Hon. Justice Titus Adewuyi Oyeyemi (Rtd) & Ors V. Hon. Timothy Owoeye & Anor (2017)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This is an appeal against the Judgment of the Court of Appeal Akure Judicial Division sitting in Akure delivered on 29th November, 2012 in appeal No. CA/AK/31M/2011. The Appellants had in the appeal before the Court of Appeal appealed against the Judgment of the Osun State High Court, Oshogbo Judicial Division sitting in Oshogbo in Suit No. HOS/M.70/2010 delivered by Hon. Justice S.O. Falola on 3rd December, 2010. The Claimant/Respondent in this appeal instituted the action at the High Court against the Defendant/Respondent to this appeal by way of Originating Summons claiming five declaratory reliefs. The Originating Summons, and the reliefs claimed are as follows:
“LET THE DEFENDANT within forty two days after the service of this summons on him inclusive of the day of such service cause an appearance to he entered for him to this summons which is issued upon the application of the claimant of Osun State House of Assembly quarters, Osogbo for the determination of the following questions:
- Whether the screening of the Chairman and members of OSSIEC during the
pendency of appeal in Suit No. HOS/M.41/2009 is not improper, incompetent, null and of no effect.
- Whether the screening of the Chairman and members of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is not an abuse of Court.
- Whether taking into consideration the combined Order 11 Rules 1, 2, 4, and 5 of the Court of Appeal Rules, 2007, the notice of withdrawal dated the 27th day of March, 2010 automatically terminated the appeal filed by the Appellant in this case. (sic)
- Whether the filing of a stay of execution of a Judgment by a party against whom the Judgment is given has not put the judgment in abeyance until the ruling on the application is delivered.
- Whether an appeal properly filed at the High Court registry is for onward transmission to the Court of Appeal and could be properly terminated at the same High Court Registry by mere filing a notice of withdrawal of Appeal.
WHERE OF the plaintiff claims as follows:
- A declaration that the screening of chairman and members of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is improper, incompetent, null and void and of no effect. <br< p=””
A declaration that the screening of the Chairman of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is an abuse of Court process.
- A declaration that, taking into consideration the combine effects of Order 11 Rule 1, 2, 4 and 5 of the Court of Appeal Rules 2007, the notice of withdrawal of appeal dated the 27th day of March, 2010 cannot automatically terminated the appeal filed by the Appellant in this appeal. (sic)
- A declaration that the filing of an application for stay of execution of judgment delivered on 25th day February, 2010 by the defendant against whom the judgment is given has put the judgment in abeyance until the ruling on the application for stay of judgment is delivered.
- A declaration that an appeal properly filed at the High Court Registry is for onward transmission to the Court of Appeal and cannot be terminated before the same High Court by merely filing a notice of withdrawal of appeal.”SUMMARY OF FACTS
In the early part of March 2009, the Executive Governor of Osun State appointed the first to the sixth Appellants as Chairman. Secretary and Members respectively of the Osun State
Independent Electoral Commission (OSSIEC). The list was transmitted to the Osun State House of Assembly (OSHA), who are the Defendants/Respondents, for confirmation.
On 24/3/2009, the Appellants appeared before the Osun State House of Assembly (the Defendants/Respondents) for screening for the constitutional purpose of confirmation of their appointments. The Appellants supplied their respective Curriculum vitae within a relatively short notice. Only two of the Appellants submitted their Credentials together with the Curriculum Vitae for screening and confirmation to Osun State House of Assembly. The Claimant/Respondent maintained that without the submission of Credentials by all the Appellants, the allied issue of Screening and Confirmation should not hold. That position was over-ruled by the majority and by majority votes of its members, the OSHA (the Defendants/Respondents) confirmed the appointments of the Appellants. The Governor proceeded to swear in the Appellants on April 3rd, 2009, as Chairman, Secretary and Members of OSSIEC respectively.
The Claimant/Respondent and some members of Action Congress in OSHA were dissatisfied with the procedure
followed in confirming the Appellants. The Claimant/Respondent thereafter commenced an action by way of Originating Summons before the Osogbo High Court in Suit No. HOS/M.41/2009 – HON. TIMOTHY & ORS VS OSUN STATE HOUSE OF ASEMBLY. The claimants sought for five declaratory reliefs. The Defendant/Respondent filed a defence. The trial Court Osogbo State High Court sitting at Osogbo) passed its Judgment on 25/2/2010, granting the reliefs claimed. In other words, Judgment was in favour of Claimant/Respondent.
Unfavoured and aggrieved by the Osun High Court Judgment (under the Superintendence of Hon. Justice S.O. Falola), the Defendant/Respondent, the OSHA, appealed to the Court of Appeal, Akure Division. The Defendant/Respondent also applied for Order of stay of execution of the High Court’s judgment which was later abandoned. The application of stay of execution was sought before the High Court itself. In a rather dramatic twist of events, the Defendant/Respondent followed its Application for stay of execution with a Notice of the withdrawal of the appeal and subsequently issued forth fresh invitation to the already “Sworn-in” members of OSSIEC for fresh screening and confirmation exercise. On 30/3/2010,
the Defendant/Respondent, by majority vote, confirmed the appointment of the Appellants. The Governor of the State swore them for the second time on 1/4/2010. There was, as it were, a clear re-think by the Defendant/Respondent as to the legality or propriety of its earlier actions.
The Claimant/1st Respondent sought to contest the new position and action of the Defendant/Respondent by instituting another suit of the High Court, Osogbo – SUIT NO. HOS/M.70/2010 – HON. JUSTICE TIMOTHY OWOEYE V. OSUN STATE HOUSE OF ASSEMBLY.
In the new suit, he contested the legal validity of the Notice of Withdrawal of the appeal against the Judgment of the Osun High Court, Osogbo, Suit NO. HOS/M.41/2009. He averred that the said Notice was technically incapable of terminating the appeal because it was incompetent for want of service. He contended that both the appeal and application for stay of execution were still valid and subsisting.
Accordingly (and consequently), he argued that the new screening and re-confirmation were irregular and constituted an abuse of Court process.
The Osun State
High Court, Osogbo, agreed with the Claimant/Respondent and accordingly invalidated the said Notice of withdrawal and granted all reliefs claimed by the Claimant/Respondent. The Osun High Court made a further order dissolving the OSSIEC and directed the Appellants in the case before us to vacate their respective offices.
It is noteworthy at this juncture that the Appellants are not Parties at the trial Court. It was after trial Courts Judgment that they sought leave of the lower Court to lodge an appeal against the said judgment as interested parties before it. The Appellants proceeded on appeal to the Court of Appeal, Akure, Judicial Division. They presented Six Grounds of Appeal and formulated six issues therefrom for the determination of the appeal.
The Court of Appeal resolved all six issues presented before it against the Appellants. It dismissed their Appeal in its Judgment of 29/11/2012.
The Appellants were dissatisfied with the Court of Appeal’s decision and accordingly filed a Notice of Appeal before this Court containing three (3) Grounds of Appeal. Each of these Grounds is supported by a number of details (or particulars) to
explain the respective arguments. Three (3) forms of Reliefs are being sought before this Court by the Appellants. The Appellants Relief of Argument raises four (4) issues for determination by this Court. Arguments and submission are equally articulated respecting the issues.
ISSUES FOR DETERMINATION
“The Appellants humbly submit the following issues for determination of this appeal.
(1) Whether the learned Justices of the Court of Appeal were right in upholding the decision of the learned trial judge on the ground that the notice of withdrawal of appeal filed by the Defendant/Respondent against the Judgment of the High Court in suit No. HOS/M.41/2009 HON. TIMOTHY OWOEYE V. OSUN STATE HOUSE OF ASSEMBLY was not served on the Claimant/Respondent.
(Relate to Ground 1 of the Grounds of Appeal)
(2) Whether the learned Justices of the Court of Appeal were right in their decision that the Appellants have no interest in the matter of the suit before the trial Court and that the proceeding is not a breach of the Appellants right to fair hearing.
(Relate to Ground 2 of the Grounds of Appeal)
(3) Whether the learned Justices
of the Court of Appeal were right in upholding the decision of the trial Court dissolving OSSIEC on the basis that the screening and confirmation exercise cannot be done when the Defendant/Respondent’s appeal against the Judgment in suit No. HOS/M.41/2009 is still pending.
(Relate to Ground 3 of the Grounds of Appeal)
(4) Whether the order dissolving OSSIEC and ordering the Appellants to vacate office made by the learned trial judge and upheld by the Court of Appeal can appropriately be qualified as a consequential order in view of the circumstances of this case.”
(Relate to Ground 4 of the Grounds of Appeal)
In his brief of argument and oral presentation before this Court, learned Counsel to the 1st and 2nd Respondents aligned with and adopted the issue for determination as formulated by the Appellants.
After a careful perusal of the four (4) Issues proposed by the learned counsel for the Appellant, which the 1st and 2nd Respondents adopted mutatis mutandis, in the opinion of this Court, only two main issues arise for the just determination of this appeal. The said issues capture all the grounds of the appeal. The two (2) issues are
“1) Whether the learned Justices of the Court of Appeal were correct in upholding the decision of the trial Court that the notice of withdrawal filed by the Appellants against the judgment of the High Court in Suit No. HOS/M.41/2009 was not served on the Claimant/Respondent.
2) Whether the learned Justice of the Court of Appeal were right in upholding the decision of the learned trial Judge that the Appellants have no interest in the matter before the trial Court and that the proceedings did not breach the Appellants right to fair hearing.
Whether or not the learned Justices of the Court of Appeal were correct in upholding the decision of the trial Court that the notice of withdrawal filed by the Appellants against the Judgment of the High Court in suit No. HOS/M.4/2009 was not served on the Claimant/Respondent.”
The gravamen of the submission of learned Counsel to the Claimant/Respondent and the 2nd Respondent respectively placed before us at pages 5-9 of the two Respondents briefs on issue 1 is that, the Notice of withdrawal of the appeal filed by the Appellants under Order 11 Rule 1 dated 29th March, 2010
was not a valid withdrawal due to non-service.
Let me pause to register our observation on the duplicitous briefs of the two Respondents, which are similar in content and con, appearing verbatim and serialization as in the example of pages 5-9 of the arguments on issue one. This is a point to note in advocacy and brief writing. The 2nd Respondent, knowing it has nothing different to canvass in its brief would at best have adopted or rested its position on that of the Claimant/Respondent as against seeming and obvious plagiarism. We reckon with the date of filing as against purposive dates the documents were signed. The 1st Respondents Brief is dated 24th June, 2013 while the date of the 2nd Respondents brief is 13th, May 2014 and filed on 5th May 2014, almost a year after the 1st Respondents brief which it copied almost verbatim. It paints a picture of a needless, afterthought recourse of a less diligent legal officer.
That said, the flip side of the argument on issue 1 is laid-out at Page 6 – 9 of the Appellants brief of arguments. In essence, counsel contend that the issue of non-service of the notice of withdrawal could
have been made an issue at the Court of Appeal.
Those are the divergences of the positions of the Appellants and Respondents as far as issue 1 is concerned. 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. The principle has been rehashed in a long line of authorities, for example: NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION (N.R.M.A.F.C) V. JOHNSON (2007 49 W.R.N. pages 169-170 where Per Odili JCA (as he then was) opined as follows:
“….The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to non pursue the course of substantial
justice. See MAKERI SMELTING CO. LTD. V. ACCESS BANK (NIG.) PLC (2002) 7 NWLR (PT. 766) 411 at 476-417.
The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because, blunder has 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. NBC (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.
A number of points have been made that would inform our final decision on this issue. Save for disputing and denying service and non-service, the parties are ad idem that a Notice of Withdrawal was indeed filed dated 29th March, 2010 before the fresh invitation and clearance of Appellants for confirmation on March 30, 2010 and fresh swearing-in by the then Governor on 1st April, 2010.
The cause of action of the
Respondents, as originally canvassed in Suit No. M.41/2009 (HON. OWOEYE V. OSUN STATE HOUSE OF ASSEMBLY) by way of originating summon was, and remained, the procedural irregularities in the initial screening of the Appellants on 24th March, 2009 despite failure to present (enough) copies of their credentials contrary to the provisions of Section 106 and 200 (1)(a) of the 1999 Constitution.
It does not appear to us that the basis of the tussle has shifted or lost its original natural colours. What remains certain is that, upon the judgment of 25th February, 2009 nullifying the initial confirmation, an appeal was filed alongside a motion for stay of execution. But about a year later, the Appellants had a rethink and opted to regularise the process of screening and confirmation, being the basis of the dispute. To effectuate this, a Notice of Withdrawal was filed in the registry to terminate the appeal, but the Respondents insisted on being sued on the supposed, misconceived notion that a party who voluntarily opted to sheath his sword could not do so. The law is settled that an appeal could be withdrawn by filing a notice of intention to discontinue or
See the cases of DALFAM (NIG.) LTD V. OKAKU INTERNATIONAL LTD (2001) 15 NWLR (Pt. 735) 203 at 250, LENAS FIBREGLASS LTD. VS FURTODO (1997) 8 NWLR (Pt. 504) 220 at 231, ERONINI V. IHENKO, (1989) 2 NWLR (Pt.101) 56 at 63; (1989) 20 N.S.C.C. 503 at 520. UNIVERSITY OF LAGOS V. AIGORO (1985) 1 S.C. 265 at 271 and UNIVERSITY OF LAGOS V. OLANIYAN (1985) 1 S.C. 295.
Filing and service of a process have different legal essence. By Filing, a party crystallizes a legal process for the attainment of specific objective in judicial proceedings. Service is intended as notice to the other party and does not vitiate a judicial process duly initiated except that the attainment of the objective might be put in abeyance without proper or valid service. See the cases of AJIBOLA V. SOGEKE (2001) 23 W.R.N.68 at 88, SAIDU V. MAHMOOD (1998) 2 NWLR (Pt. 536) 130 at 138 and NATIONAL EMPLOYERS MUTUAL GENERAL INSURANCE ASSOCIATION LTD. V. LADUN MARTINS (1969) 1 A.N.L.R. 469 at 473.
The objective of notice of termination in the instant appeal is to voluntarily put an end to a judicial process or terminate the objective for seeking judicial remedies. A party should
not be crucified for conceding defeat or bowing out of a fight, where, anticipatorily, he is set to be the loser. The Claimant Respondent in this case opted to continue to fight a shadow in this case. Had the Claimant/Respondent herein being interested in Defendant/Respondent’s appeal against the judgment in HOS/M.41/2009 he could he could have followed through the process of appeal by compiling the record of appeal and transmitting same to the Court of Appeal within the time permissible with the Court of Appeal Rule and enable the Court of Appeal to assume jurisdiction rather than filing a new suit to ventilate his grievances against the procedural infraction. After all, the duty to compile record is not restricted to the person appealing but also to the Respondent in an appeal. Were this step taken by the Claimant Respondent in this case needless litigation would have been avoided and the issue of withdrawal of appeal would have settled once and for all by the Court of Appeal timeously.
Seeking to stop further confirmation of the Appellants despite rectification of initial procedural irregularities or gaps would appear to mean that the Respondents
had a mission or objective different from their initial cause of action in Suit No. HOS/M.41/2009, which was to ensure compliance with the conditions precedent to confirmation of the Appellants. The Claimant/Respondent desired that the Defendant/Respondent should comply with the Judgment of the Court in Suit No. HOS/M.41/2009 by remedying procedural irregularities. It would appear inconsistent on the part of the Claimant/Respondent to insist that the Defendant/Respondent cannot voluntarily withdraw their appeal after swallowing its pride to do what the Respondent had insisted must be done before their confirmation could be said to be valid.
Against, the background of this case, it is rather amazing that Claimant/Respondent and Defendant/Respondent who were adversaries in HOS/M.41/2009 in their Briefs before this Court maintained the same position and insisted in a rather contradictory manner, that the Appellants could still not be confirmed and/or sworn-in as did on 30th March and 1st April by the House of Assembly and the then Governor of Osun State respectively. This is the misconceived basis for which another action (Suit HOS/M.70/2010) was instituted.
This patently is a reckless abuse of judicial process that should be discouraged to avoid needless overburdening of the already burdened judiciary. The Courts have opined severally and unambiguously on what constitutes an abuse of process (authorities or abuse of Court processes).
The Respondents have admitted, and abundance of documentary evidence in the Record of appeal and briefs of arguments also indicate the existence of Suit No. HOS/M.41/2009 is uncontroverted. But the Respondents, particularly the Claimant/Respondent, would want us to join him on the misguided frolic of assumption that the later suit, M.70/2010 became inevitable as the Appellants had blundered by withdrawing the appeal against the earlier suit without ensuring service. Clearly, we cannot sit on this side of the hall and encourage litigant to take judicial sanctity for granted. The existence of a suit on appeal, and the fact that the Claimant/Respondent had earlier objected to the non-service of Notice of Withdrawal on him shows that issues had been joined. The logic of judicial sanctity dictates that the earlier suit and its appeal ought to be rested and decided one way or the
other including whether or not the appeal was validly withdrawn. By instituting another action which embodies the issues as in the earlier action on appeal makes the later manifestly an unpardonable abuse of Court process.
This Court has succinctly enunciated in NTUKS VS NPA (2007) 13 NWLR (Pt. 1051) page 392 on the meaning of abuse of Court process and held that:
“Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or
Per Tobi, J.S.C.”
Furthermore, in CHIEF VICTOR UMEH & ANOR VS PROFESSOR MAURICE IWU & ORS (2008) Vol. 41 WRN 1 at 18 lines 5-10 (SC) this Court enunciated on what abuse of process connotes and attitude of Courts to suit filed in abuse of process thus:
“It is settled law that generally, abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issue.
See OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (Pt. 996) 205 and OKAFOR VS ATTORNEY-GENERAL OF ANAMBRA STATE (2001) 7 WRN 77; (2001) FWLR (Pt.58) 1127; (1991) 6 NWLR (Pt. 200) 659; (1991) 9-10 SCNJ 107. The bottom line of these authorities in regard to abuse of process is that, to institute an action during the pendency of another suit claiming the same relief is an abuse of Court process and the only course open to the Court is to put an end to the suit
Per Chukwuma Eneh and Onnoghen, JSC.”
The act of filing another suit by the Respondents in suit No. M.70/2010 is reprehensible. If strongly aggrieved, a conscionable litigant in an assumed ongoing appeal from a similar Suit (HOS/M.41/2009)
would have, through Counsel, pursued the appeal as earlier stated and make the issue of non-service a distinctive ground and seek relief(s) to set aside the proceedings of 30th March and 1st April by the House of Assembly and the then Governor of Osun State respectively. Not doing so makes the new suit unnecessary and unconscionable. Put differently, filing another suit while the validity or otherwise of the withdrawal of the appeal was pending amounted to cherry-picking. The Respondents, by so doing, have constituted themselves into judicial nuisances by assuming that withdrawal of the appeal filed against suit No. HOS/M.41/2009 was invalid and that the best way to vent their misgivings was to file yet another action, Suit No. HOS.M.70/2010.
In view of the foregoing, Issue 1 is resolved in favour of the Appellants. Since appeal had not been entered at the Court of Appeal at the time of filing the Notice of Withdrawal, the filing of same at the lower Court clearly and effectively puts an end to the appeal. The decisions in EZOMO VS ATTORNEY-GENERAL BENDEL STATE (1986) 4 NWLR (Pt. 36) and GOVERNING COUNCIL OF ITF VS CHIJIOKE (1998) 3 NWLR (Pt. 540) 170 are
applicable and are hereby applied. Issue 1 is resolved in favour of the Appellants.
“Whether or not the learned Justice of the Court of Appeal were right in upholding the Decision of the learned trial Judge that the Appellants have no interest in the matter before the trial Court and that the proceedings did not breach the Appellant’s right to fair hearing.”
The 1st Respondent argued issue 2 at pages 9-11 of his brief. The 2nd Respondent also made similar repetitious submissions on the same pages (9-11) of its brief in a way and manner similar to 1st Respondent.
Relying on TOOGU V. OPUTA (2001) 16 NWLR (Pt. 940) at page 585, the 1st and 2nd Respondents respectively at page 10, Paragraph 4.08 and page 10, Paragraph 4.06 of their brief is that, I quote:-
” It is only when Section 198 CFRN is duly complied with by the House of Assembly, that right to the Appellant under Section 199 of the Constitution become established right of the Appellant as Chairman and members of OSSIEC.”
The Appellant’s brief of argument encapsulates issue 2 on pages 10-11. The Appellants contended that the Court of Appeal was wrong. <br< p=””
Learned Counsel to the Appellant in his Brief of Argument submitted that:-
“It is our humble submission that from the facts of this suit at the time the Claimant/Respondent filed his action, the right of the Appellants as Chairman, Members and Secretary of OSSIEC had already accrued. The due process for their appointment and confirmation under Section 198 and 199 of the Constitution have been complied with.
Contrary to the decision of the Court of Appeal, we submit that the appointment of the Appellants as at the time Claimant/Respondent filed this suit to challenge the screening exercise conducted by the Defendant/Respondent on March 30th, 2010 was no longer inchoate. It has become substantive.”
The right of the Appellants to enjoy this constitutionally guaranteed right is primary, and cannot be ignored by any Court in assuming jurisdiction to make judicial orders or other forms of adjudicatory determinations without joining them as parties. Doing so will vitiate the entire proceedings as in the instant appeal.
The right to fair hearing is well established and entrenched in our constitutional jurisprudence and indeed enjoys universal
appeal and application in view of its constitutional and fundamental importance. Indeed Section 36(4) CFRN 2011 (as amended) clearly embodies two traditional maxim to wit: audi alteram partem (the other party must be heard) as held in to the locus classicus of R V. THE UNIVERSITY OF CAMBRIDGE (1723) S.128 and nemo judex in causa sua (a person shall not be a judge in his own case. See also GARBA & ORS. V. THE UNIVERSITY OF MAIDUGURI (1986) 2 S.C. 128.
It is abundantly clear that Suit No. HOS.70/2010 was a protest suit of the Respondent against seeming improper withdrawal by the Appellants of the appeal against the earlier Suit No. HOS/M.41/2009. As at 30th March, 2010 the Appellants had been re-screened and reconfirmed. They were also sworn-in by the then Governor of Osun State on 1st April, 2010. Assuming the latter acts of fresh confirmation and swearing-in were wrong and improper, putatively, their right and interests as Chairman, Members and Secretary of OSSIEC is in issue and at stake. Therefore, logic or common reasoning would ordinary dictate, or ought to have dictate that, beyond woolly misconception or political desperation, no
reasonable reliefs could be sought or granted without joining them as parties. Refusal to join them as interested parties while expecting them to comply with the judgment to cease functioning in such capacities is to say the least, overly presumptive and judicially wrong.
Beyond cavil, it is our considered opinion, following a line of settled principles of law and decided authorities, that Appellants are persons interested in the suit and ought to have been joined as necessary parties by the trial Court because all the reliefs being sought are directed at the right and interest of the Appellants. See GREEN V. GREEN (SUPRA).
In view of the foregoing, we are unable to subscribe to the reasoning of the Court of Appeal as contained in the last two paragraphs of their Judgment at page 43 (365 of the record). This is because question one and relief one of the originating summons leave no one in doubt that the essence is to get at the Appellants as far as the exercise of their function and duties as Chairman, Member and Secretary of OSSIEC are concerned. I quote question one and relief one of the 1st Respondent’s Originating Summons dated 29th June, 2010
in Suit No. HOS/M.70/2010:
“Whether the screening of Chairman and Members of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is not improper, incompetent and null and void.
A declaration that the screening of Chairman and members of OSSIEC during the pendency of appeal in suit No. HOS/M.41/2009 is improper, incompetent and null and void.”
There should be not shying away from the reality or realization of the fact that the Appellants are the Chairman and Members of OSSIEC envisaged in question one and relief one, and by logical inference, the entirely of Suit No. HOS/M.70/2010, as they were the target in Suit No. HOS/M.41/2009 in which they were likewise excluded.
Without dissipating precious time and energy, being luxury ‘goods’ that are hardly ever available at this end of the Nigerian Judicial Hierarchy, we also resolve issue 2 in favour of the Appellants for the foregoing reasons.
We had noted earlier in this judgment that counsel to the Appellants and 1st and 2nd Respondents formulated two extra issues as issues 3 and 4 thus:-
“Whether or not the learned Justices of the Court of Appeal were right
in upholding the decisions of the trial Court dissolving the Osun State Independent Electoral Commission (OSSIEC) on the basis of screening and confirmation exercises carried out while the Defendant/Respondent’ appeal against the Judgment is pending.”
“Whether the order dissolving OSSIEC and ordering the Appellants to vacate office made by the learned trial Judge and upheld by the Court of Appeal can appropriately be qualified (sic) as a consequential order in view of the circumstances of this case.”
To all intent and purposes, issues 3 and 4 would necessarily be subsumed in issues 1 and 2 already dealt with above. The effect of order(s) made against persons not joined as a party is that such order is a nullity and of no effect. In our view, Counsel to the Appellants was right to have submitted at pages 12 and 13 of his brief of arguments, that where person who ought to be joined to the suit had orders made against them by the trial judge, such proceedings ought to be a nullity, being a denial of the Appellants right to fair hearing. See the case of OVUNWO & ANOR V. WOKO & ORS (2011) 7 SCM 207 at 231-232 and NURTW & ANOR
RTEAN & ANOR (2012) 3 SCM 171 at 178-179.Issue 3 and 4 are resolved against the Appellants. Dissolution of the OSSIEC and order directing the Appellants to vacate office raise a presumption that OSSIEC had prior been constituted and that the Appellants are or were occupying the offices sought to be vacated. As held above, it certainly cannot be the case that having been screened and sworn-in, adverse orders would be made against the Appellants without being heard.Assuming without conceding that the appointment and/or confirmation of the Appellants is voidable, it remains valid until otherwise set aside by the Osun State House of Assembly or a Court of law. This is particularly so as there is a legal presumption of regularity in favour of the Appellants pursuant to Section 168 of the Evidence Act. It states:-
“168. Presumptions of regularity and of deeds to complete title.
(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for the validity were complied with.
(2) When it is shown that any person acted in a public capacity, it is presumed
that he had been duly appointed and were entitled so to act.
It is also painfully discovered that the Claimant/Respondent did not specifically ask for an order dissolving OSSIEC or for the Appellants to vacate offices in OSSIEC. The request was made in the final address by way of reply on points of law on page 29 of the record as follows:
“We submit with respect that the mere filing of notice of appeal cannot be used to terminate this appeal. Consequently, we hereby apply for the consequential order nullifying the appointment of the Chairman and members of OSSIEC and thereby dissolving OSSIEC as presently constituted. Being null and void.”
This far reaching relief, in our opinion was wrongly granted by the trial Court and improperly upheld by the Court of Appeal as it did at pages 359-360 of the record, to the effect that:-
“The simple answer to the agitation of the Appellants in this issue is that the Court did not need the prompting of Counsel to enter a consequential order which the immediately preceding issues, the order, now being complained against, was consequential or incidental to the
declaration of the validity of the procedure adopted by the Defendant/Respondent. It was, thus a proper order to give effect to its declaration that:
The House of Assembly is creation of law and should be reminded constantly on (sic) the need to follow the law. As I said earlier, the issues in dispute were still live questions in Court any step taken by the House of Assembly at least before that date is illegal, null and void.”
The law is settled that, no matter the length and logic, submissions of Counsel cannot substitute for pleadings or hard evidence. On this position, we refer to the case of CALABAR CENTRAL CO-OPERATIVE THRIFT AND CREDIT SOCIETY LIMITED & 2 ORS VS BASSEY EKPONG EKPO (2008) 25 WRN 1; (2008) 1-2 SC. 229; (2008) 6 NWLR (Pt.1083) 362. According to Ogundare, JSC:
“Arguments of counsel, however brilliant is no substitute for the pleading and evidence in proof of same and therefore ground to no issue.”
The issue of validity or otherwise of Notice of Withdrawal of the appeal in HOS/M.41/2009 on March 29, 2010 and the effect of fresh screening and swearing-in resonate at every stage and level of this appeal. We have dealt with
the arguments on issues 3 and 4 as canvassed in the briefs of parties without agreeing with them on the need to formulate more than two issues in this appeal (that is issue 1 and 2 only).
In consequence, therefore, (and without making unsolicited consequential orders), the effect of the order of dissolution and vacation of office is far reaching, and, in our considered view, should have been specifically pleaded. Not doing so means: (1) order dissolving OSSIEC and (2) order directing the Appellants to vacate their offices, are both not appurtenant to the main order. Both are hereby nullified not having been specifically sought by the claimant/respondent.
In the final analysis, we paused to anticipate what in essence, will be or is the real (sweet) fruit of the labour of the Appellants in travelling the long, tortuous and expensive journeys of pursuing judicial remedies from trial Court to the Supreme Court. Assuming the Appellants had remained in office, their tenure could have ended by now, regrettably. However, as a Court of law, justice and policy, it is our considered view that the Appellants would appear to have lost most despite gaining all
in judicial victory. The Justice of this appeal would, in our thinking, be better served by treating the Appellants as retiring appointees for the purpose of enabling them to be paid their salaries and severance package(s) applicable to the current occupants of those offices as at the date of this judgment.
Having resolved all the issues in favour of the Appellants, this appeal succeeds in whole. The judgment of the trial Court and Court of Appeal are hereby set aside. No order is made as to cost. No order is made reinstating Appellants to their offices either as Chairman, Secretary and Members of the Osun State Independent Electoral Commission (OSSIEC). As stated immediately above, the justice of this appeal demands that Appellants be, and are hereby treated as retiring appointees for the benefit of payment of the full Salaries and allowances up to the time they would have left their offices by expiration of their tenure, and severance packages as provided by law, applicable to the current occupants of those offices as at the date this Judgment.
We so order.