Comrade Mike Alioke V. Dr. Victor Ike Oye & Ors (2018)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This is an appeal against the decisions of the Court of Appeal, sitting in Enugu delivered on 15th and 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 17th August 2017, as contained at pages 691-697 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 appeals Nos. SC.598/2017 and SC.600/2017 before this Court (Supreme Court). Ground two alleges error of law on the part of the Court below for assuming jurisdiction to entertain and determine Appeal No. CA/E/367/2017 which was initiated by a party interested without the prior leave of the Court first sought and obtained. The third and final ground of the appeal alleges error of law on the part of the lower Court in seeking to regularise the notice of Appeal filed in Appeal No. CA/E/367/2017.
SUMMARY OF FACTS:
The 1st Respondent herein who had occupied the
position of the National Chairman of the 2nd Respondent (APGA) was suspended from acting in that capacity on ground of misconduct. Subsequently, the National Working Committee (NWC) of the 2nd Respondent 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 2nd Respondent.
The 3rd Respondent refused to recognise the adoption of Chief Martin Agbaso as Acting National Chairman of the 2nd Respondent. Due to this development, an application for order of Mandamus to compel the 3rd to 5th Respondents to recognise the appointment of Chief Martin Agbaso as Acting National Chairman of the 2nd Respondent was filed on 21st April 2017, by the Appellant purportedly acting on behalf of the 2nd Respondent asking amongst others, for an order of Mandamus compelling the 3rd Respondent to accept and recognise the decision of the 2nd Respondent appointing one Chief Martin Agbaso as the Acting Chairman of the 2nd Respondent.
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. As contained at pages 202 and 203 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 15th June 2017. Also filed along with the Notice of Appeal is an application for leave to appeal as an interested party against the decision of the trial Court dated 16th June 2017, as contained in pages 245-283 of the Record of Appeal.
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 Respondent to appeal against the judgment of the trial Court as an interested party. In the said order, the Court below also deemed the Notice of Appeal dated and filed 20th June 2017, as properly filed and served. The Court
made order for abridgement of time for parties to file their respective briefs given the nature of the subject matter of the order of Mandamus. The substantive appeal was heard on 15th August 2017, and the Court below delivered its judgment in the appeal on 16th August. Being dissatisfied with the judgment, the Appellant has filed this appeal on the grounds earlier summarised above.
The 14-page Appellant’s Brief of argument is dated 25th September 2017, but filed 26th September 2017. The Appellant further filed a Reply Brief to the 1st Respondent’s Brief. The 9 pages Reply was dated 17th April 2018, and 18th April 2018.
On its part, the 1st Respondent filed its Respondent’s Brief dated 15th March 2018, and deemed properly filed and served on 24th April 2018. In its Respondent Brief, the Respondent raised and argued its Notice of Preliminary Objection dated and filed 15th March 2018. 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 against the judgment of the trial Court. 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 17, which has since given its final decision on 16th August 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 VS JOHN (2015) 7 NWLR (Pt.1458) 393 at 423; ATTORNEY- GENERAL OF ANAMBRA STATE VS OKAFOR (1992) 2 NWLR (Pt.224) 396 at 430; BADEJO VS FEDERAL MINISTER OF EDUCATION (1996) 1 NWLR (Pt.464) 15; ATTORNEY GENERAL OF PLATEAU STATE VS ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR (Pt.967) 246; CBN VS JACOB OLADELE AMAO & 2 ORS (2010) 16 NWLR (Pt.1219) 271 SC; PPA VS INEC (2012) 13 NWLR (Pt.1317) 215 at 247-248.
The Appellant also joined issues with the 1st Respondent
as to the Preliminary Objection in his Reply Brief, dated 17th April 2018, filed 18th April 2016, but deemed 24th April 2018, wherein the Appellant contented that the preliminary objection of the 1st Respondent is misconceived and a misapplication of the law. The Appellant contended that this appeal is captured and envisaged within the boundaries of Section 233(2)(a) 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 further that assuming without conceding that leave was not sought or obtained before making an interlocutory decision a subject of a ground of appeal against the final decision of the lower Court, it cannot render the appeal incompetent on the authority of IWEKA VS S.C.O.A (NIG.) LTD (2000) 7 NWLR (Pt.664) 235 at 348, Paragraphs E-G.
On whether the appeal has become an academic exercise as alleged by the Respondent, the Appellant contended that the issue of lower Court’s jurisdiction is certainly not spent, as it is trite that jurisdiction being the heart and live
wire of a matter, can only be spent when the Supreme Court has finally decided on it. The Appellant concluded that, to this end, this appeal is not academic as it is very much alive. The Appellant then urged this Court to dismiss or discountenance the objection of the Respondent and proceed to hear and determine the appeal on its merit.
RESOLUTION OF PRELIMINARY OBJECTION
As in the sister appeal, 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 Respondent and Appellant’s response to same, both which have been summarised above. The law is settled that jurisdiction as 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 VS OLUJITAN (2000) 5 NWLR (Pt.655) 159, AMADI VS NNPC (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
PDP VS OKOROCHA & ORS (2012) LPELR – 7832(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 VS LEVENTIS TECHNICAL CO. LTD (1992) 5 NWLR (Pt.244) page 675, MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341, and OLORIODE VS 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 Appellant’s Notice of Appeal dated 17th August 2017, 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 identifying the real issues for determination in the substantive appeal to enable me determine and resolve same.
ISSUES FOR DETERMINATION:
The Appellant formulated three issues at page 5 of its Appellant’s Brief, thus:-
“(1) Whether the learned Justices of the Court of Appeal were right when they refused to stay proceedings in Appeal No. CA/E/367/2017, notwithstanding the pendency of a Motion for Stay of Proceedings at the Supreme Court in Appeal Nos. SC.598/2017 and SC/600/2017 in respect of and pertaining to Appeal No. CA/E/367/2017 (Ground one).
1) Whether the learned Justices of the Court of Appeal were right when they assumed jurisdiction to entertain and determine Appeal No. CA/E/367/2017 which was initiated by a party interested (id est,1st Respondent herein) without prior leave of the Court having been sought and obtained (Ground two).
2) Whether the learned Justices of the Court of Appeal were right when they held that the order of
the Court of Appeal of 10th July 2017 in Appeal No. CA/E/358/2017, granting leave to the 1st Respondent herein to appeal as an interested party, effectively regularised the Notice of Appeal that the 1st Respondent had filed before obtaining leave to appeal (Ground one).”
On his part, the 1st Respondent 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).
(a) Whether the Court below properly, 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 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).”
I have taken time to carefully consider the issues
formulated by both parties for the purpose of determining this appeal. It is clear that there are two main issues in this appeal; namely one of fairness and exercise of judicial discretion. I wish to also add 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, like I did in the sister appeal, I have also modified the issues respectively formulated by the Appellant and the 1st Respondent, and have adopted the two issues below for the purpose of deciding this appeal, 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:
“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 parties have substantially re-argued or re-adopted their arguments and submissions in the sister case (SC.718/2017). 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 by virtue of Order 8 Rule 11 of the Supreme Court Rules, after an appeal has been entered at the Supreme Court against a decision of the Court of Appeal, and until the appeal is finally disposed of, the Supreme Court shall be seized of the whole of the proceedings as between the parties thereto. The Appellant relied on the case of BIOCON AGROCHEMICALS (NIG) LTD & 3 ORS VS KUDU HOLDING (NIG) LTD & ANOR (1996) 2 SCNJ, Page 212 at 219, per KUTIGI JSC (former CJN as he then was).
The Appellant contended that it was wrong for the Court below to have expected an application for stay of
proceedings to be filed before it to enable that Court stay proceedings, and that the Court of Appeal ought to have stayed proceedings as soon as it became aware that a motion for stay had been filed at the Supreme Court. To draw home its arguments, the Appellant further relied on and quoted extensively from the decision of this Court in ALHAJI SULAIMAN MOHAMMED & ANOR VS LASISI SANUSI OLAWUNMI & 9 ORS (1993) 5 SCNJ Page 94 at 112-113, per OLATAWURA JSC. (Blessed Memory as he then was).
In its contention on the issue, the 1st Respondent contented that there was no cognisable pending Motion for Stay of proceedings before the Supreme Court against the hearing of Appeal No. CA/E/367/2017. There was also no indication or evidence that any date had been assigned for the hearing of the Motion on Notice for Stay of Proceedings allegedly filed at the Supreme Court. The 1st Respondent further argued that the process filed before the Supreme Court is a public record within the meaning of Section 102 of the Evidence Act and by the combined effect of Sections 104 and 105 of the Evidence Act 2011 and Sections 87(a) and 89(e) and 90(1)(c) of the Evidence Act.
Thus, the only evidence admissible is to prove the alleged Motion on Notice claimed to have been filed before the Supreme Court is a certified copy of the said Motion on Notice. The 1st Respondent relied on PDP VS INEC (2014) 17 NWLR(Pt.1437) 525 SC; ALHAJA SHITTU & ORS VS OTUNBA FASHAWE (2005) 14 NWLR (Pt.946) 671; 2005 LPELR -3058 (SC) at 19-20; FAWEHINMI VS IGP(2000) FWLR (Pt.12), ZENITH BANK VS JOSEPH AKINNIYI (2015) LPELR – 24715 (CA).
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 submits that the authority of ALHAJI SULAIMAN MOHAMMED & ANOR VS LASISI SANUSI OLAWUNMI & 9 ORS (Supra) cited by the Appellant in his Brief is good law, but completely inapplicable to the facts and circumstances of the instant appeal. The 1st Respondent submitted that the case of MOHAMMED V OLAWUNMI (SUPRA) cited by the Appellant is also inapplicable to this case.
The 1st Respondent contended that the learned Justices of
the Court below could not reasonably be said to be aware of the purported Motion on Notice for stay of proceedings at the Supreme Court. The ruling of Court below comprehensively referred to the documents on which the Appellant’s had relied upon. 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 VS AIGORO (1985) 1 SC (REPRINT) 182; OLANIYAN VS UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt.9) 599; BABATUNDE VS 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.
The parties approached issue one in this sister appeal differently like they did in other appeal on the subject matter. The Appellant sees it as jurisdictional in nature, 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 a matter of discretion for the Court below to also stay its proceedings.
But, 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.
Divergent approach to the issue notwithstanding, 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, the whole issue revolves around his status, and the effect of the order of mandamus on his right. 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 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.
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 VS NIGERIAN CONSTRUCTION & FURNITURE CO. LTD. & ORS. (1991) 7 SC (Pt.III) (REPRINT) 33 at 56; GREEN VS GREEN (1987) 3 NWLR (60) 480. See also UWAZURUIKE & ORS VS ATTORNEY GENERAL OF THE FEDERATION (2013) 4-5 SC (Pt.l) 90 at 119 Lines 16-21; (2013) LPELR-20392 (SC) 1 at 24, Per FABIYI, JSC (as he then was).
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.
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.
The Appellant’s contention 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 is misplaced. It is settled law that an appeal does not operate as a stay of proceedings. Appropriate motion ought to be first filed at the lower Court. However, where appeal has been validly entered, the application must be filed in this Court. Clearly, this
Court has granted no stay of Proceedings, thus the pendency of the Motion for Stay becomes a matter of fact to be proved by cognisable and admissible evidence. Even at that, the lower Court’s power to grant or refuse stay of its proceedings remains discretionary. It becomes peremptory only if ordered by this Court.
The issue in this appeal relates to the exercise of judicial discretion in granting leave to the 1st Respondent. To all intents and purposes, in this appeal, the application for Stay of Proceedings calls for the exercise of discretion of the Court, which the lower 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 for obvious reasons.
In view of the foregoing, I’m unable to fault the approach of the lower Court in doing justice in this appeal. To the best of my evaluation, the lower Court was right in exercising its discretion in favour of the 1st Respondent amidst obvious ploy to edge him out through what I referred to in the sister case as “judicial” means without joining him as party. I hold that the 1st Respondent
ought to have been joined being a necessary party to the suit. In sum, I resolve issue one formulated in this appeal by against the Appellant.
“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 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 the learned Justice of the Court of Appeal were wrong when they held that the Motion on Notice and the order of the Court of Appeal of 16th July 2017, in Appeal No. CA/E/367/2017 had cured the fatal defect in the appeal since the Court of Appeal did not make or grant order regularising the notice of Appeal earlier filed in Appeal No. CA/E/367/2017 which was filed before leave to appeal as an interested party was granted to the 1st Respondent.
The Appellant also argued in its Reply Brief dated 17th April 2018, that when the 1st Respondent moved its application
for leave to appeal as an interested party. it was obvious that he had abandoned the deeming order in relief 3. Thus, the Latin maxim and cases cited by the 1st Respondent are not applicable. The Appellant further urged this Court to discountenance the 1st Respondent submissions and allow this appeal.
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 safe for relief No 2, relying on the latin maxim, ‘Expressio unius est exclusion alterius’. or inclusion unis est exclusion alterius’. The 1st Respondent referred to the cases of SHINKAFI & ORS VS 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 VS 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, our duty must be to look beyond procedural technicalities to do substantial justice, particularly where fair-hearing is in issue. One issue keeps resonating all through the instant appeal, which is failure to join the Respondent and Chief Martin Agbaso as interested parties. It is particularly fishy that an order of mandamus granted against the interest and right of the 1st Respondent by the trial Court without joining him. This is what formed the basis of the leave granted to him to appeal as an interested party through a Motion dated 20th June 2017, which had a deeming order as its prayer 3.
In the instant case, like in the sister appeal on the subject matter, I observe that by 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 400-405 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 validity 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 relief 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 VS YARI & ORS (2016) LPELR-26050 (SC) where the maxim was applied by this Court, per Okoro JSC. See also
BUHARI VS YUSUF (2003) 14 NWLR (Pt.841) 446 at 499; AGBAREH VS MIMRA (2008) NWLR (Pt.1071) 378.
This appeal also touches and concerns the issue of justice and fairness i.e “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 VS ATTORNEY GENERAL OF OYO STATE (1987) NWLR (Pt.53), Page 709 paragraph G, per Obaseki JSC (Blessed Memory as he then was) 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 VS RAPHAEL OBIORA (1959) 4 FSC 226; (1959) SCNLR 577 cited with approval by Iguh, JSC (as he then was) in EKIYOR & ANOR. VS BOMOR (1997) 9 NWLR (Pt.519) 1 at 14.
The refusal to join the 1st Respondent in this appeal appears to be a similar political ploy to edge him out of the scheme of things in the affairs of the Appellant, being a political party. Thus, the decision of this Court in PRINCE BIYI POROYE & ORS VS MAKARFI & ORS (2017) LPELR – 42738 SC 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 VS 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 proceedings well conducted.” See also SALU VS EGEIBON (1994) 6 NWLR (Pt.348) 23 at 40, CEEKAY TRADERS LTD. VS GENERAL MOTORS CO. LTD. (1992) 2 NWLR (Pt.222) 132, ATANO VS 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 is cheap and unconvincing. The Appellant tried hard to convince this Court that because the lower Court did not specifically pronounce on deeming order as it relates to the Notice of Appeal beyond declaring “ordered as prayed” then the notice of Appeal is invalid. This is a typical case of needless resort to technicalities to defeat the ends of justice. 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. See the case of OYEYEMI & ORS VS OWOEYE & ANOR (SUPREME COURT SUIT NO. SC.102/2013). See also MAKERI SMELTING CO. LTD VS ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt.766) 411 at 476-417.
The need to do substantial justice and avoid delving into the error of technicalities is well settled. 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 VS IDEHIA (1991) 8 NWLR (Pt.364) 504, ARTRA IND. LTD VS NBC ( 1997) 1 NWLR (Pt.483) 574, DAKAT VS DASHE (1997) 12 NWLR (Pt.531) 46, BENSON VS 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. 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 ruling and judgment of the lower Court respectively dated 15th and 16th August 2017, are hereby affirmed. There shall be no order as to cost.