiction to hear and determine the appeal when there was no competent Notice of Appeal upon which the appeal was predicated (Grounds 2 and 3).”
The 1st Respondent also 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).
(b) Whether the Court below property, 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 affected the 1st 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).”
Given the facts of this appeal, I have taken time to carefully reconsider the two issues formulated apiece by both parties for the purpose of determining this appeal. I agree that there are two issues in this appeal; namely one of fairness and exercise of judicial discretion.
I am not quite convinced that the issues have been well captured by the parties in the way and manner they have respectively formulated issues for determination in this appeal.
I wish to also add briefly that, that grammarians have repeatedly observed 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, I have modified the two issues respectively formulated by the Appellant and the 1st Respondent, 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 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.”
CONSIDERATION AND RESOLUTION OF THE ISSUES:
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 Appellant sought to engage the issues in this appeal from the angle of jurisdiction. In sum, the Appellant contended that the Court below was wrong in granting the 1st Respondent leave to appeal against the decision of the trial Court dated 22nd May 2017, as an interested party on the ground that his interest was affected. 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 where a Court lacks jurisdiction, it will have no powers to inquire into the matter or make a determination or pronouncement in the matter and any defect in competence is fatal in that it renders the entire proceedings, trials and findings invalid, null and void ab initio however brilliantly they may have been conducted and concluded.
The Appellant relied on BRONIK MOTORS LIMITED & ANOR v. WEMA BANK LIMITED (1983) 1 SCNLR page 296 and OKOYA v. SANTILLI (1990) 2 NWLR (Pt. 131) page 172.
The Appellant further relied on the case of MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 581 on the conditions which must be satisfied before a Court can be said to be vested with competence and jurisdiction to entertain a matter. The Appellant also cited the case of AJAO v. POPOOLA (1986) 5 NWLR (Pt. 45) page 802. The Appellant’s contention was premised on the pendency of application for stay of proceedings in the appeal, which was filed to stay proceedings pending the hearing and determination of an appeal lodged at the Supreme Court in SC.598/2017, which the Appellant contended is an offshoot of Appeal No. CA/E/367/2017, which led to the instant appeal.
The Appellant contended 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 of the appeal. On this supposition, the Appellant relied on the case of MOHAMMED v. OLAWUNMI (1993) 4 NWLR (Pt. 287) 245, at 277.
The Appellant further amplified and quoted extensively from the decision in MOHAMMED v. OLAWUNMI (supra) and submitted that the lower Court swam against the tide of the above decisions in refusing stay of proceedings in the appeal notwithstanding the fact that the attention of the Court below was brought to the pending application for stay of proceedings before the Supreme Court.
The Appellant submitted, in closing on issue one, that the only option opened to the Court below was to adjourn proceedings and await the decision of the Supreme Court on the application for stay of proceedings. The Appellant then urged this Court to resolve issue one in its favour and to hold that the Court below lacked jurisdiction to hear and determine the appeal in view of the pending application before the Supreme Court.
In its contention on the issue, the 1st Respondent relied on the provisions of Section 233(2) of the Constitution which provides for instances where appeals lie from decisions of the Court of Appeal to the Supreme Court. The 1st Respondent submits that the present
case does not come within the ambit of instances where appeal is of right. This is because leave is required for the purpose of appealing from the Court of Appeal to the Supreme Court as it falls within the category of Section 233(3). The 1st Respondent contended further that the appeal relates to the exercise of judicial discretion in granting leave to the 1st Respondent and that the appeal is dead on arrival as leave of either the Court below or the Supreme Court ought to have been sought to appeal against the exercise of judicial discretion. The 1st Respondent relied on C.B.N. v. OKOJIE (2002) 8 NWLR (Pt. 768), 48; (2002) 3 SC 99, at 104; WILLIAMS v. MOKWE (2005) 14 NWLR (Pt. 945) 249 at 261; F.B.N. v. IBRAHIM (2008) 18 NWLR (Pt. 1118) 172.
The 1st Respondent observed that the contention of the Appellant was that there was a pending Motion for Stay of Proceedings before the Supreme Court and that the Court below ought to have simply declined jurisdiction. The 1st Respondent contended that the argument is misplaced given the fact that application for Stay of Proceedings calls for the exercise of discretion of the Court,
which the 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 and had promptly taken steps to protect himself and have the said order of Mandamus vacated.
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 submitted that the case of MOHAMMED v. OLAWUNMI (supra) cited by the Appellant is inapplicable to this case. The 1st Respondent contended that, 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 interfere with 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 pendency of the Motion for Stay of Proceedings at the Supreme Court. The 1st Respondent relied on the case of UNIVERSITY OF LAGOS & ANOR v. AIGORO (1985) 1 SC (REPRINT) 182; OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 599; BABATUNDE v. 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.
I have painstakingly followed and did a recap of the various angles and positions of the parties on issue one formulated in this appeal. The Appellant sees the issue as one of
jurisdiction, 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, assuming there was a pending application for stay of proceedings at the Supreme Court, it is left for the Supreme Court to Stay Proceedings and that it is a matter of discretion for the Court below to also stay its proceedings unless the Supreme Court has heard and granted stay of proceedings. However, 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.
Irrespective of the colourised dimensions the parties arguments have taken in respect of issue one, the main contention to be resolved here remains “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 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, I am not in doubt that the whole issue revolves around his status, and the effect of the order of mandamus on his status. 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 against such a party is not a nullity but shall be to no avail. In AZUH v. 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. 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 v. NIGERIAN CONSTRUCTION & FURNITURE CO. LTD. & ORS. (1991) 7 SC (Pt. III) (REPRINT) 33 at 56; GREEN v. GREEN (1987) 3 NWLR (60) 480. See also UWAZURUIKE & ORS v. ATTORNEY-GENERAL OF THE FEDERATION (2013) 4-5 SC (Pt. 1) 90 at 119 Lines 16-21; (2013) LPELR-20392 (SC) 1 at 24, Per FABIYI, JSC.
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 v. A.C.B (2008) Vol. 3 M.J.S.C 191 at 206 Paragraphs F-G, See also (2008) 1 SC (Pt. 11) 1 AT 16-17 paragraphs 10-20. See also THE REGISTERED TRUSTEES CHRIST APOSTOLIC CHURCH NIGERIA v.
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).”
In WILLIAMS v. MOKWE (2005) 14 NWLR (Pt. 945) 249, this Court had declared, Per Kalgo, JSC, 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. Beyond pretension, the said order is directed at, and affected the right, status and interest of the 1st Respondent over and above other parties to this appeal, given the facts and circumstances of this appeal. Failure to join him before summarily securing the order of mandamus leaves must to be desired.
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.
This above position follows a long established tradition of not undermining the exercise of judicial discretion. In ODUTOLA v. KAYODE (1994) 2 NWLR (Pt. 324) 1, this Court reiterated the well-established principle of law that all judicial discretion must be exercised according to common sense and according to justice, and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of an appeal Court to have it reviewed. 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 v. OLANIYAN (Supra), Per Nnamani, JSC (Blessed
Memory) (page 11, paragraphs C-E). See also TETTEH WORBI AND ORS v. ADAMALI ASAMANYUAM AND ORS. 14 W.A.C.A. 669 at 671, and DEMUREN v. ASUNI (Supra) AND SONEKAN v. SMITH (1967) 1 ALL N.L.R. 329.
Having acted promptly in seeking leave to appeal as an interested party, the lower Court was right in exercising its discretion in favour of the 1st Respondent amidst patent, but carefully designed scheme to edge him out through “Judicial” means without joining him as party. I hold that the 1st Respondent ought to have been joined being not just a necessary, but as a vital and crucial party to the suit. I hold that the lower Court has not caused a miscarriage of justice to be occasioned by granting the 1st Respondent leave to appeal as an interested party. In a nutshell, I resolve issue one in favour of the 1st Respondent.
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 by Order 7 Rule 2(1) of the Court of Appeal Rules 2016, 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 after leave was granted to the 1st Respondent to appeal against the judgment of the High Court as an interested party by the Court below, the only option available to the 1st Respondent was to file a fresh Notice of Appeal, as his appeal was predicated on the Notice of Appeal filed on 16th June, 2017, prior to granting of leave to appeal.
The Appellant contended further that the leave to compile and transmit record and to deem same as having been properly compiled and transmitted made by the 1st Respondent was not in respect of Appeal No. CA/E/367/2017 as no leave to appeal as an interested party was granted to the 1st Respondent. The Appellant contended that the appeal which was heard and determined by the Court below, i.e. CA/E/367/2017 was incompetent to the effect that it was not predicated on a competent Notice of Appeal.
The Appellant then urged this Court to resolve issue two in its favour and to hold that the Court below did not have jurisdiction to hear and determine the appeal as there was no competent Notice of Appeal upon which the appeal was predicated.
On the issue of multiplicity of application by the 1st Respondent, the Appellant further replied to the 1st Respondent through its Reply Brief dated 16th April 2018, to the effect that the basis on which the Court below granted leave to appeal as an interested party to the 1st Respondent was wrong, being an abuse of Court and judicial process. The Appellant replied further that incompetent motion would necessarily give birth to incompetent and stillborn appeal.
The Appellant also further responded that the Motion on Notice for Stay of Proceedings at the Supreme Court was filed bona fide while also insisting that the case MOHAMMED v. OLAWUNMI (Supra) is applicable, to the extent that the reasonable thing for the lower Court was to have stayed proceedings and not disregard the process pending at the apex Court. The Appellant also argued in closing in its Reply Brief, that the cases of
WILLIAMS v. MOKWE (SUPRA) and PRINCE BIYI POROYE & ORS v. MAKARFI & ORS (2017) LPELR-42738 SC, cited and relied upon by the 1st Respondent are totally inapplicable to the instant appeal. The Appellant then reiterated its contention that the lower Court lacks jurisdiction and urge this Court to allow this appeal and grant the reliefs sought by the Appellant.
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, save for relief No. 2, relying on the latin maxim, ‘Expressio unius est exclusio alterius’, or ‘inclusion unis est exclusion alterius.” The 1st Respondent referred to the case of SHINKAFI & ORS v. 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 v. MAKARFI & ORS (Supra) and submitted that the Court below rightly allowed the appeal against the 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 Respondent’s arguments as made above and resolve issue two against the Appellant.
As a Court of law and justice, this Court must look beyond procedural technicalities to do substantial justice, particularly where fair-hearing is in issue. This is because the order of mandamus granted against the 1st Respondent by the trial Court formed the basis of leave granted to him to appear as an interested party through a Motion dated 20th June 2017, which had a deeming order as its prayer 3. I observe that in 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 was moved in terms and ordered as prayed by the lower Court safe for relief 2. These facts are crystal clear on pages 290-352 of the Record of Appeal.
The question is, was deeming order refused specifically or by implication by the Court below in this circumstance for the purpose of determining the validly 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 relict 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 reliefs 1 and 3. See the case of SHINKAFI & ORS v. YARI & ORS (2016) LPELR-26050 (SC) where the maxim was applied by this Court, per Okoro, JSC. See also BUHARI v. YUSUF (2003) 14 NWLR (Pt. 841) 446 at 499; AGBAREH v. MIMRA (2008) NWLR (Pt. 1071) 378.
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The issue in this appeal revolves around the cardinal principle of justice and fairness-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 v. ATTORNEY GENERAL OF OYO STATE (1987) NWLR (Pt. 53), Page 709 paragraph G, per Obaseki, JSC (Blessed Memory), 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 v. RAPHAEL OBIORA (1959) 4 FSC 226; (1959) SCNLR 577 cited with approval by Iguh, JSC in EKIYOR & ANOR v. BOMOR (1997) 9 NWLR (Pt. 519) 1 at 14.
The issue of fair hearing was brutally silenced by the trial Court given the circumstances of this appeal. The refusal to join the 1st Respondent in this appeal appears to be a similar political ploy or orchestrated scheme to edge out the 1st Respondent from the scheme of things in the affairs of the Appellant, being a political parry. Thus, the decision of this Court in PRINCE BIYI POROYE & ORS v. MAKARFI & ORS (supra) 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 v. 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 proceeding well conducted.” See also SALU v. EGEIBON (1994) 6 NWLR (Pt. 348) 23 at 40, CEEKAY TRADERS LTD. v. GENERAL MOTORS CO. LTD. (1992) 2 NWLR (Pt. 222) 132, ATANO v. 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 simply because the lower Court did not specifically pronounce on deeming order as it related to the Notice of Appeal beyond declaring “ordered as prayed” is cheap and needless resort to technicalities to defeat the ends of justice. We must continue to take deliberate measures and steps to instill and enforce a change of mindset to demonstrate that the era of technicalities is gone, and gone for good in the annals of justice in this country.
All other Courts down in the judicial ladder and all counsel as officers in the hallow temple of justice must maximally comply and uphold this new trend.
This above resolve is further demonstrated in OYEYEMI & ORS v. OWOEYE & ANOR (SUPREME COURT SUIT NO. SC.102/2013), where the above position of law and attitude of this Court to justice and the need to avoid technical justice was reiterated thus:-
“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 con. 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.
The need to do substantial justice and avoid delving into the error of technicalities is well settled. See also the case of MAKERI SMELTING CO. LTD v. ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt. 766) 411 at 476-417.
The above cases have pictured clearly that the attitude of the Courts now is that cases should always be decided, wherever possible on merit. 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 v. IDEHIA (1991) 8 NWLR (Pt. 364) 504, ARTRA IND. LTD v. N.B.C. (1997) 1 NWLR (Pt. 483) 574, DAKAT v. DASHE (1997) 12 NWLR (Pt. 531) 46, BENSON v. NIGERIA AGIP CO. LTD (1982) 5 S.C. 1.
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 the judgment of the trial Court dated 22nd May 2017 was predicated is also resolved against the Appellant, for reasons canvassed above.
In view of the foregoing, and 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 judgment of the lower Court dated 16th August 2017, is hereby affirmed.
There shall be no order as to cost.
SC.718/2017