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Prince Biyi Poroye & Ors V. Senator A.m. Makarfi & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja Division, (hereinafter referred to as “the lower Court” or “the Court below), delivered on 23rd November, 2016 wherein the Court allowed the appeal of the 1st and 2nd Respondents against the judgment of the Federal High Court, Abuja, (hereinafter called “the trial Court) delivered on 29th June, 2016.

Dissatisfied with the judgment of the Court below, the appellants who were the 1st to 9th respondents at the Court below appealed to this Court pursuant to the leave of Court granted on 2nd February, 2017 by the Court below. The notice of appeal contained seven (7) Grounds of appeal. However, upon receipt of the records of appeal, two additional grounds 8 and 9 were raised to the earlier notice that was filed on 6th February, 2017.

The gist of this case goes as follows: The appellants, as Plaintiffs had taken out an originating summons at the trial Court. In support of the said originating summons is an affidavit of 46 paragraphs on pages 7-14 of the record (Vol.1). Attached to the said

supporting affidavit were various documents marked as Exhibits AS1 to AS16. According to the appellants, as contained in their brief of argument, “the main reason behind the filing of this suit was the need to ensure that confusion existing within the 4th respondent, did not in any way affect the smooth functioning of the South West Zonal Committee of the 4th respondent and its States Executive Committees in Ekiti, Ogun, Osun, Ondo, Oyo and Lagos.

It was contended that the South West Zonal Committee of 4th respondent had been elected at a special South West Zonal congress, held in October, 2014 to hold office for a period of four years in accordance with the Constitution of the 2nd respondent. It was further contended that the States Executive Committees of the 4th respondent in the said six States were elected and inaugurated on 10th May, 2016 for a term of 4 years, Learned appellants’ senior counsel made reference to certain letters said to have been issued by the National Working Committee of the 4th respondent. The said letters were marked as Exhibits AS8A, AS8B, AS8C, AS8D AS8E, AS8F at pages 222 to 232 of Vol.1 of the records. It was contended

that by the said letters, the National Working Committee of the 4th respondent recognized the States Executives as constituted as the authentic organs of the party empowered to organize and implement all party programmes and events in the States. Also attached to the affidavit in support of the Originating Summons of the appellants is a document marked as Exhibit AS5 at pages 209 to 210 of Vol.1 of the records, to show the National Working Committee of the 4th respondent as the authentic body to function on behalf of the 4th respondent in the South West Zone.

The appellants also contended that by the document marked Exhibit AS9A at pages 233 to 234 of Vol.1 of the records, written by the National Working Committee of the 4th respondent to the 3rd respondent, it conveyed its recognition of the South West Zonal Executive committee elected at the special South west Zonal Congress of the party held on 11th October, 2014 to hold office for a period of 4 years till end of October, 2018. Also referred to was the document attached to the Affidavit by the appellants marked as Exhibit AS9B at pages 235 to 237 of Vol.1 of the records, which they contended was a

letter written by the National Working Committee of the 4th respondent to the 3rd respondent dated 19th May, 2016 informing the 3rd respondent that the State Executive Committees elected at the Congresses conducted by the 4th respondent in Ondo, Ekiti, Osun, Oyo, Ogun and Lagos States were the one entitled to organize and implement all party programmes and events in the States.

The appellants further contended that all the exhibits attached to the supporting affidavit of the summons raised concerns about the efforts being made by some people, they described as, undemocratic persons in the 4th respondent to create illegal and parallel executive committees in the States and warned the 3rd respondent not to deal with such illegal parallel committees.

The appellants referred to the decision of the Federal High Court differently constituted in suit No. FHC/L/CS/605/2016 between Chief Pegba Otemolu Vs. Independent National Electoral Commission and Ors, given on 11th May, 2016, an interlocutory order restraining the 4th respondent herein, that is, the Peoples Democratic Party (PDP), the National Chairman and the National Secretary of the 4th

respondent from conducting or permitting or recognizing any election into the offices of the South West Zonal Executive Committee pending the hearing and determination of the originating summons. Learned senior counsel submitted that it was based on the above that the appellants instituted the suit.

In the appellants’ brief of argument settled by learned Senior Counsel, Chief Akin Olujinmi, SAN filed on 6th April, 2017 but deemed duly filed and served on 22nd May, 2017, which considered the additional grounds of appeal, the following issues were distilled for the determination of the appeal:

Whether having regard to the claims of the appellants, the 1st & 2nd respondents were necessary parties to be joined to this suit, the absence of which would be a valid ground to justify the setting aside of the judgment of the trial Court (Covers ground 1).
Whether the lower Court would not have reached a different decision on the issue of the non-joinder of the 1st and 2nd respondents to the suit, if it had given proper consideration to the materials on record showing that the leadership of the 4th respondent had recognized the States

Executive Committees of the 4th respondent and to South West Zonal Executive Committee prior to the 21st of May, 2016 when the Makarfi led Caretaker Committee came into existence (Covers ground 2).

Whether on a proper consideration of the case made by the 1st and 2nd respondents in the lower Court, the Court was right in its finding of fraud against the appellant and that they therefore had no proper cause of action. (Covers grounds 3 and 7)
Whether in the light of the materials on record, the lower Court was right in holding that the reliefs sought in this action were beyond the plaintiffs. (Covers ground 4).
Whether the lower Court properly considered the complaint of the 1st and 2nd respondents alleging denial of fair hearing by the trial Court. (Covers grounds 5 and 6).
Whether the lower Court had jurisdiction to entertain the appeal of the 1st and 2nd respondents, having regard to their failure to apply for and obtain along with the other orders they were granted, an order of the lower Court for extension of time to seek leave to appeal (Covers ground 8).
Whether the lower Court was not deprived of jurisdiction to

entertain the appeal of the 1st and 2nd respondents in the absence of a valid notice of appeal predicating the appeal (Covers ground 9).

Before proceeding further with this judgment, it is important to look at the preliminary objection raised by the 1st and 2nd respondents to this appeal.

By a notice of preliminary objection dated 24th April, 2017, 1st and 2nd respondents sought the dismissal or striking out of this appeal on diverse grounds. The respondents raised ten (10) grounds in support of their objection but summed up the said ten grounds under two sub heads as follows:-

(i) Grounds 1 and 4 and the issues distilled therefrom, as well as arguments thereon are incompetent, as the said grounds constitute fresh issues which were neither brought before the lower Court nor arose from the said Court’s judgment, and ground 4, in particular is a misrepresentation of the record/evidence.

(ii) Grounds 8 and 9 and the issues distilled therefrom and arguments canvassed thereon do not challenge the judgment of the lower Court decided on November 23, 2016 and same naturally do not arise from the lower Court’s judgment.

In arguing the

objection, learned counsel for the 1st and 2nd respondent, Olabode Olanipekun Esq. referred to grounds 1 and 4 of the amended Grounds of Appeal. He contended that the appellants, as respondents at the Court below filed two briefs of argument dated 16th November, 2016 and 17th November, 2016 respectively but adopted the latter one dated November 17, 2016 of 7 pages. In the said respondents’ brief of argument, four issues were formulated on the effect of non-joinder of the respondents at the trial Court, the abusive nature of the suit, that the appellants had no reasonable cause of action, that a party cannot be both plaintiff and defendant in the same case and that under Section 251 of the Constitution, the trial Court had no jurisdiction. Learned respondents’ counsel contended that a cursory read of appellants’ reply to the issues canvassed by the respondents at the Court below revealed that none of the issues raised and argued thereat was frontally responded to by the appellants.

Learned counsel referred to the two grounds 1 and 4 of the notice of appeal and contended that on ground 1, appellants case on joinder at the Court below nowhere in their

response was the case on necessary party or that the question before the trial Court could be decided without the presence of the parties made. He stated further that, in none was the phrase ‘necessary parties’ employed, not to talk of canvassing arguments on same. He contended that ground 1 is clearly a fresh issue which was not brought before or argued before the Court below. And that ground 4 is premised on the supposed letters of May 18, 2016. He submitted that there was nowhere in the appellants’ brief of argument where any reference was made to any such letter.

Learned counsel referred to ground 4 and particulars (ii) and (iii) of the appellants’ notice of appeal where the appellants assert that the Court below refused to take cognizance of “letters delegating the authority of the PDP NEC to its State Executive Committees”. He submitted that these particulars are not only untrue but are deliberate distortions of the record of Court. He referred to the said letters on pages 40-56 of the record, and contended that at no time did the National Executive Committee of the 4th respondent delegate its powers to the appellants. He submitted that the

said letters expressly referred to the National Working Committee and not PDP NEC. Learned counsel contended that the said particulars have no bearing with the decision of the Court below and indeed misrepresents the record/evidence and thus incompetent.

Learned counsel contended that the said ground 4 relates to the capacity of the appellants to conduct primaries and alleges that as against the Court below’s findings, the said appellants indeed have capacity to conduct primary election.

Learned counsel referred to issue 4 said to have been distilled from ground 4, he however contended that nowhere in the said issue 4 was any of the complaints in particulars (ii)-(iv) argued or ventilated. He submitted that there is an absolute misalignment between the arguments canvassed in issue 4 and the complaints articulated in ground 4. He submitted that the legal implication of this is that ground 4 has no supporting argument and must be deemed abandoned and struck out. He relied on Achor vs. Adejoh (2010) 6 NWLR (Pt.1191) 537 at 582; Atoyebi vs. Governor, Oyo State (1994) 5 NWLR (Pt.344) 290 at 305. He submitted that the two grounds 1 and 4 are

incompetent as no party is allowed to change his case on appeal or take a new position on appeal. In other words, it is trite law that no party is allowed to raise fresh issue on appeal without the leave of Court having been first sought and obtained. He relied on Ajide vs. Kelani (1985) 3, NWLR (Pt.12) 248 at 269; Akpan Vs Bob (2010) 17 NWLR Pt.1223) 421 at 523-524.

Learned counsel referred to grounds 8 and 9 of the appellants’ notice of appeal as they pertain to the leave granted to the 1st and 2nd respondents to appeal as interested parties. The ruling was delivered by the Court below on 10th November, 2016. He contended that as disclosed in the appellants notice of appeal, their complaint is against the judgment of the Court below delivered on 23rd November, 2017. He contended further that the appellants have not therefore appealed against the ruling of 10th November, 2016. He submitted that an unappealed judgment remains binding on the parties thereto relying on Akere Vs. Governor of Oyo State (supra). He submitted further that the clear implication of the foregoing is that grounds 8 and 9 in appellants amended notice of appeal do not

arise from the judgment of 23rd November, 2016 in respect of which the extant notice of appeal was filed and are therefore clearly incompetent and liable to be struck out.

Learned counsel contended that grounds 8 and 9 have no nexus with the judgment of November 23, 2016. He submitted that, indeed the appellants are already statute barred from challenging the ruling of the Court below delivered on 10th November, 2016 as Section 27 (2) (a) of the Supreme Court Act prescribed a time limit of 14 days to appeal against an interlocutory decision of the Court below.

Learned counsel referred to the notice of appeal filed on 6th April, 2017, a period of over 120 days, after the interlocutory decision of the lower Court of 10th November, 2016, and contended that it is statute barred. He urged the Court to strike out the said grounds and arguments presented thereon.

On the effect of incompetent grounds, learned counsel contended that issues for determination distilled from incompetent grounds of appeal are also invalid. He relied on First Bank of Nig. Plc Vs. A.C.B. Ltd (2006) 1 NWLR (Pt.962) 438 at 463. He referred to Issues 1, 4, 6 and 7

distilled from grounds 1, 4, 8 and 9 and submitted that they are invalid issues. And that Issue 2 having been argued with incompetent issue No.1 at paragraphs 9.1-9.6 on pages 20-24 of the appellants’ brief of argument, with no clear distinction on arguments pertaining to both issues is also negatively affected. He submitted that the law is that when arguments are canvassed together on incompetent and competent issues, both issues will be deemed incompetent as the Court will not perform surgical operation on the arguments to get the good from the bad. He relied on Korede vs. Adedokun (2001) 15 NWLR (pt.736) 483 at 500; Obi Odu vs Duke (2006) 1 NWLR (Pt.961) 375 at 409.

He finally urged the Court to strike out grounds 1, 4, 8 and 9 and Issues 1,4, 6 and 7 predicated on the said grounds of appeal. He submitted that once respondents’ request is acceded to by the Court and the said grounds are struck out, the entire appeal becomes a mere shell and academic, liable to be struck out.

In response to the preliminary objection of the 1st and 2nd respondents, the appellants filed a reply on 9/5/2017 which was deemed properly filed and served on 22/5/2017,

the day this appeal was heard.

On the objection to ground 1 of the grounds of appeal filed by the appellants, learned senior counsel for the appellants contended that the case of the appellants is that the lower Court failed to give proper consideration to the factors relevant to joinder of parties to a suit before reaching its decision. He submitted that it is open to a party to adduce on appeal, new arguments on a point which was before the Court below and such new arguments will not amount to fresh issues. He referred to Siesmograph Service (Nig) Ltd Vs. Eyuafe (1976) 9-10, SC 86 at 96.

Learned senior counsel contended that the sum total of the arguments canvassed at the Court below was that the respondents were not necessary parties. He submitted that it is not the mere use of the words “necessary parties” that will determine whether a person is or not a necessary party, but that it is only a conclusion that may be arrived at after consideration of certain matters as set out in the appellants’ arguments in their brief of argument. On who is a necessary party to a suit requiring to be joined, learned senior counsel referred to Green Vs.

Green (1987) 3 NWLR (Pt.61) 480 at 493 and some other decisions of this court on the same issue and contended that the lower Court in its determination of the appeal, failed to be guided by considering whether those alleged not to have been joined to the suit were necessary parties. He contended further that the appellants are therefore right to challenge the decision of the lower Court for the non-joinder of the respondents to this suit. He submitted that if the lower Court had given proper consideration to the issue whether the respondents were necessary parties to the suit, it would have found that they were not necessary parties and therefore need not be joined.

On the attack on ground 4 of the grounds of appeal, learned senior counsel submitted that the ground of attack is a misconception, because a preliminary objection has nothing to do with the merit of a ground but whether in law the ground has complied with the rules of Court relating to the drafting of a ground of appeal. He contended that if as alleged by the respondents, the letters referred to in the ground dealt with delegation of authority by the PDP NEC or National Working Committee,

that should be a matter for argument in reply to the appellants’ arguments but certainly not a matter of preliminary objection.

On the respondents’ contention that the appellants did not argue ground 4, learned senior counsel submitted that the law is settled, that an appellant is only to argue issues but not grounds of appeal. He stated that the appellants distilled issue No.4 from their ground 4 and argued same on pages 18 to 20 of their brief of argument. He submitted further that it is misleading for the respondents to argue that the appellants abandoned ground 4, He relied on Aderounmu Vs. Olowu (2000) 4 NWLR (Pt.652) 253 at 266; Anie Vs. Uzorka (1993) 8 NWLR (Pt.309) 1 at 17.

He urged the Court to overrule the respondents on their objections against grounds 1 and 4 of the grounds of appeal.

On grounds 8 and 9, learned senior counsel contended that it is clear from the objection that the respondents misunderstood the appellants’ grounds 8 and 9 as the two grounds are complaining about the jurisdiction exercised by the lower Court to hear the appeal. He contended that the granting of leave to appeal is a distinct exercise from the

jurisdiction to hear the appeal. The granting of leave to appeal will necessarily come first before the Court will, when the appeal comes up, exercise jurisdiction to hear the appeal.

Learned senior counsel contended that a challenge to the jurisdiction of a Court to entertain a matter cannot be said not to relate to or arise from the decision of the Court. He submitted that it is erroneous to argue as the respondents did, that a ground of appeal challenging the jurisdiction of the Court to hear a matter does not arise from the decision of the Court.

He contended that grounds 8 and 9 of the appellants grounds of appeal have nothing to do with whether or not the lower Court was right or not in granting leave to appear to the respondents. He submitted that being an issue of jurisdiction, the arguments based on the respondents’ issue (iii) on appellants’ grounds 8 and 9 can be raised at any stage of the proceedings, even for the first time on appeal. He relied on Wema Securities & Finance Plc Vs. N.A.I.C. (2015) 16 NWLR (Pt.1484) 93 at 124.

Learned senior counsel finally submitted that the respondents completely

misunderstood the appellants, grounds 1, 4, 8 and 9 as well as issues 1, 4, 6 &7 and so they cannot be struck out. He urged the Court to discountenance the preliminary objection raised by the 1st & 2nd respondents.

From the preliminary objection of the 1st and 2nd respondents, herein referred to as the respondents, the main grounds of the appeal being attacked are grounds 1, 4, 8 and 9 of the amended Grounds of Appeal filed on 6/4/2017 but deemed duly filed and served on 22/5/2017. The said four grounds of the nine grounds of the appellants’ amended Grounds of Appeal are as follows:

GROUND ONE

ERROR IN LAW

The learned Justices of the Court of Appeal erred in law and thereby occasioned a miscarriage of justice when they held that the non-joinder of the 1st and 2nd Respondents as parties to the appellants’ suit at the Federal High Court (trial Court) amounted to a violation of the 1st and 2nd respondents’ right to fair hearing and therefore rendered the judgment of the trial Court delivered on the 29th of June 2016 liable to be set aside.

PARTICULARS OF ERROR

(I) The learned justices of the lower Court

did not advert their minds to the fact that there was no question before the trial Court that could not be effectively and effectually determined without the joinder of the 1st and 2nd respondents as parties to the suit.

(II) The lower Court therefore failed to recognize that the 1st and 2nd respondents were not necessary parties to the suit before the trial Court and the issue of fair hearing did not arise.

(III) The decision of the lower Court is contrary to the settled principle of the law that a cause of action can only be defeated by reason of non joinder of a party where it is shown that the party is a necessary party without whose presence the issue in controversy before the Court cannot be effectually and completely determined.

(IV) The learned Justices of the lower Court failed to consider that in the circumstances of this case the non-joinder of the 1st and 2nd respondents to the appellants’ suit cannot defeat the suit essentially seeking orders of the Court to compel the 3rd respondent (pursuant to its duties under the 1999 Constitution as amended) to recognize and deal with the appellants as the authentic officers of the 4th

respondent in their respective States.

(V) No relief was sought in the suit against the 1st and 2nd respondents to this appeal.

(VI) If the lower Court had considered and applied the aforesaid principle of the law it would have found that the non-joinder of the 1st and 2nd respondents as parties to the appellants’ suit could not be a basis for setting aside the judgment of the trial Court and that the trial judge was right to deal with the matter in relation to the parties who were actually before it.

GROUND FOUR

ERROR IN LAW

The learned Justices of the lower Court erred in law when they held as follows:

“We have also stated that the reliefs sought to be exclusive officers to nominate candidate for election was beyond the plaintiffs”

PARTICULARS OF ERROR:

(i) Prior to this holding, there was nowhere in the judgment where the learned justices stated or held as in the passage complained about.

(ii) By summarily so holding, it is clear the court failed to give proper consideration to the unchallenged evidence in the records which showed that the National Executive Committee of

the PDP had by letters issued on 18th of May, 2016, delegated its authority to the appellants to conduct primaries and forward the names of candidates to the INEC.

(iii) The controversy about authentic National leadership of the PDP erupted on the 21st of May 2016 and could not affect authority validly exercised by the National leadership of the PDP on 18th May, 2016,

(iv) The lower Court failed to apply the presumption of regularity applicable to the letters delegating the authority of the PDP NEC to its State Executive Committees in the South West Zone vide the said letters, whereby the onus to prove that the delegation was irregular falls on the party asserting such irregularity.

(v) The lower Court failed to realize that the reliefs claimed in the action went beyond the conduct of primaries and the forwarding of the name/s of nominees to INEC and therefore the finding that the remedies relating to the conduct of primaries could not be granted, even if valid which is not conceded, should not completely deplete the action of its competence.

GROUND EIGHT

ERROR IN LAW

The learned appellate justices

erred in law when they entertained the appeal of the 1st and 2nd respondents which they lacked jurisdiction to adjudicate upon as the 1st and 2nd respondents had no valid notice of appeal before the lower Court.

PARTICULARS OF ERRORS IN LAW

(i) Not being parties to this suit as constituted at the trial Court, the 1st and 2nd respondents could only have appealed as persons interested with the leave of the lower Court but the 1st and 2nd respondents failed to obtain valid leave to appeal as such.

(ii) The 1st and 2nd respondents failed to obtain leave of the lower Court for extension of time within which to seek or apply for leave to appeal.

(iii) The appeal did not therefore come properly before the lower Court as to vest the lower Court with the requisite jurisdiction to entertain same.

GROUND NINE

ERROR IN LAW

The learned appellate Justices erred in law when they entertained the appeal of the 1st and 2nd respondents which they lacked jurisdiction to adjudicate upon as the 1st and 2nd respondents had no valid notice of appeal before the lower Court.

Particulars of errors in law

(i) Subsequent to

the grant by the lower Court of the 1st and 2nd respondents’ application for leave to appeal, they did not file any notice of appeal.

(ii) They relied on the notice of appeal they had filed before the motion for leave to appeal was heard and granted.

(iii) In the absence of a competent notice of appeal filed subsequent to the order granting leave, the lower Court had no jurisdiction to hear the appeal.

(iv) The order of the lower Court deeming as duly filed, the notice of appeal filed before the order for leave to appeal was granted cannot and did not cure the said notice of appeal of its incompetence.

The grounds upon which the said preliminary objection is premised are given as follows:

(i) Grounds 1 and 4 of the appellants’ Notice of Appeal of February 6, 2017 and amended Notice of Appeal of April 6, 2017 are fresh issues which were not raised by the respondents before the lower Court.

(ii) Further to (i) above, grounds 1 and 4 and the particulars thereof were neither brought before the lower Court nor considered by same in resolving the dispute between parties.

(iii) Further to (i) and (ii) above, grounds 1 and 4 do

not arise from the judgment of the lower Court.

(iv) Ground 4 to the extent that it refers to a delegation of authority from the National Executive Committee of the 4th respondent is a misrepresentation of the record of this Honourable Court in addition to being a fresh issue.

(v) Without prejudice to (iv) above, Ground 4 is deemed abandoned by the appellants as no argument has been canvassed thereon in the appellants’ brief of argument as it relates to the express contents of the said grounds.

(vi) Grounds 8 and 9 of the appellants’ amended Notice of Appeal of April, 2017 do not arise from the judgment of the Court of Appeal delivered in November, 23, 2016 which is the subject matter of this instant appeal.

(vii) Grounds 8 and 9 of the appellants’ amended notice of appeal are statute barred as they relate to an interlocutory decision given by the lower Court on 10 November, 2017.

(viii) Issues (i), (iv), (vi) and (vii) of the appellants’ Brief of argument dated April 5, 2017 but filed on April 6, 2017 are distilled from and premised on appellants’ incompetent grounds 1, 4, 8 and 9.

(ix) Issue (ii) is argued alongside appellants’

incompetent issue (i).

(x) Further to (vii)-(ix) above, appellants’ issues (i), (ii), (iv), (vi) and (vii) are incompetent.

(xi) Further to (x) above, appellant has no competent brief of argument before this Honourable Court.

(xii) In the light of the foregoing paragraphs, the entirety of this instant appeal is academic and incompetent.

What then is a ground of appeal A ground of appeal is the complaint of the appellant on the judgment appealed against. Grounds of appeal are the pillars on which the entire appeal stands. See; Bhojsons Plc Vs. Geofrey K. Daniel Kalio (2006) 5 NWLR (Pt.973) 330; (2006) 4 SCM 1. In other words, a ground or grounds of appeal against a decision of a lower Court must relate to the decision appealed against and should be a challenge to the validity of the ratio decidendi of the decision reached by the Court below to the appellate Court. See; Chief Peter Amadi Nwankwo & Anor Vs. Ecumenical Development Cooperative Society (EDCS) UA (2007) 5 NWLR (Pt.1027) 377; (2007) 1-2 SC 145; (2007) 4 SCM 139.

However, just like pleadings in the commencement of an action tried on pleadings, parties are bound by their

grounds of appeal and are not at liberty to argue grounds not related to the judgment or decision appealed against. See; Robert I. Ikweki & Ors Vs Ebele & Anor (2005) 11 NWLR (Pt.936) 397; (2005) 2 SC (Pt.11) 96; (2005) 3 SCM 69.

I have carefully considered the four grounds of the nine grounds of appeal filed by the appellants, and their respective particulars and I am of the firm view that there is misconception on the part of the respondents with their objection. The issues raised in grounds 1 and 4 are not and cannot be said to be fresh issues which were not raised by the respondents before the Court below. I agree with learned senior counsel for the appellants that the issue of joinder of necessary party to the matter at the trial Court was not a fresh issue. Indeed, the appellants’ case is that the lower Court failed to give proper consideration to the factors relevant to joinder of parties to a suit before reaching its decision appealed against.

Similarly, ground 4 to the extent that it refers to a delegation of authority from the National Executive committee of the 4th respondent cannot be said to be a misrepresentation of the

record and is not a fresh issue either as the respondents would want us to believe.

With regard to grounds 8 and 9 of the amended Notice of Appeal contended not to have arisen from the judgment of the Court below, delivered on November 23, 2016, I must say that the respondents also misconceived the point. I agree with the learned senior counsel for the appellants that the two grounds 8 and 9 of the amended Notice of Appeal are complaining about the jurisdiction exercised by the Court below to entertain the respondents’ appeal.

There is no doubt that the grounds raised by the appellants in their amended Notice of Appeal are competent grounds and are therefore not ordinarily liable to striking out. The preliminary objection is in effect, devoid of merit and is accordingly overruled.

Without any further ado on the competence of the appeal, I shall now proceed to consider the issues raised by the appellants from the said grounds of appeal contained in the amended Notice of Appeal.

As I had earlier stated in this judgment, the appellants distilled seven (7) issues from the nine (9) Grounds of their amended Notice of Appeal. Learned Senior

counsel however did not treat the said seven issues seriatim, in their brief of argument filed on 6/4/2017, but deemed filed on 22/5/2017, Issue No.6 is treated first.

This issue is whether the lower Court had jurisdiction to entertain the appeal of the 1st and 2nd respondents, having regard to their failure to apply for and obtain along with the other orders they were granted, an order of the lower Court for extension of time to seek leave to appeal.

The issue is said to address the incompetence of the respondents’ appeal in the Court below arising from their failure to obtain an order for extension of time to seek leave to appeal against the judgment of the trial Court delivered on 29th June, 2016.

Reference is made to page 1 of the record to show the parties named on the originating summons as it did not include the 1st and 2nd respondents. Learned Senior counsel stated that the same is also clear from the judgment of the trial Court.

Learned senior counsel referred to the various applications filed by the respondents both at the trial Court and court below on the 29th September, 2016 and later 7th October, 2016

respectively but withdrew both before they were heard. He referred to the application later filed on 2/11/2016 for leave to appeal and gave the reliefs sought therein. He referred to the order granted by the Court on the said application but contended that significantly missing in the said orders granted was “an order granting the 1st and 2nd respondents extension of time to seek leave to appeal. He contended that this omission is fatal to the appeal of the respondents but that the Court below failed to appreciate the point. Learned senior counsel submitted that by the provisions of the Court of Appeal Act, Section 25 (1) (2), a person who is applying for leave to appeal must do so within the statutory period of three (3) months. And if the applicant is out of time, he would need to apply for extension of time to seek leave to appeal. But where the applicant is to appeal as a person interested and the application is made outside the prescribed time, the applicant must in addition to other prayers, apply for extension of time within which to apply for leave to appeal. He relied on Chukwu Vs. INEC (2014) 10 NWLR (Pt.1415) 385 at 408; Ezenwosu Vs. Ngonadi (1989)

3 NWLR (Pt. 81) 163 at 175; Odofin Vs Agu (1992) 3 NWLR (Pt. 229) 350 at 371, 375.

Learned senior counsel submitted that the failure of the respondents to obtain an order for extension of time to seek leave to appeal is a fundamental defect which vitiated the exercise of jurisdiction by the lower Court to entertain the appeal as the appeal was not properly before the Court. He urged the Court to resolve the issue in favour of the appellants.

Issue No.7 is treated next. It is whether the lower Court was not deprived of jurisdiction to entertain the appeal of the 1st and 2nd respondents in the absence of a valid notice of appeal predicating the appeal. This issue covers ground 9.

Learned senior counsel contended that the complaint of the appellants under this issue has to do with the notice of appeal predicating the respondents appeal in the lower Court. He referred to the respondents’ application filed on 2nd November, 2016 and referred to prayer (v) of the application and that same was granted as prayed on 10/11/2016. He referred to the notice of appeal covered by the deeming order filed on 02/11/2016 in the lower Court, Abuja. He

contended that it was the notice of appeal that the respondents relied on in the lower Court for their appeal which resulted in the judgment now being challenged in this appeal. He contended further that the said notice of appeal was invalid for failure to comply with the provisions of the Court of Appeal Act and its rules. He submitted that the notice of appeal which was filed on 2nd November, 2016 prior to the order granting leave to appeal on 10th November, 2016 was invalid, and on this ground the order of the lower Court deeming the notice of appeal as duly filed and served cannot therefore redeem the invalidity of the notice of appeal.

He submitted further that there being no valid notice of appeal to predicate the lower Court’s exercise of jurisdiction to determine the appeal, the appeal was incompetent and the decision of the lower Court on same was also incompetent and a nullity. He urged this Court to uphold this issue in favour of the appellants and allow the related ground 9 of the grounds of appeal.

Issue No.3 is treated next and it reads that whether on a proper consideration of the case made by the 1st and 2nd respondents in the

lower Court, the Court was right in its finding of fraud against the appellants and that they therefore had no proper cause of action. This covers grounds 3 and 7 of the grounds of appeal.

On this, learned senior counsel referred to the holding of the Court below on pages 2392 lines 9-15 of vol.2 of the record. Also at pages 2392 lines 20 to 25 of the same record. It was contended that there was no pleading or any evidence whatsoever to justify these holdings. Learned senior counsel contended further that the 1st and 2nd respondents raised no issue of fraud and that indeed it would not have been sufficient for them to simply allege fraud, they would have needed to plead and prove that the act they complained of amounted to fraud and that the fraud influenced the trial judge to come to the decision he gave in the judgment. He relied on Olufunmise Vs. Falana (1990) 3 NWLR (Pt.136) 1 at 14.

On the definition of fraud, the appellants relied on Otukpo Vs John (2012) 7 NWLR (Pt.1299) 367 at 382. He contended that it is only when the requisite degree of proof has been placed before the Court, that the Court will be justified in making a finding

of fraud. He submitted that it is not the function of a Court by its own exercise or ingenuity to supply or imagine evidence or arrive at an answer which only evidence tested under cross examination could supply.

Learned senior counsel submitted further that where a Court is shown to have strayed outside the case made by the parties before it, its decision is liable to be set aside. He contended that since the holding of the lower Court that the appellants did not have proper cause of action was based on its erroneous raising and finding of fraud against the appellants, it follows inexorably that the holding cannot stand.

To show that the appellants disclosed a proper cause of action, learned senior counsel referred to the originating summons of the appellants at pages 1-14 of Vol. 1 of the records. On what a cause of action is, he relied on 7UP Bottling Coy Vs. Abiola & Sons Ltd (2000) 7 NWLR (Pt.604) 176 at 212 to 2132; Thomas Vs Olufosoye (1986) 2 SC 39 at 54.

Learned senior counsel submitted that the lower Court erred in law when contrary to the case made by the 1st and 2nd respondents in their appeal, it proceeded to make a

finding that the appellants had no cause of action, in instituting the action. He submitted further that the holdings of the lower Court that the entire process filed by the appellants was a fraud and that the appellants had no proper cause of action were perverse and liable to be set aside. He urged the Court to resolve this issue in favour of the appellants and allow the appeal on related grounds 3 and 7 of the grounds of appeal.

Issue No.4 is whether in the light of the materials on record, the lower Court was right in holding that the reliefs sought in this action were beyond the plaintiffs. It covers ground 4.

On this issue, learned senior counsel referred to lines 1-3 of page 2449 of the record for the holding of the lower Court and contended that prior to that holding in the judgment, there was nowhere the Court stated that the reliefs claimed were beyond the plaintiffs. He stated that the reliefs sought by the appellants in this suit as shown at pages 3-5 of Vol.1 are ten (10) in all. And out of the ten reliefs, only reliefs 6, 7 and 8 had the word ‘exclusive’ used in them, and only relief No.8 mentioned issuance of nomination forms for

general election. Learned senior counsel later took each of the ten reliefs one by one and submitted that the lower Court completely misconstrued the appellants’ reliefs and wrongly relied on the case of Okadigbo Vs. Chidi to hold that the reliefs sought to be exclusive officers to nominate candidate for election was beyond the plaintiffs. He contended that this case is not about dispute over which of two party primaries is valid and the need to hear all necessary parties to the dispute before a decision is taken, which the case of Okadigbo Vs. Chidi dealt with. He submitted that where a Court has misconstrued the case of the parties, the Court has failed to do justice and its decision is liable to be set aside. He relied on Oyefolu Vs. Durosinmi (2001) 16 NWLR (Pt.738) 1 at 12-13. He urged the Court to resolve this issue in favour of the appellants and allow the appeal on ground 4.

Issues 1 and 2 are considered next. They addressed the holding of the lower Court on the issue of the non joinder of the 1st and 2 respondents to this suit. The appellants referred to page 2449 lines 4 to 19 where the lower Court held that the trial Court fell into grave

error by entertaining the originating summons when the 1st and 2nd respondents were not joined to the suit. Learned senior counsel contended that in so holding, the lower Court failed to advert to well settled principles guiding the issue of joinder to a suit. He relied on Yekubu Vs. Governor of Kogi State (1995) 8 NWLR (Pt. 414) 402; Okoli Vs. Ojkakor (1992) 1 NWLR (Pt. 479) 48; R.T.N.A.C.H.P.N Vs M & H W.U.N (2008) 2 NWLR (Pt.1072) 575 at 618; Green Vs. Green (1987) 3 NWLR (Pt.61) 480 at 493.

Based on the definition of necessary parties of Oputa, JSC in Green Vs. Green (supra) learned senior counsel submitted that there is no question in the action between the existing parties, that is, between persons originally made parties to the suit, which cannot be properly settled, unless the 1st and 2nd respondents were made parties to the action. He gave various points which the lower Court failed to consider which he submitted show that the respondents are not necessary parties to this suit. He urged the Court to resolve the issue in favour of the appellants and allow the related grounds 1 and 2 of the grounds of appeal.

On issue 5, the appellants

adopted their arguments under issues 1 and 2 earlier argued. In the said issue, the appellants are complaining about the holding of the lower Court that the 1st and 2nd respondents were denied their right to fair hearing by their non joinder to this suit.

Learned senior counsel referred to pages 2441-2442 of the records and contended that the lower Court embarked on one-sided determination of the allegation of the 1st and 2nd respondents that their right to fair hearing was breached by the trial Court. In reaching its decision, the lower Court did not for one moment, consider the case made by the appellants against the respondents’ allegation which the lower Court upheld. He submitted that the failure of the lower Court to consider the case made by the appellants in response to the allegation of denial of fair hearing by the trial Court, is fatal to the decision of the lower Court. He relied onEkiyor Vs Bomor (1997) 9 NWLR (Pt. 519) 1 at 10; Adigun Vs Governor of Oyo State (1987) All NLR 111 at 143.

Learned senior counsel contended that the lower Court did not hold the balance between the appellants and the 1st and 2nd respondents in the

determination of the appeal before it. He submitted that the failure to consider the case made by the appellants against issues 1, 2, 3 and 4 of the appeal of the 1st and 2nd respondents in the lower Court should lead to a reversal of the decision of the lower Court. He urged the Court to resolve issue No.5 in favour of the appellants and allow the related grounds 5 and 6 of the grounds of appeal.

He finally urged the Court to allow the appeal, set aside the judgment of the lower Court delivered on the 23rd November, 2016, and affirm the judgment of the Federal High Court delivered on the 29th June, 2016.

As I stated earlier, in the brief of argument of the 1st and 2nd respondents (hereinafter called ‘the respondents’ simply), settled by Olabode Olanipekun Esq in response to the appellants’ brief of argument, the respondents distilled the following three issues from the nine (9) grounds of appeal filed by the appellants;

(i) In the light of the circumstances of this case vis-a-vis the settled position of the law, whether the lower Court was not correct when it held that, the non joinder of the 1st and 2nd respondents breached

the said respondents rights to fair hearing, thereby vitiating the entire proceedings of the trial Court. – Grounds 1,2,4,5 and 6.

(ii) Having regards to the originating processes filed at the trial Court vis-a-vis the uncontested case of the 1st and 2nd respondents before the lower Court, whether the said Court was not right when it held that the appellants’ suit at the trial Court disclosed no cause of action – Grounds 3 and 7.

(iii) Whether the lower Court was not right in granting the respondents leave to appeal against the judgment of the trial Court as interested Parties, Grounds 8 and 9.

The respondents took the said issues they formulated in their brief of argument seriatim. In arguing issues No.1, learned counsel for the respondents gave the following poser – Were allegations made against the 1st and 2nd respondents at the trial Court, mandatorily warranting their joinder as parties thereat They answered the poser in the affirmative. Learned counsel referred to the originating summons filed by the appellants at the trial Court on pages 1-14 of the record, in particular, the supporting affidavit on pages 6-14 of the record. He

contended that what is undeniable from the entirety of the reliefs sought in the originating summons and the depositions in the affidavit is that the primary grouse of the appellants at the trial Court was not against the 3rd and 4th respondents who were made the only defendants at the trial Court, but rather against the 1st and 2nd respondents and the caretaker committee of the respondents led by them. He referred to Paragraphs 29, 34, 35, 36, 39, 40, 41, 42 and 43 of the appellants’ affidavit in support of the originating summons.

Learned counsel contended that vivid from the above paragraphs of the appellants’ affidavit at the trial Court is that, their complaints are against the followings:

(i) The 4th respondent’s caretaker committee whose members were asked to usurp the functions of the PDP NEC/NWC”. But the respondents are the only named members of the Caretaker Committee.

(ii) Some Governors elected on the 4th respondents platform, who in concert with the caretaker committee constituted the PDP National Convention.

(iii) Parallel executive officers set up by persons who did not participate in the State

Congresses in Ekiti, Ondo, Ogun, Osun, Oyo and Lagos States.

(iv) “Illegal South West Zonal Exco

(v) The Persons of Senators Ahmed Makarfi and Ben Obi as the Chairman and Secretary, respectively of the Caretaker Committee.”

Learned counsel again referred to page 1 of the originating summons to show that only the INEC and the PDP were joined as defendants at the trial Court. He contended that it is on the basis of the above said paragraphs of the appellants, affidavit that the reliefs inimical to the interest of the 1st and 2nd respondents and the Caretaker Committee led by them were sought and granted.

He reproduced reliefs 6, 7, 8, 9 & 10 of the originating summons at pages 4-5 of the record. He contended that the entire action was founded to obtain reliefs against the respondents behind their back on the basis of wild allegations made against them. He referred to Section 36 of the 1999 Constitution and contended that it disallowed, forbade and proscribed the trial Court from making the orders it made without hearing the respondents at all. He also referred to the doctrine of fair hearing as canonized into the Latin

maxims of “audi alterem partem” and the case of Akpamgbo Okadigbo Vs. Chidi (No.1) (2015) 10 NWLR (Pt.1466) 171 on the importance of fair hearing.

Learned counsel referred to Paragraphs 8.1-8.7 and 9.1-9.6 on pages 18-20 and 20-24 respectively of the appellants’ brief of argument on the issue of non joinder and contended that the thrust of their arguments is that there is no relief sought in the originating summons directly against the respondents and that the subject matter of the suit concerned matters relating to the States and the Western Zone of the 4th respondent, the 1st and 2nd respondents were not necessary parties to the suit at the trial Co

urt. He contended that by the use of the adverb “directly” the appellants already conceded that the interests of the respondents were indeed affected, but, in their words, not directly.

Learned counsel contended that in none of the cases referred to by the appellants from Yakubu Vs Governor of Kogi State (1995) 8 NWLR (pt.414) 202 to Green Vs. Green (1987) 3 NWLR (Pt.61) 480 was it held that failure to join a party against whom allegations have been made, will not vitiate the proceedings in which

they have not been joined. In none of the cases relied on by the appellants, were frontal allegations made against unjoined parties.

The respondents referred to the paragraphs of the affidavit in support of the originating summons and the contentions of the appellants in their brief of argument and contended that it is the respondents’ case under this issue that a judicial determination and pronouncement of the interest of the respondents in the affairs of the PDP, in their absence, breached their right to fair hearing, Learned counsel submitted that the allegations against the respondents were at the core of the case of the plaintiffs at the trial Court. He referred to page 17 of the judgment on page 588 of the record, where the trial Court granted all the reliefs claimed by the plaintiffs, after, according to the trial Court, considering the facts of the case as stated by the plaintiffs in their affidavit in support. He contended that the import of this is that the trial Court accepted all the averments in the said affidavit including all the allegations against the appellants as giving them entitlement to the reliefs granted, without hearing the

persons against whom allegations have been made. He relied on same Green Vs. Green (supra); Awoniyi Vs. Registered Trustees of AMORC (2000) 10 NWLR (Pt.676) 522 at 533; Okonta Vs. Philips (2010) 18 NWLR (Pt.1225) 320 at 326.

He urged the Court to resolve these issues against the appellants in favour of the respondents in preference over appellants’ arguments canvassed under their issues 1,2,4 and 5 in dismissing this appeal.

On the respondents’ issue No.2 reference is made to the portion of the judgment of the lower Court, against which the appellants have taken exceptions to in their arguments canvassed under their issue No.3, Paragraphs 7.1 to 7.12 at pages 15-18.

Learned counsel referred to the processes filed by the plaintiffs counsel at the trial Court and contended that the appellants and the person/counsel representing the 4th respondent (PDP) in the suit at the trial court were the same. That they had the intention to contrive an action, which would go unopposed to obtain favourable judgment and indeed contrived that action so much so that same was determined unopposed. He submitted that the action at the trial Court is an

indefensible specie of abuse of process, littered with frivolity and nullity and one qualified to be described as a fraud. He submitted that in employing the word “fraud” in the judgment, the lower Court never decided that the appellants were guilty of fraud but that the entire process filed smacked of fraud. In other words, that the word ‘fraud’ was only used by the Court to describe the originating process of the appellants at the trial Court but the same was not an allegation of crime per se against the persons of the appellants. Hence the Court did not proceed to criminally indict any of the appellants for fraud. He urged the Court to disregard the arguments of the appellants on this issue.

Learned counsel referred to the appellants’ submission on the issue of reasonable cause of action in Paragraphs 7.6 to 7.8 on page 17 of their brief of argument and contended that the lower Court’s finding is that there was no proper cause of action as there was no dispute between the parties to the suit.

He referred to Paragraph 7.8 of the appellants’ brief of argument and contended that the lower Court did not hold that the appellants disclosed no

cause of action simpliciter but that they did not have proper cause of action. On the definition and concept of cause of action, he relied on Chevron (Nig) Ltd vs. Lonestar Drilling Nigeria Ltd (2007) 16 NWLR (Pt, 1059) 168 at 178; Bob Manuel Vs Briggs (1995) 7 NWLR (Pt.409) 559 at 576.

He referred to Paragraphs 10,16, 22-28 of the affidavit in support of the originating Summons where the plaintiffs averred that the PDP was in obedience of the judgments of Court and even secured their offices. This makes it clear that there was no cause of action against the named defendants, as against the respondents whom appellants as plaintiffs expressly made averments against that they are in defiance and disobedience of Court orders.

Learned counsel submitted that the originating summons attacked non parties to the suit and yet the trial Court gave judgment without inviting those whose interest were disclosed in the originating summons as affected to state their side of the story. Infact he contended that there was no single allegation of wrong doing in the originating summons against any of the defendants before the trial Court.

He urged the

Court to resolve the issue in favour of the respondents against the appellants.

On their issue N0.3, the respondents contended that it reacts to the arguments of the appellants, canvassed under their issues 6 and 7. While issue 6 contends that the respondents, as appellants at the lower Court, did not obtain extension of time within which to seek leave to appeal, the thrust of issue No. 7 is that even after obtaining leave to appeal, the respondents’ notice of appeal should have been filed at the trial Court and not the lower Court. Learned counsel for the respondents submitted that, assuming without conceding that the appellants’ contentions were right, having failed to raise same at the lower Court, the appellants are deemed to have waived their right to object. The objections were not raised timeously and promptly. He relied on Ndayako vs. Dantoro (2004) 13 NWLR (Pt.889) 187 at 219; Ibeanu Vs Ogbeide (1994) 7 NWLR (Pt.359) 697 at 716. And on Re: Madaki (1996) 7 NWLR (Pt.459) 153 as authority for the principle that time does not run against a party seeking leave to appeal as an interested party. He submitted that the respondents herein

merely sought extension of time to seek leave ex abundante cautela. He also relied on Lawrence Chukwuma O. Williams Vs. Greg Mokwe & Anor (2005) 14 NWLR (Pt.945) 249 a 259. He urged the Court to disregard the appellants’ argument on this issue.

On the argument canvassed under issue No.7 of the appellants’ brief of argument that the notice of appeal before the lower Court was wrongly filed at the lower Court instead of the trial Court, learned counsel referred to Odom vs. PDP (2015) 6 NWLR (Pt. 1456) 527 to submit that the registry at which a notice of appeal is filed, whether at the lower Court or appellate Court does not matter. In other words, once a notice of appeal is filed at the lower Court or appellate Court, the appellate Court would properly assume jurisdiction over the appeal.

Learned counsel further submitted that it is the law that upon the compilation and transmission of record of appeal, a lower trial Court completely loses jurisdiction while the appellate Court becomes seised of all jurisdiction. He relied on Order 4 Rule 10 of the Court of Appeal Rules, 2011 and now 2016 Court of Appeal rules.

Learned counsel further

relied on Order 20 Rule 5(1) of the 2011 Court of Appeal Rules, same as that of 2016 Rules, to submit that an appeal will not be struck out for non compliance with the Rules or any other irregularity, unless the objection to the procedure is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

Learned counsel contended that after the grant of the orders regularizing the filing of the respondents’ notice of appeal, at the lower Court on 10/11/2016, the appellants, then the respondents filed their brief of argument, which the appellants reacted to vide two briefs of argument dated November 16, 2016 and November 17, 2016 respectively. He submitted that at no point at the lower Court did the appellants raise the issue of the purported failure of the respondents to file their notice of appeal to the lower Court before the trial Court. He submitted that on the authority of Order 20 Rule 5(1) of the Court of Appeal Rules, having taken fresh step(s) after the appellants’ notice of appeal was deemed by the lower Court as properly filed, appellants are legally barred from raising this

issue before this Court. He submitted further that, in any case, the lower Court deemed the notice of appeal as properly filed and served and there was no appeal against the said order deeming same as properly filed.

He urged the Court to refuse the contention of the appellants under their issues 6 and 7 but rather endorse the arguments put forward by the respondents. He finally submitted that the appeal has no merit and urged the Court to dismiss same in its entirety.

In response to the submissions of the respondents in their brief of argument, learned senior counsel referred to the three issues formulated by the respondents and submitted that they are based on their misunderstanding of the appellants’ case.

He referred to respondents issue No.1 as it grouped together appellants’ grounds 1, 2, 3, 5 and 6 of the appeal as if they were all directed at the issue of non joinder. He contended that a close look at the appellants’ grounds of appeal will show that only grounds 1 and 2 may be combined under their issue one. Ground 4 has nothing to do with joinder. Rather, it is an attack on the decision of the lower Court that the reliefs

sought by the appellants were not available to them.

On the other hand, grounds 5 and 6 are complaints that the lower Court denied the appellants fair hearing by not considering the case they made against the appeal. He submitted that the respondents issue one has appropriated, under its cover a combination of unrelated grounds.

On the respondents’ issue two, learned senior counsel contended that ground 3 has nothing to do with cause of action but rather attacked the finding of fraud made by the lower Court. He submitted that the said issue two has combined together unrelated grounds of appeal which should vitiate the issue.

Learned senior counsel, on issue 3 of the respondents, referred to grounds 8 and 9 of the appellants and contended that they raise complaints that the lower Court had no jurisdiction to entertain the respondents’ appeal which led to this appeal. But, that the respondents in their issue 3 give an impression that the lower Court was not right in granting the respondents leave to appeal. He submitted that the issue is a gross misunderstanding of the appellants’ grounds 8 and 9.

Learned senior counsel submitted

further that it is settled law that issues must be formulated within the parameters of the complaint in a ground of appeal. A respondent has no right to formulate issues outside the grounds of appeal. He submitted that issues which are not related to the grounds of appeal are not proper issues and they must be struck out along with the arguments based on them. He relied on Ezukwu vs. Ukachukwu (2004) 17 NWLR (Pt.902) 227 at 245. Ossai Vs. Wakwah (2006) 4 NWLR (Pt.969) 208 at 244 Oniah Vs. Onvia (1989) 1 NWLR (Pt.99) 544 at 527; Ugo Vs. Obiekwe (1989) NWLR (Pt.99) 566 at 580; Kala Vs. Potiskum (1998) 3 NWLR (Pt.540) 1 at 10. He submitted that it is not for the Court to embark on any surgical operation to save any of the issues. They must all be struck out.

Learned senior counsel later argued in details and extensively in response to the respondents’ arguments of their three issues formulated and finally urged the Court to allow this appeal.

As earlier stated, the action that culminated into this appeal was commenced by an originating summons filed at the Federal High court, Abuja. This matter was between the appellants, as plaintiffs, and the

3rd & 4th respondents as the only defendants, as 1st and 2nd defendants, to the action. The appellants obtained judgment which led to the appeal by the 1st & 2nd respondents to the Court below on various grounds, including non joinder and denial of fair hearing by the trial Court.

I have gone through the issues formulated by the appellants in their brief of argument, settled by Chief Akin Olujinmi, SAN and the ones distilled by the respondents in their brief of argument. Both claimed to have formulated their respective issues for determination of the appeal from the nine (9) Grounds of appeal contained in the amended Notice of Appeal filed by the appellants.

On the issues formulated by the respondents which is differently couched from the issues formulated by the appellants, the law is very clear and trite, that a respondent to an appeal cannot formulate an issue or issues completely different from the issues formulated by the appellant from the grounds of appeal filed by the appellant, unless such a respondent has a cross appeal or has filed a respondent notice to the appellant’s appeal. However, where the issue or issues formulated by

the respondent is related and formulated from the grounds of appeal filed by the appellant, such issue can be considered by the Court. But where the respondents’ issues are radically different and cannot be linked to any of the grounds of appeal filed by the appellants, such issue shall be discountenanced as the respondent has no business formulating issues different from that formulated by the appellant, where there is no cross appeal or respondent’s notice. See; Ezeanah Vs. Mahmoud I. Atta (2004) 7 NWLR (Pt.873) 468; Eke Vs Ogbonda (2006) 18 NWLR (Pt.1012) 506; (2006) LPELR -1075 (SC); Ezekwu Vs Ezekwu (1989) 2 NWLR (Pt.104) 373.

However, I have considered the issues formulated by the appellants for the determination of this appeal from their nine grounds of appeal, but I believe that it could be better couched since the essence of the formulation of issues is to narrow the relevant issues in dispute within a few issues formulated.

It is already firmly settled that a Court can and is entitled to reformulate or recouch issue or issues formulated by a party or parties for the purpose of precision and clarity. See; Unity Bank Plc vs. Edward

Bouari (2008) 7 NWLR (Pt.1086) 372; (2008) SCM 193; (2008) 2-3 SC (Pt.11) 1; (2008) LPELR – 3411 (SC). I shall therefore for the purpose of narrowing down the issue(s) in controversy in the interest of accuracy and brevity reformulate the following issues from the grounds of appeal filed by the appellants.

Issues for Determination:

Whether having regard to the claims of the appellants before the trial Court, the 1st and 2nd respondents were necessary parties, who required to be joined to the suit, the failure of which denied them of fair hearing, justifying the setting aside of the judgment of the trial Court by the Court below. (Grounds 1, 2, 5 and 6 of the amended Grounds of Appeal).
Whether the lower Court had jurisdiction to entertain the respondents’ appeal when they failed to obtain an order for extension of time to seek leave to appeal, which rendered their notice of appeal invariably invalid. (Grounds 7, 8 and 9 of the Amended Grounds of Appeal).
Whether on a proper consideration of the case made by the 1st and 2nd respondents in the lower Court, the Court was right in its finding of fraud against the appellants

and that they had no proper cause of action. (Ground 3 of the Amended Ground of Appeal).

Whether in the light of the materials on record, the lower Court was right in holding that the reliefs sought in this action were beyond the plaintiffs.

(Ground 4 of the Amended Ground of Appeal).

Issue No. 1:

Whether having regard to the claims of the appellants before the trial Court, the 1st and 2nd respondents were necessary parties, who required to be joined to the suit, the failure of which denied them of fair hearing, justifying the setting aside of the judgment of the trial Court by the Court below.

As I stated earlier, the action which was instituted by the appellants at the trial Court was commenced by originating summons against the 3rd and 4th respondents in this appeal as the only 1st and 2nd defendants. In support of the said originating summons was an affidavit of forty six (46) paragraphs with several annexures as Exhibits.

The appellants contended that they had nothing against the 1st and 2nd respondents hence they did not join them as co-defendants at the trial Court. But the 1st and 2nd respondents felt that

there were allegations made against them in the originating summons warranting their joinder as parties. This made the respondents to have appealed as interested parties against the judgment of the trial Court in favour of the appellants, which judgment affected their interests.

The appellants at the Court below, (now respondents herein) had contended that the primary grouse of the plaintiffs (now appellants) at the trial Court was not against the 3rd and 4th respondents who were made the only defendants at the trial Court, but rather against the 1st and 2nd respondents and the caretaker committee of the 4th respondent led by them. In support of their case, the respondents relied on the following paragraphs of the affidavit in support of the originating summons: Paragraphs 29, 34, 35, 36, 39, 40, 41, 42 and 43.

“29 That after the postponement of the convention some governors elected on the platform of the party decided nevertheless to gather together at the government house in port Harcourt and ascribed to the motley meeting they convened, the nomenclature of National Convention and there in defiance of the orders and judgment of

the various Courts mentioned above purported to remove all the officers in the PDP National Executive Committee/National Working Committee (NEC/NWC) and to replace them with a contraption they named Caretaker Committee whose members were asked to usurp the functions of the PDP NEC/NWC

34: That I therefore verily believe that the so called “National Convention” convened by some Governors elected on the platform of the PDP and the “Caretaker Committee” constituted are illegal and will be rejected by the 1st defendant not withstanding an exparte order of this honourable Court made on the 23rd May, 2016 in Suit No. FHC/PH/CS/524/2016.

35: That the Caretaker Committee under the Chairmanship of Senator Ahmed Makarfi was mandated to hold office for a period of 90 days within which a new election would be held to elect the party’s officers.

36: That the subsequent actions of the Caretaker Committee however show that it intends to continue in its illegality and has no intention of conducting any election for the purpose of electing national officers of the party.

39: That the Caretaker Committee in continuation of

their illegality if now attempting to disrupt some of the legitimate structures of the party across the country especially in South West in order to satisfy some Governors elected on the platform by the party who were instrumental to their emergence as Caretaker Committee.

40: The Caretaker Committee have (sic) thus concluded plans to recognize the parallel executive officers set up by persons who did not participate in the State Congresses conducted on the 10th of May, 2016 in Ekiti, Ondo, Ogun, Osun, Oyo and Lagos States notwithstanding the aforesaid orders of this Court and the express recognition of the authentic State Exco by the National Working Committee of the party as aforesaid.

41: That the Caretaker Committee has also resolved to accept and recognize the illegal South West Zonal Exco that was set up by some members of the party in defiance of the orders of this Court in Suit No: FHC/L/CS/605/2016 whose illegal election has been nullified by the order of this Court on the 17th of May, 2016 and completely ignored the legitimate South West Zonal Exco which has been duly recognized by the party.

42: That the above is in line with what the

Caretaker Committee did in Adamawa State where they initially recognized an illegal Executive Committee before being prevailed upon to reverse that decision. A copy of a letter dated 31st of May, 2018 issued under the hand of Senator Mohammed Makarfi and Ben Obi, the Chairman and Secretary respectively of the Caretaker Committee is attached and marked Exhibit 4816.

43: That I verily believe that the Caretaker Committee has no right to disrupt the legitimate structures of the party or to nullify actions which have been taken by the National Working Committee of the party in legitimate exercise of its functions under the Constitution of the PDP by ignoring the authentic and recognized State Excos that emerged from Congresses conducted in accordance with the guidelines issued by the party that have been recognized by the Congresses conducted in accordance with the guidlines issued by the party that have been recognized by the NWC”

It is clear on the records that it was on the basis of the above averments in the supporting affidavit of the appellants to the originating summons that the following reliefs sought against the 1st and 2nd respondents and

the caretaker committee led by them were granted by the trial Court. Reliefs 6, 7, 8, 9 and 10 of the originating summons on pages 4-5 of the record read thus:

6.AN ORDER of this honourable Court directing the Defendants to accept and accord exclusive recognition to only the officers of the People Democratic Party that emerged from the State Congresses of the party conducted on the 10th of May, 2016 in Ekiti, Ogun, Ondo, Osun, Oyo and Lagos States (listed in the exhibits attached to the affidavit in support of this originating summons) as the authentic State Executive Committees of the People Democratic Party.

7: AN ORDER of this honourable Court directing the Defendants to accord exclusive recognition to and deal with only the officers of the South West Zonal Congresses of the party held in October, 2014 with their tenure expires in October 2018 as listed in the exhibits attached to the affidavit in support of this originating summons.

8: AN ORDER directing the 1st defendant to deal exclusively with the officers of the 2nd defendant that emerge from the State Congresses of the parties conducted on the 10th of May 2016 in Ekiti,

Ogun, Ondo, Osun Oyo and Lagos States (Listed in the exhibits attached to the affidavit in support of this originating summons) in the conduct of the 2nd defendants events and programmes in their respective States including

(i) The conduct of congresses for the election of their successors;

(ii) Issuing nomination forms for the conduct of party primaries for 2019 general elections to them, acceptance of the completed forms, processing and publication of the list of candidates submitted by them and;

(iii) The use of only the list of candidates of the PDP in the respective States that emerged through primaries conducted by the aforesaid officers for the purposes of the 2019 general elections.

AN ORDER directing the 1st defendant to amend its records to reflect the names of the authentic officers of the State and Zonal Executive Committees of the 2nd defendant in Ekiti, Ogun, Ondo, Osun, Oyo and Lagos States.

10: AN ORDER restraining the 1st defendant from dealing in any way or manner or otherwise according any recognition whatsoever to any person(s) claiming to be officers of the Peoples Democratic Party in Ekiti, Ogun, Ondo, Osun, Oyo

and Lagos States except the authentic officers of the States and Zonal Executive Committees of the party (Listed in exhibits attached to the originating summons) recognized by the 2nd defendant in its letters of 9th, 12th, 13th, 16th, and 18th May, 2016.

There is no doubt that a careful reading of the averments of the appellants in the affidavit in support of the originating summons for the above reliefs, shows that the rights of the 1st and 2nd respondents is affected adversely. The above reliefs were sought and granted by the trial Courts in favour of the appellants behind the respondents. That is, without hearing their own side of the story. This, no doubt, is in breach of the constitutionally guaranteed right to fair hearing.

My Lords, Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides as follows:-

“36 (1) – In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time, by a Court or other tribunal established by law and constituted in such

manner as to secure its independence and impartiality.”

It is clear from the record and in particular, in the affidavit evidence of the appellants in support of their claims in the originating summons that the Caretaker Committee is alleged to have been involved in various illegalities. And that this Caretaker Committee has as its Chairman and Secretary – Senators Ahmed Makarfi and Ben Obi respectively. These persons are ordinarily entitled to be heard before any Court take any decision on the allegations that were raised against them and their committee. They were not made parties in the action instituted by the appellants at the trial Court where the above reliefs were sought and granted. The appellants however believed that they were not necessary parties required to be brought to Court before their claims could be completely determined.

Who then is a necessary party to an action A necessary party in an action has been held to be that person who is not only interested in the subject matter of the proceedings but also who in his absence, the proceedings could not be fairly dealt with. In other words, the question to be settled or determined in

the action between the existing parties must be a question which cannot be properly and fairly settled unless he is a party to the action, instituted by the plaintiff. See; Chief Abusi David Green vs Chief (Dr.) E. T. Dublin Green (1987) NWLR (Pt.61) 4811 (1987) LPELR 1338 (SC); Amon Vs Raphael Truck & Son (1956), 1 WR 357; Chief Rex Kola Olawoye Vs. Engineer Raphael Jimoh & Ors (2013) 13 NWLR (Pt.1371) 362; (2013) 10 SCM 191; (2013) 4 SCNJ 25. In the same vein, a necessary party has been held to be a person whose presence in an action is essential for the effectual and complete determination of the claim before the Court. He is the party in the absence of whom the claim cannot be effectively and completely fairly determined by the Court.See; Oyedeji Akani (Mogaji) Vs. Fabunmi & Anor. In Re: Yesufu Faleki (Mogaji) (1986) 2 SC 431 at 449; (1986) 1 NWLR (Pt.19) 7591; Ige & Ors Vs Farinde & Ors (1994) NWLR (Pt. 354) 42; (1994) 7-8 SCNJ 284.

However, where all the facts before the Court are sufficient for the effectual or complete determination of the claim between the existing parties before the Court, an applicant seeking to be

joined will not be a necessary party and his application will be rightly refused by the Court.But the decision of a Court reached in the absence of an adjudged necessary party will be a nullity and an exercise in futility, not having been given fair hearing in the determination of his right by the Court. Any such decision will be liable to be set aside on appeal.

In the judgment of the Court below, the Court had rightly opined as follows:

“Section 36(1) of the Constitution forbids a Court to make order that affects the interest of a person, without hearing him or giving him opportunity to be heard. The right of fair hearing forms the soul of any judicial decision/order of Court, and where one has not been heard or given opportunity to be heard, the decision is a complete nullity and cannot be enforced against the party, having not been heard

In Akpamgbo-Okadigbo & Ors Vs Chidi & Ors (N0.1) (2015) 3 SCM 141 at 1661 (2015) 10 NWLR (Pt.1466) 171 at 198 this Court, per Onnoghen, JSC (as he then was, now CJN) held as follows:

“Where there is a failure to hear all the necessary parties

to the dispute before a decision is reached, there is a breach of Section 36 (1) of the 1999 Constitution as amended which has the effect of automatically rendering the proceedings in the action and the judgment or ruling resulting therefrom a nullity and void, without any legal effect.”

In the instant matter, having regard to the claims of the appellants as plaintiffs at the trial Court, I am of the firm view that the interests of the respondents were affected, to the effect that the plaintiffs/appellants claims could not have been fairly, effectually and completely determined without them being joined as defendants. In other words, they were necessary parties to the suit instituted by the appellants. The Court below was therefore right to have, on that basis, set aside the judgment of the trial Court. Accordingly, this issue is resolved against the appellants but in favour of the 1st and 2nd respondents.

Issue 2 –

Whether the lower Court had jurisdiction to entertain the respondents’ appeal when they failed to obtain an order for extension of time to seek leave to appeal, which rendered their notice of appeal invariably invalid.

The complaint of the appellants under this issue involves and has to do with the notice of appeal upon which the 1st and 2nd respondents predicated their appeal before the Court below.

The appellants had attacked the respondents notice of appeal which they alleged was filed at the Court below rather than the trial Court as required by the relevant rules of the Court of appeal. It was submitted that that rendered the said Notice of Appeal invalid and that no deeming order of Court can infuse life into a process that is invalid. The appellants contended that the notice of appeal of the 1st and 2nd respondents, as appellants, at the Court below which was not filed at the trial Court was invalid thereby, robbing the Court below of jurisdiction to adjudicate on the appeal and same ought to have been struck out.

Learned senior counsel for the appellants submitted further that in the absence of prior order for leave to appeal, any notice of appeal filed by the appellant is not a valid notice. He relied on Lamai vs Orbih (1980) 5-7 SC 20 at 23. He referred to the notice of appeal of the respondents on pages 1818 to 1826 of

vol.2 of the records filed on 2/11/2016 whereas the order for leave to appeal was only obtained from the lower Court on 10/11/2016. He contended that the notice of appeal which was filed on 2/11/2016 prior to the order granting leave to appeal on 10/11/2016 was therefore invalid. And that the order of the lower Court deeming the notice of appeal as duly filed and served cannot deem the invalidity of the notice of appeal. He submitted that there being no valid notice of appeal to predicate the lower Court’s exercise of jurisdiction to determine the appeal. The appeal was incompetent rendering the decision of the Court also incompetent and a nullity.

There is no doubt that the respondents were not part of the proceedings at the trial Court, hence they sought to appeal as interested parties. By their Motion filed on 7/10/2016, the respondents had, inter alia, sought an order of the Court below extending time for them within which to seek leave to appeal against the judgment of the trial Federal High Court of 29/6/2016 Coram: Abang, J. Thereafter, their Notice of Appeal was filed on 02/11/2016 at the Court below.

Ordinarily an application for leave

to appeal as an interested party has been held not to have time limit. In Re: Madaki (1996) 7 NWLR (Pt.459) 153 this Court, per Uwais, CJN opined that:

“neither the Constitution nor the Court of Appeal Act or the Court of Appeal rules prescribe any period within which an interested party may bring application for leave to appeal”. And once granted leave to appeal, he can now formally file the processes. If already out of time then the trinity prayers as others who were originally part of the proceedings. See; Chief Cyprian Chukwu & Anor Vs. INEC & Ors (2014) 10 NWLR (Pt.1415) 385. In the instant case, there was no need to have asked for extension of time to seek leave to appeal as interested parties.

However, where a party obtains leave to appeal as an interested party he is then required to appeal within the time prescribed by the Court of Appeal Act. But where he fails so to do, for whatever reason will require the making of an application to the Court of Appeal for enlargement of time to appeal as I stated earlier.

In Williams Vs. Mokwe (supra) the appellant who was not a party to the proceedings at the trial Court had

sought leave to appeal as an interested party but filed the Notice of Appeal before leave was granted. This Court opined as follows:

“Where the Court of Appeal granted the leave to appeal and deemed the notice of appeal properly filed, the appeal was regularized which has, of course, retrospective effect.”

My Lords, I have no difficulty in appreciating that the Court below rightly granted the respondents’ leave to appeal as interested parties and their Notice of Appeal earlier filed on 02/11/2016 was properly deemed as duly filed and served. The Notice of Appeal on which the respondents’ appeal at the Court below was predicated was therefore a valid notice and the appeal was competent, to say the least, and I so hold.

Furthermore, on the issue of filing of the Notice of Appeal at the Court below instead of the trial Court, which meant non compliance with the rules of the Court, I am of the firm view that, that should not prevent this Court from ensuring that justice is seen to be manifestly done. The rules of Court are no doubt, meant to be obeyed by all parties concerned and at all times, including the Courts. See; U.T.C Ltd. vs.

Chief Pamotei (1989) 2 NWLR (Pt.103) 244 at 296 where this Court, per Belgore, JSC (as he then was later the CJN) opined as follows:

“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not defeat justice. The rules are therefore aids to the Court. For Court to read Rules in the absolute without recourse to the justice of the cause, to my mind, that will be making the Courts slavish to the Rules. This clearly is not the reasons of the Rules of Courts.”

See also, Olufeagba & Ors Vs. Abdur-Raheem & Ors (2009) 19 NWLR (Pt.1173 384; (2009) 11-12 (Pt.1) SCM 125; (2009) LPELR – 2613 (SC). Where strict compliance will also lead to injustice and unbearable delay, the Court is enjoined to waive strict compliance. In Obadiam Vs. Grae Uyigule & Anor (1986) 3 SC 39 at 40 this Court per Irikefe, CJN opined as follows:-

“However, in the interest of justice and in order to save such time as would have been wasted by striking this appeal out hereby, we have decided to deem this as an application for leave to file the notice and grounds again out of time and

this time before us so that this appeal may be properly pending before us, We have accordingly waived the requirement that the notice be filed in the Court below, that is, at the Court of Appeal. By doing this, we now have a situation where this appeal is now before us.”

In Odom & Ors Vs. PDP & Ors (2015) 2 SCN 209 at 226, this Court, per Dattijo Muhammad, JSC, in considering similar situation of non compliance with the rules in filing the notice of appeal in the Court from where appeal lies, opined thus:

“The filing of this appeal at this Court’s registry instead of the lower Court’s registry should not, by itself alone, make us jettison the cross appellants’ right of appeal. After all, rules of Court have never been the source of the Court’s jurisdiction. This Court will not abandon its jurisdiction because of the cross appellant’s non compliance with the rules which require that appeals be filed at the lower Court. The rules are in place to regulate practice of the Court in the exercise of the jurisdiction the Constitution confers on it.”

However, Order 20 Rule 5 of the 2016 Court of Appeal Rules, formerly of 2011, provides

that, an appeal will not be struck out for non compliance with the Rules or for any other irregularity unless the objection to the procedure is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. In the instant case, I agree with the respondents that both parties had taken fresh steps, in particular, the appellants, after becoming aware of the non compliance with the filing of the notice of appeal at the trial Court. The objection is not being raised promptly and timeously as required.

Furtherstill, it should be noted that this non compliance with the rules did not affect the substantive law in relation to the jurisdiction of the Court. At best, it concerns the procedural law on jurisdiction, hence it can be waived. See; Ndayako vs. Dantoro (2004) 13 NWLR (Pt.889) 187 at 219. Ibeanu vs. Ogbeide (1994) 7 NWLR (Pt.359) 697 at 716.

In the circumstance, this issue is resolved against the appellants but in favour of the respondents. The deeming order of the Court below on the notice of appeal was properly made and renders the notice of appeal which was filed at the Court

below, instead of the trial Court valid.

Now, Issues 3 and 4 are to be taken together. Issue 3 is whether on a proper consideration of the case made by the 1st and 2nd respondents in the lower Court, the Court was right in its finding of fraud against the appellants and that they had no proper cause of action.

From the records I am unable to see any findings by the Court below on fraud against the appellants. I agree entirely therefore with the learned senior counsel for the appellants that there was no allegation of fraud or fraudulent acts by the respondents in their case against the appellants before the Court below. The use of the word ‘fraud’ by the Court below in my view should not be seen or taken as raising any criminal allegation against the appellants.

In the same vein, on whether or not the appellants had cause or proper cause of action against the 3rd and 4th respondents who were the only defendants at the trial Court, a careful reading of the questions put forward in the originating summons and the reliefs sought shows that those questions require answers and the reliefs require to be given consideration by the Court.

Whether or not the answers to the questions will be favourable, is yet another and different issue. But what we have resolved earlier in the first issue is that the claims raised by the appellants cannot be fairly and completely dealt with, without making some necessary parties part of the case.

On the fourth issue whether or not in the light of the materials on record the lower Court was right in holding that the reliefs sought in this action were beyond the plaintiffs, I am afraid, this may not be correct. The Court below at page 2449 on lines 1 to 3 had held as follows:

“We have also stated that the reliefs sought, to be exclusive officers to nominate candidates for election was beyond the plaintiffs.”

There is no doubt that a careful reading and consideration of the questions raised in the originating summons and the reliefs may have led to the Court below to hold differently in that they are entitled to make their claims as they like. But again, what we are saying is that these questions raised and the reliefs claimed cannot be fairly and completely dealt with without the necessary parties that were not made parties. These two

issues 3 and 4 are partly resolved in favour of the appellants.

Before I conclude, I wish to commend the efforts of both counsels in this matter, in particular the learned senior counsel for the appellants. I did not expect anything less. The great industry and diligence put into the briefs are highly commendable.

However, in the final analysis, this appeal fails. It deserves to be dismissed. Accordingly, it is dismissed. The judgment of the lower Court delivered on the 23rd November, 2016 setting aside the judgment of the trial Court delivered on the 29th June, 2016 in the absence of the 1st and 2nd respondents is hereby affirmed. They ought to have been heard or at least given an opportunity to be heard on the various allegations leveled against them by the appellants.

Even though costs ordinarily follow events, I make no order on costs. Appeal dismissed.

SC.130/2017

Prince Biyi Poroye & Ors V. Senator A.m. Makarfi & Ors (2017) LLJR-SC

Prince Biyi Poroye & Ors V. Senator A.m. Makarfi & Ors (2017)

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